Congress will soon take up multiple bills to pull back the doctrine of Qualified Immunity. In the House, a bill has been introduced that would roll back Qualified Immunity as it relates to law enforcement and corrections officers. In the Senate, a bill is pending that would roll back qualified immunity as applied to an even broader class of government workers. In either event, the rollback of qualified immunity is an important step for increased government accountability. In this brief post, I will discuss what qualified immunity is and how it came about. Then I will briefly make the case that qualified immunity should be rolled back significantly if not entirely.

A Brief History of QI

Qualified immunity is a recent innovation in the law and is entirely a creature of case law. The right to sue government officials for the violation of constitutional rights originated in the passage of a ku klux klan bill of 1871. The relevant language is codified in 42 USC § 1983, which provides a private cause of action for those whose rights are violated by a government official. The law existed for nearly 100 years before the doctrine of qualified immunity emerged by case law, in Pierson v. Ray (1967). Pierson established that certain government officials enjoy a measure of protection from suit. Specifically,“under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved.” The next and most significant step toward qualified immunity came in 1982 in Harlow v. Fitzgerald. In Harlow, the Court held that “Henceforth, government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate ‘clearly established’ statutory or constitutional rights of which a reasonable person would have known.”

Where Things Stand

After Harlow, it has become exceedingly difficult for a plaintiff to prevail in a civil rights action. An officer who knowingly violates someone’s constitutional rights will generally be protected from suit unless the victim can identify previous judicial opinions that addressed the specific context and conduct. And that case must fit the exact contexts and action down to a high degree of specificity. There is a degree of circularity at play in this doctrine. How does the law ever change if a plaintiff must show a previously-exact case in order to pierce qualified immunity?

In a ninth circuit case, for instance, police attempted to steal $225,000 after a raid. The officers were protected by qualified immunity because “there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant.” Even if stealing is wrong, no law held that stealing money violated a constitutional right. And the officers were shielded from liability.

Why QI Should be Rolled Back

Justice Clarence Thomas appears to favor a rollback of qualified immunity to Pierson. And here is why it is important to turn the clock back to where it stood before Harlow. Criminal prosecution is not a good instrument for law enforcement reform. It is a huge ask to demand prosecutors to prosecute the officers who prepare their cases. And juries have been reluctant to indict, much less convict, law enforcement officers. To be sure, the standard for conviction beyond a reasonable doubt is difficult to prove. However, the preponderance standard for a civil rights violation is easier to meet and likely less of an ask for jurors. Furthermore, the civil standard creates a financial incentive for lawyers to bring suit before jurors whose jobs do not depend on shielding law enforcement. States and municipalities will bear a financial incentive to safeguard civil rights, as insurance premiums will depend upon hiring, retaining, disciplining, and training offices to protect the civil rights of those with whom they come in contact.

Bills currently pending in Congress are a good move toward a regime that will reduce police mistreatment and brutality. Increased public

(pardon the typos. It’s 2:17 a.m.)

The quarantine has been a time of reflection. I think I remember what a courtroom looks like. And if quarantine were not bad enough, the steady stream of political and racial upheaval fed to me all over the news and various social media outlets has me itching for a trial. Alas, trials aren’t happening. I read somewhere that one judge tried to have a trial, and a Coronavirus flare-up happened. Another judge tried to do a trial by Zoom, and a juror took a phone call during trial. We have been good over here. We’ve efiled things left and right. And we’ve received a steady stream of orders.

Away from the press of court dates and with a relaxed set of deadlines, I have had the opportunity to reflect. And I am pleased to make an announcement. I am expanding into the are of plaintiff’s personal injury at the appellate and trial level (with an emphasis on the trial part). Allow me to explain a bit.

