Yesterday afternoon, I attended a CLE presented by Dallas Court of Appeals Justice Doug Lang. Here are some of the pointers offered by Justice Lang:
1. If the trial court judge makes an oral ruling but the ruling does not appear in the record, the ruling is not reversible on appeal. Because rulings are often made at bench conferences, attorneys should request that the court reporter make a record at all bench conferences.
2. For the court of appeals to affirm or reverse based on trial testimony, that testimony must be in a form that can be captured in a court reporter’s record. Gesturing simply cannot be captured in the reporter’s record. For example, a witness pointing to a particular place on a map and saying “It happened there” does not provide any evidence to the court of appeals. In such a situation, a lawyer could state something like “Let the record reflect that the witness is pointing to the X on the map.” Or, the lawyer could ask the witness something like “Are you pointing to the X on the map?”
3. In an appellate brief, an attorney should be careful not to misrepresent case law or the record. Appellate justices read the cases cited and pertinent parts of the record and will certainly detect any deceptive statements included in the brief. Candor is critical to effective appellate advocacy.
4. Due to the time limits imposed at oral argument, advocates must focus on what is truly the most important message to convey to the court. Make the first sixty seconds of oral argument really count by getting to the point right away.