Don’t Just Preserve the Record: Make a GOOD Record

By Shea T. Moxon

Most discussions of record preservation focus on which objections and motions you need to make in the trial court to be able to argue certain issues on appeal. But there is another aspect of record preservation that can be just as important, although it receives comparatively little attention: making sure the record clearly shows all the information the appellate court needs to be able to consider your issue—and, hopefully, to rule in your favor. It’s what we sometimes refer to as “putting it on the record” or “making a record,” rather than “preserving” the record, but it can be just as essential to ensuring that you have a winnable issue on appeal.

2017 Nov-Dec Journal APPELLATE

This article will discuss some of the most commonly overlooked steps for making a clear record that gives a complete picture of what happened at the trial level. It also gives some tips for how to go beyond the bare minimum and make a good record that can help you win the appeal—or, at least, make it a lot easier for the appellate court to see your client’s side of the case.

1. Refer to exhibits by exhibit number—including when a witness is testifying about them.

This one is so mundane and well known that it wouldn’t be worth mentioning, if it weren’t so commonly forgotten: whenever a trial exhibit is being discussed at trial, refer to it by its exhibit number. Of course, everyone remembers to do this when they offer their exhibits into evidence. Usually it is when a witness is testifying about an exhibit—such as describing what is shown in a photograph, or explaining the significance of a particular document—that attorneys forget to mention the exhibit number, or decide that it’s unnecessary to do so.

Here is why that causes problems: sometimes it is necessary to see the exhibit to be able to make sense of the witness’s testimony, and vice versa. In those instances, if the appellate court is unable to match the exhibit with the testimony, then both are meaningless. So you could miss a chance to get some valuable information across to the appellate court just by forgetting to say the exhibit number when a witness testifies about it.

Also remember to refer to an exhibit by number when arguing over its admissibility. In one of my first appeals, I could have raised a strong argument that the trial court erred in admitting a certain document into evidence, but there was one fatal problem: no one ever mentioned the document’s exhibit number when the parties argued over its admissibility at trial. Because of that omission, the record didn’t show that the document was ever admitted into evidence, let alone how it prejudiced my client. So the issue wasn’t preserved and couldn’t be argued.

2. Make sure the trial exhibits are included in the record.

The importance of including trial exhibits in the appellate record is underappreciated, because sometimes they aren’t needed—the trial testimony frequently covers all the facts well enough for the appeal. But in many other cases, the right photograph, diagram, or other piece of evidence can tell a piece of the story better than words ever could. See Nack Holdings, LLC v. Kalb, 13 So.3d 92, 94 (Fla. 3d DCA 2009) (remarking, “At this point in the record, an organizational diagram would have been more helpful than a narrative.”). And in those instances, evidentiary exhibits can be critical to the outcome of an appeal. See, e.g., Marriott Int’l, Inc. v. Perez-Melendez, 855 So.2d 624, 630 (Fla. 5th DCA 2003) (affirming denial of defendant’s motion for directed verdict, based on appellate court’s review of evidence that included photographs and a videotape of the accident scene); Lincoln v. Miggins, 249 So.2d 88, 89 (Fla. 3d DCA 1971) (affirming directed verdict for plaintiff on liability, based on appellate court’s review of evidence that included photographs of an access ramp).

So at the end of each trial, make sure that the trial exhibits are retained in evidence so they may be included in the record on appeal. Many (if not most) clerks retain them by default, so you don’t need to do anything. But in some circuits, the clerk will return the exhibits at the end of each trial unless a party asks for them to be retained in evidence. Ask for them to be retained. And if that option is not available, file copies of your exhibits with the court.

This advice applies whether you win or lose at trial. Appellees benefit from having trial exhibits in the record at least as often as appellants do.

In addition to exhibits that can be printed on paper (like documents and photographs), the record can also include “tapes, CDs, DVDs, or other similar electronically recorded evidence.” Fla. R. App. P. 9.200(a)(1). So if your evidence includes audio recordings, video recordings, or an enormous number of documents, you can introduce them into evidence in one of these formats and they can be included in the record on appeal.

3. Also ensure that any excluded trial exhibits are in the record.

Exhibits that were excluded from evidence must be included in the record for an entirely different reason: to preserve the issue of whether the trial court erred in excluding them.