  • I miss the courtroom. In the Spring and Summer of 2018, I tried two cases to verdict. One was a major felony in a state court. The other was a major drug conspiracy in Federal Court. In the last few months, I have opened two major felony trial-level cases. I’ll always love and do appeals. But it can be a bit frustrating to discover how things went badly as I read about them in a transcript. These trial-level cases feel like something of a blank canvas waiting to be created.
  • I’m ready to do something new and for renewal. I love the writing of Shunryi Suzuki. Since I read it years ago, there is seldom a day when I do not think of his work, Zen Mind, Beginner’s Mind. “In the beginner’s mind there are many possibilities, but in the expert’s there are few.” He explains, speaking of Zen, “The same thing will happen in your other Zen practices. For a while you will keep your beginner’s mind, but if you continue to practice one, two, three years or more, although you will improve some, you are liable to lose the limitless meaning of original mind.” I will continue to quote Suzuki, because he’s just that good. “Our ‘original mind’ includes everything within itself. You should not lose your self-sufficient state of mind. This doesn’t mean a closed mind, but actually an empty mind and a ready mind. If your mind is empty, it is always ready for anything; it is open to everything. In the beginner’s mind there are many possibilities; in the expert’s mind there are few.” I recall my days of beginner’s mind in criminal practice. They started when I was a 3L and worked up a major felony file for two seasoned lawyers to try. I had big a clunky laptop. And I spend an entire weekend calling each of the State’s witnesses one by one. I took careful notes of what they told me. And I learned some things about the case that the prosecution and the cops didn’t know. Armed with that knowledge and with their skill, I watched that weekend of work contribute to an acquittal. I remember my first jury trial — a very minor misdemeanor that felt like the OJ trial to me. I remember hearing the not guilty verdict. My career thus far has had many such moments — receiving an opinion from the court, clicking the link, and discovering that I not only won but that the case changed the law for the better. But lately I’ve felt a bit like Bill Murray’s character in the movie Groundhog Day (living in the fourth year of the Trump administration and the 7,000th day of quarantine hasn’t helped this feeling). I think it’s time for something new. I sit and type and recall what beginner’s mind felt like. For what I do, I’ve become an expert. But expertise should never get in the way of beginner’s mind. And I think when we spark beginner’s mind, the way of Zen pervades even the areas of expertise.
  • I Love the Practice Model. For the criminal defense attorney in private practice, there is a harsh reality. The clients you often would most like to help cannot afford to fund the kind of defense you can provide. And if you start making a bunch of exceptions you won’t’ be able to provide that level of defense to those who can pay. So, for every client I take, 8-10 are turned away or can’t fund the work. In addition, the gods don’t always hand out great facts. And financially the client and I often find ourselves on opposite sides of the table based upon money. In the P.I. world, because compensation is tied to what is recovered, the client functions as kind of a partner. And the case is taken based upon merit rather than the ability to pay (seasoned plaintiff’s attorneys will email me on this point and accuse me of being a bit Pollyanna about all of this. But they likely are taking it from a position of expertise).
  • A Career in Criminal Trial and Appellate Practice has Prepared me for Such a Time as This. A buddy and colleague of mine made the leap from criminal to P.I. several years ago. And I’ve annoyed mercilessly about all of this. He’s been a remarkable sport. He assures me that all of the jury trials and oral arguments I’ve done over my career (I’ve lost track of the number of both at this point), has built up better chops than those who did not come over from the criminal arena. Also, I am not at all afraid to lose. You develop a thick skin for loss in nearly two decades doing criminal appeals or you will literally die. If you want to win in criminal litigation, go interview to be a DA. Not that I haven’t won a lot. I have. But it’s all relative.
  • Speaking of the Times, the Times are Calling. If our nation survives the things that make me appalled every time I turn on the news, are going to usher in a society more willing to hold people accountable in the arena of torts. There is a legitimate push to drop qualified immunity in civil rights cases. I’m not holding my breath. But it’s an interesting thing to behold. Sitting in quarantine watching the parade of truly disgusting things in the news, I think that the prospect of helping victims become successful plaintiffs is intriguing.

To be sure, I am not quitting any of the things I currently do. And I still re on fire for my current clientele. But I’m ready to be more selective about those cases in the future. And a new acquisition of beginner’s mind will help me in these areas as well.

So, there you have it. At 2:10 a.m. as the news shows us the cities burning and in the midst of a global pandemic, I feel inspired to new horizons. I’m not sure where the cases are. There are a bunch of click tv ads and billboards. But I don’t want to be a volume guy necessarily. As I set out, I am confident the horizon is out there ready to be pursued. And Somewhere between here and there is the beginner’s mind.

 

 

 

Before all the CoVid-19 stuff, I read the news exactly once per week. I experienced the entire Trump impeachment episode in weekly installments at brunch. I allowed myself the Sunday New York Times and the Sunday Atlanta Journal. Also, I did not allow myself to click on any “news” shared over social media. My only other requirement was alcohol. News is best experienced with an extremely spicy bloody mary or incredibly fizzy mimosa. If I made an exception it would be for a very local newspaper.

