It may be that putting pen to paper is the perfect way to compose first drafts. Tim Ferriss’s interview with Neil Gaiman has made me rethink my approach to drafting briefs and motions. Neil Gaiman is my favorite fiction author. And I loved much of his approach to writing, from the habits he uses to stay focused to his craft of putting pen to paper. Not until I listened to the podcast did I know about the notebooks and fountain pens.

Gaiman composes his first drafts in a nice notebook using fountain pens.. In an earlier interview, he described how the switch to notebooks changed everything for him. “I was sparser, I would think my way through a sentence further, I would write less, in a good way. And when I typed it up, it became a very real second draft – things would vanish or change. I discovered that I enjoyed messing about with fountain pens, I even liked the scritchy noise the pen nib made on the paper.”

There is much here for legal writers to emulate. When I was in my first year of seminary, I enrolled in a seminar course on religion and literature. The professor started off the class with a writing exercise. We wrote by hand for a few minutes (laptops were rare then), crumpled up our page, and threw them to the middle of the table. Then we started again. His rationale was that the warm up phase of writing was not likely to produce much in the way of quality. The secondary lesson was that nobody ever needs to see a first draft. In legal writing, the court will absolutely never see your first draft because only pro se people and sovereign citizens turn in handwritten stuff.

I’ve experimented with handwritten motions, pleadings, letters, and this blog post. And there is something relaxing — almost luxurious about it. Also, the typing draft bears little resemblance to its handwritten ancestor. It is difficult to type an exact duplicate without implementing changes.

I’m reminded of other writers who draft with pen and paper. Civil War historian Shelby Foote took it to another level, with an elaborate process that involved a dip pen. At one point in time, he is said to have purchased up all remaining dip pens in the country. He said in an interview:

I use a dip pen. Everybody on earth used to have one. They were in every post office in the land. I like the feel that a pen or pencil gives you, being in close touch with the paper and with nothing mechanical between you and it. The very notion of a word processor horrifies me. When I’ve finished a draft, I make changes in the margin. Then I make a fair copy. I also edit the fair copy somewhat when I type it on big yellow sheets so I can see it in print for the first time. I correct those outsized yellow sheets, then retype them on regular eight and a half by eleven pages for the printer. I’ve had poet friends tell me they never type a poem until they are really satisfied with it. Once they see it in print it is very different from what it was in longhand. It freezes the poem for them.

My favorite presidential historian, Robert Caro, uses a hybrid process of outlines and handwritten prose for his first drafts. “First you fill it in in handwriting, and then you sit there for weeks going through the files, putting in the best anecdotes,” he says.

I like my experiment so far. It is relaxing to write by hand with a fountain pen. My tool of choice is a Dryden Design fountain pen I received as a gift. And I have some notebooks ready for briefs and other large-scale writing projects. For everything else, I love the feel of Docket Gold legal pads. The paper is heavy, and the cardboard backing has heft. You can take notes without much need to press the legal pad onto anything else. Also, paper does not receive texts or twitter notifications. And there is no newsfeed to pull you away from writing. My favorite writers may be on to something. I write this after spending about a decade moving to a paperless process.

On the subject of peak competitive performance, I heard pretty much the same advice from two very different places this week — a seasoned appellate lawyer in one venue and a seasoned athlete in another.

This semester, I’m teaching Georgia Appellate Practice and Procedure with Chief Judge Stephen Dillard of the Georgia Court of Appeals. This week, our featured speaker was Michael Terry. He spoke on his top ten tips for preparing for oral argument. Oddly enough, his number one tip was all about parking. Yes, parking! He led with that. Mike says that your top priority for oral argument should be to figure our how you will arrange your transportation to oral argument (He assumes you’ve done all the other things necessary to prepare for the argument itself. Literally, plan how you will get there and where you will leave your car. If you’re interested, Mike takes Lyft.

The issue is stress and energy management. He says that all of this is hard enough as it is. And you don’t need to add stress to the mix by worrying about something like traffic or parking. You should focus your energy on the task at hand. If you worry about making it to court on time, you’re being foolish with your energy. Having done this for years, I’ve had my share of traffic and parking mishaps. And it has never helped. It is a bad use of energy best directed elsewhere.

Now to Mo. I track my running with the Nike Run Club App. I’m pretty sure that I’ve given Nike way more data about me than I’ve given Google (And yet, based upon my splits, they have not referred me over to Rockport). A feature of this app is coaching from famous athletes and coaches. During a run of a set duration or distance a person gives coaching direction into your speaker or headphones.

And it’s as right around minute 20 that Mo Farah’s advice made me think of what Mike said. His number one tip for competitive running is to start slowly. He speaks of what a mistake it is to spend energy that could be devoted to an event with nervousness before it starts doing something unproductive like psyching yourself out.