Whenever the trial court excludes evidence, an offer of proof is usually necessary to preserve any error for appellate review. Brantley v. Snapper Power Equip., Inc., 665 So.2d 241, 243 (Fla. 3d DCA 1995) (citing § 90.104(1)(b), Fla. Stat. (1993)). And when the excluded evidence consists of documents or other exhibits (as opposed to testimony), the offer of proof is done by putting the actual exhibits into the record. They should be marked for identification, fully described on the record, and maintained by the clerk along with the other exhibits offered at trial. See id. (citing Henry P. Trawick, Jr., Trawick’s Florida Practice & Procedure § 22-10, at 333 (1994); Michael H. Graham et al., Florida Evidentiary Foundations 6, n. 9 (1995 Cum. Supp.)); Fla. R. Civ. P. 1.450(b). That way, the appellate court will be able to review the exhibits to determine whether it was error to exclude them. Brantley, 665 So.2d at 243 (citing Trawick, supra).

4. When proffering a witness’s testimony, proffer the actual testimony.

Just as with excluded exhibits, an offer of proof—or proffer—is also usually required to preserve an error in excluding a witness’s testimony. § 90.104(1)(b), Fla. Stat. (2017); Finney v. State, 660 So.2d 674, 684 (Fla. 1995); Jacobs v. Wainwright, 450 So.2d 200, 201 (Fla. 1984). The purpose of a proffer is to put the excluded testimony in the record, so the appellate court can determine whether the testimony should have been admitted and how its exclusion may have affected the verdict. Finney, 660 So.2d at 684; Jacobs, 450 So.2d at 201.

There are two ways to proffer testimony. The traditional method is to put the witness on the stand outside the presence of the jury, and examine the witness just as you would if the witness had been allowed to testify at trial. See Musachia v. Terry, 140 So.2d 605, 608 (Fla. 3d DCA 1962); Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 104.3, at 39 (2014 ed.). The other method is to summarize the witness’s testimony for the court in your own words. See Johnson v. Moore, 493 F. Supp. 2d 1236, 1239-40 (M.D. Fla. 2007); Peterson v. State, 465 So.2d 1349, 1350-51 (Fla. 5th DCA 1985); Ehrhardt, supra.

The latter method can be very tempting. It is quicker and easier, and in some cases, can be much less costly than bringing the witness to court and putting him or her on the stand.

But there are risks to proffering the testimony yourself. One is that you might not describe the testimony in enough detail to make a good record. Appeals have been lost because an attorney’s proffer lacked sufficient detail. See Arrascue v. State, 42 So.3d 927, 929 (Fla. 5th DCA 2010) (defense counsel’s generalized statements about how he intended to cross-examine a witness were insufficient to preserve any error in limiting the cross-examination). And even when an attorney’s proffer is technically sufficient to preserve the issue, it can be too generalized or sterile to build a persuasive case for reversal. Sometimes the witness’s own words can be much more vivid and convincing.

Another risk is that opposing counsel might disagree with your representations as to what the witness would say, so the appellate court would not be able to rely on them as a basis for reversal. See Cooper v. State, 137 So.3d 530, 531-32, n. 1, 2 (Fla. 4th DCA 2014) (any error in limiting cross-examination of victim was neither preserved nor fundamental error where, inter alia, the parties disagreed as what the victim would say).

Yet another risk is that the trial court might not consider your own proffer to be sufficient. See Holmes v. Bridgestone / Firestone, Inc., 891 So.2d 1188, 1191, n. 1 (Fla. 4th DCA 2005) (“Whether a proffer is sufficient is within the trial court’s discretion.”); see also Johnson, 493 F. Supp. 2d at 1239-40 (it is up to the trial court whether to require a testimonial proffer or a non-testimonial one). You also can never be sure whether the appellate court will consider your summary to be sufficient. Philip J. Padovano, Florida Appellate Practice § 8:6, at 169 (2015 ed.).

For these reasons, you should proffer the witness’s own testimony whenever it is feasible to do so. Padovano, supra; see also Donley v. State, 694 So.2d 149, 150 (Fla. 4th DCA 1997) (“Especially where he indicates an openness to hearing a proffer of actual testimony, the trial judge should have an opportunity to consider the evidence in light of the evidence previously admitted at trial and while a witness is present in court to testify . . . .”). If the witness is not available to put on the stand, then filing the witness’s deposition may be sufficient, assuming it covers all the critical areas of the excluded testimony.

