Nelson Boyle–Creating a Record and Preserving Issues for Appeal

Keith Fuicelli (: 00:00

Welcome to the Colorado Trial Lawyer Connection, where Colorado trial lawyers share insights from their latest cases. Join me, Keith Fuicelli as we uncover the stories, strategies, and lessons from recent Colorado trials to help you and your clients achieve justice in the courtroom. The pursuit of justice starts now. Well, welcome back everyone. My name is Keith Fuicelli and I'm thrilled to host another episode of the Colorado Trial Lawyer Connection Podcast. In this podcast. As I think you all know, we try to have trial lawyers on shortly after they've tried cases to talk about what worked, what didn't work, and basically just try to make us all better. Well, this episode is a little bit different, but perhaps even more important because I think all of our fears is you win the trial and then lose the war and something happens on appeal and gets reversed on appeal, or you get a bad ruling that you want to take up on appeal and you don't have the record required to do it.

(: 01:07

So I am thrilled to host Nelson “the Brain” Boyle. If it's okay, if I refer you to that, one of the smartest lawyers that I know in appellate, in legal writing guru, somebody that I've reached out to personally on more than one occasion to help with cases to help us all know what we need to know about preserving the record and how to do a better job in the piece of the case that is sometimes even more important, and that's the legal writing, protecting the record, prevailing at the court of appeals piece of the case. So with that long-winded intro, welcome to the podcast, Nelson.

Nelson Boyle (: 01:48

Thanks, it's great to be here.

Keith Fuicelli (: 01:49

Alright, so I guess you are obviously involved in lots and lots of appeals and lots of motions practice. What's the biggest mistake you see trial lawyers making

Nelson Boyle (: 02:02

In motions practice? I think it's not taking a step back and saying, is there another argument I should be making? A classic example is you think the statute is unambiguous and you're arguing about statutory language and you just argue that it's unambiguous and it says this. But if the court, especially in appellate court with multiple judges find that it's ambiguous, you need to preserve that argument. So you need to look at it like, is there any reasonable reading of this that doesn't meet what I'm saying? And that contradicts me and how do I address that and why is that wrong? And people often say, trial lawyers often say, I want to win here. I don't want to win on a appeal. Now what they're saying is they want to get the judgment, they want to help their client and they don't want to think about all these other things that might clutter it up. They want to keep it simple and go straight down the road and win. But the problem is that you have appeals come up where you haven't preserved all the other arguments that you could have made. And if you're defending on appeal, it's easier to have not raised them. If you end up being the appellant, you don't want to have forfeited or waived issues.

Keith Fuicelli (: 03:15

So let me ask you a question about that because when I'm writing a brief, I tend to want to just keep it short, keep it simple and address the one main issue that I think is that issue. But I'm sort of hearing you say that that can be dangerous because if there are other arguments, even if I don't necessarily think they're going to prevail by not making that argument, I'm waiving my right to raise that later at the court of appeals.

Nelson Boyle (: 03:43

You are, if you're the appellant, sometimes you can get away with it if you're the appellee, and then you can say that it's an argument that was in the record, or if you're the appellate, often you can just throw whatever you want at them in response, on appeal. But yeah, you want to keep it short and simple because the best way to win o motions practice. But you also want to anticipate what might be in the judge's mind and what might be in the other side's mind when they're responding to your motion or if you're responding, you want to make sure that you just make the arguments that you need to win and that you need to win on appeal. So it's important too to always consider that. The other part of that is most people when they're writing motions practice don't seem to make the argument about harmlessness how this prejudice is your client.

Keith Fuicelli (: 04:32

Let me interrupt you. You and I talked a little bit about this before we came on air and what you mentioned to me was if a court is not allowing a witness to testify, it's critical that you make the record as to what that witness would say. And is that what I'm hearing you touch on here is making sure that we have established why what we're trying to do is important in the case. Is it as simple as that or is it broader than that?

Nelson Boyle (: 05:01

Okay, so what I'm talking about right now is part of what we've talked about there, but this is also just generally when you're arguing something, especially whether evidence should come in or not come in, but other legal issues, there's usually a component about whether or not it harms your client and on appeal, every court has this, the 10th circuit has this rule, and so the Colorado appellate courts, which is where we're practicing, but it would be in other jurisdictions too, it's the harmless error rule. So if a judge doesn't allow in one small piece of testimony something that a witness would've said, and that's error, that's fine if you can prove that on appeal, but you also have to show that that error affected how the outcome of the trial, when the appellate court looks at it, they go, you had seven days of testimony. How is this one line matter?

Keith Fuicelli (: 05:49

Am I hearing you say, and I don't mean to interrupt you, but if I don't put that in a brief, this matters, this piece of evidence is important because why or it's not enough to say the admission of this evidence is prejudicial to my client. Are we limited on appeal later on to only the specific reasons we told the trial court why that piece of evidence is prejudicial to our client?

