Georgia Criminal Appellate Law Blog

Offering Insight and Commentary on Appellate Law and Criminal Trial Practice

Ninth Circuit Refuses to Lift Stay of Republican Administration’s Travel Ban

Posted in News, Opinions and Analysis

Moments ago, the Ninth Circuit Court of Appeals ordered that the temporary restraining order imposed on the Republican presidential administration’s travel ban will remain in place. The Court has found that the states of Washington and Minnesota have standing to challenge the ban, that the Republican administration is unlikely to prevail on the merits in the lawsuit, and that the balance of hardship to the public interest also weighs in favor of the States over the ban.


On January 27, 2017, the Republican administration issued an executive order suspending travel for 90 days from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. The EO also suspended the United States Refugee Admission Program. And it suspended indefinitely the entry of all Syrian refugees.

Shortly thereafter, the State of Washington brought suit challenging the program on various Constitutional grounds including Due Process and violation of the First Amendment. Washington sought a temporary restraining order against enforcement of the executive order, which was granted, arguing in part that “the Executive Order was not truly meant to protect against terror attacks by foreign nationals but rather was intended to enact a ‘Muslim ban’ as the President had stated during his presidential campaign that he would do.”

The Federal government immediately appealed to the Ninth Circuit for a stay of the TRO.


The Court found that the states have standing to bring the suit because they could show a “concrete and particularized injury” to their university system. Teacher, students, and researchers were stranded without the ability to enter the country. Their absence threatened essential state functions.


The Federal government argued on behalf of the Republican administration that the order was unreviewable by any court because it touched upon national security. The Court made short shrift of what would be a fairly dangerous argument to our system of government. Presidential authority under Article II is seldom if ever beyond review by an Article III Court.


The Court applied a four-part test to the government’s appeal:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

On Due Process grounds, the Court reasoned that the Republican administration was unlikely to prevail on the merits. Because the Executive Order summarily stopped all immigrants, including permanent residents, from entering the country with no due process and restricted travel outside the country (again) without due process, the Executive Order is likely to be found unconstitutional. And because the system completely suspends the asylum process for immigrants from certain countries, it is likely to be found violative of Due Process.

Secondly, the administration is unlikely to prevail on the First Amendment grounds. Here, the Court went beyond the four corners of the Executive Order to look to the Republican Chief Executive’s intent as expressed in public statements and on social media regarding a desire to ban Muslims from entering the country.

In terms of the balance of hardship and the public interest, the Court reasoned that the Federal government has pointed to “no evidence” that any alien from one of the named countries has ever engaged in terrorism in the United States. By contrast, the states have been able to point to injury from the restriction on travel from those effected by the ban.

Next Steps

The Republican Administration will likely petition for a rehearing en banc to seek a hearing before the entire Ninth Circuit. This order was issued by a three-judge panel. And the matter could ultimately go to the United States Supreme Court. However, two things are important. First, there are only 8 justices. In the event of a tie, the Ninth Circuit ruling will be upheld. And this order does not reach the merits of the case. Rather, there is merely a TRO until the merits are reached. So, there may be an uphill battle for the Federal government on a cert. petition.

How We Interview Trial Counsel

Posted in Attorney-Client Relationship

Ineffective counsel claims are probably the least fun part of the job at the state level in Georgia. Unlike the Federal system, where an evidentiary hearing on an IAC claim is often left for habeas proceedings, Georgia IAC must be raised at the first available opportunity, or it is deemed to be waived. This system has its benefits, but it also creates pressure on the appellate attorney to raise ineffective assistance of counsel, regardless of the issue’s viability. Having done many IAC interviews over the years, I have some basic things that I have learned to do in my approach.

