Georgia Criminal Appellate Law Blog

Offering Insight and Commentary on Appellate Law and Criminal Trial Practice

Just One Motion

Posted in Preservation of Error

If you have an upcoming trial, try this: spend thirty minutes, and draft one single motion. Don’t know what to ask for, then think of it this way. What’s one decision you would like from the judge that would make the trial more fair for your client. That’s it. One motion.

You obviously could set aside a few hours and draft several motions. But start with one. Then set it down for a hearing and argue it. If you win your motion, your trial will be more fair. If you lose your motion, you’ll provide a lawyer like me something to argue on appeal. And you may work the case out favorably without a trial by creating a moment to speak with opposing counsel on the day your motion is heard.

In most of the transcripts I read, the trial lawyer did not file even one motion.

Sketchy Trip to the Apple Store

Posted in Attorney-Client Relationship

I now have my doubts about The Genius Bar at the Apple Store. On Friday, after court, I stopped by an Apple Store to get some technical help from the folks at The Genius Bar. A few weeks ago, I left a set of airpods in their charger in a pair of pants and ran it all through a wash cycle. I was surprised that the airpods worked great, but the charger did not. So, when the airpods died, there was no charging them.

The Genius Bar was booked up. So, I made an appointment to come back. I received a text to come back in. And all was good.

I’ve always perceived the Apple Store as not aggressive or into high pressure sales. And I’ve always viewed the Genius Bar as sort of walk-in tech support, separate from the sales process altogether. So when I spoke with their representative, I trusted his advice when he said that the airpod would ultimately fail over time due to the water contact (yes, I was honest about the wash cycle thing, which may have made me seem to be an easy mark.). Then there was what came next.

He advised that I buy a replacement charger, and two replacement airpods separately at a price of $69.00 each since water damage is out of warranty. I then asked him, a few seconds later, why I would buy three pieces for more more than I could pay for brand new airpods off the shelf. And he looked like I’d caught him. All of this made me question his original advice regarding replacing the charger versus the entire set. But I ultimately just bought new airpods because I didn’t (1) want to be out the time that it would take to call tech support or return to the Apple Store or (2) pay for a whole new set of airpods plus purchase a new charger now.

Maybe the guy was following a script and didn’t think it through, but I also see the Apple Genius Bar thing no longer as tech support but an extension of Apple sales. And I also wonder if I was “taken” at some level. The genius also asked me some questions about my business to take an opportunity to try to have someone call me later to upsell me a bunch of business products. It was a bad time to discuss long-term sales with me.

I’m wondering how much lawyers do this at the beginning of a new case by filing a bunch of pleadings that don’t advance the client’s cause,

My Highlights From Nassim Taleb’s The Black Swan

Posted in Books

I just finished up Nassim Taleb’s The Black Swan. I offer neither a review nor a summary below. What you will find are all the passages I highlighted as I read this book on the kindle. I’ve done some lite editing. But there are places where I may have pulled passages in the middle of sentences.

Derek Sivers does this with the books he reads. And I’ve long thought of doing something similar when I finish a book. So, here we go.

My Takeaway

We don’t know what we don’t know. And we don’t take this reality into account when we think about the future. And we  tend to assess the past too selectively and without taking into account the myriad possible alternate causes of past events. We often make bad decision based on too much information or from an overly-inflated sense of confidence in experts.

Actionable Advice

  • If you’re carrying debt around, then you’re vulnerable to an unforeseen bad unexpected event. You also aren’t going to have cash on hand for opportunities that might arise — the good black swan.
  • Don’t overdose on breaking news. If you have to watch the news, try to read a weekly update instead of something more instantaneous. Better yet, spend the time you would use watching the news, and read books instead. Deep thought makes you less vulnerable to uninformed and overconfident analysis.
  • Go to lots of parties so that you are exposed to more opportunities. Spend time in conversation with people. Have a solid network of thoughtful people and engage with them,
  • These are minor points, but I’m going to read a biography of Aristotle Onassis. And I’m going to take more slow and long walks tosupplementt the three days per week.
  • Here is yet another book that relies heavily on Thinking Fast and Slow. I think if you can really get the theories in that book, you’ll know what’s in just about every business or persuasion book.

 

Prologue

A small number of Black Swans explain almost everything in our world, from the success of ideas and religions, to the dynamics of historical events, to elements of our own personal lives.

Fads, epidemics, fashion, ideas, the emergence of art genres and schools. All follow these Black Swan dynamics. Literally, just about everything of significance around you might qualify.

Ask your portfolio manager for his definition of “risk,” and odds are that he will supply you with a measure that excludes the possibility of the Black Swan—hence one that has no better predictive value for assessing the total risks than astrology

And, if you follow my argument, why does reading the newspaper actually decrease your knowledge of the world?

It is easy to see that life is the cumulative effect of a handful of significant shocks.

Black Swan logic makes what you don’t know far more relevant than what you do know.

The payoff of a human venture is, in general, inversely proportional to what it is expected to be.

We can easily trigger Black Swans thanks to aggressive ignorance—like a child playing with a chemistry kit.

The strategy is, then, to tinker as much as possible. The problem lies in the structure of our minds: we don’t learn rules, just facts, and only facts.

Who gets rewarded, the central banker who avoids a recession or the one who comes to “correct” his predecessors’ faults and happens to be there during some economic recovery?

We humans are not just a superficial race (this may be curable to some extent); we are a very unfair one.

The first is to rule out the extraordinary and focus on the “normal.” The examiner leaves aside “outliers” and studies ordinary cases. The second approach is to consider that in order to understand a phenomenon, one needs first to consider the extremes—particularly if, like the Black Swan, they carry an extraordinary cumulative effect.

You need a story to displace a story. Metaphors and stories are far more potent (alas) than ideas; they are also easier to remember and more fun to read. If I have to go after what I call the narrative disciplines, my best tool is a narrative. Ideas come and go, stories stay.