Nelson Boyle (: 06:15

You can't raise new prejudice issues just like you can't raise new other legal issues on appeal. And so when you say prejudicial to my client, why is it prejudicial or not allowing this piece of testimony? And to go back to the example, it will affect the way that the jury looks at the whole case because if you can make that argument, one, you might just win it there, but two, because you're talking about the relevance, but you're talking about how it'll affect your client's rights. And that helps because then on appeal you can make those same arguments or your appellate lawyer can find those. They're not calling you saying, okay, I see the error, but why does this matter?

Keith Fuicelli (: 06:51

So one of the things you just said that I really like is if we're talking about getting evidence in, whether it's a prior act or whatever it is, being able to articulate the argument that this piece of evidence affects the way the jurors view all of the evidence in the case, it's not just one or if it goes to, let's say it's an issue of credibility. Let's say you have a denied liability case, so a piece of evidence that might be harmful to the defendant, they're trying to keep it out and you say this goes to credibility. I'm hearing you say that you take it that one step further of credibility in a disputed liability case is central and obviously credibility is always an issue, but here it's especially an issue and you put all of that on the record and you might just win or you preserve the court of appeals. Am I getting that right?

Nelson Boyle (: 07:42

Yeah. And why credibility on this specific issue is important too. I mean sometimes it's obvious, right? I mean the credibility of the witness is always important, but here, this undercuts this witness's credibility because whatever, and that affects my client's rights at trial. But I do want to go back to what you were asking about making the offer of proof. Sure, if the judge keeps out evidence, whether it's lay expert testimony, but especially expert testimony because usually with lay it's like one line for expert, it's like a whole area. Maybe you have two causation opinions from this expert and the judge says, well, I'm not going to allow one. There's a Shrek motion or a Bert motion or Daubert motion in federal court to keep that out. So what do you do? You go to trial and you're preparing for all the stuff that's actually going to come in.

(: 08:27

And so most people just let that fall aside. But you have a right to make an offer of proof. And if you're going to, which you should, you want to make sure it's a good offer of proof. So a bad offer of proof, there would be, and you had an example where there wasn't even a deposition, a bad one would be where you have the deposition, which is cross-examination of your expert and you have the expert's report, but those are not usually written in the form of testimony. So I mean you don't have your direct testimony available to make a written offer of proof. I don't have this direct testimony and I need to call this witness outside the presence of the jury to make a record so that it's in context with the facts in the case.

Keith Fuicelli (: 09:07

So you have to actually call the witness or can you just do an offer of proof? This is what the witness would've said.

Nelson Boyle (: 09:13

So you can do that, but you're better off. I mean you have a better record if you call the witness,

(: 09:18

And especially if in the example I gave you where they struck one of two opinions and the witness is going to testify anyway. You do it at lunchtime or on break before the witness leaves the stand and arguably be better to do it while you still have the direct open or before the direct so that the judge can hear it and maybe the judge changes their mind and she lets it in, but maybe the judge doesn't and you're making an appellate record. If the judge changes their mind saying, okay, pretrial, I didn't see this, but now in the context I see it, they're always free to change that and that's why they're hostile to this. But there's case law in every jurisdiction says you have a right to make your record and make an offer of proof and a written offer of proof is just not going to be strong enough there.

Keith Fuicelli (: 10:07

So I'm practically speaking in my mind, I'm imagining I've got a witness and the defense seven oh twos portions of that testimony and the court grants it, it's not enough. Or the better practice is to be sure at trial on the record, preferably from the expert witness, you have a complete record of what the witness would have testified to because otherwise you're going to be bound to what was included in the briefing back and forth in the 7 0 2 motion.

Nelson Boyle (: 10:36

Yeah, and what you said at the microphone, we don't usually have a court reporter there, right? But what the FTR picks up, or I guess we're not doing a lot of WebEx trials anyway, but what WebEx picks up, but even if there's a court reporter there, I mean it's just limited. And this goes back to that harmless error component. I mean it's a hard issue to win on appeal that evidence kept out should have been allowed in. And courts don't often reverse ruling striking an expert's testimony, but one of the reasons is because you have to show the harm and especially if you have two causation opinions and then one got in but the other one didn't, then you lose showing that the other one would've made the difference is important. So having that testimony so you can say to the court, this is what the jury would've heard and it's actual testimony instead of speculating what the jury would've heard because that shines through in the brief.

(: 11:26

So one of these things too that I wanted to talk about, it's bringing an appellate lawyer to trial in the right case. I mean in a $25,000 auto case, that's not the right case because it's not within the costs realm, but people hire jury consultants and for a comparable price or less, I don't know, depending on what the jury consultant charges, but you could bring someone to trial either on an hourly rate or a flat rate or I doubt you want to split the contingent fee of the trial court case, but you can find a way to either make it a cost or make it attorney fees. But just like a jury consultant, bringing an appellate lawyer to trial to sit through and flag issues if they notice things, help you make a record and just be there as support. And when I've been there as an appellate lawyer and not charge of witnesses, it puts you in the spot to argue jury instructions. At the end of the day when everyone's tired, you get up fresh, you argue jury instructions, you keep the judge on the other side there for hours, but it's not to delay, it's because you're making sure you're making a record. And that goes to another point really, which is judges want to do jury instructions in chambers, but I just reviewed another appeal this week where there's no record of the charge conference.

