EP 801- Preserving the Record for Appeal

Episode Notes

Transcript

Speaker 1:

Welcome to Heels in the Courtroom, a podcast about successfully navigating law and life featuring the women trial attorneys at the Simon Law Firm.

Erica Slater:

Hey everyone, and welcome back to another episode of Heels in the Courtroom. This is Erica Slater, and today I am joined by Amy Gunn and Elizabeth McNulty. Hey ladies, how are you? Hello. Hi. So today Amy and I were in the kitchen before recording this episode today, and we started discussing a recent appeal that we had this past year from a case that Amy and I tried together two years ago. And although we were successful on our appeal, there were some good lessons to be learned from the opinion. There’s basically three areas in the appeal, and quite honestly we won and we’re getting a new trial. But on the other two, the court had things to say to us about how we preserve the record. And the good thing is they were minor points. And on the one, well, I’ll explain the whole story, but on the one the court was like, we don’t think you preserved the record, but we’re going to give you our ruling anyway because you’re going to have this question on the retrial.

So today we want to kind of walk you through some of the lessons we’ve learned about appeals and most importantly, what to do. Your appellate record really starts probably when you file the case, but if we’re being focused, obviously watching out about all your appellate issues is starting with your pretrial and how that whole record gets made leading up to the actual trial. So in our recent appeal, there was a specific issue in Missouri about how evidence of medical bills is entered and the law changed on that within the last couple years. And then there was an appellate decision discussing the application of that law. And it kind of got complicated regarding when your case was filed in relation to when the law changed and all of that. And so we were trying this medical malpractice case, the application of the new law potentially applied and we would want to argue that it didn’t apply and that we got to take advantage of the old iteration of the statute.

And in front of this particular judge, we had heard the way he ruled on this issue because another attorney at firm that we worked closely with had tried a medical malpractice case in front of this judge about four weeks before us. And then Amy and Liz tried the next medical malpractice case in front of that judge about two or three weeks before our case. And then Amy jumped right back into trial with me in this medical malpractice case all in front of the same judge. So as you can imagine when asking the judge to rule on this issue, we were beating a dead horse When we went back and looked at the record, it’s pretty hilarious because we’re just falling over ourselves to say, we know how you rule on this judge, we know, but here’s our request for the record. It’s just for the record.

It’s just for the record. And you can tell by the way that we spoke on the record of this issue that there were a lot of off the record discussions. And I recall talking to the judge about this where it’s kind of like, yeah, I know this group of attorneys knows where I fall on this. So it was a minor issue that we included in the appeal, but nonetheless part of the appeal. And so when I filed our initial appeal, it was a defense verdict initially from the trial I included this issue and I briefed it thinking we’re good, we have everything filed. It was a motion in limine, we mentioned it on the record and we’re good to go here. And in the response from the defense Counsel, they blew up. They didn’t preserve the record, there’s nothing they can do. And I was kind of like, now wait a minute, that hurts a little bit.

So I went back and reread our 20,000 page transcript from a two week trial or whatever it ended up being and realized that we didn’t. They were right. We didn’t perfectly preserve the record. We needed to make the objection on the record, our motion in limine, of course, as we’ve all heard, but I’ve probably learned the lesson before, our motion in limine preserved nothing. And so I had to look for an alternative way to bring this up, basically an exception to the preservation rule. Now, there was one, and I thought it applied of course in my thunder thumbing on the keyboard. And the court found that we didn’t preserve the record on this issue and we were kind of out of luck. And it was a good example to us and me specifically because I remember very much the conversation between Amy and I during trial is like we are taxing the hell out of this judge on because there were so many other issues.

And here we have one that is extensively argued in front of him over the course of that month in two other medical malpractice trials, the law’s the same. Everything about his ruling is going to be the same. And we made the strategic decision to just really pick our battles. Now was I sitting there thinking, I’m not going to make a record. I don’t think this is going to be a battle. No, that’s not how your brain works in trial. But it was a good lesson that I will carry with me through subsequent trials of there being an artful way to say, judge, I understand your ruling. Can I just have 90 seconds on the record to make to preserve my record? And we will be done with it. And

Amy Gunn:

You are never going to get a no out of a judge for that if you put it like that. But what were we supposed to do to preserve that issue beyond what we already did?

