Georgia Criminal Appellate Law Blog

Offering Insight and Commentary on Appellate Law and Criminal Trial Practice

The Self Talk Treadmill

Posted in Coaching

IMG_0021I’m off to Baltimore for a Federal sentencing conference. But I’m still looking back to last week’s coaching certification class for my son’s clay shooting team. And I wanted to share another life lesson from that conference. Most sports lessons are life lessons in disguise after all.

A big part of the curriculum dealt with how to correct the athlete’s mistakes while also preserving the athlete’s enjoyment of the sport. We were told to lead our critique by telling the athlete about something he did correctly. Then we discuss some item or items we noticed that needs to be addressed. And we encourage the athlete to keep a written log of observations from practice and competition. According to the research from our manual, we lose about 50% of what we hear if we do not write it down.

The clay shooting community strikes me as a fairly conservative and old-school crowd. So, this was not new-age, millennial froo froo, stuff. However, perhaps unwittingly, we were being taught a fairly “zen” concept. The idea here is that we notice the athlete’s actions and point them out. The actual shot is forgotten, but the observations are what we take away. “Today, I learned that I need to follow through after the shot and that my footwork is good.” We don’t take away from the experience, “I’m the greatest clay shooter ever” or “I really suck at clay shooting.”

There is something in this for the practice of law and for life. What if I kept a little log of what I learned after I file a brief, after an oral argument, or a client consultation? Then I would notice the experience, making habits out of what went well, and correcting for things I could do better.

It might help us to climb down from the negative self talk treadmill. What do I mean by this? When we move beyond the level of noticing behavior to the level of self-criticism, we either over-inflate our value (“I’m a tremendous trial lawyer”) or we short circuit the likelihood of better performance. Better to notice what we are doing, let go of the behavior that misses the mark, embrace right action, and keep up with the lessons along the way.

Look at Your Approach and not Just Your Result

Posted in Uncategorized

IMG_0019I spent last Friday and Saturday in a certification class so that I can be an assistant coach on my son’s clay shooting team for the upcoming season. The class consisted of a classroom component and a hands-on component at a local gun club. There, we alternated between shooting at targets and coaching our partner in his effort to do so. And one of the program’s teachers coached our coaching. We were being evaluated for our coaching and not our shooting. But I felt  nervous about shooting in front of a bunch of coaches. I’ve never fooled with guns before my son became interested in this sport. And while most dads lead their children to this sport, my son had led me. But this activity was all about the coaching even if it didn’t feel like it.

My student came up to the line and shot. He was a very experienced shooter. And he obliterated the first target he saw. I know because I watched the little orange flying saucer blow up. I watched it intensely. And in so doing, I made my first mistake of the afternoon. The coaching coach asked me to tell my student how had just executed the shot — to walk him through a narrative of the process from what I had just observed. Of course, I hadn’t watched how he executed the shot, and the coordinator knew that I hadn’t (this is a very common mistake, by the way). I couldn’t say anything about his stance, how he mounted the gun, or how he viewed and tracked the shot. I took my eyes completely off him and focused 100% on the result (in my defense, it’s hard not to focus on an explosion). So, I was in no position to tell my student what he had done right so he could repeat it. And if he had merely gotten lucky with very bad form, I was in no position to correct his form to create more consistent results. All I could say was “good job,” judging from the fact that I watched a target explode but with no knowledge of what happened to create that result. If I were to coach a student over the course of a day or a season, he would walk away from the experience judging himself by a standard that he did not fully understand. Engagement with the student trumps judging solely by a result.

When it was my turn to shoot, my “coach” was able to correct things about my technique and to point out to me the things I was doing right. At a couple of points along the way he had to ask, “did you hit the target?” I knew. The student always know the answer to this question. So, the coach is free to evaluate the student and not worry about finding it for himself.

