🎯 Why Embedded Appellate Counsel Matters—A Personal Reflection

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About ten years ago, I served for the first time as embedded appellate counsel in a high-profile criminal case. Trial counsel brought me in early to assist with pretrial motions and to monitor legal issues as they arose. I wasn’t in court daily, but I didn’t need to be—the case was televised locally and available online. I recorded every session, stayed in close contact with the trial team, and advised on motions and trial strategy in real time.

The team lost at trial. The appeal came to me—and we won. The Georgia Supreme Court reversed the conviction and granted a new trial.

Since then, I’ve taken on this role in civil matters, but that first case showed me how seamlessly it can work in criminal proceedings.

⚖️ The Problem Embedded Appellate Work Solves

Appellate lawyers are often invited in too late. By the time transcripts land on your desk, it’s frustrating to see issues that could’ve been preserved but weren’t.

Trial lawyers do heroic work managing jury dynamics, evidentiary rulings, and time pressures. But strategic legal issues deserve undivided attention—and that’s exactly what embedded appellate counsel offers.

📌 Key Takeaways for Trial Strategy

  • Appellate posture begins before trial. The strongest appeals are seeded early through issue preservation and motion practice.
  • Trial focus ≠ record focus. Even exceptional trial lawyers can miss appellate leverage while managing the courtroom moment.
  • Embedded counsel creates depth. With one team member tasked solely with record integrity and legal scaffolding, the case gains resilience and flexibility.
  • It’s more than backup—it’s architecture. This role doesn’t just preserve rights. It builds the framework for appeals that can actually succeed.

This has become a role we love in our firm. It’s proactive, rigorous, and deeply aligned with our philosophy: strategy now saves heartache later.

If you’re exploring embedded appellate strategy or want to see how it fits in civil litigation, check out this Michigan Bar Journal article or this Georgia appeals guide to dive deeper.

Briefs, Bots, and Balance: A Lawyer’s Honest Take on AI

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Let me start with a confession: I don’t know exactly what artificial intelligence is. And I definitely don’t know what it will be a month—or a year—from now. That kind of humility feels important to say at the outset. Because this post isn’t about predictions. It’s about how our firm is using AI today, and how that usage is evolving organically with practice, curiosity, and caution.

🚫 What AI Is Not Doing—for Now

For starters, AI isn’t writing our briefs.

Could it someday? Possibly. But right now, that’s not optimal for a few key reasons:

  • Fictional citations are a real risk. Lawyers have gotten into trouble when AI-generated briefs included cases that don’t exist. A recent Georgia Court of Appeals case made that painfully clear.
  • The source material is often subpar. AI draws from existing legal writing, and much of it isn’t great. So the output tends to reflect that mediocrity.

That’s why I still write the briefs myself. The act of writing builds strategic insight, sharpens my thinking, and prepares me for court in a way that AI simply can’t replicate. It’s not just about the final product—it’s about the cognitive lift.

✅ Where AI Is Pulling Its Weight

AI is far from idle. It’s become a powerful tool in several areas of my practice:

  • Digesting the record. AI helps me achieve mastery over large volumes of case material.
  • Decoding bad writing. When opposing counsel submits confusing or poorly written documents, tools like NotebookLM help me cut through the clutter and surface meaning.
  • Big-picture comprehension. AI gives me a strategic overview of complex litigation records.
  • Tone-tuning emails. While it’s not great at composing emails, it helps soften abrupt language and improve clarity.
  • Strategic thinking. It’s a sounding board for brainstorming and bouncing ideas.
  • Warmth and readability. It helps make my communication more human, without losing precision.

🛶 Small Firms, Big Advantage

One of the most exciting aspects of AI is how it empowers smaller firms to compete with larger ones. Nimble firms that embrace AI can steer around obstacles like a kayak in rapids, while rigid firms may struggle to pivot—like aircraft carriers trying to change course.

If you’re constantly learning how to use AI, you’ve got a bit of a superpower. And that superpower is only growing.

🔍 Key Takeaways

  • AI isn’t writing my briefs—and that’s intentional. The cognitive work builds strategic insight and courtroom readiness.
  • Legal writing quality matters. AI reflects the quality of its source material, which is often mediocre.
  • AI shines in record digestion and comprehension. Especially when dealing with voluminous or confusing writing.
  • Tone matters in communication. AI helps soften emails and improve clarity.
  • Small firms have a strategic edge. Nimbleness and curiosity around AI can be a superpower.
  • This is a snapshot, not a forecast. My approach to AI will evolve—and that’s part of the process.

