January 13, 2021 Appellate Issues | Winter 2021

Preserving an Accurate Record for Appeal in the Time of COVID-19 Virtual Proceedings

By David A. Timchak

As every appellate advocate is aware, regardless of the standard of review on appeal, an accurate and complete trial court record is paramount to both advocates and appellate courts in performing their roles. For this reason—anecdotally, but perhaps unsurprisingly— appellate courts tend to prefer an accurate record over allowing procedural short comings of the parties to potentially undermine the foundation of an opinion or decision they may issue. This, of course, is not a bases for an appellate advocate to ignore this crucial step in the appellate process or wait to confirm the accuracy of the record until brief writing begins in earnest. Indeed, beyond the obvious, doing so may potentially undermine a party’s credibility or the court’s perception of a party, the advocate, or their position.

As such, confirming and correcting any issues in the record at the outset of an appeal should be a high priority for both the appellant and the appellee regardless of whether appellate counsel was also counsel in the trial court. In the normal world—pre-COVID-19—this process already had its own issues and complications, from assuring trial counsel’s cooperation and assistance to timely identifying and ordering necessary transcripts. Although these issues have not been removed from the equation, COVID-19 and the dawn of widespread virtual proceedings only complicates the matter and adds new issues that an appellate advocate should be aware of and look out for. This is important not only to avoid complications in the process, but to ensure all parties involved can properly and efficiently perform their jobs—from appellate advocates to judges and justices

This article will briefly highlight some of the new issues created by virtual proceedings in the era of COVID-19 in relation to the record on appeal and suggest ways to either prevent them all together or lessen their potential for creating time consuming and distracting issues on appeal.

Exhibits and Exhibit Lists

As we are all aware, the trial court’s accurate reflection of what exhibits were offered, admitted, stipulated, withdrawn, or deemed inadmissible is paramount to an accurate record on appeal.  The virtual hearing has added new complications to assuring accuracy in this process.  For example, when the parties are no longer in the same room, some courts have done away with the typical use of a signed exhibit worksheet, agreed to by all parties and the court to accurately reflect the disposition of the exhibits offered in a hearing or trial, instead opting for a verbal confirmation.  This lack of written confirmation at or near the time of the virtual proceeding gets ever complicated by the fact that it is, now more than ever, possible to have confusion or misunderstandings as to which exhibit is which.  For example, the parties may have submitted paper exhibits to the court prior to the virtual proceeding, which the court clerk marked.  However, not being in the same room as the court clerk, it is likely that the parties are using electronic versions of the exhibits they themselves have compiled.  Indeed, each party may have separately made a virtual copy of the exhibits.  Each version of the exhibits, coupled with the fact that they were compiled by a different person, adds numerous additional places in which the numbering may not match the numbering assigned by the court.

The easiest way to avoid these pitfalls is transparency and communication amongst the parties and the court and avoiding last minute compilation of exhibits.  Indeed, the best way to avoid these issues is to have a master electronic database of exhibits that the court can access and mark, and which all parties can simultaneously utilize for the virtual proceeding.  While taking care to assure the exhibits are correctly identified it should also be a priority of trial counsel, to the extent possible, to file a written stipulation to any exhibits that will be stipulated to.  If this is not possible, an advocate or the court may be forced to attempt to utilize the transcript of proceedings to determine what happened to each exhibit, which is a lengthy and daunting task that is complicated by the issues arising from transcription of virtual proceedings.

Transcripts

Virtual proceedings in the time of COVID-19 have created new issues in the accuracy of transcription.  For example, many courtrooms in the United States use recording methods that show which microphone in the courtroom picked up the audio being record.  This is highly useful in determining who was speaking.  In virtual proceedings this function is not possible, making the job of the court reporter in determining which voice corresponds with which speaker all the more challenging.  Similarly, to the extent parties, witnesses, or their attorneys are wearing face coverings, this eliminates one of the ways on which we rely to understand speech, increasing the likelihood of an inaccurate understanding and thus an inaccurate transcription.  Additionally, in virtual proceedings it is possible for one participant’s internet connection to scramble or delay audio without any of the other participants realizing this is happening.  This is problematic enough when it happens to a party, the court, or an advocate, but can lead to major transcription errors if the delayed connection is on the part of the court reporter or official audio recording.  The simplest way to avoid these issues and assure the possibility of an accurate transcription is to have more than one party record the virtual proceeding, including the video of all participants.  Luckily, most platforms utilized for virtual proceedings have the ability to allow for such redundant recording within the same application.

New Methods of Communication during Virtual Proceedings

Virtual proceedings occur on platforms the majority of which have a “chat” function.  These functions allow a participant to send a written message privately to another participant or to the group as a whole.  Similarly, some courts have utilized email messaging to the parties in the case of technological issues with video or audio transmission.  This adds a new component to the record of the virtual proceeding that would not otherwise be present in a non-virtual setting.  While this particular issue may not come up as often as the others discussed herein, to the extent a communication was made by “chat” or email, thought needs to be given to how this form of communication will make it into the record or a transcript of the proceeding.  Certain courts have simply filed the written log in the record after the hearing; however, to the extent a written message is in response to a verbal statement, assuring the written response makes its way into the proper place in a transcript will be necessary to preserve an accurate understanding and transcription of what occurred at the hearing.

Conclusion

As the examples discussed in this article make clear, the best practice to avoid issues in the record created by virtual proceedings is to assure open communication amongst the Court and all parties to facilitate a dialogue and understanding of how the proceeding will be recorded and how the record will ultimately be created.

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    David A. Timchak

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    David A. Timchak is an attorney with Fennemore Craig, P.C. who focuses his practice on appellate and issue-oriented litigation.  Mr. Timchak is a member of the Council of Appellate Lawyers Executive Board, is the Co-Chair of the Council of Appellate Lawyers Pro-Bono Committee and is a member of the State Bar of Arizona Appellate Practice Executive Council.