How to Win the War, Not Just the Battle, With an Appellate Lawyer in Your Foxhole

Deborah Al ley Smith and Rebecca A. WeberPr imerus Defense Insti tute Convocati on 2012

505 North 20th Street Birmingham, Alabama 35203 Telephone: 205-795-6658 csattorneys.com

BEGIN WITH THE END IN MIND

ASSEMBLE THE RIGHT TROOPS

APPELLATE LAWYER – IN THE WAR ROOM

Specialized Skillset• Distill complicated factual and

legal arguments • Meticulous research skills• Persuasive wordsmiths

• Familiar with the appellate judges on the bench• Aware of traps and pitfalls to avoid• Monitoring for consistent positions• Insight to help you choose your appellate battles wisely

CALLING IN AERIAL SUPPORT:Appellate Counsel at the Post-Verdict Stage

Post-Verdict Stage is Critical to the Life of Your Appeal:

• Last chance to make a record• Make sure you raise issues that the trial court has the

discretion to hear for the first time on post-judgment motions but that the appellate court cannot hear for the first time on appeal

ASSEMBLE THE RIGHT TROOPS FOR TRIAL

The General: The Client• Determines ultimate case

strategy and marching orders• Offers global perspective of

client goals and concerns beyond this case

DEPLOYING THE RIGHT TROOPS AT TRIAL

• Collaboration between trial and appellate counsel should be a team effort

• Appellate counsel should reinforce and provide relief for the trial team in the trenches

• Both trial and appellate counsel should keep in mind that they are serving on the same team to defeat a common enemy

DEPLOYING THE RIGHT TROOPS AT TRIAL:The Infantry and The Cavalry

DEPLOYING THE RIGHT TROOPS AT TRIAL:The Infantry and The Cavalry

DEPLOYING THE RIGHT TROOPS AT TRIAL:The Infantry and The Cavalry

• Develop factual story• Powerful storytelling• Common sense and

compelling• Focus on facts• Persuade a jury

The Infantry: Trial Lawyers

The Cavalry: The Appellate Team

• Develop the legal framework• Logical and persuasive theory• Focus on applicable law and

standards of review• Preserve arguments for

appeal• Reconnaissance and backup

for trial team

DEPLOYING THE RIGHT TROOPS AT TRIAL:The Infantry and The Cavalry

DEVELOPING YOUR BATTLE PLAN:Assemble the Right Advisors

The view from 30,000 feet before trial• Reconnaissance – develop the legal framework and

identify key issues early on• Spot landmines – assess weaknesses • Diffuse landmines – strategies to avoid potential

problems or address them on the front-end

A well-crafted summary judgment motion can help you:

• Demonstrate to the court that your team is prepared, well-versed in the applicable law, and focused on the key issues

• Narrow the issues to be tried• Possibly result in a summary disposition of the case

without the time and expense of a trial

DEVELOPING YOUR BATTLE PLAN:Dispositive Motions

AN APPELLATE LAWYER IN YOUR FOXHOLE

AN APPELLATE LAWYER IN YOUR FOXHOLE

Q&A

505 North 20th Street Birmingham, Alabama 35203 Telephone: 205-795-6658 csattorneys.com