  • Recognize that this interview is part of the job. Awkwardness can feel like an inevitable part of this process. But it does not have to be horrible. There are some things that I always acknowledge up front. What I am doing here is part of the process. And the lawyer you are about to interview had a difficult job to do. Criminal defense can feel like a thankless task. And if the trial attorney is a public defender or was appointed to the case, it probably feels even more thankless. I always like to start the interview by expressing gratitude to the trial lawyer for doing this job and for all that he did to try to protect the client’s right to a fair and meaningful trial. No trials are perfect. And just as the lawyer did his job to protect the client, you are there to do the same.
  • Listen. Lawyers are great at making arguments and asking questions. We sometimes are not the best listeners. Just as you have worked hard to prepare for the interview, you should work hard to listen to what the lawyer tells you in the interview. And it can be good to demonstrate how well you are listening. If the lawyer gives you a lengthy answer, stop at points along the way to say, “okay, let me see if I understand what you are saying.” Then give the fairest possible short summary of what the lawyer just said that you can possible do.
  • You Are Not There to Argue. Part of listening is to encourage the lawyer to talk to you. So, if you think that the lawyer is mistaken about his understanding of the law or memory of the facts, you should not argue. The law is what it is, and the facts are what they are. And you will have the opportunity to argue all of this to the Court at some point in the future. If the lawyer is mistaken about what happened or doesn’t remember, it can be okay to show him the transcript. But do so with an aim of being helpful, not to argue.
  • If You’ve Been in the Lawyer’s Shoes, Don’t Forget That Experience. There is nothing fun about this part of the appellate process. It’s not fun to be interviewed toward IAC, and it’s not fun to do the interview. It is important to think about what it’s like to be answering the questions and not to get caught up on what it is like to be asking them .
  • Take a Witness With You. It is a maximum in the law that no interview with a witness should be without a witness to the interview. You don’t want to be the sole impeaching witness if the lawyer later changes an answer
  • Elicit the Lawyer’s Persective on the Other Issues. Reading the trial transcript is a poor substitute for living through the trial. The lawyer lived through it. Don’t lose the opportunity to ask the lawyer for her perspective on the trial. What did she think was unfair about the trial? What does she think the appellate issues are? Another good question is, “Mr. Lawyer, if you were in my shoes doing this appeal, what would you do?” Often this question is met with a blank stare. But occasionally you will hear something that you hadn’t thought of before that point
  • Be Grateful for the Interview. No matter how you think it went, be sure that think the lawyer for his time. The lawyer did not have to sit for an interview. So, make sure that you thank the lawyer for letting you interview him. And, again, think the lawyer for being a criminal defense lawyer. It may be that you are the only person in the case who has ever told him thank you.

When the interview is over, I get my notes together and process them as soon as possible. I also try to follow back up with additional questions as soon as possible after the interview. There is no way to make this process fun. But I find that the steps I have outlined above make it a bit more palatable.

Stoicism and the Modern Lawyer

Posted in Attorney-Client Relationship

Marcus Aurelius seemed to know the modern lawyer (though he died centuries ago). See if you can identify with the following sentiment:

Say to yourself in the early morning: I shall meet today ungrateful, violent, treacherous, envious, uncharitable men. All of the ignorance of real good and ill… I can neither be harmed by any of them, for no man will involve me in wrong, nor can I be angry with my kinsman or hate him; for we have come into the world to work together…

Marcus would have been an excellent litigator (or at least a healthy one).

Every day this year, I have started the day off with a selection of Ryan Holliday’s The Daily Stoic. If you haven’t considered ancient stoicism, you should check it out. If there is a system of philosophy out there more ready-made for lawyers, I am not sure what it is.

What Stoicism Isn’t

Forget what the dictionary or common usage tells you about stoicism. Stoicism is not a generalized ability to resist pain, and it is certainly not systemized indifference to the world around you. Such is the popularized caricature of stoicism. Stoics are engaged with the world around them in a particular way. Nor is stoicism a singular philosophy. Just as there are sects of Christianity, there are sects of stoicism. But there are some commonalities among the schools of stoicism. And none are like the popularized notion of it.