🔗 Recommended Reading

To deepen the conversation, here are a few curated links that support the themes in this post:

Scrappy By Design: How a Small Firm Tackled Georgia’s Longest Trial Transcript—And What it Means Today

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A few years ago, my firm—a small one at the time—was hired to take on the biggest appeal we’d ever seen. It was the longest criminal trial in Georgia history. The transcript? Somewhere around 50,000 pages.

There was no big-team bravado. Just me and an associate, acting as exclusive appellate counsel in consultation with trial counsel, who had spent a year in the trenches. We walked into court with our amended motion for new trial in hand.

Here’s how we got there.

We recruited three law school interns for the summer. Each one tackled a third of the transcript, preparing detailed digests of their sections. My associate then digested the digest. Together, we sculpted a comprehensive brief—built on raw record analysis, meticulous collaboration, and an obsessive attention to structure.

When we filed it, the lead counsel from the Fulton County DA’s office asked the court for an additional six months to respond. Their reason?

“We do not have the staff that defense counsel has.”

We laughed. Because “staff” meant three interns, an associate, and two tired brains running on caffeine and principle. What we did have was creativity, technology, and the kind of scrappy energy that doesn’t rely on headcount.

That same energy now fuels our civil practice.

Even before the world pivoted to remote work, our team was logging hours from coffee shops, home offices, and courthouses across the state. With smart use of PDF readers, messaging apps like Slack or Signal, and cloud-based case management software, we learned how to produce clean, effective work—without the bloat.

In criminal defense, thrift is a survival skill. Most cases are handled on a flat fee, which means there’s no incentive to bill endlessly. You learn to strip tasks down to what’s essential and make every moment count. That discipline stuck with us.

Today, even as we bill by the hour in civil litigation, we carry the same mindset: Keep things simple. Stay nimble. Leverage technology. Prioritize outcomes. Our bottom line is our clients’ bottom line.

We’re growing as a firm, but our philosophy remains. The lessons from criminal defense—the humility, the hustle, the lean architecture of smart lawyering—still guide how we operate every day.

At Our Core

We’re still the same lean, deliberate team that dissected 50,000 pages with a few interns and a shared sense of purpose. Whether we’re building out a defense in land development litigation or navigating the demands of civil trial work, we carry forward a truth learned early: Smart lawyering doesn’t require a big footprint—just a sharp focus and the will to move fast without breaking things.

And while the scope of our work has evolved, the spirit hasn’t. Efficiency isn’t just a cost-saving strategy—it’s our creative signature.

We’re not just building cases. We’re building a practice that stays lean, moves nimbly, and adapts boldly.

🔍 Key Takeaways

  • Lean teams can outpace large ones when strategy, tech, and focused execution are the drivers.
  • Internship programs, when thoughtfully managed, can meaningfully contribute to complex litigation.
  • Tech tools—from cloud-based platforms to collaborative apps—aren’t just convenient; they’re transformative.
  • Flat fee experience teaches discipline that translates into billable hour efficiency.
  • Growth doesn’t require bloat. Nimble lawyering is your firm’s competitive edge.

☕ The Coffee Note That Shaped My Trial Philosophy

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Negotiation Lessons from Criminal Defense That Elevate Civil Practice

I couldn’t believe I’d made such a boneheaded move.

There I was—wedged into a slow-moving Starbucks line, about to be late for a meeting with a prosecutor. The mission? Negotiate a favorable outcome before my client’s case hit the grand jury.

So I improvised:
“Grabbing coffee. What’s your order?”

He responded. I showed up late—but with both drinks in hand.

While his contact was open on my phone, I typed his coffee preference into the notes. That tiny act became a bigger strategy: I started cataloging the details that make people feel seen—birthdays, kids’ names, anniversaries, favorite orders.

Turns out, the art of negotiation starts long before anyone mentions a statute.

1. Relationships Build Leverage—in Every Arena

In criminal defense, you quickly learn you’ll face the same adversaries repeatedly. That’s true in civil litigation too—especially in niche practices like land development.

Short-term victories lose value if they cost long-term trust. Whether you’re opposing counsel in a rezoning fight or working with local officials on a contested variance, relationships are your leverage.

I strive to be the kind of lawyer people respect and enjoy working with. Empathy isn’t fluff—it’s strategy.

2. Cases Are Made of People, Not Just Paper

Criminal work taught me to showcase the whole human behind the charges. Those life portfolios I compiled—white binders full of personal context—weren’t just courtroom props; they were bridges to understanding.

