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

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This is a presentation given at a CLE in Atlanta to a group of DUI lawyers about how fear prevents lawyers from objecting at trial and how three simple steps can help them develop a better record for appeal

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

  1. 1. What are you afraid of? Planning, to win on appeal Friday, December 11, 2009
  2. 2. 30% 70% Trial Appellate Friday, December 11, 2009
  3. 3. Friday, December 11, 2009
  4. 4. 6% Friday, December 11, 2009
  5. 5. The Record and its Relationship to What I Do Friday, December 11, 2009
  6. 6. What clients expect from appellate counsel Friday, December 11, 2009
  7. 7. What Clients Expect from Appellate Counsel Friday, December 11, 2009
  8. 8. Appellate Success = a Good Friday, December 11, 2009
  9. 9. What Appellate Counsel Can Do Friday, December 11, 2009
  10. 10. Oh, the records I’ve seen Friday, December 11, 2009
  11. 11. What the Average Record Does Friday, December 11, 2009
  12. 12. Where Seminar Boredom Happens Judge on Ethics Judge on Professionalism Record / Appellate Dude Friday, December 11, 2009
  13. 13. 3 most important topics 1. Ethics 2. Professionalism 3. Making a Record Friday, December 11, 2009
  14. 14. Why Friday, December 11, 2009
  15. 15. Why Friday, December 11, 2009
  16. 16. Friday, December 11, 2009
  17. 17. Friday, December 11, 2009
  18. 18. Fear + Friday, December 11, 2009
  19. 19. otions Fear + ulings nstructions Friday, December 11, 2009
  20. 20. FEAR Friday, December 11, 2009
  21. 21. “Named must your fear be before banish it you can.” Friday, December 11, 2009
  22. 22. “There are two types of public speakers: those that are nervous and those that are liars.” -Mark Twain Friday, December 11, 2009
  23. 23. we’re still hardwired for this world Friday, December 11, 2009
  24. 24. Speaking in Court • Standing alone • In open territory • without a weapon • in front of a crowd • some of whom are armed Friday, December 11, 2009
  25. 25. Your eyes see: Friday, December 11, 2009
  26. 26. Your eyes Your brain see: sees: Friday, December 11, 2009
  27. 27. Your eyes Your brain see: sees: Friday, December 11, 2009
  28. 28. Your ears hear: ul ed ve rr O Friday, December 11, 2009
  29. 29. S R Prom? A E H With you? n bwah ha ha ha ha! ai br Not! ur Yo Friday, December 11, 2009
  30. 30. Preserving a Record at trial is the classic fight or flight scenario (but you can’t do either) Friday, December 11, 2009
  31. 31. Fight Flight you’ll lose = no objection 100% of the or motion and fights you a 6% reversal ever have rate with a judge Friday, December 11, 2009
  32. 32. To Manage the Fear and preserve the record: otions ulings nstructions Friday, December 11, 2009
  33. 33. Motions Friday, December 11, 2009
  34. 34. Friday, December 11, 2009
  35. 35. Harley-Davidson v. Daniel, 244 Ga. 284 (1979) Friday, December 11, 2009
  36. 36. Motions in Limine Factor Out Fear Friday, December 11, 2009
  37. 37. You can do the whole thing in writing Friday, December 11, 2009
  38. 38. Safety & Comfo! Friday, December 11, 2009
  39. 39. Which Motions? Friday, December 11, 2009
  40. 40. Limited only by the Imagination Friday, December 11, 2009
  41. 41. 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? Friday, December 11, 2009
  42. 42. Discovery • Uncritical • Make lists • Brainstorm legal principles Friday, December 11, 2009
  43. 43. Figure out the evidentiary battle lines in advance Friday, December 11, 2009
  44. 44. The accusation: Ask some basic questions Friday, December 11, 2009
  45. 45. Rulings Friday, December 11, 2009
  46. 46. you r tr ial gs n li ru h it w ll Fi Friday, December 11, 2009
  47. 47. versus Friday, December 11, 2009
  48. 48. “move along” “ask your next question” “noted” “ok” “sustained” “(sometimes)approach” “overruled” “granted” “denied” versus Friday, December 11, 2009
  49. 49. Their objection to Their objection your evidence to your evidence followed by a proffer versus Friday, December 11, 2009
  50. 50. Your goal is not to win the rulings It’s to collect rulings Friday, December 11, 2009
  51. 51. Be exceptionally polite about it (sheepish if you can) Friday, December 11, 2009
  52. 52. Instructions Friday, December 11, 2009
  53. 53. For really bad stuff, move for mistrial Friday, December 11, 2009
  54. 54. Really bad stuff • character • comment on financial status • burden shifting • comment on silence • future dangerousness • “any” alcohol versus no alcohol = less safe Friday, December 11, 2009
  55. 55. Move for mistrial Friday, December 11, 2009
  56. 56. Ask for curative instruction (while telling that it won’t work) Friday, December 11, 2009
  57. 57. Renew Motion for Mistrial Friday, December 11, 2009
  58. 58. Renew motion for mistrial after “corrective action” Friday, December 11, 2009
  59. 59. Jury instructions Friday, December 11, 2009
  60. 60. Request the kitchen sink Friday, December 11, 2009
  61. 61. Not just pattern Friday, December 11, 2009
  62. 62. pull from caselaw, from statute, or compose them yourself Friday, December 11, 2009
  63. 63. object after charge; renew after charge Friday, December 11, 2009
  64. 64. Conclusion Friday, December 11, 2009
  65. 65. Do an MRI to Beat Back Fear Friday, December 11, 2009
  66. 66. Motions Rulings Instructions Friday, December 11, 2009
  67. 67. Scott Key scottkey@bellsouth.net www.squidoo.com/jscottkey www.scottkey.typepad.com 678.610.6624 Friday, December 11, 2009

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