What Stoicism Is

I will not be able to explain anywhere near fully in a short blog post. I’d refer you elsewhere for more reading. Ryan Holliday’s blog is a good starting point. So are some of the blog posts on the topic by Tim Ferriss. My introduction to stoicism came from a novel that I read by Tom Wolfe titled A Man in Full. I first picked up this book because of its setting in Atlanta. But I read to the end for its introduction to stoicism. And when I finished the novel, I wanted to know more.

So, what is stoicism? As much as I implore my students to stay away from wikipedia in their assignments, the entry on stoicism is a good starting point:

Stoicism is predominately a philosophy of personal ethics which is informed by its system of logic and its views on the natural world. According to its teachings, as social beings, the path to happiness for humans is found in accepting that which we have been given in life, by not allowing ourselves to be controlled by our desire for pleasure or our fear of pain, by using our minds to understand the world around us and to do our part in nature’s plan, and by working together and treating others in a fair and just manner.

Students of Buddhism or devotees to Christianity might see some commonalities here. For Buddhists, suffering comes from uncontrolled desires or the inability to see and accept the reality of change arounds us. From the Judeo-Christian context, sin lies in placing idols before God, which are worshipped as if God. These things ultimately fall short on providing happiness. St. Augustine wrote “our heart is restless until it finds rest in you.”

For stoics, the natural world operates in a logical system. And our minds should work within that plan. However, we can get caught up in our own dramas of desire for pleasure or fear of pain. All of which disturbs our sense of tranquility.

I am aware that I have grossly oversimplified the philosophy and may be committing an error by trying to describe stoicism as a unified philosophy. And perhaps you are thinking, “who cares?” Let me try to bring this to the level of the relevant by describing a few stoic exercises.

Stoicism is infinitely practical. Holliday writes, “stoic writing is much closer Yoga session or a pre-game warm up than to a book of philosophy a university professor might write. It’s preparation for the philosophic life – an action – where the right state of mind is the most critical part.”

Stoic Practices

  • Is This What I So Feared? Seneca advised his students to simulate misfortune or to live out, if only for a brief time, what they fear most. He advised spending a period of time in practiced poverty, wearing course clothes are the sparest of food. He notes that the reaction to practicing poverty or to simulating misfortune is that you will find that it wasn’t the big deal you imagined it to be. In simulating what might happen if you failed at something, which is likely more transitory and more reversible than you might imagine, you free yourself up to act on bigger thoughts with higher risks.
  • Training Perception to Avoid Good or Bad. Again, from Holliday:

There is no good or bad to the practicing Stoic. There is only perception. You control perception. You can choose to extrapolate past your first impression (‘X happened.’ –> ‘X happened and now my life is over.’). If you tie your first response to dispassion, you’ll find that everything is simply an opportunity.

Want to see suffering in action? Open up your Facebook feed and look at the posts you find there — nothing but vitriolic emotional reaction from objective reality, whether it be some interpersonal issue, an event in sports, or an event from the news. You can train yourself to view things as they are then to take the opportunity that the event creates.

Application to Law

The law is richly rewarding to attorneys. However, neither judges, clients, nor opposing counsel hand out lollipops to us on a daily basis. And I commend a study of stoic philosophy to lawyers. Open up the bar journal and look at last month’s list of lawyers who were disciplines. Many of them acted to avoid something that would have been far easier to handle than the consequence of the choice they made. What if they had regularly engaged in the practice of what they feared the most? And the number of lawyers who suffer mental health issues or substance abuse? What if we trained ourselves to look first at objective reality to see what opportunity is presented?

I’ll close by saying that I’m no stoic. But I enjoy reading about stoic teachings. And I have extrapolated from it some practices that are helping me.

