Reviewing A Long Appellate Record

An appellate lawyer must review the appellate record before drafting an appellate brief. Reviewing the appellate record from a case arising from a long trial presents special problems. The following discussion shows different lawyers approaches to long-record appeals.

Date sent: Wed, 17 Dec 97

Does anyone have any general thoughts about the best way to review a long trial record?

One possible way is to read it through quickly, almost skimming, to get a general idea of the case. The go through it a second time, taking detailed transcript notes.

Another idea is to read the "ending" -- the closing arguments, the verdict, the post-trial motions -- and then review the record in detail.

I'm sure other people on this list must have other ideas on the subject. Any thoughts?

Date sent: Wed, 17 Dec 97

I take detailed notes from the start, and use post-its to physically mark important pages I know i will want to re-read. The detailed summaries prove invaluable later on when flrshing out arguments. I have used this method on the two most recent cases I have nearly concluded; both records are in excess of 16,000 pages each.

Date sent: Wed, 17 Dec 97

Start at page one. Take lots of detailed notes. Read until the end. Repeat as necessary.

Date sent: Wed, 17 Dec 97

Eery attorney does record review in their own manner, here is mine.

First, I check (and recheck) that the record is complete before starting any review. If it is a video record (unfortunately a more and more common experience) I turn the video on in the background as I check for record completion and during the initial record review. I then start my review by looking at any pre-trial & post-trial motions to get some idea of what the case is about. Once I find myself at least passingly familiar with the case I try to get in touch with the trial attorney(s) & client to find out what they thought might be appealable, so I can review the record with their suggestions in mind. Finally, I look to any notes that might be around on the trial before getting into the serious examination of the record.

After the initial review its note writing after note writing after note writing. As I start writing, I write a very quick and rough statement of the fact so I have some idea of the case if I have to put the appeal down for any reason. Then the legal arguments, then the headers and then the questions presented. Once the rough of the rest of the brief is done I'll send the rough to colleagues (or co-counsel) and return to the facts and spend all the remaining time (save for using the feedback from colleagues) on the facts.

Finally, I should mention as I am putting the actual brief together, if it is video, I play the video in the background, because sometimes my subconscious mind will pick up on something that I normally wouldn't, a tactic I should say that has paid off numerous times.

Date sent: Wed, 17 Dec 97

Any chance the transcript is available on diskette? If so, you can fairly easily do "key word" searches for the parts of the transcript that include the key testimony on the central issues, and can group and copy them into issue categories for your and your client's use and analysis.

Date sent: Wed, 17 Dec 97

I usually read the important, relevant documents from the clerk's transcript first to get the sense of the true issues, then I start at page one of the reporter's transcript and dictate record notes. The text of the record notes, of course, can be word-searched in the computer. Therefore, later, when you are drafting an outline of the brief, you can key in on the testimony you want to emphasize.

Date sent: Wed, 17 Dec 97

1. First read the opening statements and closing arguments to put the testimony in context.

2. Always get the transcripts on disk, so that you can use a search program (I prefer ISYS).

3. Read the transcript with dictaphone in hand, noting each date and volume break, where each witness begins testifying on direct, cross and redirect ,etc., key testimony in brief form, and key objections, rulings, oral motions, etc. If you have the full transcript on disk and a good search engine, you don't need to be as detailed in the summary as you might otherwise be. But I have found that despite full text seaching, I like to have the summary for an overview. And reading the testimony in this fashion helps me find places in the transcript I might want to quote, rather than paraphrase.

Date sent: Wed, 17 Dec 97

I don't think it's possible to generalize. In a jury case, I start with the post-trial motions, then the instructions conference and objections thereto. In a bench trial, I start with the court's decision and the post-trial briefs. Then I review briefly the winning side's evidence to see if any evidence supports the findings. In an appeal from summary judgment, I review the district court's opinion and then the statements of undisputed facts and responses thereto. When I first turn to a transcript, I look for objections made by counsel to evidentiary rulings.

While eventually the entire record should and must get read, the appellate rules on waiver and the extremely limited scope of plain error rule in civil cases (I actually think there is no plain error rule in civil cases in most appellate courts) make reviewing the record for any issue that might possibly have been raised a much less efficient exercise. The standard of review of factual findings also makes in most important to review the winning side's evidence than the losing side's early in the appeal (for purposes of advising the client).

Date sent: Thu, 18 Dec 97

The probation report [in a criminal case] will give you a quick and dirty factual snyopsis. I, a Mac user, use file maker pro--a data base program--to take my notes on a long record case. I set up categories, issues, facts, procedural history that can be added to as I go. Then I take my notes on the computer. When I'm done and print by category, I have an outline of each issue with cites to the record.

Date sent: Thu, 18 Dec 97

In reviewing a long record ("long" may mean something different to each of us) it has been my experience to just start at the beginning and go to the end - taking notes as you go. I believe this is the best method, especially if you have not had any exposure to the case prior to conducting the appeal. I make a special effort to obtain the transcript, if at all possible, on disk for future use when actually doing the record/appendix/etc.

Date sent: Thu, 18 Dec 97

Another thought. One thing that I always do up front is to carefully review all of the minute orders. From this immediate review I often learn that the record is not nearly complete. For example, the vast majority of superior court clerks have simply not learned that transcripts of audio/video tapes must be included in the clerk's transcript on appeal.

Date sent: Thu, 18 Dec 97

I also like to read the transcript through first on an appeal from a trial. It gives me a sense a context, and helps me address the bias of trial counsel: "you weren't there." Moving forward, there are many more passes through to examine errors, preservation of errors, etc. But the first time, I like to try to get a sense of the event as it happened. I guess its a phenomenological approach.

