Steve Palmer [00:00:00]:
Okay. Steve Palmer here. Lawyer Talk podcast. If this looks familiar, it's because I just recorded a video call on what's the appeal, our our ongoing segment about the appellant post conviction process, about hidden costs, and sometimes transcripts cost a lot of money, and I'm dealing with that right now. Immediately after finishing, our our, our head of production, Brett from Circle two seventy Media, had a question. And he's like, how accurate are transcripts? Because I was talking about, trans transcripts in general. So the you know, you have the court reporter upfront, of the courtroom taking down everything, and then we have the other types that we get, which is audio video. And it's a great question, and I I the answer is really, really, really accurate most of the time.
Steve Palmer [00:00:44]:
I've you know, there is a few times let's talk about the good. It always is amazing to me that a court reporter using this stenography machine and using, their skills that they've learned can take down in real time what people are saying. And by real time, I mean, they have this real time transcription now where it shows up in real time. Now it doesn't mean it's perfect the first time. They go the court reporters often will go back and edit, some of the the I think they'd some even do it nightly or after the breaks. They'll go back and edit things, and we always the the things that they might get wrong might be names, and we always try in advance of trial to hand a a list of witnesses to the court reporter, so the court reporter knows the spellings of the names. If there's places, they know the spellings of the places. That way, that gets accurate.
Steve Palmer [00:01:31]:
But I gotta tell you, I have been infinitely impressed over the, the span of my career when I first started practicing law and doing trial work and appellate work, reading a transcript and think, good grief. How do they do this, and how can it be so accurate? I hats off to you folks who do it because you do it well. And it's almost always as perfect as it can be. Nothing is perfect perfect, but this is as perfect as it can be, 99.9% of the time. There are times, though, when it's not so perfect. And what do we do about that? I have a very good friend, went to college with him, and now he's a prosecutor up in New York. And he told me about a situation, I think, where he was on the prosecutor side working on an appeal. And it turns out the court reporter was either drunk or high or, in the throes of a opioid addiction or something.
Steve Palmer [00:02:17]:
And the transcript was a disaster. Lots of it just didn't exist. The stuff that did exist was nonsensical, and they're they were on the quintessential horns of a dilemma. What do they do about it? The rules give us some leeway, and the courts of appeals over the years have, have, dealt with this, there's a couple options. The parties can sort of get together and agree. Hey. Look. This is what this is what happened at trial, and we're just gonna create our own record.
Steve Palmer [00:02:43]:
And, you know, there's probably a time in our history where that's what happened, you know, where where you you know, we didn't always have the technology that we have today. We there were, people sitting in a courtroom probably taking notes, and, you didn't have good records of what happened in court. You had people's memories at times. You had people jotting down notes and shorthand. So we're we've spoiled in the modern age with our technology, but they had to go back to the drawing board and figure out a way to get a record together. If it's impossible to get a record together or if you can't agree, you know, courts ultimately would decide or, maybe the defendant, if he's gonna get a fair trial or a or a fair appeal rather, they gotta do it again. They gotta have a retrial. Now there's other situations I've had where the record itself is by agreement.
Steve Palmer [00:03:30]:
I you know, I've even I've even short circuited the whole process of trial and drafted up a memorandum of agreement with the prosecutor and said, we all agree that if we go to trial, this will be the evidence. And we did this specifically in Ohio in an OBI case. The defense will have an expert that would say that that breath test machines are generally unreliable and the power supplies are defective. Henry's laws aren't right. They're they're subject to hue or fallacy like any other machine, yada yada yada. That's a whole different topic. I'm not going into it. And we agreed that the judge would exclude that evidence because in Ohio, under state versus Vega, we're not allowed to present it.
Steve Palmer [00:04:10]:
So we just we just created a record, and defendant was found guilty of a per se OVI, meaning driving with a prohibited alcohol concentration in her breath. And we went right up the court of appeals ladder. It didn't matter, in other words, in that case, exactly what the witnesses would say because we had we had targeted, the actual issue that we knew was going to emerge. So we actually agreed on the record. There are other ways there are other things you can do later on, like supplement the record. If I get a transcript and I think, wait a minute. This isn't right. I can, file a motion to supplement or correct the record, and the courts can figure it out.
Steve Palmer [00:04:42]:
But back to, Brett's question, it is remarkable how accurate almost all the time trial court transcripts are in this day and age. I appreciate that I am spoiled, and there was a time when it wasn't always like that. Probably even in my father's lifetime, there was a time when it wasn't always like that. But it is now, And, that means that we always have a good record of appeal. That's not to say that I haven't had clients who say that's nonsense. That's not what happened. That's not what was said. But I think sometimes, you know, we have our own confirmation bias.
Steve Palmer [00:05:15]:
I've even read transcripts later, and I thought, boy, did I really sound that bad when I was talking in a courtroom? Yes. Yes. I did. There's a lot of ums, ahs, stutters, and stops. And I'll tell a quick war story or not even a war story, but Jerry Spence, he's a famous criminal defense lawyer. He's got the Spence College of trial, whatever. He wrote a book on how to win an argument every time or something along those lines. And I think it was in this book, and and he tells the story about how he, he felt like he gave a great closing argument, or maybe I'll put it this way.
Steve Palmer [00:05:50]:
His best closing arguments that people have in real time told him, phenomenal closing argument, mister Spence. You really nailed it out of the ballpark. And then he gets the transcripts and reads it, and it reads horribly. And sort of interesting. It doesn't mean that the court reporter got it wrong. What it means is, this is I know we're on we're off on a tangent, but that's okay. What it means is you don't have to be, Bill Clinton or Barack Obama or Abraham Lincoln, in order to be a persuasive advocate. Genuineness is really what counts, and we all talk and stutter and stammer and use the wrong words at different times.
Steve Palmer [00:06:27]:
And I think early on in our careers as lawyers or even as public speakers, we worry too much about that. And the more you worry about it, the more it happens. And then you read your transcript and it gets worse and worse and worse. The point is to overcome all that, speak from the heart, deliver the message, and it doesn't matter how bad you sound on the transcript. It matters, how well you conveyed your message in a courtroom or from the podium or lectern, whatever the situation is. So, anyway, lawyer talk podcast, what's the appeal, dealing with a question. So sort of a q and a, what's the appeal? Check us out, lawyertalkpodcast.com. If you need help with your appeal, palmerlegaldefense.com.
Steve Palmer [00:07:03]:
Coming at you each and every week off the record on the air. Till now.