When I entered quarantine, I started breaking my own rules. And I allowed the news to creep back in, first on television and then from links shared in angry or snarky Facebook Posts or Tweets. Over Friday and Saturday night, I was sucked into images of reporters on the ground in big cites showing clashes with police, tear gas, and riots. I’m not saying that there isn’t a civic duty to be informed. But that civic duty does not require staring at the phone and feeling panic and despair.

Yesterday, I decided to reimpose the Sunday-only rule. Except brunch places aren’t open. And I was hanging out with my ten-year-old son. I turned off the news. I’m happy to report that I survived to tell the tale.

Here’s what we did instead of watching the news. I made a batch of cold brew coffee — a huge batch.

 

I found that making something, even a highly caffeinated beverage, was far superior to the news. And I was able to package some of this delicious concentrate up and give it away. We then headed out to the park to throw a football. I noticed that the park had a picnic area with a sail shade covering. I think I like the concept of sail shades. I took pictures.

From there, we were off to my office. While it wasn’t Disney World, I’ve always found an empty law office to be a fun place for kids. Even a pretentious leather office chair can be remade if you sit in it and read a Spiderman magazine.

About a block away from my office is a small independent bookstore. We discovered that they’re open for business provided that you mask up and douse yourself in hand sanitizer at the front door, which we were all too happy to do.

After spending a bit too much money at the bookstore (we chose books to harken back to a more positive time in D.C.), the next stop was a local sushi place. They give out these nifty little things to help kids use chopsticks. I’d only ever seen the rubber band thing before yesterday.

We were on a roll — actually two.

Later that evening, I decided to get in some miles. My goal was eight miles (no Eminem jokes please). But it was hot, and I went four. There was a protest happening in my town. I ran by the perimeter of it. Everything seemed peaceful. I even saw a law student of mine and waved.

I’m not sure if this is considered cheating or not. But we did watch the Dragon space capsule dock with the International Space Station. And we watched the launch on Saturday.

I don’t know if this is considered news or not. But it was a positive story. It was pretty cool. With all that said, these are no doubt troubling and tumultuous times. There is some responsibility for engagement. But that engagement need not be constant. In fact, there may be a bit of diminishing returns to constant attention to the news and constant back and forth about it on Facebook.

One of the books I bought yesterday was Austin Kleon’s Keep Going. I found something apt in my new book:

A friend of mine said he didn’t know how long he could wake up to such horrible news every day. I suggested he shouldn’t wake up to the news at all, and neither should anyone else. There’s almost nothing in the news that any of us need to read in the first hour of the day. When you reach for your phone or your laptop upon waking, you’re immediately inviting anxiety and chaos into your life. You’re also bidding adieu to some of the most potentially fertile moments in the life of a creative person

So, there you have it. On probably the worst news weekend of my life, I took a break from it all and regulated the part I let in my life. NASA, in partnership with a private company, launched humans into space again — for the first time in recent memory. I made some good coffee. Oh, I did cheat one other time, but only to pull a recipe for ice cream from the New York Times.

It turns out great. And it mixes well with home-made cold brew.

The Rainmaker is available on Netflix. In my earlier snobbier days I scoffed at lawyer movies and written legal thrillers. I’m either not as picky as I once was, or I’ve learned to find actual value in this kind of entertainment in spite of the inaccuracies. I’ll start with a no-spoilers overview of the plot and proceed to tell you my five big takeaways from the film.

Rudy Baylor (Matt Damon) plays a recent law school graduate who goes to work for shady personal injury lawyer, Bruiser Stone (Mickey Rourke). Assisted by Bruiser’s long-time law clerk, Deck Shifflet (Danny DeVito), a guy who can’t pass the bar, Rudy ends up taking on a huge personal injury case against an insurance company where he is pitted against Leo F. Drummond (John Voigt) and his team of defense attorneys. He also falls in love with Kelly Riker (Claire Danes. Remember her?), a domestic violence victim he meets while studying for the bar/trolling for clients in a local hospital.

An earlier snobbier version of myself would have been obsessed with the inaccuracies, such as how is it that cases go to trial so fast in legal thrillers, particularly one like this which likely would have been in the discovery phase forever. But I’ll move to the lessons.

