May 17, 2021 Articles

Avoiding Common Pitfalls in Preserving for Appeal Videotaped Testimony Played to the Jury

Testimony deemed “missing” from the appellate record may be damaging, not only because it is not citable but also because the appellate court will presume it supported the trial court’s findings.

By Victoria E. Fuller

Videotaped deposition testimony often plays a critical role in presenting evidence to juries. When the testimony is critical at trial, it may also be critical in a subsequent appeal. But the essential steps to make a sufficient record of what testimony was played fall through the cracks more often than you might think.

Consider this example: Imagine you represent an organization that designs clinical trials in a case against a multinational pharmaceutical company. Your client asserts claims for misappropriation of trade secrets and seeks nearly $40 million in damages. During trial, you present testimony from multiple representatives of both parties to establish your theory that the pharmaceutical company stole secret information contained within your client’s internal databases. Because many of those key witnesses are not available to testify live, you play for the jury key portions of their videotaped depositions.

After deliberations, the jury reaches a verdict in your client’s favor, and the ensuing judgment provides for recovery of more than $38 million in damages, plus prejudgment interest totaling more than $19 million. But your elation quickly evaporates when the judge rescinds the entire award by granting a new trial for liability and damages, concluding insufficient evidence supports both aspects of the verdict.

You appeal the new trial order, and in your appellate briefs, you explain how the evidence—including the videotaped deposition testimony—was more than sufficient to support both the finding of liability and the amount of the award. The appellate decision, however, disagrees. The court concludes that your argument is “hampered” by the “failure to produce an appellate record that includes” the videotaped deposition testimony, which was not transcribed by the court reporter. The decision then explains that appellate courts must presume a judgment is correct and that the appellant has the burden to provide an adequate record to establish error. Because the videotaped deposition testimony is not properly in the record, the appellate court concludes that it is compelled to presume the missing testimony supports the trial court’s reasons for granting a new trial. On that basis, the decision affirms the new trial order. Ischemia Research & Education Found. v. Pfizer Inc., No. H034653, 2013 Cal. App. Unpub. LEXIS 1419 (Feb. 26, 2013.

Similar issues arise relatively frequently in my appellate practice. Typically, the reporter’s transcript reveals that videotaped deposition testimony was played to the jury, but simply states that the testimony was not transcribed by the court reporter in accordance with applicable rules. Oftentimes, the record is silent as to what portions of the depositions were played. While the parties usually file written notice confirming the testimony they intend to play during trial, objections are often resolved in unreported conversations among attorneys at the courthouse.

As Ischemia Research highlights, testimony deemed “missing” from the appellate record may be damaging, not only because it is not citable but also because the appellate court will presume it supported the trial court’s findings. To avoid such a result, know the rules in your jurisdiction governing how to make a proper record. Some jurisdictions require that parties lodge a transcript of the deposition before playing the video; and, when the video is played, the offering party must identify on the record the page and line citations. If it seems too cumbersome to identify every citation on the record, consider filing a written notice identifying the excerpts (after any objections have been resolved), and confirm on the record that the excerpts being played to the jury are those identified in the notice.

At a minimum, be sure to make some written record of what excerpts were actually played to the jury. It is often possible to augment the appellate record to include the excerpts if, for example, written communications between the parties’ attorneys memorialize the resolution of any objections and confirm the attorneys’ understanding of which excerpts would be played during trial. Taking such measures should help preserve the critical trial evidence that may be essential to a later, and hopefully winning, appeal.

Victoria E. Fuller is a partner at Niddrie Addams Fuller Singh LLP.

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