I’ve spoken at 2 CLEs in the last few weeks. Both presentations were to groups of public defenders. The first was on the topic of preserving a record on appeal. And the second was on motions practice in child abuse cases. Whenever I speak on these topics, I invariably hear the same response from folks in the audience: “my judge will never grant this motion / allow me to do what you are explaining / allow me to say the words you are advising me to say.”
To this, I always lend my perspective as an appellate lawyer. And I used two phrases in both talks. “Best case scenario, the judge grants your motion. Second best case scenario, the judge denies your motion.” If you win your motion, then you’ve made your trial more fair than it otherwise would have been. And if you lose your motion, then you have created an issue for appeal. After all, the fair trial is the appellate lawyer’s worst enemy. The second phrase is, “your job is to gather rulings and quotations.”
Whenever I enter a case as the appellate lawyer member of the trial team (every trial team should include an appellate lawyer, by the way), my goal is two-fold. I want to gather rulings. And if the judge is being nasty, I want to gather quotations. Rulings are the basis of argument section of the brief. And quotations from an angry judge make great stocking stuffers for the statement of facts.
Motions are the gift that keep on giving, no matter how they turn out.