Keith Fuicelli (: 12:40

Oh wow, okay. There's

Nelson Boyle (: 12:41

A clear instructional issue and to me that's borderline malpractice. You're never going to win a case in malpractice for that. How are you helping your client if you're agreeing to do jury instructions in chambers and not making a record?

Keith Fuicelli (: 12:54

Alright, let me jump in. I think there's a lot to unpack here. So the first thing, easy thing, jury conferences need to be on the record and if they're in chambers, then you better have a court reporter back in chambers that is creating a record of what was said and what was not said. And I suppose at a minimum, which of course I would be terrible at and would never be able to do, is you go have some conference with the judges in chambers, they make a bunch of decisions and then they come out and say, is there anything you want to put on the record? And then you're like, I'm supposed to recall a two hour conversation in five minutes. I would completely fail at that. And the other issue is this idea of bringing on appellate counsel and one of the things that I am intrigued with is the idea of utilizing trial pocket briefs as the case is going on in the middle of trial live action. Talk to us a little bit about trial briefs when they can be useful and really how appellate counsel can help you in the heat of battle to persuade the trial court to do the right thing so you don't have to take it up on appeal or if you take it up on appeal, at least you won. Yeah,

Nelson Boyle (: 14:03

So first you file your motions in limine and trial briefs before trial trial briefs. The best ones are written without any facts. I learned this from a judge in a bench trial that he was like at a specific way he wanted it, but it really works. You put the issue at the top as a heading and then you put law in on that issue.

Keith Fuicelli (: 14:22

No facts

Nelson Boyle (: 14:23

Because the facts are going to be in evidence. If you're preparing this trial pretrial and you're saying these are the facts and this is why you're predicting that those are going to be the actual facts at trial. A lot of stuff you can figure out what will be in evidence, but sometimes you're surprised and the judge is going to have heard the evidence anyway and it's going to ignore the factual part because they're going to say, this is what I heard. So don't waste the time writing all the facts in, but identify the issues you need to brief and give the judge the law on those issues. So things that you think you're going to come up with objections, either your objections or the other side's objections or good topics to do a one pager on and add into the trial briefs, but also you can carry pocket trial briefs to trial.

Keith Fuicelli (: 15:02

Yeah, I was just going to ask because I was curious about that because in my mind, I'll confess, I don't do a lot of trial briefs, but it could be, I haven't done a lot of nine figure cases where there's these monster issues. I do a lot of car crash trials, and so I haven't done a lot of trial briefs and I'm just wondering what's your opinion on is it a mistake not to be doing trial briefs and basically every case you obviously know, I have some idea of what issues are going to be coming up. So to sort of a show deference to the court respect for the court and the other side, Hey, we know what we're doing, we're prepared. Here's a very short trial brief on this evidentiary issue that's likely to come up. Apologize for my rambling question, but when to do trial briefs versus having pocket briefs ready to go when an issue comes up.

Nelson Boyle (: 15:53

So I kind of look at the two as similar or the same. I mean things that are going to come up, I would put in a trial brief before trial you think are going to come up or they're going to come up, but you don't want to let the cat out of the bag have the pocket brief if you know it's going to come up and you're going to come up to the bench, you're on the break before that, you could always hand the judge the pocket brief and the other side of the pocket brief and either they're going to change their tactic because they don't want to see this at the bench or they're going to come to the bench and they're going to be scrambling to try to find law that says the opposite. But you can also carry the pocket brief up, argue off of it and file it afterward.

(: 16:28

So you don't even have to let the cat out of the bag even before you go up to the bench. Then you're citing cases, you're citing law instead of just saying objection 4 0 3, which gets you up to the bench, right? Then you're explaining why or objection, this isn't habit evidence and here's why. And then you're reading off your trial, your pocket brief, and you can prepare those during trial. That's when you have your appellate lawyer or an associate or somebody there, but to pull together a quick brief at lunchtime to have that when you approach, and that can be very effective. We had a med mail trial where one of the defendants was trying to bring in some evidence that wasn't really habit evidence but kind of teed it off in the morning. And then at lunch I wrote a pocket brief on habit evidence filed it, and the lead counsel in the case went up and with one in their hand and handed one to opposing counsel one the judge, and said, this was just filed.

(: 17:18

They're bringing up this argument, they're trying to get in evidence saying it's habit evidence, but it's not habit evidence and we object and we want it to be shut down. And the judge kind looked at it and asked for a response and they said it is habit evidence and tried to make the case. And the judge says just like they do with motions and limine, because it was before the questions came out, but I'll take it under advisement. But then as soon as the first question comes up and it's clear that they are going there, you say, your honor, we approach this goes right to what we just, and the judge says, yeah, sustained.

