August 2011

Leave this blog right now and run, don’t walk, over to the Appellate Record and read Kendall Gray’s blog post on what distinguishes appellate lawyers from trial lawyers. A presentation he gave to visitors to his firm from China inspired this post. It provides the simplest explanation of the key differences between the two types of practice that I’ve never thought of. It’s the perfect thing for the appellate lawyer to bring to the next family reunion, picnic, initial client interview, or for consultation in an ongoing case when you have to explain, again, why you can’t tell the appellate court about “all of those people who got up on that witness stand and told all those lies.”

Two recent cases from the Court of Appeals demonstrate the need to put the appellate record together in a reasonable time period, the need to respond to post-trial motion regarding the record with the statutory time frame, and to be vigilant that the record stays together as the case moves its way through the court system. The record is the engine beneath the hood. And there can be problems that the gauges in the dashboard will not always catch. Sometimes, we need to check the oil, the belts, and the hoses.

Frazier v. State, A11A0196

In this opinion, written by Presiding Judge Anne Barnes, the Court of Appeals affirmed a trial court’s decision that a defendant’s confession was voluntary and would be admissible for impeachment purposes if the defendant decided to testify. The defendant had not been Mirandized before he spoke with law enforcement, so the State was not allowed to use the statement when it presented its case. On appeal, the defendant argued that the statement was involuntary, because he was intoxicated when he spoke with law enforcement, and should be inadmissible for any purpose. He urged that the error was harmful because, without its admission for impeachment purposes, he would have testified at trial. This was the case’s second trip to the Court of Appeals. And, somewhere along the way, the videotape of the confession, was lost. The Court checked with the trial court clerk and others to no avail. The Court did not have the tape to review in making its decision and was left to rely solely upon the trial court that viewed it.

Mr. Frazier filed a Motion for Reconsideration and a Motion to Supplement the record after the opinion was rendered. The Court denied the Motion for Reconsideration, reasoning “Further, as Frazier has only now requested that the record be supplemented with the missing videotape, and has moved the trial court to produce a videotape, he obviously made no attempt to ascertain the location of the missing videotape prior to the issuance of our opinion.”

One wonders, though, whether Mr. Frazier would have achieved anything in acting earlier. The Court, on its own, looked for the tape “prior to its review of the present appeal” and was unable to find it.

What is clear from the opinion is that a lawyer’s responsibility for keeping up with the record on appeal does not terminate when evidence is tendered to the Court and when documents are filed in the record. At a panel discussion on appellate advocacy, Judge Dillard spoke about his practices with respect to the record on appeal. He talked of his earlier practice as an appellate advocate going to the clerk’s office and making an exact duplicate of the record to keep in his file. It turns out that such a practice is more than a helpful suggestion, it may well be the standard of care since Frazier.

It also would be a good practice, post-Frazier, to check the record when the case is docketed to ensure that everything put in the record is still in the record.

Bush v. Reed, A11A0978

And it is also important to get the record assembled in a reasonable way. In another opinion, authored by Judge Barnes, and decided by the same panel that decided Frazier, the Court affirmed a decision by a trial court in a civil case, where a trial court found that a plaintiff’s delay in paying for a transcript was inexcusable and unreasonable. It takes a timeline to explain this case fully. On October 27, 2009, the plaintiff filed a notice of appeal, moving to only send up certain portions of the record. A month later, the defendant moved that the complete transcript be prepared and sent up. In January, 2010, the Court granted a motion for additional time to file the transcript. A month later, the court reporter told the plaintiff that $3,500 was needed to begin the transcript and that it would be unusual only to prepare certain portions of it. So, later the plaintiff moved to require the Court to make the plaintiff and defendant apportion the costs of the appeal, which the trial court denied. On July 29, 2010, the defendant moved to dismiss the appeal, prompting the plaintiff in August to pay the deposit finally. But the plaintiff did not answer the motion to dismiss until October, and that answer was struck as untimely.

Finally, on November 15, 2010, the trial court dismissed the appeal.

On appeal of the dismissal, the Court found that the trial court did not abuse its discretion in finding that there was an unreasonable delay in the preparation of the transcript. It is important to take note that there is no magical number of days that a case can be delayed before the delay becomes unreasonable. In fact, there is language in the opinion suggesting that a trial court would not abuse its discretion in finding a single day’s delay to be unreasonable. Next, the Court turned to whether the delay was excusable. There the original plaintiff had relied upon the trial court’s somewhat open-ended order allowing an extension of time to file the transcript. Practitioners should take note that even an order allowing an open-ended extension is not sufficient to delay paying the court reporter. The court reasoned that a court order “does not excuse a party from the consequences” of his unreasonable delay.


It is not enough to tender an item into evidence and put it into the record. The appellant has the responsibility to shepherd the record to the appellate court, even when the sheep are penned up in the clerk’s office or with the court reporter. It is also important to be diligent with the assembly of the record even if the trial court appears to have provided you with an excuse to do otherwise. Not even the trial court can excuse unreasonableness.


At the risk of being annoying about it, I want to commend another Steven Pressfield blog post to you. This one is titled Worthy Thoughts and Unworthy Thoughts. Mr Pressfield has been on the road lately, and he has had to work hard to focus on things that matter. Instead, because he is not working, his mind has been on lower things:

I don’t know about you but when I wake up in the morning, all kinds of incendiary crap is rolling around in my head. Grievances, complaints, bitching to myself. I work myself into a lather over perceived slights and imagined injustices. I just got an e-mail this morning, out of the blue, from a guy who wants me to send him 30 copies of War of Art for free. Should I waste even one milli-second of my time thinking about this? But instead it’s rattling around in my brain like a ball bearing in a pinball machine. Why? Because I’m not working.

If you practice any type of law, appellate law in particular, you probably find yourself in the same situation. You should be in your office with the door closed focused on the structure of the appellate brief that will be soon due or comparing a questionable precedent in your state to trends in other states as you contemplate the history of some area of the law and how your case might fit into it. Instead, you’re busy feeling insulted by the jailer at the front desk who is making you put your cellphone in your car and explaining to someone why you can’t put 25 enumerations of error in his brief. Law has its higher realm and its lower realm as well. And, amazingly enough, when you are doing the work, writing the brief, putting the trial notebook together, interviewing the witnesses, and thinking through the bigger picture on your cases, the other parts of practicing law (lawyers, you know what they are) aren’t as consuming. And, interestingly enough, the opportunities to go off course don’t often come from your opponent, the judge, or the witnesses. The source of insults and pettiness, the stuff that can really bog you down, comes from other places in the practice of law. Let’s just say that, while there are likely too many lawyers, there are way too many non-lawyer who think that they are lawyers. So, if you can’t change it, you can practice in a higher place by doing the work.

So, I will say, as I have said before, Steven Pressfield is the one non-lawyer whose work lawyers should be reading, particularly lawyers who write. He’s made me think about the nature of the work that I do. And he even inspired me to re-read some Hemingway.