Preservation of Error
Some Lessons from a Trial Appearance
This week, I am trying a criminal case. My practice is predominantly appellate, but I have brief forays into the work of criminal trial practice. And today began such a case. While it’s not appropriate to go deeply into the particulars, I think that jury selection today was particularly instructive. I don’t know whether this…
Read MoreThe “Great Trial Lawyers” Get Creative When Making a Record
I really loved Maxwell Kennerly’s blog post yesterday, Titled “Young Lawyers: Be Careful Emulating Great Trial Lawyers.” I loved the ethos though I am not wild about the application. Mr. Kennerly’s post is a reaction to another blog post offering advice for trial lawyers. Essentially, Mr. Kennerly wonders whether it is a good idea for…
Read More11th Circuit Reverses Conviction on Failure to Charge on Reliance on Advice
Professor Ellen S. Podgor reports in her White Collar Criminal Prof Blog that the 11th Circuit Court of Appeals has reversed several convictions in Kottwitz.pdf because of a trial court’s failure to charge the jury on the defendants’s good faith reliance upon an accountant’s advice. The Court has also held that, regardless of the strength…
Read MoreManaging Motions for Mistrial in Georgia to Preserve Them for Appeal
So, I just got finished reading a transcript on a case I am appealing. Halfway through the trial, a witness for the State said something highly improper. Counsel moved for a mistrial. These moments in the reading of a transcript are a little like watching a really close college football game, because I am pulling…
Read MoreSheepish or Sarcastic: It all Looks the Same on the Record
Picking up on yesterday’s theme, I have been thinking more about why lawyers don’t make good records on appeal. So, I’m going to take a stab at it, and this stab is applicable to criminal trials only. As far as I know, civil practitioners have their own reasons for not preserving a good record for…
Read MoreHow to Make the Transcript More Fun to Read
The average trial transcript handled by the average criminal trial attorney is a sad sight to behold. All of my client’s hopes turn on what is said in this document and often, I am sad to say, on what is not said in this document. There is one word that makes the difference between dead…
Read MoreWhat to Do if You’re Not the First Lawyer on the Case
Another lawyer contacted me about a case she is working on. She wasn’t the trial counsel. She wasn’t the lawyer on the motion for new trial. In fact, one lawyer handled the trial. A second lawyer handled the motion for new trial. She was hired after the motion for new trial was denied but just…
Read MoreGeorgia Judicial News: Judges Gone Wild Edition
I don’t want to bury the lead. So, here it is. There must be enough error out there in Georgia to win a slew of appeals. Georgia judges must be messing up on hearsay, the Fourth Amendment, and jury charges. All those things are hard. Many of them, so far this year, are messing up…
Read MorePreserve the Record Alert: Felon in Possession Statutes are Low-Hanging Fruit
, Professor at Moritz College of Law at Ohio State University reports at his blog, Sentencing Law and Policy, that the Seventh Circuit has suggested that a non-violent felon might prevail on a Second Amendment challenge if he brings an as-applied challenge to the Federal Felon in Possession statute (18 U.S.C. Section 922(g)(1))). In U.S.…
Read MoreTiming Problems for Getting Retained on Georgia Appeals
One of the problems with appellate law is that clients either show up too late or early. Some clients show up too late and too early. Too late is after the trial attorney has screwed things up, after a deadline has passed, or after the client took things into his own hands and dabbled in…
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