Keith Fuicelli (: 17:49

Well, in that situation, did the judge take a break to read the pocket brief or was just in that situation, was it enough that you were able to verbally or whoever the lead trial counsel was verbally articulate the main arguments that the judge felt comfortable ruling in your favor? How does that typically go down?

Nelson Boyle (: 18:09

So the brief, I mean we had the caption, but then all the law was on the second page and then the signature on the third page. So it's just one page and it just says, I think I probably had 14.5, so it was big, but the issue, what is habit evidence or something because you're writing fast so you don't get all complicated with headings. And then just grabbing the law of habit evidence out of Lexi and out of an evidence handbook or whatever and just putting it there. So you almost could just hand the evidence book to the judge, but you're picking the cases that fit exactly what's going on here out of the pantheon of things that are cited for habit evidence. And so you're drilling it down and then you just have a couple citations there and it's not thick, it's brief so that you're just giving the judge something that they can latch onto and the other side won't have.

Keith Fuicelli (: 18:53

Yeah. What I love about that idea, and I've never done it, I'm going to try to implement this is to me it's the subliminal or the subconscious message you're sending to the court, deference to the court that you know what you're doing, that you're filing, you're preserving the record. So everything about the optics of that, you could just walk up to the judge with an evidence book or something or the case and say, here's the case. But actually going through the process of filing a trial brief on that matter or a pocket brief, filing it online, I just love the optics that has. I just am wondering if you've found that trial judges sort of appreciate that way of practicing versus shoving running up to the bench with a bunch of cases, Hey wait, this case says this type thing.

Nelson Boyle (: 19:43

I think they do. I mean you look prepared and it shortens the bench conference. It respects the jury's time and the judge's time. And the judges were most of 'em, I mean every once in a while you have a judge that wasn't a litigator. And so I don't know how they get to be trial judges, but that's a whole different topic, but

Keith Fuicelli (: 19:58

It's a story for another day.

Nelson Boyle (: 19:59

But they respect that because they're like, wow, I wish I'd done this right. This is what I did. And then the other part of this is talking about motions in limine people file motion, they say to an associate or to themselves, I need to file motions in limine on these things. And they write down a list and nine out of 10 of 'em, the judge says, I'll take this under advisement. Why? Because the judge is like, Juan, I don't even know if this is really going to come in. I'm not going to waste my time ruling on it. But two, I don't know what the context will be. I dunno what the evidence that will actually be in at trial at this point will be. And there's also the 1 0 4 argument. Future evidence will come in about those things come up at trial. And so motions in on things are obvious.

(: 20:37

Your client was in a car crash, it comes out in the deposition that they were a binge drinker in college, but it's been 20 years since college. There's no alcohol involved in the crash. It has nothing to do the case, but you know that the defense doesn't have much and they kind of made a hay of it at the deposition, so you think they might try to bring it up. That's a good motion in limine, right? Because the judge can say, this doesn't have anything to do with the case. It's not coming in. But most things the judge is going to say, I'll take it under advisement. And so if you're looking at your list of motions in limine and you can identify the ones where you're like, I'm not going to win this. I'm just alerting the judge to it, then you're also alerting opposing counsel to your exact arguments on it. And then when you get to the trial, it's always the judge objection, this goes to the motion and the judge says, okay, sustained approach or whatever. But you've already clued the other side into what your arguments are, so they're prepared to argue against that more prepared.

Keith Fuicelli (: 21:27

I want to talk a little bit about motions in limine because I think it's something we can all improve on. And our practice is whenever a case goes into litigation, we create a trial prep folder. And in the trial prep folder is a motion and limine list. So then as you're litigating the case, time goes on, issues come up, you pop a motion, put it in the motion in limine list. But I've also had cases, and I'm sure our listeners have had the same thing where trials coming up motions in limine are due. So someone says, well go look at this case and see the motions we filed in that case. And they're sort of like these stock collateral source or whatever, they're not truly case specific motions in limine. So I'd love to hear your thoughts on what we as trial lawyers should be looking for when it comes to motions in limine and what do proper motions in limine, what topics do they cover?

Nelson Boyle (: 22:20

That's a hard question. I mean one, I mean some stock like the collateral source, I think you file those. I mean because it serves a purpose or the ones when did they hire the attorney or those kinds of things, you're going to surprise anybody with what's in that. And so I don't think that saving that for trial is important. And I think a lot of those, the judge will take under advisement because they don't know if they're going to actually bring that up, but sometimes they rule on those and say, yeah, that's just not appropriate. Don't bring that in. So you win those in the motions in limine. And to me it makes sense to go to the other case and get the stock ones. But aside from that, I mean it's really case specific, right? I mean because like you said, you keep a list and you're looking for the things that matter in this case and while you're preparing for trial, sometimes the motion to deadlines passed anyway, but you're preparing for a witness and you're like, I should have done a motion to li this, but you might not have wanted it anyway because they would've said, I'll take it under advisement.

