All good trial lawyers have a theme for a trial. A theme gives a core to build your facts around. A theme gives the jury something to grab and hold. Should you have a theme for you argument at the Court of Criminal Appeals ?
First , all criminal defense lawyers don’t really like appellate work. It means they lost at trial , but everyone has at least one more chance to win their case. In Tennessee , every defendant has a right to appeal to the Tennessee Court of Criminal Appeals. Issues of error are raised in a motion for a new trial.Briefs are written setting out the facts and the legal argument. Oral argument is set. Then what ?
Last week , I had a appeal set for oral argument. In Tennessee , you get 20 minutes to make your case. I thought why not theme your argument much like a trial. The main issue was that the court failed to grant a severance as to the different counts in the indictment. In this case, two different attempted murder cases was joined with another murder that happened on another date and location. My theme was piling on the defendant.
When I played football in the front yard in Madison ,Tn. , you would get called for piling on when you jumped on the ball carrier after he was down. i thought that was a good theme to argue why the judge erred in denying the severance motion. I used the theme during argument to simplify the concept of why the rules of criminal procedure gives one that right.
I knew the theme worked after listening to the next case. The next case was about a joinder. The lawyer argued that the cases should have been joined. One of the judges asked the lawyer " What it have been piling on if the cases were joined." Once I had the court using my theme , I knew you should always theme your oral argument.