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THE GOAL IS TO WIN AT TRIAL AND IF NOT AT TRIAL ON APPEAL…

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THE GOAL IS TO WIN AT TRIAL AND IF NOT AT TRIAL ON APPEAL… Powered By Docstoc
					PRESERVING THE RECORD
     DURING TRIAL

       BY: VERONICA E. BRINSON
            ATTORNEY AT LAW
     401 CHERRY STREET, SUITE 203
        MACON, GEORGIA 31201
         (478) 745-2323: Telephone
          (478) 745-2828: Facsimile
        www.attorney-brinson.com
        attorneybrinson@excite.com
            PRESERVING THE RECORD DURING TRIAL

                   BY: VERONICA E. BRINSON
                       ATTORNEY AT LAW
                 401 CHERRY STREET, SUITE 203
                    MACON, GEORGIA 31201
                     (478) 745-2323: Telephone
                      (478) 745-2828: Facsimile
                    www.attorney-brinson.com
                    attorneybrinson@excite.com

                     TABLE OF CONTENTS

INTRODUCTION…………………………………………………………………i

COMMON MISTAKES OBSERVED FROM THE VIEW OF AN APPELLATE
ATTORNEY…………………………………………………………………….iii-vii

THE PRE-APPEAL CHECK LIST TO HAVE DURING TRIAL …………….vii

FIVE CONSIDERATIONS FOR PRESERVING THE
RECORD DURING TRIAL………………………………………………………viii

OTHER CONSIDERATIONS…………………………………………………..ix

     MOTION FOR NEW TRIAL OR DIRECT APPEAL……………………x

     BASIC STANDARDS OF REVIEW ON APPEAL………………………xi

     HARMLESS AND PLAIN ERROR………………………………………xii

SUMMARY………………………………………………………………………..xiii




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                                           INTRODUCTION

         THE GOAL IS TO PREVAIL AT TRIAL1 AND IF NOT AT TRIAL ON
         APPEAL….BUT YOU MUST HAVE PRESERVED THE RECORD IN
         ANTICIPATION OF REVERSIBLE ERRORS


         The record is the most important aspect of preserving a trial and it is the only

formal and real account of the proceedings at trial. The cardinal rule for appeals is that if

it is not in the record, it does not exist. The record is what the appellate courts will

consider when deciding appellate issues. To ensure the record’s accuracy, it must be

preserved in anticipation of a possible appeal. The appeal courts typically have the cold

record to rely upon, thus, make said record as clear, concise, and accurate as possible. As

for matters not in the record, the appellate courts will typically assume the record before

the trial court supported its decision in the absence of a showing to the contrary.

         The appeal process is not the best place to attempt to perfect the trial record. The

purpose of an appeal is to correct errors below that are warranted by the appropriate

standard. Know the appellate standards for certain issues at trial because the appellate

court will have certain standards to consider in determining the issues on appeal.2

         This paper will cover common mistakes observed from an appellate attorney, tips

for preserving the record at trial, and key matters to consider at trial.

I.       COMMON APPEAL MISTAKES OBSERVED FROM THE VIEW OF AN
         APPELLATE ATTORNEY

     A. FAILURE TO PLAN FOR APPELLATE ISSUES AND OBJECTIONS
        PRIOR TO TRIAL


1
  An appeal is no substitute for attempting to prevail at trial. However, preserving the record is being
proactive if an appeal becomes necessary.
2
  See Georgia Court of Appeals website (www.gaappeals.us) for common standards of review in civil
cases.


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       You know your case and you should know the weaknesses and strengths of your

   opponent case. Anticipate the issues at trial and plan accordingly. Effective appellate

   practice begins prior to the appeal.

       Prepare for potential appeal grounds and errors before the trial. Try the case to

   prevail at trial but don’t forget to preserve your grounds properly for the appeal. Thus,

   one should take a proactive approach to a potential appeal-preserve the record for

   errors. You must give the trial court the opportunity to rule correctly or to correct

   error. Opposing counsel, the court, or jury must have done something to constitute

   reversible error for the purpose of appeal. However, reversible error has to be pointed

   out at the time it occurs at trial so that the appellate courts can clearly see that error

   was committed.

       Again, take a proactive approach to the appeal process. Consider contacting an

appellate attorney for consultation purposes early in the case. Create a section in your

trial notebook for objections and possible appellate issues. Your response to an objection

should be prepared with appropriate citations.

   B. FAILURE TO OBJECT

   When in doubt, object. If one fails to object, generally, one waives the right to bring

the issue on appeal. See Department of Transportation v. Worley , 150 Ga App. 768,

722 (1979).

   For an objection to be valid so that it can be considered on appeal, it must be specific

and timely. Thus, specifically point out how the proposed exhibit or testimony violates

some established rule of evidence or procedure. An objection must precisely inform the

court upon what ground the aggrieved party complains, and a mere general objection




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without pointing out wherein or how the proffered exhibit or testimony violates some

recognized rule of the law of evidence is too general to raise any question for decision by

the trial judge. Thus, the reason for the objection must have been urged below.