And here the wisdom of Michael Terry and Mo Farah converged. For both, the number one tip had more to do how you manage the trip to the starting line than what happens after you cross it. Whether it’s running or an oral argument, the lesson is the same. How you manage the case or the event depends on how you manage yourself leading up to it.

The best advice from two sages from different professions is to start slowly and arrive with a sense of calm. Take care of your self as you approach the starting line, and you are more likely to be happy what happens when you reach the finish.

In a follow up story to the one published in last’s weeks AJC, Chris Joyner and Johnny Edwards have doubled down on some of the flaws from the original story. The writers continue to blame defense counsel Speaker Ralston solely for delays in his criminal cases. They take the additional step of taking him to task for being a criminal defense attorney — something merely suggested in the original article. The writers quote the leader of Georgia’s Tea Party to make that attack. And, rather than investigating the case files in the North Georgia courts where the matters are pending, the reporters focus on Ralston’s legislative colleagues and discuss whether those colleagues continue to support him or are backing away from him. What started as a criminal justice story for the AJC, is now clearly a political story (maybe this has been a political story all along). Unfortunately, the flaws serve to further undermine a better public understanding of how the system works and the role of defense counsel in an adversarial system in which the prosecutor brings the case and the judge sets the schedule.

An interesting follow-up to the story would have been to explore the cases in a more in-depth way to see if the state opposed requests for continuance. Judges and prosecutors serve a pivotal role in the scheduling and pace of a case from indictment to conclusion. And I cannot stress enough that we have an adversarial system. Frequently, the state and defense counsel argue motions to continue matters. And even when the defense and the prosecution agree to continue cases, the judge may ultimately decide whether a case proceeds to trial in a way that makes neither side happy. Every trial lawyer has a set of war strories on this topic.  Additionally, there are tools available where the parties, for whatever reason, have difficulty getting a case resolved.

  • Special Setting. Judges can specially set cases. When a case is specially set, the parties are directed to show up on a particular date and time to try a matter. In the normal course of events, a large set of cases will be called in on a Monday morning. And the Court decides, from among the group of cases, which ones will go to trial that week. Of the maybe hundred or so cases who appear, one or two will be tried that week. By contrast, when a case is specially set, a particular case is called in for trial. When a judge specially sets a case, the parties know when their case will be tried. And, because the parties have generally agreed to a special setting, they are hard pressed to bring a continuance. Years ago, when I worked as an associate for a very busy criminal defense attorney, the judges in a particular jurisdiction were frustrated by all of my boss’s scheduling conflicts. To help everybody out, I tried two misdemeanor cases before a jury one week, picked a jury on a third, and resolved a fourth. If someone as busy as the speaker of the house is defense counsel, it seems like his cases would be perfect for special setting. I wonder if the State or the Court ever tried something like that in Ralston’s cases. Seems like the story should have explored this question. Instead, the writers decided to go to Ralston’s legislative colleagues to figure out if they want to condemn him, support him or enforce what the AJC calls a “code of silence.”
  • Scheduling Orders. Another tool to move cases is a scheduling order. When a judge imposes a scheduling order, the parties come together early in a case to decide when motions will be due, when motions will be heard, and when trial will commence. When the scheduling order is discussed, the parties bring their calendars and work out proposed dates for various milestones in the case. Scheduling orders are routine in Federal Court. And they work as a sort of contract for the the case’s resolution. In some Georgia jurisdictions, the use of scheduling orders is regulated by local rules and customs. The scheduling order can be a powerful tool for the Court where a case proves tricky to schedule and resolve. And if someone with a schedule such at that of Speaker of the House is defense counsel, it would seem that scheduling order would be just the thing. Was there ever a scheduling order in Ralston’s case? We have no idea, because the journalists chose not to explore this question.

Trial law is not governed like a baseball game. In a baseball game, an umpire will call every pitch a ball or a strike. In law, either the pitcher or the batter has to request a ruling. And if defense counsel requests a continuance, the prosecution has every right to oppose the request. Further, if a case is taking too long to resolve, it is up to the party who most wants it resolved to speak up. Again, it’s an adversarial system. And the defense attorney’s job is to win his client’s case. Defense counsel does not represent the victim. So, if defense counsel’s motions for continuance are always granted by the judge and never opposed by the State, who is to blame — the team who brought the charges, the team defending the charges, or the umpire who controls how the game is played?