Erica Slater:

So for this, it was a medical bills issue, and what we should have done is make an offer of proof and we should have said, and we could have even been very deferring, even in the record, we make judge, we understand your ruling. We understand you’ve made this ruling in several trials this month. We would like to put on the record that we believe this is the correct ruling. Here’s our evidence of what the medical bills without payments or charges adjusted would be. And this is the evidence that we are agreeing by stipulation to enter based on your ruling. What we ended up doing, we entered a stipulation for the medical bills that was in conformed with the judge’s ruling. And right before we gave that evidence, we could have just gone up to SideBar and said, judge, we need 20 seconds to put on the record that we have an objection. We entered the stipulation based on your ruling, yada yada.

Amy Gunn:

So it wasn’t that the stipulation was entered into, that was not the waiver of the issue. The waiver of the issue according to the court of appeals was we didn’t do the offer of

Erica Slater:

Proof. Exactly, exactly. And maybe it could have been the offer of proof probably could have been extremely informal. It

Amy Gunn:

Had been briefed

Erica Slater:

And it likely would’ve been recalling those documents. This is the evidence because you’re really just putting in that issue. You’re putting up two different dollar amounts. So it’s a very easy thing to do. We wouldn’t have had to put on a witness or anything else, but at the same time, there was good appellate law on that issue that we thought the judge was not following correctly. And that was our argument and why we didn’t want to tax his patients. We were saying there is an appellate case after the law changed on point and you’re not following it, which is not a great thing to be accusing a judge of. I don’t know. It doesn’t feel that comfortable, at least not in person as opposed to my written submission. But at the same time, it was not terrible because we certainly didn’t want what we believed was the correct appellate decision to be messed with, I guess. But for our clients, we decided that it had to be brought up on appeal, so we had to include the issue.

Amy Gunn:

Well, and I also think that in that particular case, and this is a very case specific issue because for a way of background, a hundred thousand dollars was charged for the medical care, but either private insurance or government benefits paid $40,000. So we believed the current state of our law was that both numbers come in. That was based on the court of appeals decision. This particular judge believed that only the amount paid came in and thought that the reference we are making to the other court of appeals case was just dicta. So he said, Nope, only the amount paid comes in. That was argued pretrial, it was briefed, the numbers were in the motion in the briefing. But when it came time for trial, we just decided to stipulate as to one amount

Erica Slater:

Stipulate as to what we were able to put in as evidence. Because with medical bills in any personal injury trial, if you put on the evidence of the medical bills, you couldn’t just throw ’em up on a screen and say, this is it without an affidavit or an actual person who can testify that those are the bills. And that’s tedious and such a waste of time that by and large, at least in our very friendly jurisdiction, we agree with the other side that we’ll just read a stipulation. We’ve all crunched the numbers, we all agree those are the totals. So that’s where we were on agreeing to a stipulation of what would be read as the evidence of the medical bills in the case. And they were pretty disparate numbers as far as what the high number and what the low number

Amy Gunn:

Were. Alright. And then we lose the case. The cases appealed. That issue came up on appeal. But I think the way I’m looking at it is we got our new trial based on a different issue and that issue resets, and now this judge has seen the light so to speak, and agrees that both numbers come in. So even though we look at this appeal and it says you didn’t preserve it and that kind of hurts a little bit, there’s really no harm and there would’ve been no harm. I guess what I’m thinking, the harm could have been that the court of appeals agreed with the trial courts read and said, yep, nope, only the paid amount comes in. Absolutely. So not preserving the issue sort of saved us from that decision. Now, the reason we chose to appeal it begins because we felt real comfortable that with our position to begin with and getting more clarity from the court of appeals to further support our position, which is that both numbers came in was part of our thought process. But looking back on that, I’m thinking that turned out fine. It

Erica Slater:

Did. And I think you’re being nice because the good thing is yes, I could learn that lesson without having, there’s no penalty for learning that, but you’re right. Being able to punt on that issue because the record wasn’t correctly preserved was a blessing and it will have no effect on our client. And I know there’s a narrow subset of listeners who work in this issue every day, but I think one of the interesting things to any legal mind is that the Missouri legislature intended to change the rule in a way that would have excluded the evidence of the higher number. And upon a very simple and reasonable and clear reading of the statute, it just didn’t do that multiple

Amy Gunn:

Times. Now.

