Tuesday, October 25, 2011

Rant of the day

You know how to make an appellate defender's head explode? Mention that there's a pending motion on the central evidentiary issue to the case that needs to be taken up right now and then go off the record to discuss it! And never again mention that motion for the rest of the trial!


Do you see what the problem is for me? If I don't have a recorded argument, I don't have an appellate issue. I have no idea what the arguments were, what specific points of testimony were at issue, and what the court's ruling was. It is absolutely infuriating.

There is no excuse for not having a record of every single thing that is said in court. Every. Single. Word. Here is what my rule would be: If the judge is involved in a conversation, it needs to be recorded. I don't care if it's just a scheduling matter. Those scheduling issues can matter quite a bit. I once had an issue where I very much wanted to know why it was that the particular witness wasn't called because I very possibly could have had an issue if it had been handled one specific way, but because a year later, the parties involved couldn't remember exactly how it went, I couldn't do anything about it.

I also don't care if you think you can have the conversation in chambers off the record and then come back and make the record later. The record made later is never adequate as far as I'm concerned. It's never in the level of detail that the real argument was. Given that a defendant's argument can be procedurally defaulted if the trial level argument didn't include the key word or phrase, it's really troubling for the appellate attorney to get only a recap of the argument rather than the full thing.

So record everything. EVERYTHING! Or my exploded brain matter might just get all over you.

And on a slightly related, but not really, side note: Can we please, please, please abandon the system that allows a court reporter to consider my client's trial record to be his/her intellectual property? It offends me to the core of my being. And paying court reporters by the number of pages they produce is a bad system that needs to go. My most recent transcript was done by a CR who made every sentence its own paragraph.

This made the transcript much longer.
So he could get paid more.
Since he gets paid by the page.
Oh, and it's really tough to read.

It's a good thing I had pumpkin beer and apple cobbler at home this evening, because by the end of the day, I was pretty darn aggravated.


SaucyVixen said...

The first sentence of this post made me laugh out loud. (I work post-conviction.)

S said...

Ah, then you know how those mysterious gaps in the record can frustrate the attorney who comes after the trial attorney.

Anonymous said...

I know!! (I am also an appellate defender, in a different state. Though my hubby is from Kansas and is an avid KU fan.)

S said...

Tell your hubby I said Rock Chalk!

A Teacher said...

I have to admit I never quite "got" all the off the record talking during crime dramas. Seems like all of that would be relevant later....

A Voice of Sanity said...

Didn't the SCOTUS rule on this? That costs must be reasonable, not exploitative?

Or are courts ignoring it?

Blog Designed by : NW Designs