In the past two days, I had two Briefs due at the Supreme Court of Georgia. Both were murder cases. Yet, I was able to complete them both with very little stress.When it came time to apply the law to the facts. I was able to find the exact facts that I needed. It would not have come together so well without a transcript summary.
Why do a transcript summary? Think about your last appellate record. About 80 percent of it consisted of useless forms. Even the transcript is made up of a bunch of meaningless dialogue with pages of riveting stuff like the judge giving the jurors a bathroom break and and telling them when to return. Witnesses weren’t called in any particular order that makes sense. Witnesses were sometimes called at a time most convenient to them and not in the best narrative arrangement (That’s what openings and closings were all about) It’s hard to craft a compelling narrative from raw trial transcripts. And you can always tell the briefs that were written by lawyers who did not prepare a transcript summary and those who probably did.
You’ve read those briefs right? You know them by the way the statement of facts is drafted. Have you ever read this brief:
The State’s first witness was Officer Smith. Officer Smith testified that he pulled Joe Defendant over because he was weaving within a single lane of traffic. He pulled Joe Defendant over. As he approached Mr. Defendant, he smelled marijuana in the car. The State’s next witness was Bob Doghandler. Officer Doghandler was a certified canine officer. He took his dog, Cujo, and had him conduct a free-air sniff around the car. Cujo alerted on the rear quarter panel. The officer testified that he opened the trunk and found a suspected controlled substance inside. The next witness the State called was Dr. DrugTest. Dr. DrugTest is a forensic biologist. He works at the crime lab. He tested the item and it was positive for cocaine.
If you’re writing statements of fact like this, it’s because you either don’t know any better, or it’s because you didn’t have time to learn the record, and you’re going through the paces regurgitating things from the record in a summary fashion and the brief is due in a few hours.
Transcript summaries allow you to distill the record down to its purest form.
By writing a transcript summary, you digest the record down to what is essential. In so doing, you can leave those ten volumes behind and carry around a thirty page transcript summary. When it comes time to write the brief, you aren’t shifting from volume to volume to find the most important parts of the record. You’re flipping through the transcript summary. When you’re in court, if asked a question, you can find the answer more quickly. The lawyers who cart in crates full of the file to oral argument always make me smile, particularly if they are opposing counsel.
It’s a learning experience.
Appellate lawyers are late to the game. The client has been thinking about her case. Trial counsel and the prosecutor have lived with the case longer than you have. The act of reading the transcript and summarizing it will get you up to speed. And you’ll be the master of the record. Your opposing counsel will likely not draw up a transcript summary. So, you’ll quickly have the advantage over her.
In fact, knowing the record is different from remembering what was in the discovery or what some witness said in an interview. On appeal, mastery of the record trumps knowledge of the case, its players, and what the witnesses were like. The reason: none of that stuff matters anymore. And it’s often difficult to distinguish in your memory between a fact you know to be the case and a fact that actually got into your record.
It makes a difference
I haven’t always done transcript summaries. The cases where I didn’t do them are growing into the distant past. Unfortunately, much time often passes between critical stage in the proceedings. Months and sometimes longer pass between when I worked heavily in a file at the motion for new trial stage and when I work heavily on it again at to write the brief of appellant. I literally high five the people around me when I pick up a file with a transcript summary in it. The difference between doing a transcript summary in a case and not doing one is as big as the difference between not reading the transcript at all and reading the transcript.
So, how do you write a transcript summary?
Transcript summaries are taylor made for dictation. You simply get your transcript or load up the pdf version or e transcript into you Kindle, iPad or computer. Then you can begin to read through and dictate the material things from the transcript. What you do can vary by style.
Of course you can type it up, too. But it can be nice to sit outside in your back yard with a little coffee, a digital recorder and your transcript and dictate a transcript summary
What do they look like?
It depends on your style. I like to put a column on the left side for page numbers and a column on the right side for content. I put chapter headings for each witness and subheadings for cross-examination, redirect. I generally bold face type out objections and rulings, or exhibit numbers. I also put in chapter headings for voir dire or things in jury instructions that stand out. Your goal is to create a free-standing reference that you can use in place of the transcript to discuss your case at argument, use as a reference for client meetings, or use as a reference during oral argument or during examination of witnesses at the motion for new trial hearing.
Seriously, making a transcript summary on my cases has made the biggest difference of anything that I do on my appellate practice. It will transform yours too.