  • Rudy Builds a Practice by Connecting the Everyone He Meets and Looking for Ways to Be Helpful. Rudy builds his practice essentially from two people he meets in a law school clinic. The first, Miss Birdie, is a wills/estates client. From his work with her, he finds an inexpensive place to live and a safe place for his girlfriend to hide from her estranged abusive husband. And his other client becomes his big break. The girl he meets at the hospital becomes his first criminal client, a murder case he successfully negotiates to a dismissal without formal charges. When his boss flees the FBI, he and Deck go off to start their own firm. Rudy’s marketing comes from being helpful to those around him and his willingness to ask for help. He’d have killed it in the modern era of social media marketing.

  • Rudy is Adept at Technology, Even with a Limited Budget. Rudy goes to battle with a big firm. But he used essentially a video camera and tripod to interview his client for later use in his closing. He also took a critical document and presented it effectively in court. While taking his client through the document, he puts the document up on screen with a pull quote. Nothing fancy here. It’s just one document being put to great effect. And he leaves it up so that his opponent has to demand that it be taken down. And note that Rudy is using his own tech. He’s not relying on the defendant’s stuff as many of us do when against the government or a techier opponent. He’d have killed it in he iPad era.

Rudy Courts the Judge by Being Honest and Humble. When judicial sentiment is against your opponent, it’s best to stay quiet. And if you feel outgunned, it’s okay to say so. But even better if the judge makes a truthful observation about your position, it’s good to be candid. Later in the movie, the judge assists Rudy every every way he can.

As Important as Niceness is, You Have to Stand Your Ground at Times. Leo Drummond tries to act as a condescending patronizing version of a mentor figure. Rudy takes is well for the most part. However, during depositions, Leo tries to dictate the order of deponents. He also does some shady stuff to hide witnesses. At which point, Rudy is firm, threatens to involve the judge, and refuses to be pushed around. There are limits to the nice approach. And Rudy stands up when the moment requires it.

 

 

A Paperless Office is a Good Idea But a Good Staff is Even Better. Rudy is not a one-man show. His paralegal is constantly out there taking care of him, gathering information, and helping with points of evidence. Every office needs at least one Deck Shiflett. Rudy would do well to get a case management system in place though.

There you have it, five lessons from The Rainmaker to be a better trial lawyer. (1) Build a Practice by Connecting with everyone you meet; (2) Being adept at technology will put you on par with even the biggest opponent; (3) honesty and humility will carry you far with the Court; (4) be nice but don’t back down when the fight is on; and (5) You can’t go it alone. Build a good reliable team.

Recently, the Supreme Court issued a new opinion. It was not a particularly earth-shattering opinion. There is a statute that allows the trial judge to as as the thirteenth juror if he believes that the verdict was against the weight of the evidence. The appellate courts will affirm such decisions unless the judge abused his considerable discretion. However, some prosecutors are frustrated with the law as it applies to the thirteenth juror. After a recent set of opinions on thirteenth-juror appeals, the Supreme Court encourage prosecutors to stop bringing them. The additional wrinkle in the recent decision is that, in addition to neglecting the standard of review, the State argued the laws of the universe cried out for the reversal of a thirteenth-juror decision. The Court called the argument bizarre. So, the entire appellate division of the Fulton County District Attorney’s Office had T-shirts made that say “bizarre for justice” and posed for a group photo with their new fashion. The elected district attorney posed in the shot with them. And they posted it all on social media, with a caption thanking the Supreme Court of Georgia for noticing how bizarre they are.

Some members of the defense bar have called them out. However, my learned opponents will find no criticism here. I celebrate any opponent’s commitment to make bizarre arguments. And I also welcome public displays from opponents that have the potential to alienate the judge before which we might appear.

You can’t see it, but I just took a break from writing these words to give them a standing ovation.

I listened to a recent podcast where a ultrarunner Dean Karnazes talked (among other things) about how he writes books while he is running using the voice memos app that I am working on right now. He records notes and comes back and transcribes them when he is done with his run. This lets him be out and about and get work done at the same time.

I want to give this a shot. I think it’s important not to see work as modal but as something that can be done from virtually anyplace. I don’t know about writing briefs while running because the reference materials won’t be there (running while accessing LexisNexis may be a bridge too far). But a good bit of writing work could be done while on the go. I think one thing that keeps me from getting more done and which puts me in a place where I fill “dead time” by scrolling mindlessly through various feeds on my phone is that I wait for ideal circumstances before I try to get work done.

