Georgia Criminal Appellate Law Blog

Offering Insight and Commentary on Appellate Law and Criminal Trial Practice

Is Court Canceled or Not? There is no System to Know

Posted in News

Irma has been an adventure. It was an adventure that started last Friday when I drove down to Mitchell County, Georgia (about as far Southwest as you can go in the state and not be in Florida or Alabama). I drove down to see a habeas client for final preparations for what would have been a habeas corpus hearing in that county this morning. On the way south on the interstate were drivers headed out of Florida about driving about about 10 miles per hour. So, I saw my client and headed back north via backroads. I received an email about the time I arrived back that there would be no court in Mitchell County on Tuesday due to the hurricane. Mitchell was my only court appearance this week.

Other colleagues were not so lucky. Eventually most of the courts were canceled for Monday and Tuesday. But what I noticed was a lack of any kind of uniform coherent way to know. In one court, some of the judges canceled but others were holding out. And when the announcements went out, there was no system. In some instances, the president of the local bar broke the news. In others, there was an announcement on the Court’s website. Some courts, though, either have no website or a very bare bones one. And my colleagues who had administrative hearings were struggling even more. I saw no end of email, group texts, tweets, Facebook posts, and instagram posts from lawyers trying to figure out what to do. And for every lawyer wondering what to do, there were witnesses, experts, court reporters, and staff trying to figure out what they should do with their time.

Georgia has almost 200 counties, each function in their own little world. And in many of those counties there are individual judges who function in their own sub-kingdom.

As we clean up tree limbs and wait for utilities to come back on, we should take stock at how poorly organized out courts are in announcing cancelations for inclement weather. And perhaps now would be a good time to develop a system or centralized place to turn for information so that we are not trying to tune in to the grapevine to figure out. Why would we worry on Sunday night as Irma was inching its way toward us? Because every lawyer has appropriate anxiety regarding that one mercurial judge we know who might Order us to appear on penalty of contempt even if the route to court were paved through three funnel clouds. With a uniform system, we wouldn’t need to guess.

Irma Update

Posted in Uncategorized


Our office is structurally fine, but our power is out. It also appears that our phones are out. If you are trying to to reach us today, please email me at skey@millerandkeylaw.com. I am checking email frequently there. Work has not stopped though. I have sought out the friendly dry environs of a coffee shop with wifi. And I am hard at work on transcripts, briefs, and hearing preparation.

 

Today’s Talk on Wellness for Lawyers

Posted in Attorney-Client Relationship, Coaching

We, as a profession, are not doing well. A very large percentage of us are suffering from significant mental health issues. We are one of the top five professions for rates of suicide. And many of us battle significant substance abuse issues. Today, Bob Rubin and I gave one of the most significnt CLE talks I have ever given. And our topic was what lawyers can do to better cope with stress. We were slated to talk about an entirely different talk and made a gametime decision to switch it up. Bob had a Powerpoint from a previous talk on this topic, and I had information because this topic has been of personal interest to me for quite some time. For those who attended today for for everyone else, I want to provide more information and some links.

  • Running. Running has pretty much saved my life. About 3 years ago, I was about as unhealthy has I have ever been. My weight had peaked. My suit buttons had not seen their buttonholes in quite some time. I came home and zoned out. I was irritable and unhappy. On a friend’s recommendation, I downloaded a couch to 5k app for my phone. I did the program. And I ran a 5k. Then I ran another. And I did another. I’ve since run a full marathon and a few half marathons. I am currently getting ready to run another full marathon in Chattanooga in October I owe my health and sanity to running. For me, it has made all the differene.
  • Meditation. Equally important to me has been meditaiton. A year ago, I put the Headspace app on my phone after hearing a TED talk for its creator. This app is absolutely the best. But, in the past few weeks, I’ve noticed a change in my meditation practice. I want more silence and less of a guiding voice. On a friend’s recommenation, I downloaded Enso, a meditation timer. When I spoke with Bob about meditation, he said he considered himself to be an unsuccessful meditator because he can never focuse on the breath and lots of thougths pop up. But I told him what I’ve heard in a few places. If a meditation session produces only a minute of focus, then it was a good session. Noticing all the thoughts is a big part of the value of the exercise. The value in the excercise may be simply noting all the thought in an observational way.
  • Email Practices. I’ve blogged about this topic before. But email will kill you by a thousand cuts if you constantly check it. I don’t. I use two services for email. One is called SaneBox, which clears out a bunch of the clutter before I check it. The other is InBox Pause, which holds email out of my inbox until I schedule it to come in. Right now, email comes in at 4:00 p.m. on Monday through Friday. I process and take my email to zero for about 30 minutes to an hour. After clearing out the email, I return calls. If something important is going on, I will suspend that pratice from time to time (if I’m in a plea negotiation, for instance). This practice is entirely in keeping with a lawyer’s duty to communicate with a client. Our job is to provide the client with the necessary information to make informed decisions, to respond to reasonable requests for information, and to keep the client apprised regarding my strategy on the case. The Bar does not require me to be on 24/7 call, interrupt family time, or to answer messages instantly at all hours. And If I did that, I would not get much case work done. I highly recommend, by the way, Cal Newport’s Deep Work, on this topic.
  • Journaling. This never came up, but I meant to cover it. I spend thirty minutes every day writing whatever comes to mind. Sometimes what I write generates a great idea. But more often than not, the activity clears the cruft out of my mind. The app I use is DayOne. All the posts live in the cloud and sync among my devices. But I’ve also done this activity on a yellow legal pad.