Living on our planet, today, requires a lot more imagination than we are made to have. We lack imagination and repress it in others.

I stick my neck out and make a claim, against many of our habits of thought, that our world is dominated by the extreme, the unknown, and the very improbable (improbable according our current knowledge)—and all the while we spend our time engaged in small talk, focusing on the known, and the repeated. This implies the need to use the extreme event as a starting point and not treat it as an exception to be pushed under the rug.

also make the bolder (and more annoying) claim that in spite of our progress and the growth in knowledge, or perhaps because of such progress and growth, the future will be increasingly less predictable,

Part One – Umberto Eco’s Antilibrary, or How We Seek Validation

Note that the Black Swan comes from our misunderstanding of the likelihood of surprises, those unread books, because we take what we know a little too seriously.

History and societies do not crawl. They make jumps.

While we have a highly unstable memory, a diary provides indelible facts recorded more or less immediately;

Cabdrivers did not believe that they understood as much as learned people—really, they were not the experts and they knew

The overlap between newspapers was so large that you would get less and less information the more you read.

What is interesting to me as a probabilist is that some random event makes one group that initially supports an issue ally itself with another group that supports another issue, thus causing the two items to fuse and unify … until the surprise of the separation.

Any reduction of the world around us can have explosive consequences since it rules out some sources of uncertainty; it drives us to a misunderstanding of the fabric of the world.

For instance, you may think that radical Islam (and its values) are your allies against the threat of Communism, and so you may help them develop, until they send two planes into downtown Manhattan.

[I] then completely gave up reading newspapers and watching television, which freed up a considerable amount of time (say one hour or more a day, enough time to read more than a hundred additional books per year, which, after

As a matter of fact, in my mind it was far more than a possibility. I felt in my spine the weight of the epistemic arrogance of the human race.*

During the one or two years after my arrival at Wharton, I had developed a precise but strange specialty: betting on rare and unexpected events, those that were on the Platonic fold, and considered “inconceivable” by the Platonic “experts.” Recall that the Platonic fold is where our representation of reality ceases to apply—but we do not know it.

This is sometimes called “f*** you money,” which, have always been taken aback at the high number of people in whom an astonishingly high income led to additional sycophancy as they became more dependent on their clients and employers and more addicted to making even more money.)

Note that the designation f*** you corresponds to the exhilarating ability to pronounce that compact phrase before hanging up the phone.

wanted to become a flâneur, a professional meditator, sit in cafés, lounge, unglued to desks and organization structures, sleep as long as I needed, read voraciously, and not owe any explanation to anybody. I wanted to be left alone in order to build, small steps at a time, an entire system of thought based on my Black Swan Theory.

When people at cocktail parties asked me what I did for a living, I was tempted to answer, “I am a skeptical empiricist and a flâneur-reader, someone committed to getting very deep into an idea,” but I made things simple by saying that I was a limousine driver. I informed her (in English) that I was a limousine driver, proudly insisting that I only drove “very upper-end” cars. An icy silence lasted the whole flight, and, although I could feel the tension, it allowed me to read in peace.

If you are an idea person, you do not have to work hard, only think intensely.

In Extremistan, inequalities are such that one single observation can disproportionately impact the aggregate, or the total.

The Tyranny of the Accident
Another way to rephrase the general distinction is as follows: Mediocristan is where we must endure the tyranny of the collective, the routine, the obvious, and the predicted; Extremistan is where we are subjected to the tyranny of the singular, the accidental, the unseen, and the unpredicted.

If you are subject to Extremistan-based speculation, however, you can gain or lose your fortune in a single minute.

The turkey problem can be generalized to any situation where the same hand that feeds you can be the one that wrings your neck.

Mistaking a naïve observation of the past as something definitive or representative of the future is the one and only cause of our inability to understand the Black Swan.

Black Swans take time to show their effect while negative ones happen very quickly—it is much easier and much faster to destroy than to build. (During

Let me insist that erudition is important to me. It signals genuine intellectual curiosity. It accompanies an open mind and the desire to probe the ideas of others. Above all, an erudite can be dissatisfied with his own knowledge, and such dissatisfaction is a wonderful shield against Platonicity, the simplifications of the five-minute manager, or the philistinism of the overspecialized scholar. Indeed, scholarship without erudition can lead to disasters.

So, this book was not written by a Sufi mystic, or even by a skeptic in the ancient or medieval sense, or even (we will see) in a philosophical sense, but by a practitioner whose principal aim is to not be a sucker in things that matter, period.

I am skeptical in matters that have implications for daily life. In a way, all I care about is making a decision without being the turkey.

“I never meant to say that the Conservatives are generally stupid. I meant to say that stupid people are generally Conservative,” This asymmetry is immensely practical. It tells us that we do not have to be complete

Popper introduced the mechanism of conjectures and refutations, which works as follows: you formulate a (bold) conjecture and you start looking for the observation that would prove you wrong.

For instance, when children are presented with the picture of a single member of a group and are asked to guess the properties of other unseen members, they are capable of selecting which attributes to generalize. Show a child a photograph of someone overweight, tell her that he is a member of a tribe, and ask her to describe the rest of the population: she will (most likely) not jump to the

The narrative fallacy addresses our limited ability to look at sequences of facts without weaving an explanation into them, or, equivalently, forcing a logical link, an arrow of relationship, upon them. Explanations bind facts together. They make them all the more easily remembered; they help them make more sense. Where this propensity can go wrong is when it increases our impression of understanding.

It takes considerable effort to see facts (and remember them) while withholding judgment and resisting explanations. And this theorizing disease is rarely under our control: it is largely anatomical, part of our biology, so fighting it requires fighting one’s own self.

