5.1. Taming the Record

• Jurisdiction: United States
• Publication year: 2021

5.1. TAMING THE RECORD

Long-form journalism usually starts with the author's immersion in the subject. John McPhee spent major parts of three years in Alaska assembling the stories that became Coming Into the Country.¹ Gary Kinder spent seven years researching Victim.²

Appellate lawyers cannot choose their immersion; trial lawyers and judges take that role. They leave a record of their doings. The appellate lawyer immerses in the record, which is close to a sole source of story in most briefs.

Processes of creative nonfiction and appellate story writing converge where the journalist has finished field research and the appellate lawyer receives the record. Each must turn a body of loosely connected, occasionally contradictory, and unorganized facts into a story.

When McPhee first faced this challenge, he coded his notes according to connection with one of four topics, copied the notes onto three-by-five-inch cards, and posted the cards on a four-by-eight-foot piece of plywood.³ Then he arranged the cards according to the topics and scenes within them.⁴ The associated cards readied him to write by presenting a visual picture of scenes and their combinations.

As McPhee grew his skills, took on broader subjects, and produced longer works, he typed all his notes onto cards using an Underwood 5 typewriter. Then he manually cut the cards, each strip containing text on only one topic. He placed the strips into manila folders, each for but one topic. Why? "The notes from one to the next frequently had little in common. They jumped from topic to topic, and only in places were sequentially narrative."⁵ Besides solving the problem of organizing his record, the review taught him what his record contained and what he could do with it. "It painted me into a corner, yes, but in doing so, it freed me to write."⁶

Taking advantage of the tech support resources of Princeton University, McPhee began in 1984 to computerize his process. No retail technology product performs as McPhee's does. Other writers must make their own adaptations.

Appellate lawyers face a challenge identical to McPhee's when they must read a record more than trivially long.

5.1.1. How to Create an Abstract Instead of the Traditional Digest

Law schools teach would-be appellate lawyers a standard method of logging the contents of the record.⁷ It consists of making so-called transcript notes as one reads parts of the record from beginning to end. Transcript notes state what happened on cited pages of the record, often summarizing large blocks of testimony, contents of related exhibits, objections, and rulings. Impressions about errors, conflicts, strengths, arguments, and storylines are encouraged. Transcript notes go in a notebook or binder, and the product is traditionally called a digest.

I do not recommend the traditional digest to an appellate lawyer as a foundation for writing good stories. The digesting process can prematurely convert impressions of testimony and documents into opinions that restrain mental flexibility. It's hard to fit it into computer-sortable McPhee cards. Excellent appellate lawyers use the digest method; I'm not saying it's wrong, but it's not for me, and there's something better that I call abstracting.

Facing my first long-record appeal, I knew little about the case except what the trial lawyers told me. They lost the verdict to the jury and the posttrial motions to a capable judge. I did not trust them. I rejected the standard method of making transcript notes, mostly because I was unsure of the important topics and did not want to paint myself into a corner as I read. Like most lawyers in my age cohort, I had used three-by-five- inch cards to organize facts for term papers and debate. I thought that system would take too much time, and it required categorizing topics a priori.

Personal history and technology led to inventing a method to own a record. Years before, I designed my firm's first computerized litigation document management system—not that I could program it, but I learned enough to direct the programmers to produce products that were both searchable by text and sortable by coding. When I faced my first massive record, the firm had just bought its first round of computers for lawyers, equipped with WordPerfect 4.2. The technology staff was itching to work with early adopting lawyers.

In a few hours, a staff friend and I figured out how to use WordPerfect's tables function to create a four-column table to organize transcript notes of theoretically infinite length. I could type all the information myself as I read the raw record. Simple coding conventions—like inputting dates as YYMMDD—made three of the columns sortable. WordPerfect made the entire document searchable. With intermediate or better typing skill, the process was no slower than digesting.⁸ I soon found great time savings in the capacity to manipulate the data at the composition phase after removing the table structure.

I have made a few tweaks but never changed the core of my abstracting process. With each change in application or version, I needed a new template to avoid designing the column sizes and fonts ad hoc. The only problem was wanting simpler operations than the app designers wanted to give me. Early on, I did a lot of backup saving to floppy discs, but crashes diminished.

I call the product of my work an abstract of record. Here's a page from a completed one.

R0878	Kinney	140428	In April 2014, Kinney wrote to Preman, copying Hilton, to thank Preman for stopping the leaks over Cycle's office and to report problems with leaks into the building fire alarm system. (9 RT 878; TE 455.) As of that time, the landlord never sent Cycle a bill for Preman's services. (9 RT 879.)
R0878	Kinney	140227	Cycle was not billed for Preman's repairs. (9 RT 878.) Preman sold Cycle...