(: 23:08

And those are the kind of things to then put that pocket brief together because it's going to come up during the witness and you don't want to be doing that the night before when you're doing final preparation for witnesses unless you have somebody else there to do it because you want to be focused. But that can be really helpful. The other thing is early proactive motion. Sometimes things come up in cases, and it's not all that often, but where you know that when they depose your client, they're going to go into this area and it should be kept out. Try to keep that out by saying this isn't appropriate, but trial judge typically they're not going to do it. Just keep something out. But just like you can rule 56 motions for summary judgment like in federal court and state court, you can file rule 56 motions on specific legal issues and not everybody seems to do that.

(: 23:55

And it's an important factor that's just kind of out there that you can file the motion to get a ruling on an issue of law That's in your case that is going to help with doing all the depositions, all the discovery, because if this issue's not in the case, discovery goes this way, if it is in the case, it's going to go this way. And judges I think appreciate that if they're looking at it like you're trying to save court time and parties, time and resources by not extending a deposition for another hour when this issue's not going to be part of the case.

Keith Fuicelli (: 24:26

So do you believe that sort of rule 56 motions are underutilized by trial lawyers?

Nelson Boyle (: 24:32

I think they're underutilized by plaintiffs on some of those issues. I think we all know that the flip side of your question is you have three different defendants and they each file two motions for summary judgment. And then I was one of those federal judges that says there's one summary judgment motion for all of a side in a case and you get together. And so now you've got six summary judgment motions that strategically were all filed on the same day. And so now you're struggling, you're getting extensions, but you're struggling for months to try to answer these things with all your other cases and then they're taking advantage of you. So I wouldn't say that defense under utilizes them, but I think they're underutilized in the sense that sometimes there's legal issues that are going to come up and you can see they're going to come up and people wait until motion's in limine or until trial to argue these arguments out. And that's a mistake because you're not giving the judge the opportunity to really consider it. And if you lose the summary judgment motion on that issue, you can always bring it back up at trial and you should, preservation with pretrial stuff is simple, but it can be complicated.

Keith Fuicelli (: 25:34

Yeah, let's talk about that. You mean help us understand what kinds of things pretrial need to be preserved for the record?

Nelson Boyle (: 25:41

So sometimes judges are nice and they say things like, I'll take that under consideration, which should clue you in, I don't have a ruling on this so I have to raise it again because the context of that is they're saying all consider it in context. So it's not a myth, but people say, well, I raised it in a motion in limine, so it's a preserved issue, but if you didn't get a square ruling on it, it's not really preserved because the minute it comes up in trial, you shouldn't be waiting until they do it the third time and then object on the first objection. You should say, judge, this goes to that motion in limine that we filed and you're going to take it under advisement. Well now here we are and it's in context, but we think we're right. You should rule

Keith Fuicelli (: 26:18

On it. Is there a waiver concern if you are not contemporaneously objecting and then later on you object and you've missed your chance?

Nelson Boyle (: 26:26

There is. I had a case that I did an appeal on that had some really good trial lawyers on it that had done that. They'd filed the motion in LI and then they waited until the second or third time that something came in and they ended up losing a trial. And it was one of the best issues we had on appeal except for the fact that they didn't object the first times. And so you can try to wax around that as much as you want as an appellate lawyer, but you know what the other side's brief is going to say, which is they waived this, they didn't object.

Keith Fuicelli (: 26:54

And it seems like the court of appeals is looking for any easy reason to kick an appeal and preserve a trial court order, preserve a trial court result. And so if it's you waived this argument, that sounds exactly like something I would do and I'd be kicking myself for months

Nelson Boyle (: 27:10

And there's that thing I want to win now, but it's also you don't want to seem like you're over eager to object to everything. There's trial is theater. So those are strategic decisions and that's another reason why you lose it on appeal because they either say you waived it or it was a strategic decision not to object at that point. And strategic decisions can kill you. I mean, another appeal I just looked at had, it was an appellate argument thing, but they won on something in the trial court, but the judge said, I'm not going to rule on that. They lost on in the trial court. The judge said, I'm not going to rule on it, I'm going to assume that. But then they went on, it's like a two step test and they went on a second step. So then on appeal that the other side argues both steps in their opening brief and then you have a decision to make, and this is the same type of decision you make in trials all the time.

