I’ve been lucky to stay busy during the COVID-19 pandemic and one reason I’ve been able to stay busy is a significant appellate practice. Thus, since mid-March, I have been working on four initial briefs of appellant, two from my own trials and two from other attorneys’ trials. I see three obvious lessens from pouring over trial transcripts and exhibits and talking to these appellants.
Lesson one: Make sure adverse witnesses–especially the opposing party–actually answers your yes/no questions
In the heat of cross-examination, argumentative or self-serving answers to yes/no questions often cause trial attorneys to go on to the next question–especially if the answer to the question helps one’s own client. However that yes/no question still didn’t get answered. When appellate counsel or an appellate judge is later reading the trial transcript, they may be able to infer the answer wouldn’t be favorable to that witness or party. But they will not actually know the answer.
The problem is that the trial judge is observing the evasive witness’ demeanor and is likely drawing helpful (to one’s client) inferences from this evasiveness. However, while a witness’ evasiveness is observable in the courtroom, it is less apparent on the printed page. It may seem pointless to demand an answer to a yes/no question when the evasive response is already helpful. The trial judge already “understands.” Asking for an explicit answer will appear to that judge as belaboring the point.
By the time one has asked the judge the fifth or so time to ask the witness to answer the yes/no question with either a“yes” or a “no,” one will likely be trying that judge’s patience. Thus, no trial attorney is immune to the temptation of moving on after the umpteenth evasive answer. Even reading my own cross-examination transcripts shocks me with the numbers of times I’ve allowed an evasive answer to suffice because of the sheer difficulty in forcing a non-evasive answer from the witness.
Yet, when it’s time to put together a factual argument for appeal, a failure to get an actual answer to these yes/no questions will make that argument more difficult. An evasive answer may establish some useful fact but it won’t establish the useful fact trial counsel asked about. No matter how “obnoxious” trial counsel may appear in demanding an actual answer to his or her yes/no questions, that attorney greatly assists appellate counsel in doing so.
Lesson two: Even if a fact appears uncontroverted, ask it of both parties (or at least of the other’s side’s witnesses)
This lesson builds on the lesson above. In appeals from family court the appellate court is entitled to make its own factual determinations. However, the appellate court will give great deference to the family court’s credibility determinations. Merely because a fact is uncontroverted does not mean the factfinder has to accept it. The appellate court, encountering the uncontroverted testimony of the appellant, may discount it simply because it believes the family court did not find this testimony credible. This is especially true if the family court made explicit factual findings against the appellant’s credibility.
In contrast, when both parties testify to the same fact, it would be shocking if the appellate court did not consider that fact conclusively established. Even if one can only corroborate a fact through the other side’s witnesses, that fact is likely to be considered conclusively established so long as the opposing party does not explicitly dispute it.
Too often, trial attorneys fail to establish important facts through the opposing party’s testimony because their own client has or will testify on that fact. However, failing to get the other side to corroborate this fact is to assume that the court (both the family and appellate) will find one’s client credible. Even for uncontroverted facts, that is never a safe assumption.
Trial counsel can assist appellate counsel by getting the opposing party to corroborate every helpful fact that the other side will corroborate. Often this requires getting “yes” or “no” answers to yes/no questions, which should highlight the importance of lesson one above.
Lesson three: Make sure what you think is part of the trial record is actually part of the trial record
A few years ago I lectured on preparing for family trials and my lecture materials were an outline. Within that outline is a segment, item 4(g), that I suggest doing well over a month before trial: “Begin thinking about testimony outline for client and opposing party.” If it appears I am really into outlines–I am–it is because outlines insure you get the work done properly. Outlining the testimony and facts one hopes to establish through each witness–especially the client and opposing party–insures that all significant and material facts are established at trial. The reason I began preparing this outline weeks before trial, and frequently update and review it with my client, is to minimize the chance that my client and I fail to ask questions or introduce evidence that establishes helpful facts.
In almost every appeal I have ever handled the appellant will want me to make a factual argument that I cannot make because the facts to make it are not in the trial transcript or exhibits. Often these clients will be absolutely certain that evidence or testimony was presented to the trial court. Even after I challenge them to locate these “facts” in the trial transcript and exhibits, and they discover they cannot, they still often insist the facts are there somewhere. It’s a frustrating experience for both of us. And, if it’s a substantial fact that failed to make it into the trial record, the client will perceive his or her trial counsel as failing.
As a favor to all appellate attorneys, trial counsel should do the necessary preparation to insure all important facts become part of the trial record.
As is apparent from these three lessons, trying a case with a potential appeal in mind requires more testimony (and therefore more time) than trying a case when one simply doesn’t consider appeal. But following the lessons above will greatly assist potential appellate counsel in uncovering and establishing the necessary err for a successful appeal.
