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Monthly Archives: December 2013

Appellate Part Four: Issue Preservation—Tricks to Getting It Right

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written by guest blogger John Campbell

One of the ironies of appellate courts—especially intermediate appellate courts—is that although they sometimes are viewed as a place where policy considerations count, justice is dispensed, and the grind of trial courts is left behind, the truth is that most appellate courts are highly technical, often highly restrictive environments. Intermediate court judges have confided in me that they often don’t feel much like they administer justice. Instead, they apply precedent and follow rules. This is clear to anyone who has had to put briefs in 13-point font, or measure margins, or stop talking because a red light went off. But nowhere is the potentially case-fatal nature of appellate technicality clearer than in the requirement that issues be preserved for appeal.

Federal and state courts uniformly require that an issue must be preserved if it is to be reviewed. The justifications for this are 1) the trial court should be given a fair opportunity to rule on the question first, and 2) appellate courts need a detailed record in order to review whether error occurred.

Preservation can make or break a case. So, included below are a few concrete tips that just might save you some sleepless nights. I’ve focused on the trial court since, in my experience, some of the worst mistakes happen there.

  1. If at all possible, have an appellate attorney at trial tasked only with keeping an eye on appellate issues. I regularly talk to trial attorneys about cases that they tried, only to learn that the issue the “judge got wrong” or the argument that was “completely unsupported by the evidence” was never preserved. This is not a problem with issue spotting. Instead, it is a problem with attention. A trial lawyer can’t review demonstrative exhibits, prepare experts, calm her client, engage in settlement negotiations, and think about preservation. Have an attorney present who can take on these important tasks.
  2. Stipulate to offers of proof. Trial attorneys often feel tired just thinking about making an offer of proof designed to show the court what a witness would have said, or what a line of questioning would have been. It can and usually does interrupt the flow of trial. Avoid this if you can. Ask the other side to stipulate. Remind them that the alternative is a dry, multi-hour offer of proof without the jury even in the room. Smart opponents will often agree. Then, write up the stipulation (it is often clearer than if you actually made the offer in court), reference any pretrial filings, note any other important facts, file the stipulation, and get on with trial.
  3. Make sure to keep a record of rulings on motions in limine, problems with the jury panel, objections made at trial, etc. Just as most good trial attorneys have a list of all the exhibits and then mark if they were used and introduced into evidence, so too should attorneys keep a careful list of objections and rulings. Then, incorporate them carefully in post-trial motions. If the issue is not mentioned explicitly and carefully in the motion for a new trial, it is almost never preserved.
  4. Make a record. I’ve inherited a few appeals in which the trial attorney told me about the faulty reasoning the other side articulated or the less-than-appropriate comments the judge made. When I dug into the record, I didn’t find the statements. It was because the attorney did not insist on a record. There is no doubt that it can be awkward to ask a trial judge for a record (especially if the judge insists on doing things in chambers), but it can make or break your client’s appeal. Insist on a record for most rulings. It will serve you well in the end.

Employ these four tips at the trial court, then carefully follow the appellate rules about preservation, and your client will thank you for it.

Before becoming a professor at Denver University, about 50 percent of John Campbell’s practice was appellate work. He has practiced around the country, including the state supreme courts of Colorado and Missouri and the United States Supreme Court. He has won some statewide awards for his work (one of the most influential appellate attorneys in Missouri in 2011 and 2013), and continues to work on appellate cases and argue them regularly. He now also presents on appellate writing and argument. His focus is on creative approaches to appellate law, both in brief writing and in argument.

December 2013 Executive Director’s Letter: Why Do We Do What We Do?

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Lockwood_KarenDo you save any quiet moments at year-end to contemplate?

  • What inspires you to do the things you do, all year?
  • Does it make a difference to do them in the way you do?
  • Can you find better ways to do them, more effectively?
  • What if . . . . ?

My topic does not address broad, cosmic, “what do I want to do with my life” questions. This is not about any law versus lifestyle debate. (Indeed, Continue reading

Appellate Part Three: An Ironic Name Indeed, A Movie Review

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amistadwritten by NITA guest blogger, Judge Robert McGahey

In 1839, a mutiny occurred on a Spanish slave ship sailing off the coast of Cuba. A group of Africans illegally captured and sold into slavery took over the ship from its crew. The mutineers ordered the crew to return them to Africa, but the crew sailed north instead of east. Eventually, the ship was captured by a United States Revenue cutter off the coast of Long Island, and the ship and the people on it came under the jurisdiction of United States law. The name of the ship was La Amistad—which translates to The Friendship. An ironic name indeed.