Trump Administrative Order on Travel Likely to Withstand Legal Challenge

Posted in News, Opinions and Analysis

Adam Liptak has a comprehensive article in today’s New York Times over nationwide appellate proceedings regarding President Trump’s Executive Order banning travel from several Middle Eastern nations. The article tracks the progress of an order from the United States District Court for the Western District of Washington staying enforcement of much of the Executive Order. The administration has appealed and that case is moving forward on an accelerated briefing schedule in the Ninth Circuit. On the East Coast, the United States District Court for the District of Massachusetts has refused to grant a stay of the Executive Order’s enforcement, reasoning that the immigrants are not likely to prevail on the merits.

The issue in the case is how to draw the line between executive power under Article II versus the First Amendment’s protection against the establishment of a religion. Article II vests in the president wide latitude in conducting foreign affairs and in regulating immigration into the country.

Issues to Consider

  • To what extent may we look beyond the text of the executive order? The text mentions nothing about banning immigrants on the basis of religion. Here’s the relevant text:

In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

  • The President has made some statements about a potential preference for Christians seeking to enter the United States to escape persecution. But I am unclear on the extent to which the courts are allowed to look to such statements versus the language of the order.
  • Even if the restriction is wholly or partially based in religion, is there a First-Amendment violation? May religion be a factor in immigration decisions? It’s a murkier question than it might appear on its face. May the government weigh a person’s religion as a factor in determining the extent to which the person poses a threat to safety? The question would turn on whether doing so “establishes” a religion. For instance, let’s imagine a hypothetical religion. Suppose there was a sect of people who believed that the true God countenanced no secular leaders and that it was the sacred duty of a follower of that religion to overthrow any secular governmental figures. In other words, the central religious tenets of our hypothetical religion included a duty to war against the idea of government. Would it be a violation of the First Amendment to bar adherents to that religion from entering the country? The answer would appear to be no.

If I were to place a bet on the outcome of this litigation, I would bet on the administration. Beyond the Constitution, Congress has vested the President with broad power over immigration. Adam Liptak writes:

A key part of immigration law does give the president broad power. It says, “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

But another part of the law forbids discrimination “because of the person’s race, sex, nationality, place of birth or place of residence,” but only “in the issuance of an immigrant visa.” The Trump administration argues that the power to bar entry, the subject of the first law, is broader than the limits on issuing visas.

I make no editorial comment upon the wisdom of the president’s immigration decisions. Rather, in terms of the law, he likely stands on a solid footing with respect to current legal challenges to the Order.

Book Review: Typography for Lawyers, Second Edition

Posted in Writing

I’m feeling a bit guilty. Well over a year ago, the publisher of Typography for Lawyers sent me a review copy. I have been using my free copy for quite some time, and I never wrote a review. It sits on the shelf next to the first edition, which I purchased. And this shelf is fairly sacred space that includes Aldisert’s Winning on Appeal, my collection of Bryan Garner’s greatest hits, and Ross Guberman’s Point Taken.

My original review of the first edition is worth a read. And I won’t repeat what I have already written. The second edition has about twenty additional pages. Among the things covered in the new edition, you will find a section on email, updates on the newest version of word processing programs, and an updated list of fonts. If you write and file pleadings in court, you should purchase the book. And if you already have the first edition, you may not necessarily need the second edition. But I would encourage you to buy it just to support what Matthew does for the legal community. He wrote an excellent article for Georgia’s appellate practice newsletter a few years ago when I was the section chair. And his work is helping us to help clients with more professional-looking briefs. Whatever profit he has made, I think it should be doubled.

For several years now, I have been aware of this book and have used it to produce better briefs. I’ll admit that I could do much better. And if you are new to his work, here is what I would suggest. The next time you are preparing a motion or a brief, open his book (or go to his website) and apply just one principle to your writing. Perhaps, eliminate the extra space after a period or figure out how to prepare case caption using a table rather than with colons and tabs. Next time, add another technique. I made the mistake of trying to incorporate the entire book into my writing at once. I do the same thing with Garner’s books. And I even do the same thing with materials I read on running. Take Typography for Lawyers, and aim to make your next legal writing 1% better from a typography perspective.