Try to be a true skeptic with respect to your interpretations and you will be worn out in no time.

a more appropriate solution is to make the event appear more unavoidable. Hey, it was bound to take place and it seems futile to agonize over it. How can you do so? Well, with a narrative. Patients who spend fifteen minutes every day writing an account of their daily troubles feel indeed better about what has befallen them. You feel less guilty for not having avoided certain events; you feel less responsible for it. Things appear as if they were bound to happen.

Keeping a diary is the least you can do in these circumstances.

Could it be that fiction reveals truth while nonfiction is a harbor for the liar? Could it be that fables and stories are closer to the truth than is the thoroughly fact-checked ABC News?

The next time you are asked to discuss world events, plead ignorance, and give the arguments I offered in this chapter casting doubt on the visibility of the immediate cause. You will be told that “you overanalyze,” or that “you are too complicated.” All you will be saying is that you don’t know!

Most of our mistakes in reasoning come from using System 1 when we are in fact thinking that we are using System 2. How?

Since we react without thinking and introspection, the main property of System 1 is our lack of awareness of using it!

The way to avoid the ills of the narrative fallacy is to favor experimentation over storytelling, experience over history, and clinical knowledge over theories.

Another approach is to predict and keep a tally of the predictions. Finally, there may be a way to use a narrative—but for a good purpose.

Only a diamond can cut a diamond; we can use our ability to convince with a story that conveys the right message—what storytellers seem to do.

Believe me, it is tough to deal with the social consequences of the appearance of continuous failure. We are social animals; hell is other people.

Making $ 1 million in one year, but nothing in the preceding nine, does not bring the same pleasure as having the total evenly distributed over the same period, that is, $ 100,000

As a matter of fact, your happiness depends far more on the number of instances of positive feelings, what psychologists call “positive affect,” than
Highlight(yellow) – Human Nature, Happiness, and Lumpy Rewards

So to have a pleasant life you should spread these small “affects” across time as evenly as possible. Plenty of mildly good news is preferable to one single

Mother Nature destined us to derive enjoyment from a steady flow of pleasant small, but frequent, rewards. As I said, the rewards do not have to be large, just frequent—a little bit here, a little bit there.

It is better to lump all your pain into a brief period rather than have it spread out over a longer one.

It may be a banality that we need others for many things, but we need them far more than we realize, particularly for dignity and respect.

Indeed, we have very few historical records of people who have achieved anything extraordinary without such peer validation—but we have the freedom to choose our peers.

If you engage in a Black Swan–dependent activity, it is better to be part
some business bets in which one wins big but infrequently, yet loses small but frequently, are worth making if others are suckers for them and if you have the personal and intellectual stamina. But you need such stamina. You also need to deal with people in your entourage heaping all manner of insult on you, much of it blatant. People often accept that a financial strategy with a small chance of success is not necessarily a bad one as long as the success is large enough to justify it. For a spate of psychological reasons, however,
Contrary to popular belief, these small, seemingly harmless stressors do not strengthen you; they can amputate part of your self.

What does not kill you makes you weaker.

Humans will believe anything you say provided you do not exhibit the smallest shadow of diffidence;

The trick is to be as smooth as possible in personal manners. It is much easier to signal self-confidence if you are exceedingly polite and friendly; you can control people without having to offend their sensitivity.

There is no absolute measure of good or bad. It is not what you are telling people, it is how you are saying it.

Silent evidence is what events use to conceal their own randomness, particularly the Black Swan type of randomness.

We may enjoy what we see, but there is no point reading too much into success stories because we do not see the full picture.

There may be some differences in skills, but what truly separates the two is for the most part a single factor: luck. Plain luck.

But this does not mean we (humans) should feel guilty for extinctions around us; nor does it mean that we should act to stop them—species were coming and going before we started messing up the environment. There is no need to feel moral responsibility for every endangered species.

A life saved is a statistic; a person hurt is an anecdote.

My being here is a consequential low-probability occurrence, and I tend to forget it.

Note that a “history” is just a series of numbers through time. The numbers can represent degrees of wealth, fitness, weight, anything.

be suspicious of the “because” and handle it with care—

When I expressed my amazement to Laurence, another finance person who was sitting next to me, he told me that the military collected more genuine intellects and risk thinkers than most if not all other professions. Defense people wanted to understand the epistemology of risk.

Probability is a liberal art; it is a child of skepticism, not a tool for people with calculators on their belts to satisfy their desire to produce fancy calculations and certainties.

Conclusion: A back-of-the-envelope calculation shows that the dollar value of these Black Swans, the off-model hits and potential hits I’ve just outlined, swamp the on-model risks by a factor of close to 1,000 to 1. The casino spent hundreds of millions of dollars on gambling theory and high-tech surveillance while the bulk of their risks came from outside their models.

propose that if you want a simple step to a higher form of life, as distant from the animal as you can get, then you may have to denarrate, that is, shut down the television set, minimize time spent reading newspapers, ignore the blogs. Train your reasoning abilities to control your decisions; nudge System 1 (the heuristic or experiential system) out of the important ones. Train yourself to spot the difference between the sensational and the empirical. This insulation from the toxicity of the world will have an additional benefit: it will improve your well-being.

Also, bear in mind how shallow we are with probability, the mother of all abstract notions. You do not have to do much more in order to gain a deeper understanding of things around you. Above all, learn to avoid “tunneling.”

Part Two – We Just Can’t Predict

but if you look at, say, situations where the odds are one in a hundred, one in a thousand, or one in a million, then the errors become monstrous. The longer the odds, the larger the epistemic arrogance.

you study Onassis’s life, which I spent part of my early adulthood doing, you would notice an interesting regularity: “work,” in the conventional sense, was not his thing. He did not even bother to have a desk, let alone an office. He was not just monitoring. Yet his main tool was a notebook, which contained all the information he needed. Onassis spent his life trying to socialize with the rich and famous, and to pursue (and collect) women. He generally woke up at noon. If he needed legal advice, he would summon his lawyers to some nightclub in Paris at two A.M. He was said to have an irresistible charm, which helped him take advantage of people.

additional knowledge of the minutiae of daily business can be useless, even actually toxic,

The problem is that our ideas are sticky: once we produce a theory, we are not likely to change our minds—so those who delay developing their theories are better off.

