There can be no doubt that the goal of every trial attorney who sets foot in a courtroom is the same—to win the case. For all practical purposes, however, not all cases can be won and when there is a winner, there inevitably must also be a loser. For those lawyers who brag that they have never lost a case, the reality is that either they have not tried very many, or they have successfully pawned off and assigned the “dogs” to the younger, less experienced attorneys in their office. Irrespective of whether the case starts out as a good or a bad one, quite often the success or failure of the trial attorney is determined by how faithfully the trial lawyer adheres to the practice of protecting and/or preserving the trial record. Thus, even the best of cases can be lost simply because the lawyer failed to protect the trial record.
To say that protecting the record is an important aspect of trial practice is a gross understatement. Indeed, it is essential. Protection of the trial record serves a crucial function at both the trial and the appellate levels. At the trial level, proper protection will ensure that the record is sufficiently developed to create a logical and compelling argument for summation, to guarantee that in the event of a request for a read-back by the jurors during deliberation, that sufficient proof has been adduced to answer any concerns the jurors might have and to withstand a trial or post-trial motion to dismiss and/or to set aside the verdict. Upon review, at the appellate level, the trial record must be sufficiently protected to preserve any legitimate basis for appeal. Put another way, the failure to preserve the trial record for appeal will likely result in waiver of the issue sought to be reviewed.
The Crucial Answer
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