What are you afraid of? Planning, to win on appeal Friday, December 11, 2009
Jan 12, 2015
What are you afraid of?
Planning, to win on appeal
Friday, December 11, 2009
30%
70%
Trial Appellate
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Friday, December 11, 2009
6%Friday, December 11, 2009
The Record and its Relationship to What I Do
Friday, December 11, 2009
What clients expect from
appellate counsel
Friday, December 11, 2009
What Clients Expect from Appellate Counsel
Friday, December 11, 2009
Appellate Success = a Good
Friday, December 11, 2009
What Appellate Counsel Can Do
Friday, December 11, 2009
Oh, the records I’ve seen
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What the Average
Record Does
Friday, December 11, 2009
Where Seminar Boredom Happens
Judge on Ethics
Judge on Professionalism
Record / Appellate Dude
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3 most important topics
1. Ethics
2. Professionalism
3. Making a Record
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Why are so many records so bad?
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Why is this topic usually so boring?
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Friday, December 11, 2009
Friday, December 11, 2009
This talk in a nutshell
Fear +MRI
Friday, December 11, 2009
This talk in a nutshell
Fear +MRI
otions
ulings
nstructions
Friday, December 11, 2009
FEAR
Friday, December 11, 2009
“Named must your fear be before banish
it you can.”
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“There are two types of public speakers:
those that are nervous and those that are
liars.”
-Mark Twain
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we’re still hardwired for this world
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Speaking in Court
• Standing alone
• In open territory
• without a weapon
• in front of a crowd
• some of whom are armed
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Your eyes see:
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Your eyes see:
Your brain sees:
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Your eyes see:
Your brain sees:
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Your ears hear:
Overruled
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Your
bra
in H
EARS
Prom?With you?
bwah ha ha ha ha!Not!
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Preserving a Record at trial is the classic fight or
flight scenario (but you can’t do either)
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Fight Flight
you’ll lose 100% of the fights you ever have
with a judge
= no objection or motion and a 6% reversal
rate
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MRI
otions
ulings
nstructions
To Manage the Fear and preserve the record:
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Motions
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In Limine
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Harley-Davidson v. Daniel, 244 Ga. 284 (1979)
Friday, December 11, 2009
Motions in Limine Factor Out Fear
No Audience for the
Bullying Judge
No Jury There
You Don’t Have to be on Guard
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You can do the whole thing in writing
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Safety & Comfo!
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Which Motions?
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Limited only by the Imagination
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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?
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Discovery
• Uncritical
• Make lists
• Brainstorm legal principles
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Figure out the evidentiary battle lines in advance
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The accusation:Ask some basic
questions
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Rulings
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your trialFil
l with
rulin
gs
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versus
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versus
“sustained”“overruled”“granted”“denied”
“move along”“ask your next question”
“noted”“ok”
“(sometimes)approach”
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versus
Their objection to your evidence
Their objection to your evidence followed by a
proffer
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Your goal is not to win the rulingsIt’s to collect rulings
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Be exceptionally polite about it
(sheepish if you can)
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Text
Instructions
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For really bad stuff, move for mistrial
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Really bad stuff
• character
• comment on financial status
• burden shifting
• comment on silence
• future dangerousness
• “any” alcohol versus no alcohol = less safe
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Move for mistrial
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Ask for curative instruction (while telling that it won’t
work)
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Renew Motion for Mistrial
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Renew motion for mistrial after
“corrective action”
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Jury instructions
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Request the kitchen sink
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Not just pattern
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pull from caselaw, from statute, or compose
them yourself
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object after charge; renew after charge
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Conclusion
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Do an MRI to Beat Back Fear
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MotionsRulings
InstructionsFriday, December 11, 2009
Scott [email protected]
www.squidoo.com/jscottkeywww.scottkey.typepad.com
678.610.6624
Friday, December 11, 2009