Lawsuits arose over the disposition of the mutineers. The Spanish “owners,” abetted by their government—and supported by the United States government—argued for the return of their “property.” The mutineers, supported by the rising abolitionist movement in a United States where slavery was still legal (and where the Civil War was twenty years in the future) asserted their claim to freedom. The case eventually ended up at the United States Supreme Court, which decided the issue in favor of the mutineers in United States v. The Amistad, 40 U.S. 518 (1840).

In 1997, Stephen Spielberg brought this story to the screen, in a powerful and dramatic (but somewhat fictionalized and historically inaccurate) film, Amistad. The film starred Matthew McConaughey as Roger Baldwin, lawyer for the mutineers, Anthony Hopkins as former U.S. President John Quincy Adams (Best Supporting Actor nomination) and Djimon Hounsou as Cinqué, leader of the mutineers. The film is intended to be a paean to American ideals of justice and freedom—and on that front, it succeeds brilliantly.

While McConaughey’s Baldwin and Hounsou’s Cinqué are the central protagonists, to my mind the most compelling character in the film is Hopkins’s Adams, former president, son of a former president, and, at the time of these events, a sitting member of Congress. Adams is initially either withdrawn from or indifferent to the issues raised by the plight of the mutineers, but he would eventually argue their case before the Supreme Court. That oral argument is the centerpiece of the film, invoking as it does concepts of freedom and justice and the Declaration of Independence, and hinting at the Civil War to come. (Note that some of these references were indeed made by Adams in his actual argument but some were not, including the Civil War hint. Also note that at the actual oral argument Adams spoke for eight hours!)

The Supreme Court’s opinion was handed down by Justice Joseph Story (portrayed in the movie by retired United States Supreme Court Justice Harry Blackmun, author of Roe v. Wade). It’s interesting to note that in today’s legal world, a Supreme Court opinion usually comes out many months after oral argument is concluded; the opinion in The Amistad was issued one week after arguments finished.

The opinion in The Amistad can be seen as either an aberration (after all, Dred Scott was still to come in 1857) or a precursor of cases such as Brown v. Board. But Amistad, the film, deserves consideration in its own right. As lawyers and judges, we can admire and appreciate excellent appellate advocacy. And we can ignore historical inaccuracies here to focus on the larger issues the film emphasizes: freedom, justice, and the rule of law. Those concepts are always worth remembering—and fighting for.

Appellate Part Two: Infusing Creativity into Your Appellate Practice

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written by guest blogger John Campbell

May it please the Reader. The issue before you today is whether there is room for creativity in appellate practice.

Of course, the lines above are meant to be a joke. But, while this is a strange opening line to a post, most appellate attorneys start their arguments in just this way. There is a persistent belief that appellate courts are dry places and that formality and tradition are required. This view is even put forward by some members of appellate courts. Justice Scalia bemoans contractions. Other judges express disdain for “emotion” in arguments, reminding attorneys that they are not “jurors.” The appellate rules bring more of the same, with emphasis on word counts, font size, and whether headings are double spaced. One could easily get the impression that whatever appellate practice is, it is certainly not creative.

But I’d suggest those people are wrong. In my time as an appellate attorney, I’ve come to believe that creativity is at the heart of good appeals. Admittedly, the creativity I’m talking about is bridled. It isn’t about beauty or pure expression; instead, it is about rethinking how things have always been done. Included below are some thoughts on how you might shake up your appellate practice, and in doing so, obtain better results for clients.

First, rethink the prewriting process. Many appellate attorneys work in isolation, but they should start with collaboration. Before much research, before outlining, and certainly well before any drafting, bring other attorneys into the mix. If possible, involve collaborators with different experiences and knowledge bases than you. To make the collaboration most successful, change the goal from “getting the right answer” to brainstorming all possible answers. The mood in the room should be like playing a mentally rigorous game or solving a riddle. There is no right or wrong answer yet; all ideas, all frames, all metaphors, all possibilities should be presented for discussion. If you struggle to capture this mood, literally play a game first. Solve riddles. Pull out Cranium. Make words from other words. Then dig in. From this session, you will almost certainly recognize gains. The case will be fleshed out in ways you never considered, you’ll have new questions about the file and about the law, and you just might stumble upon a frame that makes the complex seem simple.