When you develop your opinions on the basis of weak evidence, you will have difficulty interpreting subsequent information that contradicts these opinions,

Two mechanisms are at play here: the confirmation bias that we saw in Chapter 5, and belief perseverance, the tendency not to reverse opinions you already have. Remember that we treat ideas like possessions, and it will be hard for us to part with them.

Listening to the news on the radio every hour is far worse for you than reading a weekly magazine, because the longer interval allows information to be filtered a bit. In 1965, Stuart Oskamp supplied more is sometimes, but not always, better. This toxicity of knowledge will show in our investigation of the so-called expert.

The Greeks made a distinction between technē and epistēmē. The empirical school of medicine of Menodotus of Nicomedia and Heraclites of Tarentum wanted its practitioners to stay closest to technē (i.e., “craft”), and away from epistēmē (i.e., “knowledge,” “science”).

Experts who tend to be experts: livestock judges, astronomers, test pilots, soil judges, chess masters, physicists, mathematicians (when they deal with mathematical problems, not empirical ones),

accountants, grain inspectors, photo interpreters, insurance analysts (dealing with bell curve–style statistics). court judges, councilors, those who had a big reputation were worse predictors than those who had none.

Makridakis and Hibon reached the sad conclusion that “statistically sophisticated or complex methods do not necessarily provide more accurate forecasts than simpler ones.”

Simpler, less sexy methods fare exceedingly better, but they do not take you to Stockholm.

A classical mental mechanism, called anchoring, seems to be at work here. You lower your anxiety about uncertainty by producing a number, then you “anchor” on it, like an object to hold on to in the middle of a vacuum. This anchoring mechanism was discovered by the fathers of the psychology of uncertainty, Danny Kahneman and Amos Tversky, early in their heuristics and biases project. It operates as follows. Kahneman and Tversky had their subjects spin a wheel of fortune. The subjects first looked at the number on the wheel, which they knew was random, then they were asked to estimate the number of African countries in the United Nations. Those who had a low number on the wheel estimated a low number of African nations; those with a high number produced a higher estimate.

Let’s say a project is expected to terminatein 79 days, the same expectation in days as the newborn female has in years. On the 79th day, if the project is not finished, it will be expected to take another 25 days to complete. But on the 90th day, if the project is still not completed, it should have about 58 days to go. On the 100th, it should have 89 days to go. On the 119th, it should have an extra 149 days. On day 600, if the project is not done, you will be expected to need an extra 1,590 days. As you see, the longer you wait, the longer you will be expected to wait.

Don’t Cross a River if It Is (on Average) Four Feet Deep

It is often said that “is wise he who can see things coming.” Perhaps the wise one is the one who knows that he cannot see things far away.

We build toys. Some of those toys change the world.

will memorize declensions, the a-Platonic nonnerd will acquire, say, Serbo-Croatian by picking up potential girlfriends in bars on the outskirts of Sarajevo, or talking to cabdrivers, then fitting (if needed) grammatical rules to the knowledge he already possesses.

To clarify, Platonic is top-down, formulaic, closed-
commoditized;a-Platonic is bottom-up, open-minded, skeptical, and empirical.

There is a blind spot: when we think of tomorrow we do not frame it in terms of what we thought about yesterday on the day before yesterday.

When we think of tomorrow, we just project it as another yesterday.

The more we try to turn history into anything other than an enumeration of accounts to be enjoyed with minimal theorizing, the more we get into trouble. Are we so plagued with the narrative fallacy?†

Sextus Empiricus retold the story of Apelles the Painter, who, while doing a portrait of a horse, was attempting to depict the foam from the horse’s mouth. After trying very hard and making a mess, he gave up and, in irritation, took the sponge he used for cleaning his brush and threw it at the picture. Where the sponge hit, it left a perfect representation of the foam.

Trial and error means trying a lot. In The Blind Watchmaker, the world, rather, moves by large incremental random changes. My colleague Mark Spitznagel understood that we humans have a mental hang-up about failures: “You need to love to lose” was his motto.

you need to put a portion, say 85 to 90 percent, in extremely safe
instruments, like Treasury bills—as safe a class of instruments as you can manage to find on this planet.

First, make a distinction between positive contingencies and negative ones.
some segments of publishing, scientific research, and venture capital.

Don’t look for the precise and the local. Simply, do not be narrow-minded.
Seize any opportunity, or anything that looks like opportunity.
a big publisher (or a big art dealer or a movie executive or a hotshot banker or a big thinker) suggests an appointment, cancel anything you have planned: you may never see such a window open up again.

Work hard, not in grunt work, but in chasing such opportunities and maximizing exposure to them. This Diplomats understand that very well: casual chance discussions at cocktail parties usually lead to big breakthroughs—not dry correspondence or telephone conversations.Beware of precise plans by governments.

Do not waste your time trying to fight forecasters, stock analysts, economists, and social scientists, except to play pranks on them.

All these recommendations have one point in common: asymmetry. Put yourself in situations where favorable consequences aremuch larger than unfavorable ones.

This idea is often erroneously called Pascal’s wager, after the philosopher and (thinking) mathematician Blaise Pascal. He presented it something like this: I do not know whether God exists, but I know that I have nothing to gain from being an atheist if he does not exist, whereas I have plenty to lose if he does. Hence, this justifies my belief in God.

Part Three – Those Gray Swans of Extremistan

We knew the data revealed a fractal power law, but we learned that one could not produce a precise number. But what we did know—that the distribution is scalable and fractal—was sufficient for us to operate and make decisions.