I cannot always be in an office nor do I want to be there; but, sometimes I won’t sit down and crank out work because I’m waiting to be in an office. And I think this was a very important podcast. Karnazes is interviewed by Rich Roll. He cannot imagine writing in any other form than at a desk in a traditional way. But he uses a standup desk and takes frequent breaks for HIIT workouts.

I’m new to the podcast interviewer and guest. But I want to check out books by both. I’m hopeful that the books are good (both authors have written bestsellers). If so, I will have more faith in the notion of working by dictation to oneself during a walk or run.

One of the better components of using the voice memos application on iOS (voice memos is a stock application that is built into the ipad and iphone. I’m sure Android must have something similar) is that you can now stop a recording, come back, and resume where you left off. Voice memos never had that before. When you pressed stop, there was no way to add to the project.

In a pinch, you could probably even record a podcast using the voice memos app. The sound quality would not be the best. But it has the advantage of letting you do a project that might otherwise be left undone. The voice memos app is a fine way to get a good bit of work done.

At first blush, I wondered “how can I outsource the transcription?” But I was asking the wrong question. The point is that you’re writing your first draft while hiking, running, running errands, or being stuck in a waiting room or long court calendar. The transcription is the second draft. It also seems to me that this form of getting work done also cuts down on the excuses in reverse. Just as you can write and run, you cannot use work as an excuse to sit around at your desk while you neglect your physical fitness.

My takeaway is that “work” and “the office” need not be a modal concept. “The office” is a mindset. “Work” is something that you do; it is only as place specific as you make it. The office is not merely a place that you go. I’m not saying that you must be on duty 24/7 or that you can never be in the office. But perhaps these things could be more fluid than we often see them. Maybe the office is the place you go because because you can only get few sets of specific things done there. Maybe it’s the place where the second draft gets written. The office is likely in your briefcase.

The Iliad and the Odyssey existed for generations as a completely oral work. Paradise Lost was dictated to a secretary. And Jimmy Carter’s presidential memoirs were largely dictated while he was in office. He wrote, in 2015, “One decision I made before leaving Washington was to write a memoir of my presidential years. I examined the voluminous diary notes I had dictated in the Oval Office and found that they comprised twenty-one volumes and more than a million words. I spent my first year reading them and writing about the most significant events. The resulting book, Keeping Faith, was a best seller.” While in The White House, Carter ran five to seven miles a day on weekdays and ten miles a day on Saturdays and Sundays. He ran with a military aid “who provided constant communication access between ma and agencies of the government and the outside world.”

Not only can you write some pleadings, letters, and emails while running, you can run a nation while you do so. I am going to give the non-modal approach a try.

The best way to find the typos in a document is to file it or turn it in. When you take a look at it a few minutes later, they will stand out in a way that they had not previously — no matter how much time you spent reviewing your work before. I have a few theories on what is going on here. For one, your brain is anxious to get this all over with. Also, as your eyes scan the page your brain hears the words that you intended to write. Your brain takes the words on the page and filters out the typos. Your brain does not generally do this for the work of other people. Keep in mind perfect writing does not exist; rather, writing reaches a point that it is ready to file, publish, or post. There are some things you can do that make sure your writing is ready for prime time.

You should render it into an audio form to hear the words in some voice other than the one inside your brain. The least perfect version of this is your external voice. Take the time to read your words out loud and slowly. It is much easier for the typos and strange little grammatical quirks to stand out in audio form. By going slowly your brain is less likely to filter out the problems. The second best way to render your words into audio form is to use voice reading. Apple’s pages has a feature that will read the words aloud. Also, for Apple folks there is an app called voice dream that will let you input words and read them to you aloud. You can then read along and make edits as you go. The best possible way to render your work to audio form is to give your writing to another person to read aloud do you as you follow along with your eyes. In this sense, you have two proofreaders. And you are hearing your words read in a voice completely distinct from your internal one. 

Another potential proofreading step is to take the document save it in its most final form. Block and copy your text into a new document. Then change the font to something radically different than the one you wrote in. Then proof that version. The new font will make the work look less like your own. And the problems will be easier to see. 

