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

Friday, December 11, 2009

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

Friday, December 11, 2009

What the Average

Record Does

Friday, December 11, 2009

Where Seminar Boredom Happens

Judge on Ethics

Judge on Professionalism

Record / Appellate Dude

Friday, December 11, 2009

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?

Friday, December 11, 2009

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.”

Friday, December 11, 2009

“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

Friday, December 11, 2009

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:

Friday, December 11, 2009

Your eyes see:

Your brain sees:

Friday, December 11, 2009

Your eyes see:

Your brain sees:

Friday, December 11, 2009

Your ears hear:

Overruled

Friday, December 11, 2009

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)

Friday, December 11, 2009

Fight Flight

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

with a judge

= no objection or motion and a 6% reversal

rate

Friday, December 11, 2009

MRI

otions

ulings

nstructions

To Manage the Fear and preserve the record:

Friday, December 11, 2009

Motions

Friday, December 11, 2009

In Limine

Friday, December 11, 2009

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

Friday, December 11, 2009

Safety & Comfo!

Friday, December 11, 2009

Which Motions?

Friday, December 11, 2009

Limited only by the Imagination

Friday, December 11, 2009

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

Discovery

• Uncritical

• Make lists

• Brainstorm legal principles

Friday, December 11, 2009

Figure out the evidentiary battle lines in advance

Friday, December 11, 2009

The accusation:Ask some basic

questions

Friday, December 11, 2009

Rulings

Friday, December 11, 2009

your trialFil

l with

rulin

gs

Friday, December 11, 2009

versus

Friday, December 11, 2009

versus

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

“move along”“ask your next question”

“noted”“ok”

“(sometimes)approach”

Friday, December 11, 2009

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

Friday, December 11, 2009

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

Friday, December 11, 2009

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

work)

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Renew Motion for Mistrial

Friday, December 11, 2009

Renew motion for mistrial after

“corrective action”

Friday, December 11, 2009

Jury instructions

Friday, December 11, 2009

Request the kitchen sink

Friday, December 11, 2009

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

Friday, December 11, 2009

Do an MRI to Beat Back Fear

Friday, December 11, 2009

MotionsRulings

InstructionsFriday, December 11, 2009

Scott Keyscottkey@bellsouth.net

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

678.610.6624

Friday, December 11, 2009