From an appellate lawyer’s perspective, one of the trickiest parts of trial practice is preserving issues for appeal.

And one of the most difficult–and, unfortunately, the most common–variations of the problem arises when the trial court does something important off the record. That can happen in chambers, at sidebar, in the hall, or practically anywhere. The only limitations are the scope of the judge’s imagination and the architecture of the courthouse.

The obvious solution is to bring the court reporter along whenever it looks like something good is about to happen. (If you’ve been reading this blog, you know better than to go to court without a court reporter. Ever.)

But what can you do when the judge indicates that he or she wants to talk to counsel in chambers, without the court reporter?

That’s a tough one. As a trial lawyer, you never want to irritate a judge. Here’s a tool you can use to help address the situation: Code Section 8.01-420.3. It says, in part:

The court shall not direct the court reporter to cease recording any portion of the proceeding without the consent of all parties or of their counsel of record.

That’s powerful stuff, and it may be enough to get the judge to back down and let the court reporter in on the action.

Of course, it doesn’t solve the whole problem; citing the Code section may still tick the judge off. Whether it’s worth doing so is a judgment call the trial lawyer has to make. But at least Code Section 8.01-420.3 provides some legal cover for the argument, and a justification for insisting that information be put into the record.

Even though I’ve started compiling the definitive Trial Lawyer’s Guide to Preserving Error in Virginia, I confess that I didn’t know this statute existed until Frank Friedman pointed it out to me the other day at a CLE. Frank is a great guy, and a brilliant* appellate lawyer. I’m sure that he’ll be glad to help you appeal any contempt citations that might result from this post.


*With the exception of one or two pending cases, where he is clearly wrong.