I’ll repeat here what I said today, No client, no judge, opposing counsel, or case is worth my health. And if you make being a great lawyer your second or third priority, you are more to be a great lawyer because you will have the health and heart to reach your professional goals.

Why Do This Job?: Reflections on my 1,000th CLE Talk

Posted in Attorney-Client Relationship

Greetings from the Cordele, Georgia, Cracker Barrel. I am out and about and doing some client interviews today. Yesterday, I spoke to a group of law students about criminal defense. As is often the case, I was the only private practitioner on the panel. I am what is known in the biz as a “paid lawyer.” A big part of the talk was the topic of how we came to be in our current job. And that topic boils down to “why do you do what you do?”

The talk took a familiar turn. The best public defenders I know are quite passionate about helping the forgotten and the oppressed. A comment was even made at one point that money should not motivate a person to enter criminal practice. In my many years of speaking on panels, I’ve generally fallen victim to groupthink. And I’ve tried (probably unconvincingly) to say essentially “me, too.”

I am not being critical of the idea of passion for the oppressed as a motive for practicing law. Certainly, I would hope that every public defender feels that call.

But it is not authentic for me to say that such a passion drives me. And I think I’ve come out of some talks feeling slightly “off ” about things either because I said something I didn’t quite feel in my gut or because I felt guilty for not feeling a sense of passion for the poor in my legal practice. Come to think of it, if I felt such a drive, I would betray it every time I collect a fee or refuse to take on a case pro bono.

When it came my turn to speak I was more honest than I had been at a talk like this. I said that I think litigation is incredibly fun and intellectually challenging. I said that I like winning. And I find a sense of joy from dismantling a criminal conviction, working on an important case, and eviscerating a statute on constitutional grounds. What I didn’t say but should have said was that I am, in fact, motivated to do well financially in the practice/business of law.

I have always handled a few court appointed cases a year. But I have always viewed those cases as an opportunity to compete, litigation and try my best to win. I treat those cases just like retained cases. Why do I take them? Often, I do so to gain experience in an area (I’m developing a Federal practice, so I am doing more CJA work presently) to expand the range of cases I take on a retained basis. And sometimes the judge or the public defender entices me with a cool issue or some cool feature in the case. Alas, I have not taken an appointed case because of some social committment to the oppressed. It is great when that happens, but I cannot say that it is central to my thinking.

To take it a step further, I cannot think of motivation to be great at being a criminal defense attorney that is bad as long as it is consisted with the Georgia Rules of Professional Conduct, the Constitution, and the laws of the Federal and Georgia government. But I think our CLE and educational system suggests that one motivation outranks them all or that some are not valid and should induce guilt.

As a result, our schools and CLEs don’t often address topics such as how to set a fee, how to manage a law office, or how to responsibly and professionally market your practice. So, there is a cottage industry of snake oil salesmen out there who are not giving good advice. Meanwhile, at our CLEs we get a steady diet of the one true valid motivation to be great at criminal defense. This motivation is the one that is served.

Even worse, our very best and brightest law students may be deciding to do some other kind of law because they don’t feel that they have a pure motive to do it. I’m going to be up front with my motivations in the future and am going to stop feeling guilty about them.

 

 

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.