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

1. Deborah Alley Smith and Rebecca A. Weber Primerus Defense Institute Convocation 2012 How to Win the War, Not Just the Battle, With an Appellate Lawyer in Your Foxhole 505 North 20th Street Birmingham, Alabama 35203 Telephone: 205-795-6658 csattorneys.com

2. BEGIN WITH THE END IN MIND

3. ASSEMBLE THE RIGHT TROOPS

4. 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

5. 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

6. 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

7. 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

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

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

10. 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

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

12. 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

13. DEVELOPING YOUR BATTLE PLAN:Dispositive Motions 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

14. AN APPELLATE LAWYER IN YOUR FOXHOLE

15. AN APPELLATE LAWYER IN YOUR FOXHOLE

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