What are You Afraid of: Planning, to Win on Appeal

What are you afraid of?

Planning, to win on appeal

Friday, December 11, 2009

30%

70%

Trial Appellate



6%Friday, December 11, 2009

The Record and its Relationship to What I Do


What clients expect from

appellate counsel


What Clients Expect from Appellate Counsel


Appellate Success = a Good


What Appellate Counsel Can Do


Oh, the records I’ve seen


What the Average

Record Does


Where Seminar Boredom Happens

Judge on Ethics

Judge on Professionalism

Record / Appellate Dude


3 most important topics

1. Ethics

2. Professionalism

3. Making a Record


Why are so many records so bad?


Why is this topic usually so boring?




This talk in a nutshell

Fear +MRI


This talk in a nutshell

Fear +MRI

otions

ulings

nstructions


FEAR


“Named must your fear be before banish

it you can.”


“There are two types of public speakers:

those that are nervous and those that are

liars.”

-Mark Twain


we’re still hardwired for this world


Speaking in Court

• Standing alone

• In open territory

• without a weapon

• in front of a crowd

• some of whom are armed


Your eyes see:


Your eyes see:

Your brain sees:


Your eyes see:

Your brain sees:


Your ears hear:

Overruled


Your

bra

in H

EARS

Prom?With you?

bwah ha ha ha ha!Not!


Preserving a Record at trial is the classic fight or

flight scenario (but you can’t do either)


Fight Flight

you’ll lose 100% of the fights you ever have

with a judge

= no objection or motion and a 6% reversal

rate


MRI

otions

ulings

nstructions

To Manage the Fear and preserve the record:


Motions


In Limine


Harley-Davidson v. Daniel, 244 Ga. 284 (1979)


Motions in Limine Factor Out Fear

No Audience for the

Bullying Judge

No Jury There

You Don’t Have to be on Guard


You can do the whole thing in writing


Safety & Comfo!


Which Motions?


Limited only by the Imagination


Start when you first get the case

• What do you want to exclude?

• What are you going to want in evidence?

• What might be wrong with the accusation?

• What might be wrong with the jury pool?


Discovery

• Uncritical

• Make lists

• Brainstorm legal principles


Figure out the evidentiary battle lines in advance


The accusation:Ask some basic

questions


Rulings


your trialFil

l with

rulin

gs


versus


versus

“sustained”“overruled”“granted”“denied”

“move along”“ask your next question”

“noted”“ok”

“(sometimes)approach”


versus

Their objection to your evidence

Their objection to your evidence followed by a

proffer


Your goal is not to win the rulingsIt’s to collect rulings


Be exceptionally polite about it

(sheepish if you can)


Text

Instructions


For really bad stuff, move for mistrial


Really bad stuff

• character

• comment on financial status

• burden shifting

• comment on silence

• future dangerousness

• “any” alcohol versus no alcohol = less safe


Move for mistrial


Ask for curative instruction (while telling that it won’t

work)


Renew Motion for Mistrial


Renew motion for mistrial after

“corrective action”


Jury instructions


Request the kitchen sink


Not just pattern


pull from caselaw, from statute, or compose

them yourself


object after charge; renew after charge


Conclusion


Do an MRI to Beat Back Fear


MotionsRulings

InstructionsFriday, December 11, 2009

Scott [email protected]

www.squidoo.com/jscottkeywww.scottkey.typepad.com

678.610.6624


mailto:[email protected]

mailto:[email protected]

http://www.squidoo.com/jscottkey

http://www.squidoo.com/jscottkey

http://www.scottkey.typepad.com

http://www.scottkey.typepad.com

Business

What are You Afraid of: Planning, to Win on Appeal