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!