Incidentally, you should never assume that a proffer is unnecessary just because the trial court entered an order in limine excluding or limiting the testimony. A pretrial ruling in limine can eliminate the need to proffer the testimony, but only if (1) the substance of the testimony has already been made clear on the record by a sufficient proffer, and (2) the ruling definitively excludes the testimony. § 90.104(1)(b), Fla. Stat. (2017). A proffer is still necessary to preserve the issue if it is unclear what testimony was erroneously excluded by the ruling, or if the ruling was only tentative and subject to reconsideration. See Health First, Inc. v. Cataldo, 92 So.3d 859, 867 (Fla. 5th DCA 2012); Aarmada Protection Sys. 2000, Inc. v. Yandell, 73 So.3d 893, 898 (Fla. 4th DCA 2011); Spindler v. Brito-Deforge, 762 So.2d 963, 964 (Fla. 5th DCA 2000); Donley, 694 So.2d at 150-51. You can’t always predict when an appellate court will find both of these conditions to be met, so you should err on the side of proffering.

5. File all requested jury instructions in writing.

We all know that we have to file our main set of proposed instructions in writing. It is required by Florida Rule of Civil Procedure 1.470(b), and trial courts virtually always set a deadline to file proposed jury instructions and verdict forms in their scheduling orders.

But those aren’t the only jury instructions we request at trial. As events unfold over the course of the trial, we might find ourselves having to ask for curative instructions, limiting instructions, or revisions to our proposed instructions.

Whenever possible, try to request those instructions in writing too. If you don’t have a printer available in the courtroom, write them out by hand. Putting them in writing will make it clear on the record exactly what you want the jury to be told. That way, if the trial court refuses to give one of your requested instructions, the appellate court will be in a better position to determine whether the trial court erred and how your client was prejudiced.

Writing out a requested instruction will also help you to think it through. All too often, a verbal request for curative instruction, limiting instruction, or revision to a proposed instruction will be stated too vaguely to convince the appellate court that it was reversible error to deny the request—especially since the trial court’s ruling may only be reviewed for an abuse of discretion. St. Paul Mercury Ins. Co. v. Coconut Grove Bank, 106 So.3d 452, 454 (Fla. 3d DCA 2009).

6. Identify proposed jury instructions by number or title during the charge conference.

During the charge conference, each time a proposed instruction comes up for discussion, make sure that someone—whether the trial judge, opposing counsel, or yourself—identifies it by number or title, including which party proposed the instruction. I’ve read quite a few passages in transcripts of charge conferences where the trial judge and the attorneys were looking at the same proposed instruction and knew what each other was talking about, but it was impossible for the reader to figure out which instruction they were discussing or to make any sense out of what they were saying. Sometimes it can be figured out from the context of the discussion, but sometimes it can’t. So if a trial judge makes a ruling on a proposed instruction that hasn’t been clearly identified for the record, it could be impossible to challenge that ruling on appeal.

7. Always file full-sized transcripts—not condensed or “mini” transcripts.

If a transcript is worth filing, then get the full-sized version—don’t file a condensed or “mini” transcript. Condensed transcripts are difficult and annoying for appellate judges to read, especially now that many of them use iPads or other electronic readers to review records on appeal. Reading a condensed transcript requires the judge to repeatedly scroll up, down, left, and right, and whenever a brief cites to a page of the transcript, it points to four pages’ worth of material, making it harder for the judge to find the passage that the writer intended to cite.

Although no appellate judge would hold it against your client, you don’t want a transcript that you considered important enough to be filed with the trial court to be difficult or irritating to read. You (or your appellate counsel) may have to rely on that transcript to tell your client’s side of the case, so you want the transcript to be easy for the judges to read and absorb.

8. File clear and legible scans of documents.

This is similar to the last point. Too many times, I have seen grainy, skewed, and barely legible scans of documents and transcripts in records on appeal. Usually a clear copy is easily obtainable. If something is worth filing, then it’s worth filing a clear and legible scan that will be easy for the appellate judges to digest.

So as we’ve seen, preserving the record entails more than making the right motions and objections at the right time. You also have to make a clear record that tells the appellate court what it needs to know to be able to consider your issue. And paying attention to a few details can help you build a good record that will speak for you and help get your client’s side of the case across to the appellate court.


Shea T. Moxon
Mr. Moxon is a shareholder of Brannock & Humphries, a firm specializing in appeals and trial support that has been twice named by Super Lawyers as the best small litigation firm in Florida. He handles federal and state appeals, focusing on personal injury and wrongful death cases. Mr. Moxon is an EAGLE member of FJA, has been recognized by Florida Trend as among its Legal Elite, and has been named to the Best Lawyers in America in the area of Personal Injury Litigation. He received his undergraduate degree from Emory University and his J.D. from Harvard Law School.

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