Finally, if publishing, posting, filing, or turning in your writing is the step that makes the typos easier to spot, then you can create a fake publication step. This may take the form of turning the document into a pdf or html and putting it before a person or group of people whose opinion matters to you After you’ve “published” the work, take about a day and go back to it. This step will simulate publication. It will be the equivalent of a dress rehearsal for the moment of publication. 

Rendering your writing into a foreign form — from written to audio; from one font to another; from your work to a “published” work — will help you spot the typos before it goes out and will ensure that your writing does go prime time until it is ready for prime time. 

The Pomodoro Technique has helped me to write briefs, prepare for trials, and stop procrastinating. It has also assisted me in getting more done over less time than it would ordinarily take. There’s a whole set of books and culture around it, but the method is easy to explain. Set a timer for twenty-five minutes. Work without allowing yourself any kind of interruption for that period of time. At the end of that block of time, you have earned a pomodoro (a tangible sign that you’ve completed a block of work). Take a five-minute break. Then reset the clock for another twenty-five minutes. Once you have four pomodoros, take a twenty-five minute break restart the entire process. On days when I don’t have court, my goal is to do eight to ten pomodoros. By the way, the technique was named by Francesco Cirillo, the guy who came up with I’d. Pomodoro is Italian for tomato, and apparently the timer he used was a kitchen timer shaped like a tomato. Hence, the Pomodoro technique. Here’s how the technique has helped.

* It forces you to go distraction-free for a period of time. A feature of The Pomodoro Technique is that you don’t get the pomodoro if you are interrupted by anything other than the task at hand during that period of time. You’re literally to reset the clock to twenty-five minutes. When you’re in a pomodoro, you’re ruthless and all out. Twenty-five distraction-free minutes is better than an hour of sort of doing work, while you check email, respond to texts, and take a peek at twitter. 

* The work compounds over time. The gathering of pomodoros allows you build momentum. By the time you stand up for your long break, you have done 100 minutes of work. And while your brain sees the four tomatoes you’ve earned, your brain also has accumulated the product of 100 hours of work. Another session of four, it’s eight pomodoros and 200 hours of work. Here is a sad commentary on what it was like for me before I employed this method. I would spend an entire day and and have little to show for my efforts aside from a bunch of outgoing email. Just doing four pomodoros was a huge increase in my daily output.

* A side benefit is that the time is tracked. If you keep a written log of your results, you can look back over time and see exactly what you worked on. Even if you write down what you did in a line or two, you can use this technique to built a work journal.

* It gets you working. It can be depressing and overwhelming to imagine the prospect of writing an entire brief, a paper, or preparing some big project. But you can easily wrap your head around the idea of doing twenty five minutes of work. There’s a sort of working inertia here. Your body at rest wants to stay at rest. And you’ll find, at the end of 25 minutes, if you’re on a roll, that a body in motion wants to stay in motion. So, you’ll sometimes not want to stop when the bell rings twenty-five minutes. And it’s easy to jump-start after a short break.

* You trick the brain. The brain can’t wrap itself around the idea of some big nebulous thing like “write the report,” or “get some work done.” Your brain can also have trouble with things like “complete a paragraph.” But “grab a tomato” is simple and tangible for the brain to see and accomplish

* You’re moving from goal-oriented thinking to systems thinking. Yes, you may be working toward the completion of a particular project. Yes, you may have a particular outcome in mind when you sit down to write. But the Pomodoro technique is a system. If you tell yourself that you will show up each day and complete 250 minutes (or whatever number you choose) of work, then you have committed to a particular set of behaviors — not to the achievement of a particular goal. Goals aren’t particularly helpful. At the beginning of every football season, every coach has the goal of winning a championship. But not every coach has a winning system. Many people set goals on December 31 for the new year. But almost nobody installs a system. The Pomodoro technique or any other process you might put into place provides a way to accomplish things, no matter what those things may be. It professionalizes a way of work. And while it’s not goal-oriented, goals have a prominent place. And you will find that somehow goals are achieved better when you do more than merely have them.

To anticipate a question, there is nothing magical about twenty-five minutes. You can experiment with the format all you like. You can completely overhaul it if you like. However, for me, this process has been a tangible and effective way to avoid procrastination, block out distractions, and move the ball down the field every single day that I do it. 