(: 27:57

You would go, alright, strategically, do I want to waste a bunch of time on something or do I want to just go right to where I won before and preserve it? That's what they did. They didn't brief the part one. And then you get to the court of appeals reverses and now you're looking at this decision going, the court of appeals said this issue isn't contested, so we're just going to go straight to step two in that case. Meanwhile, there's another appellate case that actually was focused on this first step and the facts were almost identical. And so now you have your unpublished opinion that says you lose on step two, but step one had to be found to get to step two. And you look at this other opinion and you go, geez, what do I want to do? So you ask the trial court, ignore the court of appeals, in our case, the law of the case, and instead follow this published opinion. It's identical to this case. And so we should have never gotten to the second step anyway. So you're asking the judge decide the issue. They didn't decide before

Keith Fuicelli (: 28:52

My head is spinning, you've already convinced me to bring appellate counsel because I would not be knowing what to do. No, no, it's perfect. It just shows how sort of complicated and how distracting candidly it can be to have these issues come up when you as the trial lawyer are sort of focused on winning the case. And at least if you've got someone like yourself on the case, you can make a strategic choice. How can I effectively preserve this issue with having as little impact on my trial presentation strategy as possible? I don't know if that's accurate.

Nelson Boyle (: 29:31

That's accurate. And I think part of this too is we all know lawyers that do different things. I mean a probate lawyer, somebody that does special needs trusts or whatever so that you can have those people available when you need 'em in your client's cases, right? And probably everybody in Denver area calls the same lawyer for consulting on ethics issues and nobody complains when they get a bill for an hourly consult, right? But I think the same thing should be true for appellate lawyers. I have a simple one page fee agreement that I use. It works that way so that people can call me anytime. But what you're paying for there is an hour or two of time from or less sometimes of the appellate lawyer's expertise to try to get the help drilled in on just a small issue. It might be a big issue. You don't want to miss obvious things like a notice of appeal deadline or something because you're miscalculating. So calling an appellate lawyer, if you don't do a lot of appeals, that's a good idea. They're not necessarily going to be billed on every little question, but it's just calling up the specialist, the bankruptcy lawyer or whatever. You can ask a general question here or there, but you should be willing to pay them for their expertise. And the other thing is with briefs, if you want to do your own appellate briefing, hire somebody to look at

Keith Fuicelli (: 30:43

It. Lemme jump in because one of the services I think that could be super useful is we've all heard these stories about right before trial. Defense brings in these teams, armies of lawyers, conference room tables full of lawyers that are filing briefs after briefs after brief every single day of trial. And obviously it seems like a dumb question as I'm asking it, but in that type of case, you can bring in someone like yourself or other lawyers, not just because maybe it's too much for even just you and we need additional people to come in to handle that sort of contemporaneous trial motion practice so the lead lawyers can focus on the trial. Is that something that you've been involved in and you've seen work in practice?

Nelson Boyle (: 31:28

I haven't been involved in the cases where they have a huge team on the other side, but I have been the guy at trial filing. Perfect. And even if it's just while you're sitting there, you're like, we really need an instruction on this and we didn't turn one in, but it's churning stuff and making them think about other things as the trial's going. So you file two more proposed jury instruction or you give 'em to opposing counsel and say, what do you think of these? And they object. So then you file 'em as the case is going on, but it's forcing them to respond and it's distracting them from their game too. And I think you're right. I mean especially if you had a team on the other side that was filing things, you'd need a team to respond. And the bigger firms I think could lean on people in the office, but a smaller firm that almost goes the opposite direction on something I said earlier, which is we want to win.

(: 32:13

Now that's the trial lawyer's mantra in here. If you're overwhelmed with briefing that's just coming in during trial, the answer to win now is bring somebody in, have somebody who you can call up or even a couple people, I think if you're calling them during trial, if you're calling me during trial, I might be available, I might not. You didn't plan ahead on it and didn't know this was going to happen, but then go down the list of appellate attorneys you can find and get somebody in there. I mean it's a no brainer that you need that kind of support when that's happening.

Keith Fuicelli (: 32:43

What are some other issues that we should be thinking about in terms of preserving the record at trial? So I always hear this, you got to preserve the record. Preserve the record. So what are the common mistakes and what can we all do better to preserve records in the trial court?

Nelson Boyle (: 33:00

So I mean, one, it's kind of as you go, right? But don't be afraid to object when something's going on. Make sure that you've got your pocket briefs ready, but that you're able to prepare them or offer some proof. I mean, we've covered a lot of these things. The other thing is just be aware of what precedent you're citing. I was at the appellate public defender's office told never cite the court of appeals unless you have to. And we were in the court of appeals. So it's the same thing. But I take that when I'm filing stuff in trial courts, I try to cite to the Supreme Court when I can because it means that one, when you go up on appeal, you don't have to find new law. But two, the other side's going to be citing things that come from a court of appeals.