I took some valuable life lessons and management lessons from the day (I also enjoyed the experience). If we always focus on results, we are not engaged enough with what we are doing. We’re grading ourselves on what happens “out there.” We are not learning what to do to be consistent and to build habits out of our correct actions. Practice doesn’t always make perfect. Sometimes is makes permanent.

When the students reach a competition, results will matter. When we go to court, results matter. But going into a competition, what we are doing on our next shot, how we stand, what we do with our eyes, what we do when the target comes out, and how we deal with it all is what prepares us for success. And, after the competition, what we take from it is what will matter. And some results are beyond our control. We don’t create the facts in our case. We do not create the precedent that controls how the case will be decided. And a student in a competition cannot control how talented a component might be. We can only control what we do and how well we prepare.

Just as it was a mistake to focus exclusively on the result when I should have been focused on how the shot was made, we should think about how we construct our briefs, how we prepare for court, how well we listen to the client in the consultation, and how powerfully we told our client’s story to a judge, jury, or panel of judges. When we focus on that progress, the targets tend to take care of themselves. We should all take a closer look at ourselves and honestly evaluate and not ride the wave of hearbreak and exaltation that comes from focusing only on results.

Adding the Appellate Guy

Posted in News, Uncategorized

IMG_0018Robert Mueller recently made a serious move. He brought in an appellate guy. Michael Dreeben has argued 100 cases in the United States Supreme Court and has been with the Solicitor General’s office since 1988. The move indicated, even to the people at Fox News, that things are about to get serious. This investigation now has an Oceans 11 feel to it.

No matter what your politics might be, there is a lesson to be learned here. If you are serious about your upcoming trial, adding an appellate person to your team indicates that things are about to get real. It will help you preserve a record for appeal. And a solid motions practice often creates better plea offers.

Older Lawyers Have an Edge in the Age of the Smartphone

Posted in Writing

27th October 1960:  A Munich secretary simultaneously typing and making a phone call with the aid of the Beoton telephone amplifier.  (Photo by Keystone/Getty Images)

Chad Burton has given up his laptop and his iPad and now works exclusively from his iPhone. He manages software and consulting firm for lawyers with it. On a recent podcast, two lawyers discussed whether they could travel with just a phone and still get their work done. The debate for them came down to whether they needed a tablet and phone or just a phone. I noticed that the computer was not really a part of the discussion.

The interesting insight is that I took away from both pieces is that older lawyers may have an edge when it comes to working with minimal technology. Older lawyers developed the skills to compose by voice. And now, between Siri and Dragon Anywhere, lawyers with dictation skills can get work done without much infrastructure.

Long ago, when I was a high school student working at a law firm (1988), I can remember that the paralegals had computers but lawyers didn’t. The lawyers composed into a dictaphone or a microcassette recorder. And the paralegals typed it all up. When I was in law school and working in various law offices, the lawyers and paralegals both had computers. And I had my choice. I could type everything myself, and I could dictate. I had a foot in both worlds. It is a rare office now where lawyers dictate for others to transcribe. Though dictation is alive and well in medicine.

Now, things have both advanced and come full circle. It is possible to compose by dictating but without the need for staff. The software on a smartphone does the work of the 1988-era paralegal. But for a generation of lawyers trained to compose on the keyboard, dictation is a skill not yet learned.

The irony is that you could likely cut out a great deal of overhead in your office if you embraced some old-school legal skills that once required a large staff to support. And it may be dependence on desks and desktop computers that is driving up your costs.

Is This the Hill You Want to Die Defending?

Posted in Attorney-Client Relationship, News

There has been much ado about a controversy at Duke Divinity School. I will leave aside, for purposes of this blog the elements of race, gender and politics. Those articles and blog posts are being written. For a few paragraphs here, I want to discuss this controversy as an opportunity for a practice pointer when it comes to sentencing or any other presentation you might wish to bring to a judge that is discretionary in nature.

