Greetings all:

SMU Law School and the Council of Appellate Judges (CAL) are having a conference this fall and one of the panel topics is Taming the Monster Record. (The panel moderator defines Monster Record as a record from a trial that lasts more than one week.)

They want tips from prosecutors discussing how we handle appellate records from capital trials (or any other trials that last more than one week).

The tips can cover both (1) how we work up the case to write the brief, and (2) how we present the material to the appellate court -- tables, charts, handouts, etc.

Are there any appellate sections that use hyperlinks in their briefs? What about citing to exhibits, anything creative going on there? Anybody using Charts and/ or Tables?

Please post your tips here and I will pass them on. Thanks.

I just dig in and know that the length of the record also reflects the work the trial prosecutors put into the case. If anything, more care must be used to catch details that could be out of place. And in a capital case a good personal index is very helpful, since you will see the case again (and again).

Just like any brief, I think it works best to weave the testimony into a comprehensible story, which can be excruciating with overlapping testimony. But when you receive an opinion that sounds like you wrote it, you know you are having some effect. When preparing the facts, it definitely helps my organization to tell the story of the offense to someone who does not know it (sorry family and friends).

I have heard overwhelming feedback from appellate judges at CLEs that they like relevant attachments � Think of what they might like to see for themselves when they are reading at home, be it a family tree, the charge, or a few pages of testimony.

As far as any demonstrative aids at argument, I would make sure that they were already appendices. I was fortunate enough to have an argument at the Court of Criminal Appeals when they decided to experiment with allowing a powerpoint presentation in another case. The judges definitely watched, but they did take over the overhead to request returns to the slides they wanted to discuss (and used it to question the opposing side too).

Interesting topic. Just trying to get the ball rolling for you. There is an awful lot of talent lurking in these forms. Please share what you come up with.

Jeff --

Thanks for getting the ball rolling w/ your reply. I agree that it is an interesting topic and hope other appellate attorneys will chime in and tell us how they deal w/ the appellate record.

I am intrigued by the powerpoint presentation at the CCA -- Do you remember the issue and/ or the attorneys? Did the powerpoint presentation include case summaries? Did it include exhibits from trial or charts?

Thanks,
Anne

The case was Ex parte Smith, 178 S.W.3d 797, argued on February 9, 2005. Rick Hagen was the defense attorney who presented the powerpoint. Kathleen Walsh, from the Denton District Attorney's Office, argued for the State.

I seem to recall an audio clip and some case summaries, but what I remember most is that there were some charts or time-lines that the Judges used to help ask their questions.

I have not heard more about, but you may want to speak to the attorneys about their experience. You also may want to talk with someone in the Clerk's Office at the Court, who had to arrange setting it up.

My thought is that using a powerpoint could add a completly different dimension to an argument with numerous pros and cons on each side.

At the El Paso COA, I saw effective use of a visual aid in oral argument. It was a massive contract dispute about a gas well--millions on the line--and one side reduced the whole matter to a single, simple illustration that the lawyer could point at for emphasis.

Generally, I think the civil lawyers have the leg up on us here. Their records are all available as electronic files that are word indexed for searching, etc. Few of our court reporters give us discs containing the record, and even fewer run a concordance or word index. Arguably, the CCA should require that on death penalty cases where we have the big records.

If nothing else, an attorney with a really big record should ensure that their notes about the record are ultimately typed up so that they (or co-counsel or successors) can do rudimentary word searches of the notes. I was not able to do that in my biggest record, and I've always been hampered because I have to manually search my notes.

John, you brought up a great issue. We have at least one reporter providing us with copies of the record on CD--including an index-- as well as the regular paper record. She sees this as job preservation. My next capital case is prepared this way and I'm looking forward to working with it. How many of you have worked with this format?

I doubt I will readily give up taking copious notes on my big records though. Over the years, I have refined my record notes so they have become much more user friendly. But anyone who knows my handwriting realizes they won't help anyone else!