Sheepish or Sarcastic: It all Looks the Same on the Record

Picking up on yesterday’s theme, I have been thinking more about why lawyers don’t make good records on appeal. So, I’m going to take a stab at it, and this stab is applicable to criminal trials only. As far as I know, civil practitioners have their own reasons for not preserving a good record for appeal.

I think that part of the blame goes back to the way criminal defense associations do their CLEs. There’s a steady undercurrent that I’ve noticed in the seminars I’ve been attending that encourages lawyers to engage trial judges in a war. I think for a young lawyer just getting started in the biz, it can make things more intimidating. There’s this sometimes subtle and sometimes not subtle at all theme that real lawyers should find a way to go to jail for their client. I’m not saying that the moment won’t arise where tough choices must be made and that those choices could equal incarceration. I just think that moment may be a once in a lifetime or so occurrence. Otherwise, there’s no need to go seeking it out.

But, you might ask, how do I preserve the record on appeal if I don’t get up in the judge’s face? If you are asking yourself this question, you’ve been listening to some radical criminal defense CLE speakers for too long.

Over time, I’ve noticed something about trial transcripts. I’ve talked to lawyers who tried the cases I’ve read, and they’ve asked me things like, “did you see where I showed that judge who was boss?” “Did you see where the judge screamed at me?” Often, the truthful answer is “no” and “no.” If you scream “objection, leading” at the top of your lungs, or if you whisper it gracefully and lovingly, it looks exactly like this on the page: “objection, leading.”

In fact, there are several other things that don’t make their way onto the page. The list includes mean looks, eye rolling, pointing, tears, and leaping up out of your chair.

At the end of the day, I think this saber-rattling stuff that speakers on record preservation shout is contributing to the problem of bad records. If preserving the record means engaging the judge in a shouting match, then better to just sit here.

Step back, take a deep breath, and reframe. Preserving an issue for appeal is pretty easy, and you can do it and sound like a yoga instructor while you do it. Listen for the objectionable stuff. Stand up. Smile. Put on your most soothing voice and say, “objection, your honor.” state your reasoning. Wait for the response. If the judge waves you off, rolls her eyes, or says “move along, counselor,” just smile again and ask, “I’m sorry, your honor, did you overrule my objection.” Wait for the answer. Then say, quite sheepishly, “may I have a continuing objection to this testimony on the same grounds already stated?”

Judges get it wrong sometimes, and it can be frustrating. And a fact of life for defense counsel is that you are going to lose most of your objections. The judge is not going to grant your mistrial motion. He won’t give your request to charge, particularly if the State is opposed to it.

When those moments come, channel your inner Columbo.

Ever notice that the umpire never changes his call, no matter how much the manager gets in his face, spits on him, or screams creative combinations of obscenities? Ever notice how many managers get thrown out of the game? Where does this analogy break down? The manager who’s thrown out of the game gets to hang out in the clubhouse, which is a pretty cush place.

Take the pressure off of yourself. You don’t need to go to jail. You just have to say a few words loudly enough for the court reporter to hear them.

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