This post is part of a series on legal writing. I suspect that what follows in the next few days will be contrarian and controversial.

People aren’t logical. The ones of us who think we are logical are most susceptible to an emotional appeal. If we were swayed by logic, then political and theological opinions would change over the course of Thanksgiving dinner around America, home shopping networks would not be a thing, and Facebook would be the home of polite discourse. 

I practice appellate law with a small dose of trial law. What that means is that I craft arguments aimed for judges. When I do trials, I craft arguments for juries. I think in terms of arguments for the reader’s eye versus the reader’s ear. We appellate lawyers can be full of ourselves. Ours is highbrow work. We think we appeal to the mind. The trial lawyers are the ones who make the emotional pitch. Judges don’t help matters much. They go around speaking to continuing legal education seminars and civic clubs. They say in their speeches that they are like umpires. They call balls and strikes. They are impartial. Justice is blind. 

And yet the better story wins all of the time. The lawyer who crafts the better story from the facts wins the case. Here’s the other little secret. Legal briefs are a collection of stories. When we cite a case, we are telling the court a story about how their court or a higher court dealt with a person who was just like our client or just like our opponent. We even tell a story about that story. The concept of legal precedent is basically this: a person came before this court who had something happen to him. And you cut him a break. Today, the same thing happened to us. The fair thing to do would be to cut us that same break. The opposite can also be the pitch. There was this one other time where you guys refused to cut someone a break. But our story is different. And because of that difference, please cut us a break. 

It all boils down to a set of stories. And we ignore this state of events at our peril. I know it all works like this, and it all surprises me. When I receive an opinion I’m often shocked — sometimes I’m shocked that I won. When I’m surprised by a win, 100% of the time I wrote a brief that told a compelling story. And when I am shocked by a loss it’s because I thought the law was completely on my side. But the other side had a better story. 

Stories fill a basic need. There is food, air, and water. And there are stories. Your favorite ride at Disney tells a story. The safety briefing on the plane you take to Disney tells you a story. There’s even moral to it — secure your breathing mask before Gish try to help others with theirs. When we are little, we want to be told stories before we go to bed. We buy stories at theaters, from bookstores, and from stream services. 

Your writing, no matter what it is, involves a story. Your term paper tells a story. So does the sign on the break room’s refrigerator at the office that implores people to take their old Tupperware containers out by Friday or they will be thrown away. It is a story of mold. And smells. And limited space. And basic courtesy. It may also be a story of condescension and control.  But there is a story behind all such signs. 

No matter what you are writing, your reader is not logical. And your reader is not logical because your reader is human. 

And yet there is a place for logic and reason. Reason follows emotion. Reason is the second punch in a one-two combination. Your story, if it is compelling gives the reader a desire to do what you are asking (Free the client. Fasten the seatbelt. Buy the deodorant. Take your smelly old lunch home from the breakroom). Logic gives the reader the tools to do the thing you’ve made them desire. Stories trump, but do not replace, logic. If nothing else, logic gives the reader cover that they aren’t being impulsive. 

But make no mistake, the walls of the house are built of logic. But the foundation is built of story. If you want to write well, get good at stories. 

This post is part of a series on legal writing. I suspect that what follows in the next few days will be contrarian and controversial.

People are not logical. And there is an inverse relationship between how emotion-driven you are and how logical you perceive yourself to be. Trust me on this one. Or close this essay right now, go out and find yourself a copy of anything by Robert Cialdini, or Amos Tversky and Daniel Kahneman. Then come back. Your audience, whether that audience is your uncle at the Thanksgiving dinner table, a judge reading a brief, or a jury of your client’s peers. I’ll illustrate what I mean with a little story about the best continuing legal education seminar I ever heard. 

The Friday before I was to begin a horrific child abuse case, I had the good fortune to hear a CLE talk on persuasion. My client was accused, along with his girlfriend, of breaking the ribs, fingers, and fingers of a young baby. The case seemed virtually unwinnable. And the client had turned down multiple offers that seemed reasonable to me. I almost didn’t attend the lecture because the venue was far away, and I had the trial coming up.