And I use the same storytelling in civil trial work.

In land use disputes, for instance, the story isn’t just zoning codes—it’s the livelihood of families, the impact on communities, the evolution of neighborhoods. Humanizing your client builds credibility—and influence.

3. Timing Is Tactic

The earlier you engage, the more control you have. Criminal cases taught me the importance of pre-indictment leverage—and that concept absolutely translates to civil litigation.

Before discovery kicks in, before tempers flare—early clarity can drive resolution. Whether I’m asserting qualified immunity under 42 USC § 1983 or drafting a Rule 37 letter, I aim to be the calm voice in the room… early and often.

4. Ego Is Expensive

In my early years, I fell into unnecessary rivalries with other young attorneys. And while some of those courtroom battles ended in my favor, I realized something better: a quiet dismissal beats a loud acquittal.

In civil practice, that lesson translates perfectly.

Firing off aggressive letters may impress the client copy list—but it rarely moves the needle in negotiations. Ego-driven posturing wastes time. I prefer clarity, courtesy, and precision. A smart lawyer knows when to speak softly and carry airtight documentation.

5. Negotiation Is a Long Game—So Play It Well

Sometimes you can settle. Sometimes you can’t. But civil or criminal, process matters.

You want opposing counsel to know you’re methodical, fair, and prepared to fight when needed. That kind of reputation isn’t built overnight—it’s earned through consistency, transparency, and respect.

And yes, sometimes, through a well-timed espresso.

📚 Sidebar: Resources to Deepen Your Trial Strategy

Curated tools for building relationships, refining negotiation, and winning cases with integrity

Final Thought: Civility Wins Cases

Law isn’t just argument—it’s relationship management. I’ve found more success through kindness and quiet force than through theatrics.

As Twain put it:
“Never wrestle with a pig. You both get dirty, and the pig enjoys it.”

And as Proverbs says:
“A gentle answer turns away wrath.”

Whether defending a criminal case or challenging a land development petition, my aim is the same: prepare deeply, communicate respectfully, and negotiate like the long game matters—because it always does.

Discovery: From Manila Envelopes to Motion Practice

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In my years as a criminal defense trial lawyer, “discovery” wasn’t a process—it was an event.

It usually arrived inside a creased manila envelope, thick with paper and stapled together like a grade school art project. Surveillance footage came in strange formats. Witnesses didn’t always give statements. If something crucial was missing, I had to hike over to the DA’s office or hunt down that one dusty machine that could read the footage or play the video.

So criminal discovery became a series of fleeting, high-stakes moments. Preliminary hearings, collateral proceedings like forfeiture actions or license suspension hearings, even open records requests—I treated them all like mining expeditions. Interviews were vital. Strategy was survival. I tried multi-week felony cases with nothing but a basic police report and carefully banked inconsistencies. And I learned to do much with little.

If you’re unfamiliar with exactly what I’m talking about, this article from FindLaw gives a brief and helpful explanation of the difference between discovery in criminal and civil proceedings. It lays out how criminal discovery is narrower, often asymmetric, and tightly constrained by constitutional protections—especially compared to its civil counterpart.

Fast forward to today, and the shift into civil litigation feels like stepping onto a different battlefield. The procedural landscape is expansive. Depositions, interrogatories, requests for admission, Rule 26 conferences. The toolbox is real, and it’s stocked. And yet all those days spent being scrappy serve me well here!

But coming from a background where discovery was improvisational, I now approach civil discovery like a surgeon, not a tourist.

I walk into depositions knowing exactly what I want to lock down. Written discovery isn’t a fishing expedition—it’s a scalpel. And without a magistrate judge glancing over their glasses to try to limit my scope (they knew what I was up to), I rely on discipline rather than mere deadlines to get it done.

And let’s talk about summary judgment. The idea that I can strike a case before trial using Rule 56 still thrills me. I said just yesterday, as I was prepping my summary judgment packet, “I think it’s the coolest thing that summary judgment even exists.” In the criminal world, your closest equivalent might’ve been a demurrer or a motion for a bill of particulars—procedural nibbles that rarely carried any real bite.

So yes, civil litigation offers luxury. But it demands maturity. Coming up the hard way made me strategic. It taught me thrift. It trained me to see clarity amid chaos, and that instinct transfers beautifully into this new terrain.

Looking back, criminal defense was like the proverbial walking uphill in the snow both ways. But the cold made me tough. And now, with tools I used to dream of, I don’t take a single one for granted.