We don’t have the luxury of sitting down to read the equation that governs the universe; we just observe data and make an assumption about what the real process might be, and “calibrate” by adjusting our equation in accordance with additional information. As events present themselves to us, we compare what we see to what we expected to see. It is usually a humbling process, particularly for someone aware of the narrative fallacy, to discover that history runs forward, not backward. As much as one thinks that businessmen have big egos, these people are often humbled by reminders of the differences between decision and results, between precise models and reality.

The above idea links all the parts of this book. While many study psychology, mathematics, or evolutionary theory and look for ways to take it to the bank by applying their ideas to business, I suggest the exact opposite: study the intense, uncharted, humbling uncertainty in the markets as a means to get insights about the nature of randomness that is applicable to psychology, probability, mathematics, decision theory, and even statistical physics.

from Mediocristan and turning them loose in Extremistan.

Alan Greenspan, the chairman of the Federal Reserve bank, supposedly blurted out, “I’d rather have the opinion of a trader than a mathematician.”
Part Four – The End

classmate in Paris, the novelist-to-be Jean-Olivier Tedesco, pronounced, as he prevented me from running to catch a subway, “I don’t run for trains.”

Snub your destiny. I have taught myself to resist running to keep on schedule. This may seem a very small piece of advice, but it registered. In refusing to run to catch trains, I have felt the true value of elegance and aesthetics in behavior, a sense of being in control of my time, my schedule, and my life. Missing a train is only painful if you run after it! Likewise, not matching the idea of success others expect from you is only painful if that’s what you are seeking.

You stand above the rat race and the pecking order, not outside of it, if you do so by choice.

Mother Nature has given us some defense mechanisms: as in Aesop’s fable, one of these is our ability to consider that the grapes we cannot (or did not) reach are sour.

But an aggressively stoic prior disdain and rejection of the grapes is even more rewarding. Be aggressive; be the one to resign, if you have the guts.
Highlight(pink) – When Missing a Train Is Painless > Location 5630
It is more difficult to be a loser in a game you set up yourself. In Black Swan terms, this means that you are exposed to the improbable only if you let it control you. You always control what you do; so make this your end.

But all these ideas, all this philosophy of induction, all these problems with knowledge, all these wild opportunities and scary possible losses, everything palls in front of the following metaphysical consideration. I am sometimes taken aback by how people can have a miserable day or get angry because they feel cheated by a bad meal, cold coffee, a social rebuff, or a rude reception. Recall my discussion in Chapter 8 on the difficulty in seeing the true odds of the events that run your own life. We are quick to forget that just being alive is an extraordinary piece of good luck, a remote event, a chance occurrence of monstrous proportions. Imagine a speck of dust next to a planet a billion times the size of the earth. The speck of dust represents the odds in favor of your being born; the huge planet would be the odds against it. So stop sweating the small stuff. Don’t be like the ingrate who got a castle as a present and worried about the mildew in the bathroom. Stop looking the gift horse in the mouth—remember that you are a Black Swan. And thank you for reading my book.

Postscript Essay: On Robustness and Fragility, Deeper Philosophical and Empirical Reflections

Most people, alas, walk too fast, mistaking walking for exercise, not understanding that walking is to be done slowly, at such a pace that one forgets one is walking—so I need to keep going to Athens (where Spyros lives) in order to indulge in my favorite activity, being a flâneur.

This is another application of the barbell strategy: plenty of idleness, some high intensity. The data shows that long, very long walks, combined with high-intensity exercise outperform just running.

By the same argument we can lower 90 percent of Black Swan risks in economic life … by just eliminating speculative debt.

Seneca was said to be one of the wealthiest men of his day. He just made himself ready to lose everything every day. Every day.

Which includes one’s own life. Seneca’s readiness to lose everything extended to his own life. Suspected of partaking in a conspiracy, he was asked by the emperor Nero to commit suicide. The record says that he executed his own suicide in an exemplary way, unperturbed, as if he had prepared for it every day.

Thoughts on a Day in Court

Posted in Trial Techniques, Writing

Yesterday, I spoke on my aversion for offices and love for working pretty much anywhere. Here are a few more details. This morning, I had calendar in Gwinnett County, Georgia, which is pretty far away from where I live. Since I was taking over for another lawyer, I had to file a document known as a substitution of counsel. It’s a document that lets the court know that a new lawyer is taking over the case. After the substitution is filed, previous counsel no longer receives court notices, orders, etc., and all of that starts coming to me. Halfway to court I realized that I hadn’t printed out this document. And the court doesn’t have e-filing in criminal cases, which meant a brief detour to an Office Depot print center before arriving at the courthouse.

Speaking of courthouses, there are 159 of them in Georgia. Depending on where the case is, you can either walk into a historic architectural wonder or something thoroughly modern. I don’t know what the word is for the Gwinnett County Courthouse. I call it the Mall of Justice.

You might also call it Spaceship Court. Once inside, it feels more like an airport than a mall. Each floor is kind of a long corridor with skylights and big windows on each end. The courtrooms themselves are completely windowless, which is a feature I’ve noticed in modern courthouses. Older courthouses (I was in one yesterday) tend to have darker more windowless hallways with big windows in the courtroom. But back to the airport motif, all the courtrooms in Gwinnett County are even numbered like gates in a terminal. Today, I was in courtroom 3C. Of course, in a criminal calendar the flights go no place good.

The waiting area has a nice shiny hallway, which is likely a perk of inmate labor. Just before court started, the deputies unlocked the courtroom. A great perk of being a lawyer is that we get good comfy seats in the courtroom most of the time. We are allowed to cross the bar and hang out in the jury box. You’d be surprised to know that jurors sit in jury boxes a small percentage of the time. The rest of the time, at routine calendars and motions days, the lawyers occupy the jury box. Seats for the general public are generally wooden pews. This jury box had a cool little metal bar at the bottom as a little foot prop. The seats also swivel and rock back and forth. I’ve had great stealthy cat naps in jury seats in my career while waiting out a civil calendar.