The controversy, in summary is this. A Duke Divinity School professor received a mass email about a two day racial sensitivity training. From what I can tell, the training was not mandatory. There was a link to click to enroll, and space was limited. The professor replied to the entire faculty that the seminar would be a waste of time to attend. I don’t know any of the actors beyond reading their emails. But it appears that the professor was more of a curmudgeon than a bigot. However, he chose to touch the third rail of campus politics — identity politics. And things quickly spiraled downhill. And he has now resigned. The controversy has occupied much faculty and student attention. along the way. And now the controversy has become fodder for conservative blogs and periodicals.

The professor’s email, the one that began the whole thing, is worth quoting in its entirety:

Dear Faculty Colleagues,

I’m responding to Thea’s exhortation that we should attend the Racial Equity Institute Phase 1 Training scheduled for 4-5 March. In her message she made her ideological commitments clear. I’ll do the same, in the interests of free exchange.

I exhort you not to attend this training. Don’t lay waste your time by doing so. It’ll be, I predict with confidence, intellectually flaccid: there’ll be bromides, clichés, and amen-corner rah-rahs in plenty. When (if) it gets beyond that, its illiberal roots and totalitarian tendencies will show. Events of this sort are definitively anti-intellectual. (Re)trainings of intellectuals by bureaucrats and apparatchiks have a long and ignoble history; I hope you’ll keep that history in mind as you think about this instance.

We here at Duke Divinity have a mission. Such things as this training are at best a distraction from it and at worst inimical to it. Our mission is to thnk, read, write, and teach about the triune Lord of Christian confession. This is a hard thing. Each of us should be tense with the effort of it, thrumming like a tautly triple-woven steel thread with the work of it, consumed by the fire of it, ever eager for more of it. We have neither time nor resources to waste. This training is a waste. Please, ignore it. Keep your eyes on the prize.

He may actually have a point. An argument could be made the he was right. And, giving him the benefit of the doubt, he sought to challenge his colleague to engage in a dialogue about race and gender in a more rigorous way. But surely he knew the temperature in the room. His message, in its particular form, was likely not going to move the ball down the field.

I am reminded of the task of preparing witnesses to testify at a sentencing hearing or at a motion to terminate probation. Or I am reminded of what it is like to collect letters on my client’s behalf for the parole board.

The people who will offer their testimony are deeply suspicious and (very often justifiably) distrustful of the judge, DA, law enforcement, and the judicial system as a whole. And they see their moment on stage as a time to stand up and vent that frustration or speak out about what they perceive to be right. In their mind, it is time to take a noble stand.

And in those instances, I have to remind the witness — “is this a hill that you are prepared to die to defend?” In other words, I may tell the client’s mom or wife, you could use your moments with the judge either to (1) inform him that he is biased in favor of the state and does not know how to run a courtroom fairly; or (2) persuade the judge to let my client out of prison. But the witness cannot do both.

Sometimes it may be better to role your eyes and delete an email instead of using a mass email situation to make a point. It may be better to raise the level of conversation over time than to use the medium of mass email to tell your colleagues that the training is a waste of time. Some hills are worth dying to defend (when you know that you surely will die) and others are not. Of course, if we do not get the result we wanted, the witness is often resentful that we did not take the stand. But, I always think, we chose to defend the right hill even if our efforts in that regard were futile.

The Lawyer Award Industrial Complex

Posted in News

participation.jpg~c200Awards are catnip for lawyers. We like praise. And unless you’re a prosecutor or civil defense attorney, you do not often get it from judges or appellate courts. And, even when you win the case, you can be hard pressed to receive it from clients. And yet we lawyers hold ourselves in very high regard.

So, there is an industry out there that exploits the lawyer mindset. We shall call it the Lawyer Award Industrial Complex. We must be careful in discussing the Lawyer Award Industrial Complex to our fellow lawyers, particularly after they have been named as a recipient of a lawyer award. We are often blissfully unaware of the workings of the lawyer award industry, and our egos are fragile. Yes, Virginia there is a Santa Claus. And, yes, R. Rex Smith, III, you are, indeed, the most distinguished practitioner of real estate closings in the entire Southeast for this decade. The award proves it.