⚖️ Key Lessons from the Transition

  • Criminal discovery taught me discipline
    When every minute mattered, clarity wasn’t optional—it was essential.
  • Civil discovery rewards focus over volume
    With so many tools available, knowing which tool to use is more powerful than having them all.
  • Strategic instincts transfer across domains
    Tight timelines, limited access, and trial-first thinking in criminal law sharpened my edge for civil practice.
  • The luxury of summary judgment is real—but so is the responsibility
    Knowing its value makes me fight smarter, not longer.

📚 This post is part of my ongoing series: What Being a Criminal Defense Attorney Taught Me About Being a Civil Defense Attorney.
Stay tuned for the next installment, where I’ll dive into how cross-examination principles from criminal trials elevate witness prep in civil litigation.

From Horns of a Dilemma to Running the Table: Lessons from the Trial Trenches

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This story begins with me squarely on the horns of a dilemma.

My then-boss and mentor taught me a great deal—but also carried a drinking problem that manifested in his reluctance to work afternoons. As a result, I was frequently placed in an awkward and precarious position.

The routine would unfold like this: the partner’s paralegal would tell me I was covering court that afternoon. What that actually meant was showing up, opening a file whose discovery packet was still bound by the original staple it arrived in—and picking a jury for a criminal trial.

Suddenly, I’d be standing in front of a judge, expected to select jurors and begin trial. The dilemma was clear: I couldn’t possibly deliver constitutionally effective representation under those circumstances. But telling my boss and mentor “I refuse to go forward” was far easier said than done.

Most days, either a settlement was reached or the judge would understand how untenable the situation was. But I knew I was on borrowed time. Sooner or later, I’d be ordered to proceed—unprepared—or risk losing the job I mostly liked.

So I took a systematic approach.

I approached the prosecutors and judges in the court where this was happening the most and proposed a deal: identify five aging cases they truly wanted resolved. They gave me five for the next month’s calendar, and I spent that month preparing thoroughly using everything I knew—and quite a bit I learned on the fly. This step-by-step guide to criminal defense preparation covers much of the practical process I had to internalize quickly.

Then trial week arrived.

  • Monday: Picked a jury in a DUI case—won an acquittal.
  • Tuesday: Picked another DUI jury—by Thursday morning, scored a second acquittal.
  • Later Thursday: Picked a jury for a family violence battery case. A witness was unavailable, and the case was dismissed.
  • Friday: The final two cases were disposed of—one dismissed, the other resolved with an exceptional plea offer.

In about four days, I’d run the table.

That week taught me a masterclass in big-picture thinking, creative problem-solving, rapid trial preparation, and the art of thinking on your feet. (For a broader view of the full arc of trial readiness—from evidence review to courtroom strategy—this complete guide to trial prep mirrors much of what I had to master under pressure.)

My boss, never short on hubris, was quietly pleased. Judges were thrilled at the cleared docket. Prosecutors were…less thrilled. Let’s just say they weren’t expecting to get steamrolled.

After that, I was thrown into chaotic trial situations far less frequently. Instead, I began to be tapped as second chair in higher-stakes cases. And despite the dysfunction that led me there, I’ll never discount my boss’s raw trial talent.

Fast forward to the present: I’m transitioning into civil trial defense, where trials are far rarer. But my love of the courtroom endures. After decades of litigation—countless trials, motions, and hearings—I still find the lectern of a courtroom to be one of the most peaceful places on earth.

This post marks the beginning of a blog series: What Criminal Defense Taught Me About Being an Effective Civil Litigator. For those curious about how strategic thinking translates into civil litigation, this overview of civil trial strategies serves as a solid starting point.

🧠 Lessons Learned

  • Systematic preparation can rescue you from chaos.
    Turning disarray into a defined trial calendar transformed my circumstances.
  • Relationships with judges and prosecutors matter.
    Building goodwill gave me the space to propose and execute my plan.
  • Trial practice teaches strategy under pressure.
    Thinking fast and adapting on the fly are skills you only sharpen in the trenches.
  • Even dysfunction can offer growth.
    The flawed situation catalyzed significant development in my courtroom skills.
  • Winning cases builds momentum—and credibility.
    That week shifted perceptions and elevated my role within the firm.
  • Peace lives in mastery.
    Amid personal and professional chaos, the courtroom lectern remains my place of focus and calm.

ADDRESS

199 W Jefferson St.
Madison, GA 30650

PHONE

678-610-6624

EMAIL

tori@scottkeylaw.com