Erica Slater:

Yes. And so the actual statute as rewritten or as amended says the evidence of the lower number is this, but it fails to say it’s not that. So I think it was an issue of judges knowing exactly what the spirit of the law change was and trying to interpret and apply the spirit of the law, which everyone knew what that was. It was an important change as opposed to diving into what is the actual letter of the law, which is an age old lesson in there, why we need more attorneys in any legislature, I’m sure.

Amy Gunn:

And just today I learned of, because we have just started our new legislative session in Missouri and just today I learned of a bill that is further messing with the collateral. It’s the collateral source rule, essentially further messing with it in a way that is nuts better,

Erica Slater:

Not even better

Amy Gunn:

To be continued. Once I take a look at that a little closer, we might bring it back up. It’s fun stuff. Let’s talk for just another second about offers of proof because you’ve given us Erica one example of an offer proof in terms of the medical records and bills. But what other situations do you find yourself in where you have to make what we call an offer proof?

Erica Slater:

I think the most common one that we’ve run into is, and Elizabeth, maybe you’ve seen this in a trial recently, when we have an expert whose opinion we want to offer, and it’s either been excluded in the pretrial rulings or on the spot a judge rules know that’s a new opinion or know that opinion’s not allowed for X, Y and Z. And in that situation, when a judge is not allowing you to put evidence in front of the jury that you believe legally should be in front of the jury, in order to preserve the record, you must make an offer of proof, which is a record outside of the jury’s hearing and presenting that evidence to the court. And I believe the court is allowed to voir dire is what it’s called, which confuses the hell out of me because I only think about that as choosing a jury. But that’s the process by which the judge can then inquire into the evidence, or you may actually often have your expert on the stand giving the exact testimony and you’re just doing your direct examination as you would, but without the jury. Right,

Amy Gunn:

Strictly for the record, the court reporter is still taking it down. Yes. Because what you’re hoping is to preserve it for the appeal. And the appeal would be we believe the judge improperly excluded this evidence and here is this evidence, here’s the foundation for it and here’s the opinion that we believe the jury should have heard. And it’s all right there for the court of appeals to review

Erica Slater:

Because if you’re arguing on appeal that hey, this evidence should have been presented, you can’t characterize what it would have been, especially if it is another person’s testimony under oath, the medical bills issue is a little different. And it also, there’s a 1% chance maybe on a good day that when the judge actually hears the evidence that has probably priorly been described by the attorneys, that the judge will say, I see how that fits in. Now he or she may ask the expert their own questions outside of the jury and kind of explore any lingering issues in their mind and maybe make a different ruling. So

Amy Gunn:

It

Erica Slater:

Has a twofold purpose, although most of us know we’re preserving it for the

Amy Gunn:

Record. Right. And another way to do an offer of proof, if you don’t have your expert there, or frankly it’s probably just easier, is just to mark the deposition testimony as an exhibit, present it as an exhibit on your list, give it to the court reporter, mark it however it needs to be done. And that becomes part of the record. So then that way it’s also preserved. And that’s a real simple way to do it. It’s just funny how if you’re in the moment at trial and especially if your SideBar and the judge says, no, move on. It’s just really hard to remember after that testimony is done to be like, oh wait, I got to find these pages and lines in this deposition to attach. Now I believe that I could do that pretty much at any time during the trial, whether it’s in my case or I think if you think about it halfway through the defendant’s case, oh shoot, I forgot to offer that evidence. I think you could technically reopen your case for that minute, get that exhibit entered and you’d be fine. I can’t imagine anybody would be terribly upset. I can’t imagine the defense would object to that or that the judge wouldn’t allow it. But I think the lesson is when you rest your case, think really hard about whether there’s any evidence that you didn’t get to present that you believe you should have and make that offer proof. Or you could also rest your case subject to any offers of proof that you think of,

