TIPS FOR LITIGATORS

FROM AN APPELLATE PRACTITIONER

1. When reading a deposition into evidence at trial (or playing a videotaped deposition), it is common to allow the court reporter to take a break since a transcript already exists. It would be helpful on appeal if (1) you identify on the record the date of the deposition transcript being read into evidence and (2) make sure you have a clean, unmarked copy of the transcript so it can be submitted to the Court of Appeals. The videotapes are not submitted to the Court of Appeals; the Court only accepts the typed transcript.

2. If you file a motion for summary disposition or a brief in opposition, it is best to attach entire transcripts rather than just the pages you are citing. The court clerk might not like it, but you may need to rely on those additional pages or alternative arguments on appeal. The entire transcript is not part of the record on appeal unless you file or attach the entire transcript at the trial court.

3. Motions to stay enforcement of the judgment or for a bond on appeal must be filed and heard in the trial court first. The Court of Appeals will not consider these motions unless that prerequisite is met. MCR 7.209(A)(2). Even if an appeal is filed, the trial court retains jurisdiction to decide such issues. MCR 7.208(F).

4. Appellate courts are “courts of review.” They will generally only review the decisions made by a lower court based on the arguments presented in that court and the evidence made part of the lower court’s record. It is rare for an appellate court to allow unpreserved arguments or to view evidence that was not part of the formal lower court record. If it is not in the record below, it does not exist.

JAMES N. McNALLY

Attorney at Law

Specializing in Appeals

Civil – Criminal – State – Federal – Workers Comp