But why go in depth on the criminal justice angle when you’re writing a political piece? The AJC unveils in the follow-up article what was merely implied in the first one. Ralston’s crime is that he defends the accused at all; but he’s guilty of an ever bigger one, which may be why all of this started. The article quotes Debbie Dooley, the President of the Atlanta Tea Party: “They [the Republican leadership] rubber stamp him protecting accused child molesters and rapists and those that like to beat up women. … is that really what Republicans in the Georgia House really want to stand for?” In other words, do you want someone who defends the accused to be a political leader?

With the quote from Ms. Dooley, we learn what Ralston’s real offense is. It’s that he’s the wrong kind of attorney. Or perhaps, from the decision to interview political figures in Atlanta instead of local folks in the jurisdictions where the cases are pending, maybe the real crime is that Ralston is the wrong kind of Republican.

I haven’t had an argument at the Georgia Court of Appeals in quite some time. It was good to be back. I won’t comment on the substance of a pending case before the Court. Instead, I’ll mention time management. My fifteen minutes went by quickly. And, as I tried to wrap up, there were additional questions. The Court gave me two additional minutes for rebuttal. And those minutes came in handy. If I had the argument to do over again, I would have stopped sooner than I did. I seldom do rebuttals. But this one was necessary.

I’ll close by recognizing opposing counsel for his professionalism to me throughout this case.

I’ll write more on this case later, but I wanted to provide a quick update on a recent case. This week, the Supreme Court of Georgia held that the State cannot use against defendants in DUI trials evidence of their refusal to take a chemical test. While the United States Supreme Court has held otherwise, under Georgia’s constitution, which provides its citizens with additional protections not provided by the Federal Constitution.

Several months ago, the Georgia Supreme Court requested amicus briefs from the Georgia Prosescuting Attorney’s Counsel, the Office of the Solicitor-General, and the Georgia Association of Criminal Defense Lawyers. Those groups briefed the case well, and it was an honor to present argument on behalf of GACDL. Over my career, it has been my privilege to be amicus counsel on important cases before the Court. And this was was particularly satisfying.

 

The front page story of today’s Atlanta Journal-Constitution accuses Georgia House Speaker David Ralston of using his position as speaker of the House to gain an advantage over the State in his criminal defense practice. An accompanying broadcast report cites “obscure law,” O.C.G.A. Section 17–8–2, as the evil tool that Speaker Ralston is using to hurt the rights of victims.

The statute give members of the General Assembly the right to a continuance or stay of any pending court case during “any regular or extraordinary session of the General Assembly and during the first three weeks following any recess or adjournment.” Another provision of that statute provides that “a continuance or stay shall also be granted for such other times as the member of the General Assembly or staff member certifies to the court that his or her presence elsewhere is required by his or her duties with the General Assembly.”

Johnny Edwards, the reporter who wrote the piece, managed to track down one of the clients, who admitted that he hired Ralston with continuances in mind, saying “[t]hat’s why I gave him 20,000 bucks.” A bit of commentary is in order here. I make no conclusion on whether Speaker Ralston is using his position as legislator to gain a tactical advantage over the State. Though the more likely scenario is that he’s just having trouble managing a law practice and being speaker of the house.

  • There was a time when most of the legislature was made up of attorneys. Legislative service was once something that young lawyers did for their community. Running for office was something akin to being in Rotary. It helped a young lawyer become known in the community. The legislature would do well to have more lawyers among its ranks. Lawyers are ideally suited to craft laws and are equipped to foresee unintended consequences of proposed laws. And there are far too few lawyers in the current legislature. The “obscure statute” allows lawyers to juggle a law practice and legislative service. And if there were no such statute, then it is likely that there would be even fewer lawyers in the legislature.
  • The article presumes that delays in cases hurt victims and help defendants. While that may well be the case some of the time, there is often nothing more terrible for the client and counsel than keeping a criminal file open for a long time. There is a reason why there is a constitutional right to a speedy trial. Perpetual jeopardy is very often agony. Also, critical defense witnesses can forget about facts and become unavailable over time. The article mentions nothing about the toll that time can take on a defense case. Defendants have a right to put up a case, too.
  • Speaker Ralston practices in a rural North Georgia area. It may well be that cases generally take quite a while to reach a resolution in a place like that where grand jury and trial terms are infrequent. The article does not compare how long it takes Ralston’s cases to resolve versus criminal cases overall. There was a missed opportunity in the research. I’d be interested to hear from the clerk of court or circuit public defender how long it takes, on average, for criminal cases to move from arrest to completion for defendants who are out on bond (I’ll assume that Ralston’s clients are on bond). Bonded clients are often a lower priority for trial than those in custody.
  • The article is very anecdotal. And there’s a bit of confirmation bias at play. For instance, where one of the victims in a case has trouble keeping her story straight, Edwards presumes that she has a poor memory as a result of the passage of time. However, it might actually be possible that Ralston’s client isn’t guilty and that the witness’s story isn’t true. One might actually be allowed to presume Ralston’s client to be innocent.