Erica Slater:

Well, what case is over? And it might be, Hey, this expert in the defense case testified to X, which would only have been relevant if my expert got to say A, B, C. Yes. But you bring up a good point during trial, we go into a sort of,

Amy Gunn:

I think our families would call it that,

Erica Slater:

That’s for sure. And looking back at that trial transcript of this recent appeal we were discussing, it’s kind of like, of course we know that. And of course we were thinking like we’ve discussed this enough, but quite frankly I was so surprised to see what discussions actually made it on the record as opposed to what I remember talking about with the court in open court when we weren’t on the record. And the awareness, I think that comes with experience, the more awareness you have of like, shoot, we weren’t on the record when we discuss that whole issue, which would have served almost as the offer of proof if it had been on the record. But Amy in your recent auto product liability case that you have tried for the second time, second three week case.

Amy Gunn:

I didn’t, you didn’t mis hold on the jury mised

Erica Slater:

It to case. Yes.

But obviously a big case, anytime you’re looking at an auto product liability case, it’s usually going to involve some sort of paralysis of the person who is in the car or death or just catastrophic injuries. And so there’s an assumption that all parties are making that if it’s a defense verdict, there’s going to be an appeal. If it’s a plaintiff’s verdict, there’s going to be an appeal. Yes. Anything absent a settlement or a high low or something like that at the end, somebody’s going to be wildly unhappy after all the work time and money that has been put into a case. So you guys have a strategy in those types of cases that we’ve used here, and I know that you were using for appellate purposes in that case.

Amy Gunn:

So after the first mistrial last May, well, even in that case, the trial team included a dedicated attorney to help with jury instructions and appellate issues. This trial, that lawyer sat through the entire case. The first trial, she was there for our Dhir and jury selection, and then we didn’t even make it to the end of that trial. But for this one, she was there the entire time helping out with jury selection of course, but also listening carefully to all of the evidence with an eye to two things, the jury instructions and any appellate issues. And it was so helpful because again, back to the psychosis issue, if you’re constantly worried about what evidence is going on right now and what exhibits are being marked, and just in the moment, it’s not always easy to think, what is this going to look like on appeal?

Is the record clear? We didn’t preserve anything with our motions in eliminate those types of questions. And having someone dedicated to that was so helpful, not only in terms of just taking that stress off in the moment, but just knowing that it’s being done and done well. And then especially with respect to the jury instructions, because in our kinds of cases with negligence allegations or product defect allegations, there are going to be sub parts to your verdict director negligent because of A, B, C, and D, defective because of A, B, C, and D, because what you think the evidence is going to be before you start based on everything you’ve done. And depositions isn’t always what happens in open court. And in this case, we had daily transcripts, which were very helpful, but the same time, it’s not the same as someone jotting out, oh, that is my defect, that is my act of negligence. And then when it comes time to argue in the jury instructions, you’ve got somebody who can stand up and say, I’ve been listening the whole time. My job was to listen to what the expert said, and this is what the jury instruction should say. So that was unique in terms of staffing a case because a lot of times you just don’t have the people power to put one person on that job. But if you do and you have a case like this one that the damages supported, then it’s a real luxury. It really

Erica Slater:

Is. Well, and that person has no role in front of the jury. They’re probably just wondering who that person is in the gallery that shows up every day. And it’s

The fact that they’re holding all those checklists in their head. So when you’re sitting in an instruction conference and you get an objection, they can’t phrase it like that because although we all assume this fact is part of the case, it’s not literally in evidence on the record. And they say, yes, it is. On day two of 14 with our first expert, they said this one phrase that supports exactly what is written in this jury instruction. And without that, I mean you can do it. And that’s what we do in cases. Cases that don’t require the staffing of a two and three week trial. But I mean, yeah, it’s a real luxury.