I found another helpful byproduct from these books. If you are going to care about the typography of the brief, you must start early on your writing. Typography is important, but there isn’t time to devote to it unless you get the content done first. But if you give yourself the time for the typography, it can make a significant impact on what you write. The goal of good typography is not to make your writing prettier or different from the competition (though both of those things will happen). The goal of good typography is to make your writing easier to read. The goal is to make yours a work that the judge wants to read. And you cannot attend to this important piece until the content is where you want it to be.

Typography for Lawyers is a deceptively short book. It is a short book of typography in the same way that Kibran’s The Prophet is a short book of philosophy. I made the mistake of thinking that I could “install” all of the principles from the book at once. I have since learned that, just as the law is a “practice,” so is “typography.” With the release of a second edition, Matthew has shown a commitment to updating his work to keep pace with emerging technology. I hope you order ourself a copy of the book and enjoy the journey that is outlined in the pages.

How Might Judge Gorsuch Decide Criminal Cases on the Supreme Court?

Posted in News, Opinions and Analysis

At the start of this week, I penned a post critical of how President Trump handled the firing of Sally Yates. Today, I write to commend his nomination of Judge Gorsuch for the United States Supreme Court.

Textualists and the criminal appellate bar are natural allies. And such is the case with this pick. I want to discuss briefly one case here to give you a glimpse of how a Justice Gorsuch might approach criminal cases. And if you have about forty-five minutes, I cannot recommend enough the most recent edition of the First Mondays Podcast, where you will find an interview with a former Gorsuch clerk and a discussion of some of the judge’s more notable tenth-circuit opinions (I swear these guys aren’t paying me to promote them).

The case I want to highlight is United States v. Gamez Perez. In that case, Judge Gorsuch wrote a dissent to a petition for rehearing en banc. Here was the issue. Mr. Gamez Perez was convicted to possession of a firearm by a convicted felon. His defense was that he did not know that he was a convicted felon. He had good reason not to know his status as a felon. When he entered a plea to the underlying offense in the state system, the state-court judge told him that he was not a felon. He was later charged with possessing a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The opinion in the case was that the statute required only that a defendant know that he was in possession of a firearm. The court held that there was no mens rea element for the status of a convicted felon.

Judge Gorsuch dissented reasoning that the knowledge element should spread to include knowledge that a defendant is a convicted felon. He based his reasoning on a fairly established canon of statutory construction that mens rea language, if placed at the beginning of a sentence spread to all other substantive elements of the statute. And he based his opinion on basic rules of grammar and usage. Here are a couple of points that I like about Judge Gorsuch’s approach:

  • First, his writing style is excellent. I could hand this opinion to a non-lawyer friend and feel confident that she could follow it. But an appellate lawyer would see that the writing is professional and thorough. There is no higher praise for legal writing than that. If I am going to read a justice’s opinions for the next 30 years, I like knowing that it won’t give me  headaches.
  • He reads the text, researches the law, and lets those things guide him to the result. He does not envision a result then bend the law to get there. This approach may be bad for the criminal defendant in specific instances. But it will always be fair to the criminal defendant and to the prosecution. I find the approach to be sadly rare. The criminal defense bar endures no end of judicial linguistic gymnastics so that law enforcement can “get the bad guy.” Just today, I was speaking to a potential client about the standard for getting something done in a post-conviction matter. And in the first half of my explanation I explained the standard under the law. In the second half, I explained how the just would really decide the case. It is nice when the relevant statute is the guide to how the case will be decided.
  • He seems to care about the defendant’s plight. While he is not bending the law to get to a result, he seems genuinely troubled that the state-level judge told the defendant that he was not a felon, and the defendant relied upon those re-assurances to his extreme detriment.
  • He is suspicious of arguments about legislative history where the statute is clear on its face. Whenever I have a solid argument on the law and a judge’s opinion starts getting into legislative history, I know that I am about to call a client to relay bad news.