When I was in Brooks County, Georgia, a few weeks ago, the jury box was made up of wicker chairs that swiveled and rocked and made me crave a mint julep. Most counties what have modern courthouses also retain the old courthouse on the town square as a place for wedding receptions or pottery classes and the like. Gwinnett is a perfect example. After court, I needed to run to an Apple Store to get something fixed. On my way out of town and out toward the mall, I passed the historic Gwinnett County Courhouse.

Most of the courthouses I work in are exactly like this building. And the older buildings are way more fun. Before they renovated the Pike County Courthouse, a big chunk of the ceiling once fell on me while I was arguing. In a novel, such an event would be symbolic of something ominous. And here’s fun fact, it was on this courthouse square that Larry Flynt, the founder of Hustler, was shot on the way back from lunch during a hearing on an obscenity case. And while I waited for an opening at the Apple store to have a person look at my tech, I took out the mobile office and knocked out some work on a case for next week.

I’m trying to cut back on my coffee intake. So, I opted for an overpriced mineral water while I waited. And this is what a day of working on the go is like. Many days will often go by where I don’t even see my office. But there’s always adventure to be had in some courthouse, old or new or in the pdf pages I read on a tablet or with the person on the other end of a call I’m returning.

How and Where We Work

Posted in Uncategorized

I almost never work in my office. The office is mainly a place to meet a client for the first time or a week or so before court. It is also the place where I retrieve mail that will be scanned into our system. My actual office is in my briefcase. I sprawl the contents of this office on tables in various courtroom law libraries or coffee shops throughout the state. Today is a prime example. I finished up a case this morning that required a court appearance. With the court appearance complete, I went to the closest coffee shop, where I called opposing counsel on a case tomorrow. But the real fun was in the written work I completed today. I work with an associate. She doesn’t even come to the office and works almost entirely remotely. We meet in person every week or two. But today I received an edited version of an amended motion for new trial that she reviewed for me. And I worked on editing an amended for new trial she prepared. We both work in the Apple universe, each with MacBooks and the big iPad pros. It’s a process that works great and one I’ll explain more in future blog posts.

A Few Thoughts on Motions for Reconsideration

Posted in Georgia Court of Appeals, Trial Techniques, Writing

This week, I became involved in an appeal much later than I typically do. The Court of Appeals had already made its decision, and I drafted a motion for reconsideration for my new co-counsel. Typically, when I draft a motion for reconsiderayion, I am getting my ducks in a row for a petition for certiorari or I am trying to throw a hail mary pass for a devestated client. My typical motion for new reconsideration is a couple of pages in length and written in the style of a trial motion, with numbered paragraphs. Never before have I been asked to enter a case at the MFR stage. Since this was my sole mission, I wanted to add even more value to the process. And so I went to the first place we should all go if we want to up our game in a particular court — the rules of that court as they relate to the subject at hand. It turns out that the MFR stage offers us quite a few options.

In the Georgia Court of Appeals, you go to Rule 37 to learn all about how to prepare an MFR. In short, there are opportunities and ways to get in trouble. Let’s start with the ways you can get in trouble

Ways to get in trouble

  • You must file your MFR within 10 days of the decision by 4:30 p.m. Ordinarily, you can e-file things with the COA until 11:59 and you get credit for the day of filing, even if the clerk doesn’t docket your brief until they open the next day. If you file your MFR at 4:31 p.m. on day 10, the Clerk of Court will docket your MFR as if filed on day 11. And if you file your MFR on day 11, bad things may happen to it.
  • The clerk of court can shorten your 10 days. I’ve never seen it happen. But it potentially could at the end of a term.

Opportunities

  • Let’s talk about the standard for granting a MFR. According to Rule 37(e), “a reconsideration shall be granted on motion only when it appears that the Court overlooked a material fact in the record, a statute, or a decision which is controlling as authority and which would require a different judgment from that rendered, or has erroneoulsy construed or misapplied a provision of law or controlling authority.” I read 37(e) as a fairly liberal standard. With that said, a MFR should be narrow, short, and targeted. You are telling three COA judges that they made a bad mistake. So, tread lightly.
  • Blame yourself. Typically, when I write an MFR I blame myself for the adverse decision in the way I briefed the matter — essentially “I was likely unclear in the way I wrote. So, this is all my fault. Better advocacy would have taken you to the right result.”
  • You have some space to write. Rule 37(a) refers us over to Rule 24, which is the section that deals with the physical preparation of briefs. So, your MFR can literally be a brief. The only limitation imposed is that your MFR is limited to 4,200 words, or about 7–8 pages of text using a 14-point font and double spacing.
  • If you draft an MFR in the form of a brief at 4,200 words and cover the topic, you will probably file the best brief you have ever written. You may even wish that your original brief had looked like this brief. Had the brief been this clear and succinct, your opponent might be writing an MFR right now.

I make no comment about whether the strategy here is a winning one. You are likely still throwing a hail mary pass in any event. I offer these comments as a lawyer who entered the game just to throw the pass. The ball is in the air as I write these words.

One-Liner of the Seminar Regarding the Goals of a Cert. Petition.

Posted in Supreme Court of Georgia, Writing

Last weekend, I chaired a two-day seminar on appellate and habeas practice. GACDL hosted the seminar at my alma mater, the Georgia State University College of Law. I’m jealous of their new building. We didn’t exactly have it tough at the old Urban Life Building, but the new kids are lucky to be in such a cool space. As for the seminar, I took good notes and plan to steal from our speakers for the next several posts.