(: 33:39

And if you can trump them on that, as long as it's on point, sometimes the only case on points is court of appeals and that's what you have to go with. But also just at trial, I think you have to one, I mean we all know this, the things that everybody knows, you have to fight for more time for voir dire or that kind of thing, but you need to know things like Batson and how that works. Appeals on voir dire issues are not good in Colorado because of the case law in the last 10 years. I mean, getting a reversal law on that's not very good, but it doesn't mean you don't even to know that law because you're trying to select the jury and you're trying to make those arguments. So if you see the Batson issue come up, you need to know all the steps of batson, not just that they can't strike people of color or all the women or whatever, because you have to be able to go through the process. And it might be that you lose the argument and it might not be a good appellate issue, but those are the kinds of things you can do to preserve that issue if you need it. I mean, it might be the only issue you have,

Keith Fuicelli (: 34:37

Or at least you could threaten it to see if the waive costs, if the trial goes that way, you got to have something you can theoretically bring up on appeal if you want to leverage that, at least in my experience.

Nelson Boyle (: 34:48

The other thing is, I mean, just pointing out what you see, I think most trial lawyers do this. I dunno if they're doing it to make a record or just somebody puts their hand up or the witness blanches your face said a different thing than your words did, whatever. I mean just to try to get that into the records. The records just black letters on a white page, right? Mean it doesn't pick that stuff up. So the other thing is you don't know if the jury caught it either, and so you want to point that stuff out, but when you're doing that, you're creating your better appellate record because you're showing where the tone of what's happening. So if the defense loses and then they say there wasn't enough evidence to support this or whatever, sometimes it's just those little things that you can pull out in your appellate brief to say this is what it was, but you can't really put your finger on it ahead of time. It's more just being aware. And since trial is theater, somebody reading the cold record needs to know what's going on on stage.

Keith Fuicelli (: 35:39

It makes a lot of sense. Let me ask you this, do you have an opinion about using the FTR versus bringing live court reporters to trial?

Nelson Boyle (: 35:47

If you can afford it, a live court reporter can be helpful. And I think there's a lot of people that, I started out working at a med mal firm when I was in law school, clerking there, and they always had a live court reporter, and I'm sure they still do. And one of the things they do is they use the real time and with the realtime software they had. And of course it's been a while, but I didn't even have much gray hair then, but now I don't even have hair. But you could hit the space bar and it would just ding the thing and you didn't have to do much more to tell yourself where in the transcript these things are coming up. But I remember watching Jim Leventhal at trial going, he would pick up his laptop with the realtime streaming and instead of saying to the court reporter, can you read that back, which is stilted, and it rests up the mojo sometimes of the cross-examination, or he'd pick up the laptop from right next to his podium and he would say, doctor, you just said and read the words right back off the transcript.

(: 36:39

And I think if it got an objection from the defense one, I mean that'd be stupid, but two, your answer would be, well judge, let's have the court reporter read it back and then you get a third time, right? But you're also, to me, that was one of the most compelling reasons for it. The other is, yeah, there's a lot of inaudible portions of the FTR transcript and you can't get dailies. And I mean, I think if you're doing a three day trial, you don't need dailies, but if you were doing a six week trial, by the time you get to the end of it, you may have wanted to have somebody reading the transcript and pulling things out for closing or you might want to be doing that yourself or whatever. And then again, that's where you could have that space bar thing where you can flag it. So I mean, I think a lot of it has a lot to do with trying the case, but on appeal, yeah, you're going to have a bad transcript usually if it's all FTR, but that's what most of our transcripts are. So

Keith Fuicelli (: 37:30

I'll tell you, the way we do things now is on almost all cases, we want live court reporters and we want real time. And the reason why is because if you were doing public defender appeals, one of the most effective things is to point out what the other side said they were going to show you in the case. And that never came to fruition. And without that transcript of the opening statement, that's more difficult to do, especially if you have the ability to read word for word what the other side said in opening, and then show that that turned out not to be true. I found that to be effective, and I've also found it to be really effective during to have other lawyers reviewing cross-examinations of defense experts and picking out sort of the pieces to then try to remind the jurors of remember when this was said and when that was said.

(: 38:22

And although the last trial that I did, and it didn't really work out that well, we didn't have real time court reporters there, and it was a six day trial and it was against Brad, Ross Shannon, and go so fast during trial. You can't even keep up on it to come back and say, well, wait a minute. Remember when this record was taken out of context? So long story short, I was really kicking myself and swear again to this day to not do a trial without a real time court reporter with real time transcripts. At least that's been my experience. I don't know if the same's with you.

Nelson Boyle (: 38:53

No, I think you're right. And I think on appeal, it might come up too that if you're quoting those things, then they object and say, that's not a quote. And the judge says, you can't do that, or whatever. You prepare some demonstratives for closing and you show 'em to the other side and they object saying, I don't like those quotes. And then you show 'em to the judge, and judge is like, well, how do you have this quote when you didn't have a court reporter here? And sometimes judge will say, let the people try their case, but other times they say, you're not putting that in front of the jury. You can tell them what you think they said, but you can't put a quote up. So part of that's just the trial practice part. But the other part is, I mean, if they're objecting to things that should have come in, and again, it may not be a great appellate issue, but you want to have those things for your appellate lawyer to look at.