In my career, I have never minded judges who sentence harshly. I have never minded judges who run their calendars in a controlling way. Sentencing and calendar management are what judges do. I have always disliked dealing with judges with an agenda that spills into how they rule. Prosecutors Apologists refer to this as “folksy wisdom,” “common sense,” or say “he always seems to get to the right place.” A judge who looks at the law, applies it to the facts, and works hard to be fair is about as much as you an ask for in a judge. And based upon this case and others I have read out of the Tench Circuit, Judge Gorsuch looks like a solid pick.

How We Close Cases in Our Office

Posted in Attorney-Client Relationship

finishlineMany of our cases take months or years to take from start to finish. But the way we finish is as important as how we start. I’ve written in a previous blog post that we take on cases with the knowledge that we will often be engaged in the process for quite some time. Direct appeals and habeas corpus can take years as you assemble the file, get the transcripts, coordinate witness schedules for evidentiary motions, and wait for a briefing schedule. And major felony cases at the trial level take some time as we try to negotiate pre-indictment settlements or as we get through lengthy and complex motions. When the case is all over, it is important to be deliberated about how the file is closed and here are some things we do in our office at the end of the case.

  • First, we think about whether the case is actually over. There can often be loose ends that need to be tied. If we were successful in the appeal, for instance, there is a whole process involved in getting the client brought back from the prison system and getting the case transitioned back over to a pre-trial posture. This time can be perfect for working out the case. And decisions need to be made regarding the client’s representation if there will be a second trial. The case is not over until it is closed in the court system or until it is handed off to new counsel. If we have been successful in getting a person off of a registry, it can be important to get all of the necessary paperwork forwarded to the agency that is responsible for maintaining it. There can be more steps than one might imagine in ending a case.
  • We send a letter to the client and the client’s family reinforcing that the case is over, explaining what we did, and inviting questions about the process and the conclusion. It can be important to clarify that the case is at its end in writing. And often this letter can prompt further questions. I always encourage the client to keep in touch as there may be things down the road where I can be of assistance.
  • I send thank you notes. If any person helped in the case, whether that was an expert, an attorney who answered a question, a person at a government agency who helped me with something, or lay witnesses who provided letters, thank you notes are great to let people know how they helped. And expressions of gratitude are good for the person writing the thank you note. I will also send a thank you note to the person who referred the case to me way back at the beginning. When you refer a case, it is nice to hear how things worked out.
  • If there are things that were not scanned, we get them scanned in. Then we make the paper file available for the client to pick up. One day, I hope that storage buildings as repositories of for closed files will be a thing of the past.
  • If any of the motions in our case can serve as a form for future cases, we move a Word version over into our form bank. And if we think that any of the cases we found throughout the course of the case will be helpful for future research, we move those over into our topical research bank.
  • We close the file in Rocketmatter. And we move the file to an external hard drive and off of our active data system.

We are constantly working on our systems in the office. A consistent closing system is instrumental to a practice’s success. And it provides a helpful moment to reflect on all of the people who come together for us to give a case our very best effort. Closing is as important as opening, and we work to close things out in a thoughtful and deliberate way.

Why Some Law Practices Struggle

Posted in Attorney-Client Relationship

I sometimes find myself having the same conversation with different colleagues several days in a row. It may be that my thoughts find their way into the conversation or that there are certain trends. It may be pure coincidence. In the most recent version of the repeating conversation phenomenon, I have heard colleagues complain about the nature of practice. And here is the three-fold refrain.

  • The market is flooded with attorneys where I practice. And I cannot provide the service that I want because I am getting beaten on price by attorneys who will not do the same good job I would do.
  • Every year the legislature/sentencing guidelines/judges/parole board/appellate courts (we could continue to fill in these blanks for a while) makes it harder for me to provide very much to clients.
  • Client are so difficult. They have unrealistic expectations, and they want to micro-manage their case.

I have a couple of thoughts about what I am hearing. And when I approach it this way, I tend to gain a new perspective.

