PBCBA BAR BULLETINS pbcba_bulletin_May 2019 | Page 8

APPELLATE P r a c t i c e C o r n e r
“Put THAT Over THERE”
Beware the Nondescriptive Description
TERRY RESK
“I was as far from her as I am from you”
“He jumped the fence that was ‘this’ high”
“The distance between us was no wider
than ‘that’”

These phrases are easily understood when
you are looking at the speaker while he or
she is gesturing. They are, however, less
meaningful when you are looking at words
on paper – for example, on a transcript.
Many things which are patently obvious
in context are almost incomprehensible
otherwise. It is, therefore, critical, when
creating a record, to have the mindset of
someone unfamiliar with the facts who is
reading the transcript a year later. The fact
that this is obvious does not mean that it
is easy. We are trained early on to instruct
the witness to answer verbally, but nods of
the head and “uh-huhs” are not the only
impediments to later basing an argument
on what was actually communicated.
Consider a witness, while explaining
positions or movements from a map,
testifying that, “I started here, then I went
this way and turned right there and ended
up facing her, though she was looking that
way.” Not only does the reader not know
where the deponent started or stopped, but
doesn’t know if the witness turned “right”
– as opposed to left – “or right there”–
meaning at a specific spot or location.
Take a deep breath, bring out the colored
markers, and instruct the witness to
“place a ‘1’ where he started, draw his path,
put a ‘2’ where he stopped, and an arrow
toward the way that he was facing,” then
use a different color to designate the other
person and the way that she was facing.
After he is done, have him confirm the
accuracy of his artwork.
Similarly, if witnesses show you visually
how high, wide or far something was,
make them convert their gestures into
words. If they can tell you that they were
standing as far away as “that wall,” but
are reluctant to estimate how far that is
in feet, estimate yourself and have them
confirm the accuracy of what you have
said. If they mention a “short” person, have
them provide their definition of “short” with
actual measurements.

The use of numbers doesn’t always clarify
things, however. Did the witness mean “52,”
or “50 also?” Did she move $83.20 or $8,320
from account ending 5290? Or maybe it
was $80,320 or $83,020 from account ending
50290?

Confusion can also be created when
referring to exhibits. “I signed this one
before that one,” or “this one is more
accurate than the one on top.” Pointing at
the time may make it clear to those who are
looking at the witness and can see which
exhibit is “on top,” but will be useless even
a day later. Make the witness specify all
exhibit numbers when referring to them.

Perhaps less obvious until you are writing
the brief are consecutive words in which the
last letter of the first word is the same as the
first letter of the following word, especially
when plurals are involved. When you are
in the midst of your argument that the
defendant was the only one driving at break
neck speed, it may be too late to realize that
the transcript indicates that “the cars sped
past me,” instead of “the car sped past me.”

Pronouns can also create ambiguity.
Whether reading or listening, it can be
difficult to follow, “she told her that she
wished she hadn’t done that.” Does the
speaker wish that she, herself, had not done
“that,” or does she wish that the listener had
not done “that” (and while we are at it, what,
exactly, was “that”)?

Other things to remember which are not
as obvious include the need to clearly
speak letters.
Consider those 14-digit
confirmation ‘numbers’ you are given when
the telemarketers tell you “M” as in “Mary,
“N” as in “Nancy.” They have undoubtedly
learned the hard way that “M” and “N” are
easily confused, as are “B” and “D” and “F and
“S.” If an acronym or initial are important
enough to say, they are probably important
enough to get right.

PALMBEACHBAR.ORG
8
There are countless sources of confusion in
the English language; these are multiplied
exponentially
when
testimony
is
transcribed and read a year later by a panel
of judges who are reviewing the record in
a vacuum.

We sometimes walk a fine line between
being thorough in establishing a clear
record and alienating a witness or jury, so
such precision is not always warranted.
If distance is not critical, don’t pull out
the tape measure. If the route someone
took is only incidental, leave the markers
in your briefcase. For any issue which is
important, however, listen to the answer as
if you cannot see the witness, and do not
hesitate to clarify the testimony. There are
any number of ways to do so; the first step
is just to be alert to the need.
*Some examples inspired by “Tips for
Making a Better Record,” Florida Court
Reporter’s
Association,
https://www.
fcraonline.org/tips-for-making-a-better-
record.
A Monthly Review of Newly
Issued Appellate Opinions
Friday, June 14th, 2019
4:00 PM - 5:00 PM
Palm Beach Bar Association
1507 Belvedere Road
West Palm Beach, FL
Register Today!