The theft starts right now with this incredible one-liner from Justice Nels Peterson from the Supreme Court of Georgia. Here’s what he said about the difference between an appeal and a cert petition:

“The appeal is for your client. The cert. petition is for the public.” To quote Rule 40, “a petition for the writ will be granted only in cases of great concern, gravity, or importance to the public.”

This pithy statement has been the subject of many a discussion with lawyers who have reached out for advice on how to do a cert. petition. It is not much of a stretch to say to lawyers that the Court doesn’t particularly care about their client. When it comes to cert, the law is all that matters. The pitch on cert. is to the potential precedent not the client’s sense of injustice.

 

When The Lawyer Works Too Hard and is Penalized

Posted in News

The New York Times ran an article this week about a lawyer in Galveston, Texas, who was penalized by a judge for working took hard on his cases. The matter is the subject of a Federal lawsuit. The lawyer was appointed by the judge to represent a man charged with breaking into a car. The defendant faced a year in jail. After the lawyer did a rigorous investigation, the case was reduced to a misdemeanor. When the lawyer submitted his bill for the work on his case, the judge cut his bill more than in half. The lawyer appealed the cut in his bill, and the amount was sustained. Over time, however, the lawyers stopped getting court appointments. And he was removed from some of his cases.

The practice of cutting the bills of court-appointed lawyers is so common that lawyers pretty much take it  for granted. The Times article underscores some of the systemic issues in the court appointment system. In a 2011 study, the RAND Corporation found that indigent clients fared better when they were represented by a lawyer from an independent public defender organization rather than a court-appointed lawyer. The conviction rate was 19% lower. The chances of a life sentence were reduced by 62%. And the expected length of sentence was 24% shorter.  According to the study, “judges have incentives to appoint counsel who file fewer pretrial motions, ask fewer question during voir dire, raise fewer objections, and present fewer witnesses.”

It’s a fairly open secret that bills are often cut by judges. It can be difficult to secure funding for experts and investigators on cases on appointed cases. And yet, as private counsel, the biases are hard to see. Generally, I find that judges enjoy a rigorous motions practice in my cases. But I’m not before any particularl judge every day. Perhaps if I were, all of the things I do would be perceived as a docket-clogging nuisance.

The headline of the article is “His Clients Weren’t Complaining But the Judge Said This Lawyer Worked Too Hard.” And why would a client complain about your hard work? When you are retained, you have an incentive to work hard. The person you represent and the person who is paying you is the same person. And your interests are aligned with one another. In the court appointed system, the person paying you is not the person you are helping. And sometimes the incentives can pull the lawyer in alternate directions. This scenario has played itself out with the situation in Galveston.

I can recall my first years of practice when my local county had a court appointed system. I would come to Magistrate Court when the  judge appointed lawyers. I’d get the form, interview the clients, interview the arresting officer, then do a  bond hearing. And I would walk out with three or four new clients. I took for granted that the judge would ultiamtely cut my bill. But I didn’t much care. I had no name or presence. And I knew that doing a great job for these clients was the best way to become known. Eventually, I quit doing appointed cases. But those appointed cases were my start. So, I did not particularly care if my bill was cut. I saw the experience as an extension of law school. If it were medicine, that experience was my residency.

However, most of the lawyers who were there hanging out with me on those days were not young lawyers trying to prove themselves. Many of them were lawyers in their 60s who were there to try to make ends meet. I’m pretty sure that the clients who had those lawyers had a bumpy ride. And, for that reason, it is good that we moved to a state-wide indigent defense system. The Time article doesn’t reveal anything new. It reveals a perennial problem.

Here’s How I Started My Appellate Practice

Posted in Coaching, Writing

I frequently receive calls from law students or lawyers looking to become appellate lawyers. And I find myself having lunch with people and discussing how I started out. What I am writing here is what I typically say on those calls or at those lunches.

I have a background that suited me for appellate practice. Though, at the time, I had no idea that I was preparing myself for appellate practice. I came to college wanting to be a lawyer. Only, as I excelled in college classes, I wanted to become a professor instead. I chose as my major the typical cookie cutter pre-law route of political science. But political science ultimately became a minor. And I double-majored in English and Religion. So, I changed my mind about law school and decided to attend a seminary (my aim was to go from the M.Div. to a Ph.D. program and ultimately become a religion professor). And as seminary neared its completion, I decided to go to law school, which is what I wanted to do when I started college in the first place.

I entered law school three years older than most 1Ls and with a depth of research and writing experience. It never occurred to me that I would do appellate law after law school. In fact, I never even did moot court. I was a mock trial guy. And I was fairly convinced that I would go on to be a criminal trial attorney. And why was that? I wanted to be in the courtroom, and I knew that criminal practice would place me there early and often.

During my 3L year, I came to work for a criminal defense attorney. And on the days I was with him, we’d go from court to court together. His paralegal would lay out his day’s agenda in a little printout atop some gray files. And off we’d go in his little Porsche. As we went from place to place, he’d smoke tiny cigars. Eventually, all of my clothes, papers, and even my apartment came to smell like those tiny cigars. After court, we’d end up at a bar where he and his investigator would down Gin and Tonics. It was like living in a Michael Connelly novel.

After I had been with him a few months, I took a file on a rape case he was defending and prepared it for trial. I spent an entire weekend calling every witness on the State’s witness list, conducting interviews and preparing summaries what their testimony would. I printed these out, and I put them in individual files. Along the way, I found out that the victim had not actually made an outcry to the person the State would call as its outcry witness. They called the victim at trial and she doubled down on her claim that she’s outcried to the person. And the lawyer I worked for spent about 25 minutes of cross-examination really committing her to that story. The outcry witness was then called and she said on the stand what she’d said in my interview. The victim had never made an outcry to her. The jury acquitted in about 15 minutes. What I learned from this was that criminal cases are often won by calling witnesses, listening to them, and preparing detailed reports more so than big television moments. Yes, I was a big part of a trial win, but my contribution to the case felt like a graduate school research project more so than it felt like something from an episode of Law and Order. It was pretty clear that the DA hadn’t interviewed any of the witnesses. She tried the case just from the discovery file. If you outwork your opponent, you will likely beat your opponent. And lawyers don’t really have the time to do what I did in the case. I learned that it is pretty easy to gain the edge in law.

