Meticulous preparation in making a strong record is one of the most effective tools for successful litigators. During trial, attorneys must focus on making a clear and concise record in the court – the key to success in both the trial and appellate courts.
When attempting to make the best record, the most crucial thing an attorney should consider is “how will this read in a transcript?” and “will it make sense to someone who reads a transcript who has not devoted months to learning the facts of this case?”
All litigators, whether young lawyers, part-time litigators, or experienced attorneys in need of a refresher, should carefully consider the following tips for effective record making.
Be Specific and Avoid Generalities
When questioning a witness, an attorney in court should stay conditioned to listen for vague descriptors, and ask the witness to clarify their answer as soon as possible.
One of the most common mistakes to avoid is allowing witnesses to testify using general language such as “this/that document,” “his/her/their car,” or “three fifty” without clarifying that answer. Even within broader or proper context, it may not always be clear what a witness is referring to.
If a witness is testifying about an exhibit and refers to “this document,” your very next follow up question should be: “When you refer to ‘this document,’ are you referring to Exhibit 1?” It could be that the witness has been testifying about the same exhibit for 15 minutes after it was first identified – a vague “this document” means an appellate court may have to sift through several pages of transcript just to find out which document the witness is referring to.
Similarly, after a witness uses generic pronouns, ask “When you refer to ‘his car’ you mean John Doe’s car?”
When a witness’s answer includes numbers, such as “three fifty,” it is important to clarify what the witness is referring to: Is it time of day – 3:50 a.m. or 3:50 p.m.? Is that an amount of money – $3.50? $350? $350,000? While the question that prompted the answer may provide some context, it is important to make sure the answers are as clear as possible.
Lost an Objection? Make Offers of Proof
Too often when the court sustains an objection to offered evidence, attorneys will simply accept it and move on.
However, the attorney whose evidence is excluded has the opportunity to make an offer of proof with respect to the excluded evidence.1 The attorney who fails to make an offer of proof waives any argument on appeal that the exclusion of evidence was an error on the part of the trial court.
A trial court will almost always permit an offer of proof from an attorney, as it helps the trial court form a better basis for its ruling.2 An offer of proof “need not be stated with complete precision or in unnecessary detail but it should state an evidentiary hypothesis underpinned by a sufficient statement of facts to warrant the conclusion or inference that the trier of fact is urged to adopt.”3
To make an adequate offer of proof, be sure to:
state the evidentiary basis for the evidence’s admissibility;
explain the facts and inferences from those facts that the evidence would show; and
mention the importance of that evidence to the case and the effect the evidence would have in relation to the matter at hand.
Help the Court: Ask the Court to Clarify Rulings
Unsurprisingly, the trial court plays a crucial record in making your record, particularly when it issues decisions on motions and claims that are left to its discretion.
With discretionary decisions, the trial court must examine the relevant facts related to the issue at hand and apply the proper legal standard to articulate a “rational process” to come to a “reasonable conclusion.”4
What should you do when the court grants a motion, but you believe the court did not apply the “rational process” to reach the “reasonable conclusion?” Speak up! Ask the court to clarify its ruling on how it treated certain facts to reach its decision.
Obviously, approach such clarifications with the appropriate deference and respect to the court.
However, the last thing an attorney wants is a good result with poor reasoning that could lead to a reversal or remand on appeal. Do not be shy in seeking the clarification needed to ensure the trial court’s decision will withstand scrutiny.
Use Motions in Limine
Motions in limine are used to decide evidentiary disputes and limit evidence ahead of trial, and are a standard and important part of pre-trial practice with jury trials.
That said, do not be shy in using them in bench trials either. They are useful for evidence that is potentially prejudicial or inflammatory, for an evidentiary issue involving a significant number of witnesses or voluminous documents, or for evidence that is unresolved under existing law.5
In other words, when used properly, motions in limine can make the trial process run more smoothly and efficiently. With a jury trial, an attorney can run the risk of losing the jury if they make too many objections at trial – particularly if those objections are overruled.
Be specific with your motions in limine. Describe specific evidence – whether testimony or documents – you wish to limit and argue the evidentiary basis for that evidence’s exclusion.
Do not file generic motions in limine that simply regurgitate the rules of evidence, such as requesting to limit any evidence based on hearsay, that lacks foundation, or that is otherwise inadmissible.6
Finally, if the court denies a motion in limine or defers a decision until it hears the evidence at trial, then make sure to object again at trial, even though an objection was raised pre-trial through a motion in limine. Failure to do so may waive the issue on appeal.7
Make Sure the Court Reporter is Recording the Proceedings
Just because an attorney is in the courtroom with the judge does not mean it is on the record.
Be sure the court reporter is in the room and recording the proceedings – that is the only way to know if what you argue is on the record. Sometimes, at any stage of a trial, the court will hold informal conferences and discussions off the record. If this happens, an attorney should ensure that any objections or arguments they make during these off-the-record discussions are placed into the record at the next available opportunity.
For instance, during a jury trial, courts are required to hold a jury instruction conference between the close of evidence and prior to closing arguments.8 There are courts that hold this conference off the record.
Similarly, during sidebar discussions in jury trials, some courts are not equipped for the court reporter to hear the discussions between the court and that attorneys.
In these examples, if the arguments made during off-the-record discussions do not make it onto the record, then they are waived, because the court of appeals has nothing to review.9
Conclusion: Practice Best Practices
It is crucial to be specific and avoid vague terms, use the best tools at a litigator’s disposal, and make sure all objections and arguments are captured in the record.
For more advice, see the video "How to Win on Appeal: Make Your Record Clear," with tips from Wisconsin Appeals Court Judge Mary Lazar, in the July 19, 2023, issue of
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1SeeWis. Stat. section 901.03(1)(b).
2 State ex rel. Schlehlein v. Duris, 54 Wis. 2d 34, 39, 194 N.W.2d 613 (1972).
3 State v. Pulizzano, 155 Wis. 2d, 633, 652, 456 N.W.2d 325 (1990).
4 Dalka v. Wisconsin Cent., Ltd., 2012 WI App 22, ¶51, 339 Wis. 2d 361, 811 N.W.2d 834.
5 State v. Wright, 2003 WI App 252, ¶40, 268 Wis. 2d 694, 673 N.W.2d 386.
6 See Matter of Commitment of T.W., 2021 WI App 74, 966 N.W.2d 278, 2021 WL 4205163 (unpublished).
7 See State v. Bergeron, 162 Wis. 2d 521, 825-29, 470 N.W.2d 322 (Ct. App. 1991);
State v. Chambers, 207 Wis. 2d 644, 559 N.W.2d 924, 1996 WL 731243 (Ct. App. 1996).
8 Wis. Stat. section 805.13(3).
9 Steinberg v. Jensen, 204 Wis. 2d 115, 120-21, 553 N.W.2d 820 (Ct. App. 1996);
State v. Trammell, 2019 WI 59, ¶25, 387 Wis. 2d 156, 928 N.W.2d 564.