If you do not yet know what I am talking about, there are whole companies out there that exist to award lawyers. I could not possibly name them all. The industry leader is Super Lawyers. There is also Best Lawyers. Every year or so, I receive a letter in the mail notifying me that I have been named to some sort of list. I cannot remember the name of it, but it is out of Dothan, Alabama, which I was unaware served as any sort of headquarters of a lawyer hall of fame. For a Georgian, “having arrived” in Dothan has generally meant that you are getting closer to Panama City.

Once you are the recipient of a lawyer award, you wait for the other shoe to drop. Sometimes, the shoe is that you must pay the award company to have your name included in their directory. Or the shoe is that your name will go on the directory/magazine/brochure, but in tiny letters you can only see with an electron microscope. But you can pay to have your name printed bigger in that publication, all the way to a full-page ad or the cover. And there are other things you can purchase. They will sell you certificates and lacquered plaques for your waiting room or the “love me” wall of your office just behind the high backed leather chair.

I was recently in court where a judge was hearing habeas matters. And a trial lawyer was on the stand being questioned by the habeas lawyer on an ineffective assistance of counsel claim. The Assistant Attorney General then had the lawyer on cross. And the AAG’s first question to rehabilitate the lawyer on cross was “Isn’t it true that you’re a Super Lawyer?” I almost spit the water I was drinking out in a South Georgia courtroom as I thought “is that all you got?”

Now to my story. Yesterday I learned of a more subtle entrant to the Lawyer Award Industrial Complex. A publication that I read and respect notified me that I had received an award and would be honored at an upcoming dinner at a downtown Atlanta hotel. If you know me and have read what I regularly write here, you will know that I am often skeptical and always deeply neurotic (in a charming way). I emailed a reporter at the publication to ask if this was all legit. Some lawyers I respect were also named, but then there were mainly big Atlanta law firm names I recognized. Though I did not know the names of the individual recipients who were going to receive awards. I was re-assured in response that this was an honor for my outstanding leadership and results from 2016. I ran a marathon in 2016. But otherwise 2016 feels to me in retrospect like a fairly ordinary year. But this newspaper says that it was an extraordinary year. So, I declared it also to be so.

Then today I received an email. While my ticket to attend the event where I am to be honored is free, it will cost $650 ($650!) for any guest I would like to bring with me. I thought that a $650 plate of food also included the purchase of a political candidate.Or for a cool few thousand bucks I can purchase a whole table. And virtually everything else about the event is for sale. I can pay to give introductory remarks, to have my name on the napkins, or anything else one might imagine.

The other shoe dropped. Congratulations to me.

Artificial Intelligence is a Net Positive for Lawyers

Posted in News

140321165234-robots-replace-junior-lawyers-620xaA recent New York Times article explores whether artificial intelligence is replacing lawyers or whether it will in the future. The basic conclusion is that humans are necessary for legal work for the time being. As an attorney who does litigation, with an emphasis on appeals, habeas, sentencing, motions practice, and some limited trial work, I see this as an optimistic piece. Steve Lohr, who wrote the piece does a good bit of technology writing for the Times and has done a great job here identifying trends in A.I. and the law. So, let me take a minute to tell you why I think that this piece is ultimately optimistic.

In any law firm, or any business,, there are very few things that only a lawyer should do. And to become more profitable and efficient, lawyers should limit their work to what only the lawyers can do. What are the things that truly only I can do in my practice?

  • Only I can stand up and make an argument in court.
  • Only I can approve and sign pleadings and briefs that are submitted to the court.
  • Only I can represent a client, which essentially means that only I an give legal advice and ultimately execute on legal strategy.
  • Only I have the ability to connect with a client, opposing counsel, law enforcement officials, and judges as a human being in relationship with others as human beings. A.I. would have to surpass the Turing Test, to begin to replicate this function. And the lawyer’s stock and trade is his relationship with others in the system.