Amy Gunn:

Shout out to Joan Lockwood. Anybody wants to know or to hire Joan for that role, she’s excellent. But what we were talking about earlier with Motions in Lemonade, you mentioned this at the top, which was nothing is preserved. They’re all interlocutory and not many pretrial conferences are on the record. And that kind of makes me crazy. I mean, my opinion is every substantive motion should be on the record, pretrial summary, judgment, whatever it should be on the record. I know it doesn’t in terms of motions and lemonade doesn’t preserve anything, but it’s just helpful to have because I don’t remember everything that I said or the other person said. And then afterwards you’re talking about, oh, well this was discussed in pretrial and no one remembers it. I mean, I think everything should should be on the record. It’s just easier. What are you worried about?

I mean, just do it. But it’s funny to me, I was just in a substantial argument a couple of weeks ago and I wasn’t lead on it. And everyone, the judge says, you want this on the record? Everybody kind of looked at each other. There was something wrong with saying yes, and I’m thinking, I’m screaming to myself, yeah, why not? But again, it wasn’t my motion. So I was like, all right, maybe I’m missing something. And it wasn’t on the record. I’m sure it’s going to be fine, but my thought is why not? Why not? But with motions in limine, they’re oftentimes discussed and then not on the record. And at the end of the day the judge says, okay, write up an order. And then you’re looking at your opposing Counsel and you have different opinions about what the judge said in the moment. That’s hard. I’m like, not that you’re going to have the transcript instantaneously, but if it’s truly something that is debatable, at least it does exist. It can exist. You just have to get it transcribed. So I don’t know. I think I’ve learned over the years that it’s better just to put everything on the record. And you don’t have to argue. There’s fewer things to argue about.

Erica Slater:

I had a case a couple of years ago and hard fought case and very good lawyering on, I’d like to say both sides. It’s definitely the other side, good lawyering. I’ll give ourself a pat on the back, also good lawyering from us. But there was this issue that came up and literally we had argued in our motion like this has never been granted, but it was one of these motions that we see often and judges never grant them. And we represented that to the court. And lo and behold, in the defendant’s reply to our motion where we say, these never get granted. There’s a case that we had John and I had four years before where the rulings from the pretrial conference, it’s like the defendant’s similar motion that was just a snippet of what the concept was. And then below it it said, granted, overruled or I don’t know, taken under advisement.

And the rulings were just the check boxes in those things that we put under motions in limine. And it was so frustrating because that wasn’t the ruling, it said granted, but I recalled the specific thing. It was granted as to this very specific thing that really didn’t touch the spirit of that motion. And John and I lost our minds. Now we had to represent to the court without, and we had time to do it, but we had no evidence to support what we were saying. Hey, I see that that little motion on that public filing says granted, but that’s not what happened in that trial. And because it wasn’t on the record and I had no record to point to you stuck with it. I mean, I think it carried the day, but I recall that being like, how could you do this to us? You good lawyers who found this one needle in a haystack? Well, that goes back to never say always or never say never. Yes. It’s just too easy to disprove those things. Totally, totally. So Elizabeth, I know that you have written a lot of appeals, especially in your first couple of years of practice, but they’ve been some cases that you weren’t even there, it was before you even started practicing that the actual trial happened, right.

Elizabeth McNulty:

So I’ve been sitting here, all of the listeners learning a lot this episode. You guys are a wealth of knowledge, and I would like to have Joan in all of our trials, so I do not have to learn any of these things, but I have had the lucky experience of drafting appellate briefs without trying any of the cases myself. So having to just read the record and the record is what I have to deal with. The thing is, I have no point of reference. Like, oh wow, I really thought I made the record clearer because all I have is the record to read through. So it’s an interesting way to learn what goes on at a trial, certainly, because my first one I think was maybe my first or second year clerking. I did an entire appellate brief. It was in federal courts, it was a little bit different.