Date sent: Thu, 18 Dec 97

Whatever ones method of reviewing a long trial record, it is important to remember that lurking somewhere in the record there may be a bombshell in black and white writing which did not sound significant to the Judge or either counsel in the spoken language. Thoroughness is a must.

Date sent: Thu, 18 Dec 97

I like to consult with trial counsel to get his or her impressions of areas to consider, recognizing that memory may not always serve. Of course, the weight to give to such impressions depends on my experiences with particular counsel.

Date sent: Fri, 19 Dec 97

I'd like to hear something on this, too, as I have a brief due at the end of the month following a trial with a 2,000+ page transcript, and of course, no one bothered to tell me much about it except that they lost $7 million and want me to get it back. Since damages are, obviously, the big issue (it's a wrongful death case), I started with the hearing on the post-trial motions, which gave me a pretty good idea of where to start. Maybe the best way I've found to handle the transcript is that I've got a junior associate reading it and making a summary for me.

Date sent: Fri, 19 Dec 97

While associates are great for summarizing transcripts, in my opinion there can never be a substitute for reading the entire transcript word for word. Unless you are willing to allow the associate to spot all the potential issues, it looks like an extension request is in the offing.

Date sent: Fri, 19 Dec 97

I prefer the method of reading opening statements and closing arguments first. This tells you right away what the issues in the case are. Then either skim or take detailed notes.

Date sent: Fri, 19 Dec 97

Having someone read it first can be helpful to avoid wasting time, but I have always found that I need to read the whole thing myself. Even with the very long transcripts, there is nothing like reading it yourself. The transcript summary I make as I go along is usually quite detailed (which itself takes a lot of time). However it is very helpful in preparing the brief and preparing for oral argument, which often comes a year or more down the line.

Date sent: Fri, 19 Dec 97

If you're having the associate do all that (necessary) work you do not intend to do, I hope you're giving him/her the [oral] argument as well.

Date sent: Fri, 19 Dec 97

I have spent almost thirty years in the appellate arena, reviewing records ranging from several hundred pages to many thousands of pages. I have done this work both for an appellate court and in private practice. During this period, I have tried a variety of review methods.

Working with what I know to be the full record, I have found that the best way to attain a firm grasp on all of the detail is to begin at page one, as someone else suggested, and read carefully through to the end of the record making copious notes throughout.

It is essential to have the exhibits close at hand so they can be fully reviewed in the context of the testimony or argument and decisions regarding objections as to admissibility.

On one occasion, I requested an associate to assist in the record review process. I never made that mistake again. As appellate attorneys, we see more in a record than other attorneys or paralegals, and firsthand knowledge of the record should be considered an unbreakable rule.

In my notes, which I used to hand write because the pages did not so closely resemble one another, I cross-reference record page numbers and note conflicting testimony. Because significant and often creative thoughts occur to me during this review process, I also put questions and potential arguments in brackets. Since deciding that the word search capability is more valuable than more distinctive pages, I have adopted the practice of inputting my notes directly into my word processing program and have developed little techniques (like bolding the questions and creative thoughts) for helping each of the printed pages to acquire a degree of uniqueness.

It is sometimes difficult to persuade trial lawyers and clients that the large blocks of time devoted to learning the record cold pay huge dividends in the appellate process and are absolutely necessary. However, as we all agree, the only way to effectively brief and argue an appeal is to know exactly what happened. It is a rare appeal in which the value of the legal argument outweighs the necessity of a strong, interesting and persuasive factual presentation. In my work with appellate judges, knowing what happened in the case - the underlying facts and the procedural events in the litigation - was the most important part of the decision-making process.

Date sent: Fri, 19 Dec 97

I too have experience with both short and very long (12,000+ page) records. I nearly always have had a paralegal summarize the reporter's transcript in records over 1000 pages, while I summarize the clerk's record. I then cross-reference for missing hearings, etc. which need to be augmented. However, I ALWAYS end up reading the entire record eventually, cross-checking issues and evidence, eliminating other issues, etc., rereading argument and in limine hearings, and I end up adding many notes to the summary itself. In other words, the summary is just a road map, which keeps me from getting lost on the long trip from cold record to opening brief and beyond.

Date sent: Sat, 20 Dec 97

How I review a long record depends on whether or not I participated in the trial. If I didn't, I just sit down and read through everything, taking detailed notes. Our firm sometimes has legal assistants summarize depositions, etc. for other purposes, but I have found that really the only was I get a feel for the trial is to read the record myself. It takes a tremendous amount of time, but I am better prepared to write the facts and to answer questions at argument.

Date sent: Sat, 20 Dec 97

I want to endorse the practice of having a clerk summarize the transcripts first. If I have a long record to review, I have someone with a high school who can write coherently prepare a witness-by-witness, blow-by-blow summary in WordPerfect. I then work from the summary, on my computer.

Having represented hundreds of appointed appellate clients at $1,500 or less a pop, I found it necessary develop a cost-effective way to proceed. On the other hand, Michigan has a vigorous agency enforcing the appellate advocacy standards and a grievance administrator with a Taliban mentality. I would not adopt a method that would allow me to miss arguable issues.

If an important issue is present in the transcript, it will show up in a reasonably complete summary. After reading summaries and then reading the raw transcripts, I have concluded that an experienced appellate counsel will see the issues reflected in the summary, if not fully fleshed out.

The only bad result I had using this method was when I gave my son an 800-page divorce transcript to summarize. He was 16 or 17 and in high school. He did a great job, but it turned him irretrievable away from law as a career. I thought the case was interesting, even the 200 or so pages of business-valuation testimony of an accountant. He did not agree. I learned then as fact what I had suspected before. Appellate lawyers are lifeless drones.

The above discussion was taken from the Appellate Law Discussion list and edited.

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