But there are things that others in my practice can do as long as I supervise. For me that might mean the gathering and scanning of all the documents in the case that were left by the lawyers and clerks that go before me (I’m seldom the first lawyer on a file). Document review can be done by others in my office as well as the preparation of internal memoranda, witnesses, and court exhibits, and some legal research. Indeed, it’s to the client’s benefit in terms of cost and efficiency if the lawyer does what only the lawyer can do. And the better news is that we live in a time where a good bit of the non-lawyer stuff can even be outsourced to contract vendors who can do an excellent job remotely, which can cut down on the amount of office space necessary to run a law firm. And ultimately, the client should be happy that the client no longer needs to fund such in infrastructure.

So, back to the article. Mr. Lohr identifies some of the areas that A.I. is improving. I’ll highlight a few.

  • Legal Research. Ross is one of the A.I. services highlighted in the article. Ross intelligently engages in legal research and generates a rudimentary legal memo. Again, this sort of thing is what lawyers often get drawn into but is not one of the things that only lawyers can do. There’s a great Ted Talk about Ross with its founder. The talk is kind of inspirational.
  • Scouting Opposing Counsel and the Judge I think that ultimately there is value in making some calls and using Listserves to scout out this information. But I’m intrigued by Lex Machina and Ravel Law. These services provide analytics of opposing counsel and judges – sort of like a Moneyball for the law. I haven’t looked deeply into these services, but I suspect that they are pretty good for civil litigation and not so great for criminal law.

I’m not concerned that these services will replace me. I think these services will allow me to be more of a lawyer and to compete with bigger firms to provide great legal services against the resources of the government.

Skillful Speech and the Law

Posted in Uncategorized, Writing

girl-shouting-into-loadhailerI recently heard a new term. It is a term of art from a certain religious discipline. That term is “skillful speech.” The person who said it was Joseph Goldstein. He was a guest on on a podcast. He explained that speech often serves no useful purpose other than to announce your presence to another person. Or it can be speaking something other than the truth. And even when we tell the truth, it can be truth spoken in a way that advances no good cause, such as gossip. Or it can be truth delivered with an ill intent. A few mornings ago, I read up on the concept of skillful speech. In a review of one of Goldstein’s books, for instance, the concept is summarized as follows:

“Right speech”—speaking honestly and eschewing lies and gossip, divisive speech and idle chatter—is a crucial part of Buddhist ethics. Joseph invented a practice for himself in order to cultivate greater mindfulness about speech: for several months he refrained from speaking to anyone about a third person. This not only taught him that a large percentage of his conversation involved other people, but helped him notice that much of what he said included comments and judgments about other people. Stopping such speech for a while made his mind less critical toward others, but interestingly also less critical toward himself. Years later that practice continues to alert him when he begins to speak mindlessly about other people.

I decided to give it a try. A few hours later, I fell short of it in a disagreement I had with someone. And this all happened outside of the work context. And I began to wonder, if it is so difficult to speak skillfully in the personal context, how much more difficult is it to use speech skillfully in the litigation context.

In the work context, as a criminal defense attorney, I have begun wondering about the relevance of skillful speech. A good portion of my work is on the page. So, I have the benefit of taking my speech through multiple drafts. And, in the oral argument context, there is opportunity to anticipate questions that might arise. More difficult is the person who, as my children would say, “started it first.” When a person is aggressively unskillful in her speech to me, it can be a challenge to remain skillful in my response. Or when a judge or an opposing counsel speaks in an unkind manner to me, even when I don’t respond in kind in the moment, the real challenge comes in how I describe the event within my office. We often speak of it in terms of “venting” or having a sense of humor. Or we may relish the fact that we are good at it. Much of your social media feeds may consist of unskillful speech.

