Appellate Practice & Procedure

Class #2:

How Appellate Lawyers Bring Value

at the Trial Court Level

presented by

D. Todd Smithhttp://texasappellatelawblog.com

for

Solo Practice University™

An Appellate Lawyer’s Skill Set

Researching the law

Applying it to facts

Develop a persuasive argument favoring client’s position

How do you apply these skills

effectively in trial courts?

(And why would you want to?)

Positioning for Appellate Review

Identifying appealable issues in your case

Identifying issues of interest to appellate courts

Developing the issues as needed to put the case in the

best possible position if/when it goes up on appeal

All with a more objective, dispassionate point of view

than trial counsel’s

Case-Shaping Opportunities

Strategic Planning and Analysis

Motions/Responses and Trial Briefing

Jury Charge Preparation

Error Preservation

Strategic Planning and Analysis

Legal theories Claims and defenses

Discovery Opportunity to shape the facts to fit theories

What to emphasize or minimize

Experts Whether they are needed

How best to use them

How to handle Daubert-type challenges

Timing and subject of motions

Motions/Responses & Trial Briefing

Pre-trial Motions to dismiss—jurisdictional issues, pleading defects

Motions for summary judgment—legal or evidentiary issues

Trial Handling legal issues as they arise

Judgment Crafting the document

Ensuring finality/avoiding problems

Post-trial/post-judgment JMOL, JNOV, MNT

Findings of fact and conclusions of law

Error Preservation

In most cases, a prerequisite to raising an issue on appeal

Pre-trial issues

Evidentiary objections

Jury submissions

Post-judgment motions

Jury Charge Preparation

Ideally, draft very early in the case•Helps inform trial lawyers when developing evidence

•Identify opportunities for advocacy

•Accurately reflect the law, phrased to produce the desired outcome

Pattern jury charges•Useful tools, but don’t rely on them entirely

•Check recent developments in case law

Handling the charge conference•Allows trial counsel to focus on closing argument

•Advantageous to have monitored the entire trial

Questions?

“Stop by” during office hours

Participate in the official study group

Visit the Appellate Discussion Lounge

Next Time . . .

Appellate Practice & Procedure

Class #3:

Handling an Appeal—The Decision to

Appeal and Preliminary Matters

presented by

D. Todd Smithhttp://texasappellatelawblog.com

for

Solo Practice University™