Thread by @smmarotta

Good question! It's different for every client that embeds appellate counsel, but I've done two for the same client and this is what I do. /1

https://twitter.com/AndrewBernstei9/status/1402775803168006156

Appellate counsel is attached when a case is set for trial and looks like it's actually going to go. My first order of business is to prepare motions in limine and argue them before trial. I also attend the pre-trial conference. /2

At trial, preservation is priorities 1-6. If I do nothing else, it's making sure we say "objection" when necessary to preserve the record. If the judge allows, I will argue sidebars. If not, I am whispering in examining counsel's ear. /3

I will also argue any legal issues that need to be handled outside the presence of the jury, like complicated evidentiary issues not covered in the motions in limine. /4

I'm responsible for the "appellate" trial report which is keeping a running list of potential appellate issues and anything the court needs argued the next day. In state court, things are almost always argued orally, so it's not usually brief writing, but is sometime. /5

After each trial day, I'm pulling transcript bits and outlining the motion for judgment as a matter of law. Again, in state court, it's usually oral, but you still need to be prepared. I also prepare draft jury instructions and verdict sheet and argue the charge conference. /6

And then when the jury is sent out, I argue any responses to jury questions and make sure the jury doesn't return an inconsistent verdict and is properly polled before being discharged. /7

It's an exhausting job! You show up early to prep for the court day, spend all day in court, and then work after the court day. But it's very rewarding. Trial teams appreciate focusing on the witnesses and documents, and you learn a lot about what it's like in the trenches. /8

And have new empathy for "why did they argue it like that?" uncharitable thoughts you used to have when reading a cold transcript. It's hard being on your feet, tracking a million issues, even when that's your only job! /9

It's hard being on trial and I wouldn't want to be a full-time trial lawyer (I miss my kids like crazy), but I am glad it's part of my practice. /Fin