As I have reflected on it, skillful speech is perhaps most relevant in the work arena. After all, in this arena, I am paid professional in my speech. And as much as I work at what I say in a brief or a motion, I should work just as hard in how I speak to clients, the folks who work the courthouse door, opposing counsel, and the judge. In this area, I should strive to make all speech skillful speech.

Friday Review: A Place I Haven’t Been in a While

Posted in Writing

Library with a book ladder and lampOn my way home from the office yesterday, I darkened the doors of a place I haven’t been in a while: the public library. When I was throwing some things out recently, I stumbled upon my old library card. The card sat in my car for a while. And today I used it. Anticipating upcoming travels, I thought I would allow amazon.com or Apple’s iBooks service to flounder without me for a few weeks and get a couple of library books.

How long had it been since I last visited a library? I’m not sure. But the librarian laughed when I presented my card and said that it had expired in 2009. 2009 was the year that I purchased my Kindle and began helping Amazon and Audible pay their mortgage. When I noted this to the librarian, she laughed at me again and said that I can check out ebooks and audio books through the library and put them on my Kindle. Yesterday, I picked up Sam Harris’ Waking Up.

This morning, I logged onto Georgia’s Library System. Within minutes, I was logged on to their ebook/audiobook borrowing section. And minutes after that, I was redirected to the Amazon site, where I clicked a couple of things and a library book was on my Kindle. I downloaded the biography of Elon Musk where I will hope to feel optimistic about the future of technology in America and The Garden of Beasts, where I anticipate I will find parallels to the modern American political climate.

I may be the last person to this party. If I am, don’t roll your eyes. Just take pity. If you still aren’t at the party, go and visit a public library. It turns out they’ve changed with the times.

New 11th Circuit Interpretation of a Portion of the Sentencing Guidelines

Posted in 11th Circuit Court of Appeals, Opinions and Analysis

One of the hats I wear is that of the Federal opinions editor for a caselaw update that the Georgia Association of Criminal Defense Lawyers publishes monthly. It has been a slow month for Eleventh Circuit Opinions. But there is one that I will be writing up. And this blog post will pull double duty as a caselaw summary for that publication.

The case is United States v. Sheels, a January 31 published opinion. This case deals with whether it was proper to impose a four-point enhancement under 2G2.1(b)(4) of the Federal Sentencing Guidelines. The question turns on what is sadistic of masochistic conduct.

The Point:

For purposes of determining whether to impose a four-point enhancement for a conviction for sexual exploitation of a minor by production of sexually explicit material, it is proper to impose the enhancement even if the defendant is the recipient of sadistic or masochistic conduct was directed at him rather than from him.

The Facts:

Mr. Sheels was convicted of one count of producing and one count of receiving child pornography. He received a sentence of 600 months to serve. The sentencing added four points to his base level offense of 32 because the material contained the following as defined by 2G2.1 of the Federal Sentencing Guidelines:

If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels.

Mr. Sheels argued that the enhancement did not apply because he was the recipient of the argument. The Court affirmed, having determined that the depiction of such conduct, in any form, was sufficient to apply the enhancement.

The Reasoning:

The Court found that it was not necessary to look further than the plain language of the guidelines to answer the question. “Involved material that portrays,” applies to the conduct in any form. The Court then went to a dictionary definition of the word involve.

There were no cases directly on point. And Mr. Sheels relied on some dicta from other cases potentially to support his position:

He cites a number of cases, like United States v. Hall, 312 F.3d 1250, 1261 (11th Cir. 2002) (quotation marks omitted), which contain statements like: “[A] photograph is sadistic within the meaning of Section 2G2.2(b)(3)3 when it depicts the subjection of a young child to a sexual act that would have to be painful.” But those cases merely stand for the proposition that material depicting sadistic or masochistic conduct directed towards the child is sufficient to warrant the application of a § 2G2.1(b)(4) enhancement, not that it is necessary.

Ultimately, the Court held that even the object of sadistic or masochistic conduct is subject to the enhancement. To the extent that this point was unresolved by the language of the guidelines, it is resolved now.