Then something else happened. I learned that the lawyer was doing appellate cases. But he was farming out the appellate work to a former associate of his who had retired to the mountains. The lawyer was handwriting the appellate briefs and mailing them to my boss’s paralegal. And she was typing up the briefs. The writing was pretty terrible, and the lawyer I was working for wasn’t doing very well when it cases to appeals. Shortly afterward, while we were on a tour of Atlanta and as I was buzzed from cigarillo smoke yet again, I asked my boss if I could try my hand at an appellate brief before he sent it out to the mountain man. My boss agreed.

The brief I wrote was on behalf of a guy named Thomas Graham. As I read through the transcript, I noticed something missing. The prosecutor had failed to establish venue in the county where the case was being tried. Back in the early 2000s, there was an absolute loophole in the law. The prosecutor had to ask a witness, “In what county did these events take place?” Only, in this case, the State had failed to check that box. And Mr. Graham had been convicted of murder. I worked hard on that case and ultimately my brief won the day in the Supreme Court of Georgia. And I went on a little streak of wins. I would write these briefs, my boss would review and sign them, and they’d go off to the Court. And we’d win. The law office bought me a laptop of my own. And when I was hanging out in the courtroom with the lawyer, I’d work on cases off in some corner. This was the era just before WiFi was a thing. And I remember having all of the Georgia cases on a set of DVDs. But things got done. When I became tired of working in the office, I’d take the laptop and go someplace else to work. Appellate practice, I was learning, was portable. I do not know ultimately what became of the mountain man. But I know that he was out of the appellate business with this one firm. And I, as a 3L was this little firm’s emerging appellate division. And as our days of touring Atlanta-area courtrooms would wind down, I’d be stuck at some bar. And off to a booth I’d go to work on appellate briefs as I listened to late afternoon bar banter in the background. I was having the most fun of my life. And I soon learned the value of not being stuck off somewhere without your own wheels and without a way to get work done.

After I passed the bar, I stayed on as an associate in the firm. And my first solo break came. A man named Billy Collier hired me to be his appellate lawyer. He was an older man who had gotten into a bar fight in Columbus, Georgia, in a small juke joint called the Pop-A-Top Bar. My client came out of the fight better than his opponent. And he was convicted of aggravated assault and given a lengthy sentence to serve in prison. I recall meeting him at the Jackson, Georgia, Diagnostic Center. He was an elderly gentleman in big heavy cuffs and ankle shackles. And I vowed to myself that I would win his case. And I ultimately did — on prosecutorial misconduct.

It took a while, years even, to consider myself an appellate lawyer. But I think I backed myself into a career for which I was uniquely suited. Had I stayed on the political science track and gone straight to law school, I probably would not have been as ready. But what I found was a way to practice law that was sort of like being a graduate student or college professor. Had I gone on with my Ph.D. Plans, I might be in some cold climate teaching in a community college right now. And my work would be great, but I wouldn’t have overturned criminal convictions, which became sort of a guilty pleasure.

I also became active in GACDL (I’m now the President of it). One night, after a GACDL function, I gave a circuit public defender a lift home. And, over the course of that car ride, I was asked if I’d be interested in taking on their conflict appeals. This conversation led to a steady stream of appointed criminal appellate work. And through this, I started getting more active in the appellate courts. From there, things took off even more.

I still try cases. And when I do, it’s always fun. But appellate law is where it’s at for me. I think these are the lessons from my story.

  • Before you can do appellate law, you should be suited for it. I think years of research and writing helped. Also, I chose majors where I read text after text. If you want to do appellate law, a deep background in reading and writing helps a great deal.
  •  There is some level of serendipity involved in getting started. I landed in a little practice that had a heavy caseload of appellate cases and a need for someone to step up.
  • I had to be willing to do it all fairly cheap. There was no substitute for doing a bunch of appellate cases. And I took all of those cases and worked them hard.
  • If you’re a good writer, a fast reader, and thorough, you will certainly have an unfair advantage over other lawyers. I hate to say this, but good writers are rare in law school and just as rare in the practice of law. Also, most lawyers would rather do anything but write a brief. If you’re willing to work, there are opportunities.
  • You don’t have to be awkward, quirky, or anti-social to be a great appellate lawyer. I am very comfortable in a courtroom, at a party, or in a plea negotiation. But I happen to love appellate law. Emotional/social intelligence is just as important in appellate law as it is in other kinds of litigation. And most appellate lawyers are not at all the stereotype.

And remember that part of my story where I wanted to be a professor?It turns out that I’m doing that now. I teach regularly at a law school in an indigent habeas clinic. And I also teach Georgia Appellate Practice and Procedure. So, I’m now practicing appellate law and teaching!

So, there is my story. I hope that there are some lessons in there that will help an aspiring lawyer who is interested in doing appellate law. Also, if you want to ask me to lunch or call to ask for advice, please fire away! I happen to like lunch and talking about all of these topics.

Recent Interviews and Argument

Posted in Oral Argument

A few weeks ago, I argued DHS v. Steiner at the Georgia Supreme Court. The case involves a Constitutional challenge to Georgia’s child abuse registry. My former law student, new associate, and co-counsel Kayci Dennis and I filed the Brief of Appellee. She’s pictured to my left. And we combined our efforts with a set of appellate lawyers to do a moot court to prepare for the argument. The moot court groups is pictured in the photo with me and Kayci.

And I was more recently interviewed by Ryan Locke about how I write and prepare for argument. Ryan also posted the audio of the argument. You can also view the video on the Georgia Supreme Court’s website.