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The Sane Branch of Government

Posted in News, Opinions and Analysis

We live in strange times. But I still have faith in the judiciary and in lawyers. It took us just over a week of the Trump presidency to reach our first constitutional crisis, and the judiciary seems to be keeping its head. That branch of government will be tested in the months and years to come.

Our President reveres President Andrew Jackson. Andrew Jackson is perhaps best known for defying a court order so that he could could deport people in massive scale. In response to the United States Supreme Court’s ruling in Worcester v. Georgia, President Jackson said “John Marshal has made his decision, now let him enforce it.” That case was also an injunction case. Six years after the ruling in Worcester, the Cherokee were forcibly relocated to Oklahoma in what was one of the darkest moments in American history. The parallels between then and now and between the historic president and the modern one who reveres him are clear.

But I have faith in the judiciary and in the rule of law. Just this weekend, teams of volunteer lawyers showed up at airports around the nation to lend a hand to those left stranded by a bewildering executive order. They turned airport cafes into law offices and e-filed petitions for habeas relief. Lawyers visited with the families of those victimized by recent executive action. And courageous judges stepped up as well. One such judge was Ann M. Donnelly of the Eastern District of New York. Those who know her describe her as one who “will not be perturbed by the storm around her” and as one with “a firm moral compass.”

I can think of no time in our history when lawyers and the judicial branch are more critical to the survival of our Republic. Our nation is still young, and America is still very much an experiment. Lawyers like those who stepped up over the weekend and judges like Ann Donnelly provide hope. But the power of the judiciary and of our constitution is only as strong as the American people and our belief in the rule of law and our founding principles.

Just Because Counsel Can Do an Appeal Doesn’t Mean that he Should

Posted in Oral Argument

Amateur HourIn episode #12 of First Mondays, Dan and Ian play cringe-worthy clips from the recent Supreme Court argument in Lee v. Tam, a case involving the disparagement provision of the Lanham Act and the First Amendment. There is a similar case in the pipeline involving the Washington Redskins. And counsel in that case argued that cert should be denied because of the poor quality of counsel for the band, The Slants. Counsel argued that the case involving the Redskins was a better case because of better counsel. Last week, the commentators speculated that the lawyer might be angered by the criticism and rise to the occasion. Alas, he did not.

At 20:27 in the podcast, Dan and Ian play some regrettable moments that seem to reinforce the choice of counsel argument. In the first clip, counsel responds to a hypothetical question by saying “that’s not a question before the Court.” Judges hate this response. Every panel I have ever watched at a CLE on oral argument features a judge or justice saying that judges hate this response. And it goes downhill from there.

The First Mondays guys, both former SCOTUS clerks, go on to say that the poor advocacy problem is most prevalent in criminal cases before the Court, to the tune of three to four arguments per term. Typically, the criminal lawyer who handled the case keeps the case all the way to the Supreme Court. Most criminal lawyers I know talk of their dream of one day presenting a SCOTUS argument. Often, I try not to picture how that might go. So, I’m not surprised at the notion that it so often doesn’t go well.

They then draw a medical analogy. Imagine a patient is diagnosed with a rare disease and the local general practice doctor chooses not to hand the case over to a specialist because the procedure will make the doctor famous. Such a thing would not happen in medicine but does happen in the law. And it apparently happened in this copyright case.

The problem at issue here goes deeper than advocacy at the US Supreme Court. Far too often, a lawyer tries a complex criminal case because he did a great job at drafting Aunt Jean’s will. When I take a new criminal appeal, this is generally the background. Or the lawyer handles an appeal simply because a potential client with an appellate issue walked in the door one day. And the client comes to me with a mess and a prayer for possible habeas relief. And it is not uncommon for me to get a call from a lawyer with a question about an appeal that they are handling. It becomes clear, not far into the phone call, that the deeper problem is that the lawyer is in over his head and should not be doing the case.

Dan and Ian go so far as to say that the choice of counsel doctrine should not apply at the Supreme Court level. Not only do I agree. I think the argument doesn’t go far enough.