   C. FAILURE TO PROVIDE A SUFFICIENT REASON FOR OBJECTIONS
      OR AUTHORITY TO THE COURT

       The Court needs to know the reason for the objection. Prior to trial, review the

rules of evidence and case law pertaining to any issue that may come up during the

course of the trial. Be prepared to cite to case, evidentiary, or procedural authority and to

provide such authority to the Court. A general objection may not be sufficient to preserve

objections on appeal. See Caves v. Columbus Bank & Trust Company, 264 Ga. App. 107

(2003). There are occasions when a general objection may be warranted, for example, in

jury charges.

                1.             TIMELINESS OF OBJECTION

       Generally, objections should be made immediately. An objection to improper

evidence should be made as soon as the ground for an objection becomes apparent.

Generally, an objection should be made after an improper question has been asked but

before it has been answered, if possible.

                2.             REMEDIAL MEASURES

       There are remedial measures that can be taken to clean up prejudicial evidence in

the record. Request these measures of the trial court and object if denied.

*Motion for Mistrial: If prejudicial evidence is before the jury, move for mistrial.

*Motion to Strike: If evidence gets into that record that should not be part of the record,

move for a Motion to Strike.




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*Cautionary Instructions: If the court denies your motion to strike or motion for

mistrial, move for cautionary instructions to be read to the jury. However, let the Court

know if curative instructions are insufficient and object if denied.


          D.     FAILURE TO PRESERVE NONVERBAL COMMUNICATION

          Make sure that nonverbal communication and gestures are described and then

made a part of the record or clarified for record purposes. An affirmative nod of the head

by a witness should be acknowledged on the record as: “You are nodding your head as

to say yes.”


          E.     FAILURE TO ENSURE THE EVIDENCE IS ACTUALLY
                 ADMITTED OR THE RECORD IS COMPLETE

          Make sure any evidence that you attempt to enter at trial is actually tendered and

made a part of the record. Help the Court reporter get it right. Do not hesitate to confer

with the court reporter from time to time.

          Also, request that all part of the trial proceeding is transcribed out of an

abundance of caution. Generally, you cannot allege improper statements in the closing

argument or error in voire dire selection if it cannot be shown in the record; thus, request

that the entire trial proceeding is transcribed. It is the duty of the appellant to include in

the record those items which will enable the appellate court to perform an objective

review. City of Byron v. Betan Wart, 242 Ga. (2000); O.C.G.A. 5-6-41 (c ) and O.C.G.A

5-6-37.

          E.     FAILURE TO PUT FORTH CONSTITUTIONAL ISSUES

          Constitutional issues are of keen interest to the appellate courts. Make sure the

record at trial shows that you have addressed constitutional issues and brought those



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issues up at trial. Creativity in this approach may render a novel issue for the Court.

Presenting interesting constitutional issues may assist with obtaining a request for oral

argument if you so desire.

           G.        FAILURE TO GET A RULING FROM THE COURT

           If you object, make sure the Court issues a ruling. If the Court has not issued a

ruling, politely requests one from the Court. Likewise, if a written order is required for an

issue that may come up on appeal such as contempt, get the Court to issue an order. In

order for the matters raised by means of motions, either oral or written to be properly

considered on appeals, rulings and orders must be obtained prior to the final disposition

of the case. A failure to obtain a ruling will consequently render it unreviewable. See

Neal v. State, 161 Ga. A pp. 77 (1982). When the ruling of the court is ambiguous as to

whether or not the evidence should be admitted or excluded, complaining counsel has the

responsibility to make a goodfaith effort to have it clarified.    For example, “your

honor, is my objection sustained or overruled.” If the court refuses to clearly express

its ruling or even remains silent after counsel has explicitly stated the objection, the

objection will then be deemed to have been denied and will for that reason be subject to

review. See Kines v. State, 67 Ga. App. 314 (1942).

           Make sure that the Court hears your objection in order to get a ruling. If the Court

appears to ignore you, restate your objection or concern.

II. CHECKLIST FOR PRESERVING THE RECORD DURING TRIAL3

A.         KEEP UP WITH EXHIBITS-MAKE SURE THE EXHIBITS ARE PART OF
           THE RECORD. REFER APPROPRIATELY TO YOUR EXHIBITS AT TRIAL.

B.         MAKE SURE EVERYTHING IS ON THE RECORD-EVEN POST-TRIAL
           CONVERSATION AND SIDEBAR DISCUSSIONS.
3
    Incorporate all of the above to include in this checklist.


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C.     IF YOU GO OFF THE RECORD, MAKE SURE YOU REQUEST TO BE PUT
       BACK ON THE RECORD WHEN READY.