Again, I have no idea if Ralston is playing the rules to gain an advantage over the State. I’d like to see more facts. But, if we assume that he is, the solution is either for the Court to move his cases faster, or for the voters in his district to deliver a verdict through the ballot box. The problem does not lie with a sensible statute that allows lawyers to serve in the legislature.

The weekend edition of USA Today leads with a story on the sanctions law schools are facing based upon poor bar passage rates. The ABA will convene a conference to require accredited schools to ensure that at least 75% of graduates pass the bar within two years. Right now 75% of student must pass the bar within five years of graduating. The article point out that, because of various loopholes within ABA standards, schools with passages rates as low as 50% are not being sanctioned. The article includes a searchable index of bar passage rates for all law schools in the nation.

Where does the problem originate? It has long been a reality that there are too many people with law degrees chasing too few jobs. But that reality became even more dire in the mid-2000s when the legal industry suffered from the economic collapse. As law school admissions declined, law schools became less selective, to the tune of admitting students with little hope of passing the bar. The ABA has been slow to respond.

As law school graduates are finding the bar impossible to pass, student loans are coming due. And, where law graduates have previously struggled to find a job, they are now struggling to earn a license to even look for a job.

The cynical side of me doesn’t envision ABA standards to actually tighten given that law schools have a financial incentive to do what it takes to keep tuition dollars coming.

At yesterday’s GACDL Winter Seminar, Dean Strang spoke, not so much on Making a Murderer but on systemic failures of the criminal justice system that are on display in the documentary series. Those issues include poverty, the fact that the treatment of juveniles has not caught up with the research on brain development, and issue with the media.

However, my takeaway was when Dean spoke about social media. When asked about media attention, he revealed that he has no social media presence. A shy person, he pointed out that he doesn’t always feel particularly social and that he sees no real need to “mediate” some sort of online social presence.

Without social media, he cannot be harassed on it. And he reports having perhaps ten uncomfortable moments since Netflix premiered the documentary (versus many death threats while the trial was going on). But there’s an even bigger lesson.

Cal Newport may well be right when he says that social media is not at all crucial to career success. It turns out that the lack of Facebook, Twitter, or Instagram isn’t a hindrance from becoming well known and respected all over the world.

I enjoy reading opinions by Eleventh Circuit Judge, Ed Carnes. And Brewster v. Hetzel may be my new favorite. It’s a rare habeas case out of Alabama (or anywhere) where the habeas petitioner wins. And the subject matter is a deadlocked jury and the lengths a trial court went to flip the holdouts for acquittal. Judge Carnes begins with a history lesson. At one time juries could be deprived of food and water until the holdouts caved. And when that didn’t work, judge had other tricks up their sleeves.

And if jurors did not unanimously agree on one before the judges left town, Blackstone recounted, “the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart.” Id. at *376. They were hauled around in the cart “until a judgment ‘bounced out.’” Renico v. Lett, 559 U.S. 766, 780, 130 S. Ct. 1855, 1866 (2010) (Stevens, J., dissenting). Which is to say until the resolve bounced out of the holdout jurors.

The opinion gives a few other examples of judicial coercion of hung juries of the past before shifting to the facts at hand. “We no longer try to coerce holdout jurors to reach a verdict they cannot abide. Or at least most times we don’t. The jury that convicted our appellant, Sumnar Brewster, might feel some affinity with the juries of yesteryear.” After giving the jury four separate Allen charges, the jury heard that the lone holdout for acquittal was doing a crossword puzzle rather than continue being browbeat by the other eleven. At which point, the judge ordered all pens and reading materials removed. from the room. “Just 18 minutes after all reading materials were removed, Brewster’s jury dutifully — and we do mean dutifully — returned a guilty verdict.” (Court’s emphasis).

The opinion is informative, readable, and fun. Judge Carnes stands out as one of the best legal writers around. And the opinion in Brewster v. Hetzel is a good model for legal writers to emulate.

I was at the Georgia Supreme Court for argument on a habeas case today. This was my first appellate argument of 2019. I’ll be at the Georgia Court of Appeal on February 12. You’ll find a link to the recording here. I won’t comment on a pending matter except to say that this is a pro bono case I’m handling through The Habeas Project, a pro bono law school clinic at Mercer University law school. My special thanks to Meagan Hurley and Addison Gant, two third-year law students who did the bulk of the research and writing on this case.

I also ran into Leighton Moore after he finished his argument on an interesting first amendment matter.

A great part of a SCOG argument is when I power up my phone afterward and find a deluge of commentary from colleagues and friends who watched online. Today was no different — a fantastic start to a new year.