factual development can be assigned to the appellate lawyer—jury instructions, motions for directed verdict, and even prompting a trial lawyer to make objections if needed. Do you ever encounter tension with trial lawyers when asked to come into their case? The appellate and trial lawyers almost always make a seamless team. In fact, I have found that the lead trial counsel frequently asks to have an appellate lawyer in the courtroom. This is not just CYA for a high-stakes case. Many trial lawyers realize that having someone else handle the legal arguments frees them up to work on outlines for crossexamination or to spend time with witnesses. And no top trial lawyer wants to be stuck in a charge conference firm to come into a case before trial to make sure that the legal issues are fully developed as needed for a successful appeal. We are sort of a safety net if the trial is lost. What are some examples of the role of an appellate lawyer on the trial team? Appellate lawyers can be an excellent resource in the trial court. For example, they can make sure the pretrial order includes all possible legal angles, otherwise a good claim or defense may not be allowed at trial. Appellate lawyers also can handle motions-in-limine seeking to exclude prejudicial evidence from the trial, and also prepare pocket briefs on points of law that might come up during the trial. Really, anything that involves a legal analysis as opposed to thrashing through proposed jury instructions right before delivering a closing argument. How long has appellate advocacy been recognized as a distinct practice area in Georgia? I formed the Appellate Practice Section of the State Bar of Georgia about 20 years ago. At that time, some lawyers self-identified as appellate practitioners, particularly in the government sector, but this was not common. Georgia’s appellate judges, however, were instrumental in gaining approval for our new section because they believed that it would enhance the quality of the briefs and arguments in their courts. I think it has done so. The appellate bar certainly has grown over the years. What tips can you offer on effective legal writing? Once, when I was Chair of the ABAs Standing Committee on Amicus Curiae Briefs, I had the opportunity to ask this question when meeting with Chief Justice John Roberts. He shared that when he was an appellate lawyer—perhaps the nation’s finest— he struggled to fit his arguments into the page limit or word count. He said, though, when he went on the bench, his perspective totally changed. In other words: “Shorter is better.” What about oral argument? What is the best way to prepare for that? It’s funny that it takes so long to properly prepare for an oral argument that will last only 15 or 20 minutes in a Georgia appellate court. But the Georgia appellate judges are active questioners who will not hesitate to 24 LAWYER MONTHLY MAY 2024
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