D.     GET AN ORDER IF IT IS REQUIRED-GET IT IN WRITING IF IT IS
       NECESSARY FOR AN APPEAL .

E.     MAKE SURE THAT YOU KNOW THE COURT’S AUTHORITY AND
       JURISDICTION (YOU MUST KNOW THE COURT’S JURISDICTION IN
       ORDER TO RECOGNIZE ANY ERRORS RESULTING FROM THE COURT
       ACTING OUTSIDE ITS JURISDICTION)

F.     MAKE SURE THAT ALL TRANSCRIPTS OF THE TRIAL PROCEEDINGS
       ARE FORWARDED TO THE APPELLATE COURT. DON’T SIMPLY LEAVE
       IT UP TO THE TRIAL CLERK OR CHANCE.

G.     BE RESPECTFUL TO THE COURT AT ALL TIMES-ALWAYS KNOW
       THAT YOU ARE ON THE RECORD. BEHAVE ACCORDINGLY.DISAGREE
       WITHOUT BEING DISAGREEABLE OR DISRESPECTFUL.

H.     CORRECT ANY MISSTATEMENT OF THE COURT OR OPPOSING
       COUNSEL IMMEDIATELY.

I.     BALANCE YOUR OBJECTIONS WISELY AS TO NOT IRRITATE THE
       JURY BUT WITHOUT PREJUDICING YOUR CASE.

III.   FIVE BASIC CONSIDERATIONS TO LOOK FOR AT TRIAL TO
       PRESERVE THE RECORD

A.     CONDUCT OF JURORS

B.     REMARKS AND CONDUCT OF COURT\OPPOSING COUNSEL

C.     ERRORS IN RULING ON EVIDENCE

D.     IMPROPER SUBMISSION OF ISSUES TO THE JURY (IS IT A JURY
       QUESTION OR JUDGE QUESTION)

E.     ERRORS IN CHARGE TO THE JURY

IV.    OTHER CONSIDERATIONS

       A.   MOTION FOR NEW TRIAL OR DIRECT APPEAL




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Decide if you want a motion for new trial or a direct appeal. A motion for new trial may

be filed after the trial. See O.C.G.A. Sections 5-5-40 through 5-5-51. A motion for new

trial alleges error at trial for the purpose of correction by the trial court. All motions for

new trial shall be made within 30 days of the entry of the judgment on the verdict. See

O.C.G.A. Section 5-5-40 (a).There are occasions when proceeding with a direct appeal is

more appropriate than filing a motion for new trial. Generally, a motion for new trial is

not a prerequisite to filing a direct appeal. See O.C.G.A. Section 5-6-36. A motion for

new trial will afford more time prior to filing a Notice of Appeal and give the trial court

an opportunity to correct any potential errors or bolster the initial decision. “A notice of

appeal shall be filed within 30 days after entry of the appealable decision or judgment

complained of.” See O.C.G.A. Section 5-6-38. Thus, decide if the trial court is likely to

grant a new trial, if not, you may want to proceed with the direct appeal.

        B.      BASIC STANDARDS OF REVIEW ON APPEAL.

        *Evidentiary ruling. Decision to admit or exclude evidence including relevant

evidence is reviewed for abuse of discretion. Dept of Transp. v. Mendel, 237 Ga. App.

900, 902 (2) (517 SE2d 365) (1999).


        *Denial of motion for mistrial. Reviewed for abuse of discretion. Whitley v.

Gwinnett County, 221 Ga. App. 18, 25 (11) (1996).


        *Denial of motion for directed verdict. On appeal, the standard of review of the

trial court's denial of a motion for directed verdict is the "any evidence" standard. F.A.F.

Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6) (1987).




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       Don’t forget the various standards of review on appeals; thus, during the trial,

frame your objections, responses, and citations to authority as to meet the requirements of

those standards of review.

C.     HARMLESS ERROR v. PLAIN ERROR

       For error to constitute reversible error, it must be harmful and/or prejudicial.

Make sure that in proffering errors to the appellate court, the errors are shown to be

harmful and prejudicial errors. Likewise, certain errors are plain errors. Plain errors are

errors so egregious that they require reversal notwithstanding the lack of an objection.

However, still object to an error that may be plain error because the objection, for sure,

preserve the record as to that error.

                                        SUMMARY

       An appeal is an integral part of the case development including trial. Therefore,

an appeal does not start with the filing of a Notice of Appeal. Anticipation of appellate

issues and preservation of the record should be planned and developed during trial

preparation. Preserving issues at trial maximizes the possibility of having your issues

considered on appeal. The trial record should reflect meaningful objections, citations to

authority, and clearly stated grounds followed by a ruling by the Court or a clear request

to rule and all issues preserved that you brought to the Court’s attention at trial. Thus,

preparation for an appeal is an integral part of preparing for and trying a case.




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