But you certainly learn a lot about how complicated and how many moving parts there are during a trial and how important it is to preserve the record. And I think that’s a good lesson for a young lawyers because there’s so much going on in a trial. And it’s a good thing because a lot of times young lawyers at bigger firms are probably just sitting there, so observing. So if that’s something that they want to take under and learn, and then maybe they can point that out to older attorneys involved in the trial and might score some brownie points. But it’s definitely a lesson you don’t want to have to learn the hard way. But I’m glad to hear that in y’all’s case, it worked out at least

Erica Slater:

Well. And you mentioning that I still live by this rule. If you want to learn how to take a deposition, or in your case reading the record of a trial, if you want to learn how to try a case, doing an appeal and going through the record or doing pretrial yourself in your own case will teach you how to take better depositions because you’re going back to your depositions as evidence and you’re like, that’s got to be in there somewhere. And you’re like, it’s never not. Ask that question again. So those kinds of experiences, if you can get them, especially early on, it’s a slog going through some of those trial transcripts and learning a case that you didn’t experience firsthand, but it does really teach you where the pitfalls are and how you kind of get the benefit of coming at it from a 30,000 foot view and things that sometimes post hoc looks so obvious or missing in the record, or why didn’t I think of that? That psychosis just is what you’re doing in trial and you’re so focused on what’s in front of you, which is good, but also you need to have a eye to the appeal.

Amy Gunn:

Well, and that kind of brings us to the checklist. It would be nice. I don’t know why I don’t have one. Perhaps we’re creating one now with respect to preservation of the record. So I would say on that checklist should be put the pretrial hearing on the record. I’m going to add that to the checklist. Remember that motions and lemonade are interlocutory only and preserve nothing. So in your trial, whatever you have filed as a motion in ate, keep that folder out. I am the worst. If I have a folder that says Motions in lemonade are pretrial, I close it up and put it away when the trial starts. Don’t do that. Also, voir dire. Anything I get through, I put it away like, yay, one more thing is done. But for that pretrial motions folder, keep that out. And before you rest your case, the best thing to do is take a look at it again, and if there’s any evidence outstanding that you haven’t got to present that you think you should have gotten to present, remember to offer some sort of offer of proof, whether it’s a depo or records, or maybe it’s not precise or perfect, but it’s better than nothing.

Better than nothing. And before you rush your case, make sure that there aren’t any further offers of proof or any offers of proof to make. What else on that list? Hire Joan Lockwood.

Erica Slater:

Yeah, well, and just to wrap this up, I remember now looking back at the medical issue, we were talking about that appellate case that was in our favor. I actually looked back at the record to see how they preserve the issue on the record for which the appeal was based to see how it compared with ours.

Amy Gunn:

And

Erica Slater:

Their record was beautiful, impeccable. Joan Lockwood did it. There you go. And my friend Katie Jacoby from law school, who is a wonderful appellate mine, she was on the defense side, she and another partner at her firm, and literally the judge opened the record at eight 30 on Monday morning, and the lawyers made their record on the medical bill issue for 90 seconds because it was an issue that obviously came up at the pretrial and there was a ruling. So they just said, judge, before you bring the jury in, this is Monday morning first thing before voir dire. Or maybe right after, maybe when they were starting evidence said, let us take a moment to make this record. They did it perfectly preserved. And I was like, that does not help my case. But shout out to those very brilliant.

Amy Gunn:

Yes. And now you know lawyers, lemme know. Now we’re just going to steal that. Yes. And preserving the record again, hearkening back to Motions in Limine can be as easy as Your Honor, I object based on our previous argument on the motion limit. And that I think is enough of a hook in the moment on the record in front of the jury, not to say too much, but also that we’ll bring the court of appeals back to the briefing on the issue. I think that’s good enough.

Erica Slater:

And the important tale on doing that would be that the judge will reciprocate by saying, based on your previous argument, my ruling remains the same or whatever. And that’s the point, is that the ruling has been made on the evidentiary issue during trial, not at the pretrial. So I guess the judge, he or she will likely remember that. But it’s important to prompt the judge to reiterate the ruling.

Amy Gunn:

Yes, I think that’s right. And what you’re suggesting is if the judge says nothing in response to that, you could even say, I assume your ruling is the same. Right,

Erica Slater:

I agree. Any sort of statement about that, the ruling stands or, yes. This is not as you suspect, it’s not going forward.

Amy Gunn:

Yes.

Erica Slater:

Well, thank you listeners for getting in the weeds with us on appeals. I can’t wait to hear from our appellate friends who get our trial attorney view of how to preserve our record. Thank you for joining us for another episode of Heals in the Courtroom. Our new episodes come out every other Wednesday and we’ll see you next time. Thanks.

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