Next, rethink how you write. Many of us were trained to engage in legalese. We use words like “heretofore,” “supra,” and “aforesaid.” What we weren’t trained to do was employ metaphors or to tell a story. We weren’t trained to refine themes or use punchy verbs. And we certainly weren’t trained to consider creative typefaces, charts, graphs or, dare I say it, color pictures. Sound crazy? Consider this advice from the Seventh Circuit in its handbook on appeals:

Briefs are like books rather than newspapers. The most important piece of advice we can offer is this: read some good books and try to make your briefs more like them.

Judges get tired of technical briefs. Make yours memorable. If you really want to push the boundaries, since almost all judges now read on tablets, play around with submitting a “tablet”-friendly version, complete with internal links to the appendix, interactive images, and a font better suited for the digital world.

Finally, think about employing creative techniques for oral argument. I once started an argument with a riddle at a state supreme court. The judges looked delighted. Another time I compared the case to a baseball game. You need judges to remember your case, so toss aside “the three reasons to affirm are” and try something new.

I admit that with all these things comes risk. Some judges might not like it, your client might wonder if you are a “serious” attorney. But there is also potential reward. You just might make a splash by doing things differently, and you’ll have more fun too.

Before becoming a professor at Denver University, about 50 percent of John Campbell’s practice was appellate work. He has practiced around the country, including the state supreme courts of Colorado and Missouri and the United States Supreme Court. He has won some statewide awards for his work (one of the most influential appellate attorneys in Missouri in 2011 and 2013), and continues to work on appellate cases and argue them regularly. He now also presents on appellate writing and argument. His focus is on creative approaches to appellate law, both in brief writing and in argument.

The Story of NITA International: South Africa

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Sumter_GeraldineWritten by NITA Board member Geraldine Sumter

In 1986, James E. Ferguson, II and Ken S. Broun traveled to South Africa at a time of height of the politically intensive and violent struggle to overthrow the apartheid government. They embarked upon the initial joint NITA Black Lawyers Association Trial Advocacy Program. They went to South Africa with the mission of assisting members of the Black Lawyers Association and other lawyers interested in providing legal services to the liberation struggle. That year, a number of lawyers were trained and for every year thereafter, a Trial Advocacy Program was held under the auspices of the BLA. This foray by James E. Ferguson, II and Ken S. Broun began NITA’s cooperation with other legal entities and governments around the world in providing trial advocacy training.

I first joined the America faculty in South Africa Trial Advocacy Program in 1992. Political violence and repression was still in existence. In fact, on my first two days there, Henderson Hill and I were confined to our hotel rooms as the Black Political parties had declared two days of work stoppages called a “Stay Away.” There was intense pressure for all people of color to abide by the “Stay Away.” The “Stay Away” was a huge success and another milestone in the transfer of political power.

The Individuals who participated in the BLA’s Trial Advocacy Program, both participating attorneys and judges, were all committed to the overthrow of the apartheid government and to the freedom and justice for all people. Many of the persons who received training and who provided training were later tapped by the new South African government to provide leadership and services in the new government. Many of them went to serve in the judiciary as members of the Constitutional Court (the late Arthur Chaskalson, Richard Goldstone, the late Pias Langa, and Dikgang Moseneke) and the Land Court, Justice Justice Moloto, who also serves as South Africa’s representative to the International Court at The Hague. Many former participants of the Trial Advocacy Program now serve in the High Courts, some as Presidents of their High Courts, or Deputy Presidents of the High Court, and numerous members of the Magistrate Court. After the new government, many participants were recruited to join industry as in-house counsel or to lead corporations as directors. Mojunku Gumbi, at one time a participant at NITA in the United States, went on to head the BLA as its Executive Director. She later served as the director of the Elections Commission for the first election for the new government in 1994. She was later Legal Counsel for then Deputy President Tambo Mbeki and later when Mr. Mbeki became President, she served as Special Legal Counsel and Consultant to him. Pansy Takula, also a Director of the BLA, later succeeded Mojunku Gumbi as the Director of Elections Commission. She remains in the role today and has served as consultant to their African countries on their election processes.

Over the years, the Trial Advocacy Program has been expanded to include the training of various governmental agencies.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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