The scope of appellate review is inexorably tied to the record in the trial court or before the administrative agency. Protecting the record is frequently associated with preserving legal issues for appeal, a topic we will address in the future. But facts matter. The extent to which legal arguments are likely to succeed is greatly affected by their factual context. So, care must be taken to protect the full development of the factual record as well.

Bear in mind that the record is limited to what has found its way onto paper—the transcript of the proceedings and papers filed with the court. R. 2:5-4. The paper record is sufficient for the disposition of most legal issues raised: an argument is presented; a ruling is made; or a witness provides testimony that supports or undermines the cause.

But the shared experience of a trial is not limited to what is said. Photographs are circulated among the jurors. Documents are shown to a witness. Yet, contrary to the old saw, documents do not speak for themselves. Unless the photograph is described or the relevant passage in the document (received in evidence) is read into the record, the transcript reveals little about the substance or significance of the cited portion of the exhibit. Even if all trial exhibits were routinely forwarded to the reviewing court, which is not the case, the effort entailed in matching up the testimony with the relevant portion of the document may not be as effective as laying out the relevance through the witness.

If an offered document is excluded, the record may contain the arguments regarding its relevance or prejudice giving the appellate panel context. But don't forget to mark the document for identification and tailor recorded comments referencing the specific exhibit.

One last note on documents. In motion practice, do not attach important documents to trial briefs. "Briefs submitted to the trial court shall not be included in the [appellate] appendix" except in very circumscribed circumstances. R. 2:6-1(a)(2). Accordingly, important documents attached as brief exhibits, rather than appended to a certification, will also be excluded.

Sometimes, there are occurrences in the courtroom that entirely elude the record, despite their potential for affecting the outcome, because they are non-verbal. Is the defendant still handcuffed when the jury enters the courtroom? Is a witness crying? Or shouting and interrupting the cross-examiner? Is an adversary encroaching upon the jury's space or speaking so quietly that you cannot hear what he is saying to them? Is a juror sleeping or, worse still, is the judge asleep?

As an aside on that last, presumably rare, example, decades ago there was a federal judge who was known to nod off. His court clerk routinely stepped into the breach and ruled on objections, which were recorded as the court's rulings in the transcript. No one demurred. In case you wondered, the judge was rarely reversed.

To preserve a record that fairly presents what occurred in the courtroom, it is essential to get that non-verbal event into the transcript. As an attorney you want to avoid making yourself a witness and, certainly, your credibility as an advocate will be compromised if you appear to routinely attempt to add editorial comments to the record. So—how, when and why to do so?

The purpose here is to assist a reviewing court in understanding what happened. When non-verbal circumstances illuminate, you can ask that "the record reflect"  or that the court take notice of the significant event. Your explanation of what occurred and why it is due notice will help both the trial and appellate courts.

To be most effective, a request to note an occurrence for the record should be made contemporaneously. Raising the issue hours or days later suggests more of the strategic rather than an earnest effort to create an accurate record. It is quite possible that the court or opposing counsel may have a different perception of what occurred. Sorting out the differences is best conducted before recollections fade. There is an added benefit as a timely comment gives the trial judge an opportunity to take corrective action if need be. This is a point always valued in appellate review.

You may be disappointed if you hang back and wait for the judge to respond, sua sponte, to something that occurs. The judge cannot possibly observe everything that transpires. She may have her head down, taking notes; her attention may be focused elsewhere, such as on the witness rather than the jury; or the matter you want noted may be out of her line of vision.

These events should always be raised with the court at sidebar. Observations declared in front of the jury take on the appearance of grandstanding. If, however, the judge is disinclined to permit a sidebar conference, bring it up out of the presence of the jury at the earliest opportunity and tactfully mention that you had wanted to bring the issue to the court's attention earlier when you requested the sidebar. Judges are often reluctant to inject themselves into a trial. You may find that, once an issue is presented, the judge will be very receptive to a suggested resolution.

Marie E. Lihotz, a former Presiding Judge of the Appellate Division, is now of counsel with Archer and Greiner, providing appellate consulting, mediation and arbitration services. Marianne Espinosa, a former Judge of the Appellate Division, is of counsel with Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins. She focuses on appellate consultation, mediation, arbitration and the investigation of employment law disputes.