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

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


Fear +


otions
Fear + 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 Your brain
see: sees:


Your ears
hear:

ul ed
ve rr
O


S
R
Prom?

A
E
H
With you?
n bwah ha ha ha ha!
ai
br

Not!
ur
Yo


Preserving a Record at
trial is the classic ﬁght or
ﬂight scenario
(but you can’t do either)


Fight Flight
you’ll lose = no objection
100% of the or motion and
ﬁghts you a 6% reversal
ever have rate
with a judge


To Manage the Fear and preserve the record:

otions

ulings

nstructions


Motions


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


Motions in Limine
Factor Out Fear


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


you
r tr
ial

gs
n
li
ru
h
it
w
ll
Fi


versus


“move along”
“ask your next question”
“noted”
“ok”
“sustained” “(sometimes)approach”
“overruled”
“granted”
“denied”
versus


Their objection to Their objection
your evidence to your evidence
followed by a
proffer

versus


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


Be exceptionally
polite about it
(sheepish if you can)


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


Motions
Rulings
Instructions

Scott Key
scottkey@bellsouth.net
www.squidoo.com/jscottkey
www.scottkey.typepad.com
678.610.6624


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

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