(: 39:35

You want to have 'em fully preserved because most appellate lawyers and including me will tell you that an evidentiary issue isn't a great appellate issue, but sometimes it's your only appellate issue, and then some are better than others. And I think I've told lots of people that do bear and Shrek striking of experts isn't a good appellate issue. They never reversed, but nobody ever has a good record of it either. The question again, how would the evidence have sounded at trial? The only way to know that is if you put it there. But yeah, I mean, I think the real time is, I think, golden while you're sitting there,

Keith Fuicelli (: 40:07

And I'm sure I have not heard of a court not awarding that as a reasonable cost. So right. Be confident in your case, go win your case and make them pay for real time, frankly. Right?

Nelson Boyle (: 40:15

Yeah. I mean, it'd be impossible for them to argue. I mean, I guess a judge could rule however they want on cost, but it'd be impossible for them to argue that it wasn't helpful and didn't help you win. Right. And especially when they'll give $10,000 for somebody to come in and run trial software or whatever, they'll pay for the transcript. And you're right. The other thing too is just thinking down the line for your future cases, you get one of these defense experts testifies all the time. There used to be a word for 'em, but we don't use that

Keith Fuicelli (: 40:43

Anymore. Mercenary. Yeah,

Nelson Boyle (: 40:44

The mercenaries. And you want that testimony, right? Sure. Because they're going to come up again in your cases and your colleagues' cases. And so if you do have that real time win or lose, you have their transcript for the next case. That can be gold in itself, right?

Keith Fuicelli (: 40:58

I'll jump in and say, I have found that to be incredibly helpful. But for the last trial, we had transcripts from every single trial. So people jump on the listserv, they say, what about this expert? That expert, some closing arguments that I thought and voir dire you have. So just I'm a huge proponent of it, frankly, and hope everybody does the same, so then it's easier for all of us to share our good stuff when you get the trial testimony.

Nelson Boyle (: 41:22

One other thing on that, and it goes back to when I was in law school, but I remember sitting in that trial watching this med defense lawyer. The third trial, I'd see him try a case and he gets up in closing and he puts his hand on the shoulder of the other guy of his doctor, defendant, and he looks at the jury with a soulful look and just pauses, deep breath. And he says, I have had the chance to defend many fine doctors in my career, but it's been my privilege to represent this doctor. And it's like stuff that was borderline, or probably was objectionable, but it's like the beginning of the closing and you're like, do I stand up? But I sat there and said to myself, we have the transcripts from prior trials, but this guy does the exact same closing every time.

(: 42:07

It's stock, right? So if you know that about your opposing counsel, you were talking about Brad Rhan, he's had a lot of trials. If they have tells, if they have things that you could pick on, you could stand up in your closing. And at some point during your closing, you could say, before they get up, right? Before they get up. And I'm sure that Mr. So-and-so's going to get up and tell you that this is a fine doctor and he's the finest doctor he's ever gotten to represent or whatever, but keep in mind and just undercut that. And then how does that guy stand up? He's closed, he's practiced for 30 years. And anyway, that's getting out of my topic. But you use that stuff because if you see those tells in their prior trial, you should put 'em off their game. How would you stand up if you're that guy and put your hand on the shoulder of your client? And you could even say in the closing, he's going to probably stand up. Maybe he'll stand behind him, put his hand on his shoulder and tell you how great of a doctor he is. But keep in mind what happened to my client with his mistakes and then sit down and how does he get up and put his hand on his shoulder and say the exact words that you just said?

Keith Fuicelli (: 43:08

Yep. Without the real time, it becomes a lot harder to do that unless you're going up on appeal and getting the transcript from the FTR, et cetera. Well, I tell you, this has been extremely informative. Any last words of wisdom you'd like our listeners to know about preserving the record in appellate practice? Brief writing? Any other?

Nelson Boyle (: 43:29

No. The key thing is keep in mind that there's people like me out there that'll help with briefing and with writing and at trial, and don't be afraid to reach out. If we're not available, we'll tell you what else you should call or whatever. But it's not always obvious what you need to do to preserve the record. And being a Monday morning quarterback like I'm, it's always obvious to the appellate lawyer what they could have done.

Keith Fuicelli (: 43:50

Sure. Alright, well, it has been a wonderful hour. Thank you, Nelson, for taking the time to come on and help all of our listeners. Thanks for having me. And until the next time, I'm Keith Fuicelli and I look forward to hearing many, many more amazing results in trial and helping all of us become better trial lawyers. Thank you all for listening. Thanks. Thank you for joining us. We hope you've gained valuable insights and inspiration from today's courtroom warriors. And thank you for being in the arena. Make sure to subscribe and join us next time as we continue to dissect real cases and learn from Colorado's top trial lawyers. Our mission is to empower our legal community, helping us to become better trial lawyers to effectively represent our clients. Keep your connection to Colorado's best trial lawyers alive@www.thectlc.com.