2025 Appellate Defender Training

There likely won't be any Opinion Highlights this week.  I am attending the 2025 Appellate Defender Training program in Worcester, Massachusetts, sponsored by the National Legal Aid & Defender Association.  My goal is to improve my ability to handle criminal appeals, but I suspect some of the lessons will be useful in my civil practice, too.

The program is designed for counsel appointed to represent indigent criminal defendants on appeal.  This includes both full-time public defender staff and appointed counsel in private practice.  There are about fifty attendees here from around the country.

Today's session provided a lot of food for thought.

We first heard from a couple of former incarcerated individuals - in both cases, jailed for decades - who were ordered released upon proof of their innocence, as well as one of the attorneys who represented them.  They all stressed the need to listen to your client - some clients know their cases and what was unfair about them, and they can contribute to developing your arguments and writing more accurate briefs.  They can help you demonstrate that justice was not done.

Two drafting tips stood out.  First, shift the narrative about your client - don't simply restate the State's proof.  And second, lead with your best point.  If new DNA evidence exonerates your client, that needs to be the leading statement, not buried in the brief.  Think outside the box on your brief's structure.

The subsequent session on brainstorming emphasized that the focus should always be about the injustice - how was your client treated unfairly?  Tell a fact-driven, emotional, easy to understand story.  These elements make a great brief.

This session also emphasized the need to change the narrative about your client.  That can have real impact on your brief - for example, you might be able to utilize a more forgiving standard of review, if you can change the narrative or view of what happened.  Why would you argue sufficiency of the evidence when a problem might be recast as a structural error or misconduct in the trial?

The final session of the day - story telling - elaborated on these same points and others.  We were admonished to always give the reader all of the facts; otherwise, the reader might draw harmful inferences.  Bad facts must be embraced and made a part of the narrative.

Of course, this advice must be considered in the context of Arkansas's rules concerning appellate practice.  Our standards of review might prevent following some of this advice; the prohibition against changing arguments on appeal is another consideration.

As the program continues, I may blog about other points worth repeating.  Comments are always welcome.