Using techniques developed by James McComus, the speaker said that winning at trial comes down to understanding the “outcome levers.” An outcome lever is a fact or theme in the case that is so compelling that the case may turn on it. Outcome levers are seldom logical. And even if they are, they likely are bundled with a strong emotional component. At some point, a person asked him how you prepare for trial when you have multiple counts in the indictment that are paired with their own essential elements. Brett’s response was “nobody gives a damn about counts and elements. And, if you’re using this language, you’re playing a losing game.” The good news is that there are only a limited number of themes for outcome levels. And they are generally as follows. 

* Violence. The State generally seizes upon these themes, particularly if the case involves a violent crime. It’s why medical examiners testify. While they may talk in terms of science and anatomy, they function merely as narrators to gruesome pictures. The savvy criminal defense attorneys can use the theme of violence as well. Perhaps they describe the violence that their client suffered at the hands of the victim, bullies from school, or another an abusive parent. Crime shows are popular. Crime documentaries and news shows are all the rage. And that’s because violence is an emotional hook. If you can find it, use it in your writing.

* Sex. Sex is not even a close second to violence as an emotional trigger. The two are co-champion. It’s why the State almost always has a winning hand if they can bring up something sexual about the defense — particularly if the accusation surrounds matters that are sexual in nature. the savvy defense attorney turns sex on the State — perhaps in the form of the sexual motivation of the accuser. Perhaps the main witness was jilted in some way or there is some sexual theme to employ against a co-Defendant, witness, or another villain in the case. 

* Race. Race may sometimes not be an issue. However, if a jury or judge is a different race from the defendant, the accuser, the arresting officer, or one of the lawyers, then race is in your case. Only if literally every participant in a matter is the same race is race not an issue. Ignore this reality at your peril. Grasp this issue and come up with a way to turn it. If you do so, then you will be in possession of a valuable persuasive tool. The 2016 election turned on race. And the 2020 election is being waged on race. The 2024 presidential election will likely turn on race as well. 

* Food. If you want to make your point memorable, try to think of a way to describe food. If you are writing in about travel, make it a point to describe food. If you are writing a work of fiction, try to find a way to go on and on about what your characters are eating. If you are working on a criminal matter, and some of the witnesses, the police officers, or the defendants met up for dinner, even if at a McDonalds, make it a point to be as descriptive as you can about the food. your story will be memorable. 

*Senses. People are way more sensory than logical. Write about what people heated, the way the air smelled, the way it felt to hold objects, the way the food tasted, and the colors of things. A former district attorney in a metropolitan-Atlanta county used to ask witnesses a great question when he was direct examining them. He would say, “paint a picture with words.” To the officer responding to the scene, he would ask some background questions, such as “where were do you work? Who called you? Etc.” But those were all just set-ups to the real question. He would gesture to the jury and he would say “Paint a picture for us with words.” When you are writing, no matter what you are writing, pretend that you are that witness. Paint a picture with words

So, here is what I did to prepare for trial. I took out a single piece of paper. I drew a vertical line down the center of the page (a single page forced me to identify the critical few outcome levers for the case) I wrote down the State’s outcome levers on the left and mine on the right. And I literally shaped everything I planned — jury selection questions, opening statements, questions for cross-examination, questions for my witnesses, motions, and selection of wardrobe for the client — to neutralize their outcome levers and emphasize my own. I de-emphasized pretty much everything else, even the law, to maximize impact on the emotional levers.

I knew that the state would come strong with violence and would try to play upon the natural parenting instinct of jurors. Which was fine because my client — the child’s father — was in his late teens when the child was born. And the mother — my child’s girlfriend — was in her forties when the child was born. I could deflect the violence theme onto her by playing on another outcome lever. And that outcome lever was sex. As far as the parenting theme went, I could talk about my client’s mother’s abandonment of him and now his girlfriend had played upon that for her own prurient purposes. I countered violence with sex. And I did so at every turn. Literally, I let the law take care of itself. I focused on the critical few outcome levers. 

And it worked. The jury convicted my co-Defendant on all counts and acquitted mine on all counts. He is now free and building a better life for himself.

Your term paper, work memo, a legal brief, speech to the city council about the need for a red light at a dangerous intersection, or a love letter is not a criminal jury trial. But if you pull out a sheet of paper you won’t have to look far to find some outcome levers — those things that, by themselves, will help you achieve whatever goal you are hoping to achieve with your writing. 

Let the logic take care of itself. Lead with emotion. Follow with logic. People, including me and you, are not logical. If you know this fact, your writing — particularly your persuasive writing — will be infused with a sort of superpower.