In a recent ad, incumber Senator Kelly Loeffler has attacked challenger Doug Collins for purportedly being a criminal defense attorney, having a website that advertised for clients, and for accepting appointed cases. Her campaign website posted a list of Georgia sheriffs who condemned Collins for his “criminal defense history.”

Sen. Loeffler presumably had the assistance of criminal defense counsel when the FBI investigated her for insider trading last Spring. Senator Burr, who was also investigated in that probe, employed a criminal defense attorney, who (like Collins), has a website. It appears that it would have been acceptable for Collins to represent the criminally accused in white collar matters. Perhaps the challenger’s sin was that he represented poor people.

The Loeffler campaign also does not take exception to how her challenger honed those criminal defense skills for use in defense of his highest profile criminal defense client ever. Looking at the Loeffler ad, I can see one interesting pattern in the sort of client she takes issue with — given that she has no issue with white collar criminal work or work involving the defense of “high crimes and misdemeanors.”

My criminal defense colleagues have taken to social media to point out the many issues with this ad, noting that John Adams was a criminal defense attorney and that our system is based on strong adversaries on both sides of criminal cases. Alas, I would imagine that this ad worked well in focus groups. And the target market for this ad has neither the capacity to appreciate the flaws in the message nor a clue who John Adams was.

Beginning on August 1, a single dissent in a three-judge Court of Appeals case will no longer remove its value as precedent for future cases, nor will one judge’s disagreement with the reasoning of the case. Here is the text of new Court of Appeals rule 33.2:

If an appeal is decided by a division of this Court or by the Court sitting en banc, a published opinion in which a majority of the judges fully concur in the rationale and judgment of the decision is binding precedent.

According to Chief Judge McFadden, “This rule change brings the Court of Appeals of Georgia in line with other federal and state intermediate appellate courts throughout the country. It will further our role in building and maintaining a clear and a consistent body of case law throughout the state.”

The new rule does not reverse a historic trend; rather, its reverses rule that had been in effect for just a few years when the legislature gave the Court the power to set its own rule regarding the establishment of precedent.

I do not think that the rule will effect any lawyer’s win/loss rate (though I will note that many of my wins have been with a concurring vote or a dissent), I think the rule change is good for two reasons.

  1. Most intermediate appellate courts do not require unanimity for cases to set precedent. Our court should function the way federal circuit court and the similar state courts around the nation.
  2. The close cases are the ones where we need precedent the most. Generally, when a panel is in complete agreement, the case is not close or is setting forth established law.

While some may be concerned with quality control with a case that is as busy as Georgia’s intermediate appellate court, the Court has the ability to issue non-published opinions to avoid a turn of phrase creating inadvertent precedent in a case that the panel saw as a restatement of established law.

One final note, the rule is not retroactive. So 2-1s and JO opinions from the past will not become precedent on August 1.

If you have practiced law for any time in Georgia, you have walked by Confederate monuments. The smaller and more remote the jurisdiction, the greater the likelihood that you walked beneath the shadow of a Confederate soldier, general, or political figure on your walk to court. Recently, the county commission in Henry County, Georgia, voted 4-1 to remove the Confederate monument on the square. This one is steps from my office. It is slated to come down within 60 days. Leon Stafford, of the Atlanta Journal, writes, “[a] Confederate monument in McDonough’s square will be removed in the next 60 days, the latest shrine to the Confederacy to be taken down in metro Atlanta.”

When Confederate monuments started coming down a few weeks ago, I walked to the square for a closer look. For years, it had existed beneath the level of consciousness. The granite soldier has stood impassive as I paced the square while waiting for a verdict. Somehow he was there for years without me looking at him that closely. What I notice (or what I believe I notice) about this soldier is that he appears to be low ranking. He holds a single rifle, boots, hat, and sack. His is not a dress uniform. He bears no sword. He appears to be infantry. I don’t know much else. I don’t know if he is the likeness of a particular person or is something of an everyman. When I went to check him out, I imagined him as a conscript. I noticed something else. There had been an attempt to recast the setting of this monument as part of a larger war memorial. Today, he is surrounded by various flags of the military branches. Before recent events, there had been an attempt to render the statue less a “shrine to the Confederacy” than as a war memorial more generally. To be sure, the Confederate soldier dominates the scene, and he is now surrounded by the flag of the nation against whom he took up arms. But I noticed the effort, such as it was.

In light of recent events, I turned to Shelby Foote’s Civil War series (Foote has also been criticized. I’m well aware). I used my monthly Audible credit to download volume one of that series. Volume One alone is 38 hours long — so, I am in it now for the long haul. In volume one, Foote describes the build-up to the war. In 1856, Senator Charles Sumner, an avid abolitionist, was beaten and nearly killed on the Senate floor by Preston Brooks of South Carolina who used a cane as his weapon. He suffered no consequence for the action. Afterward, he was sent additional canes as a gift. Following the election of Lincoln, states began seceding one-by-one. Foote gives a lengthy treatment to Senator and soon-to-be Confederate President Jefferson Davis’s speech announcing his resignation from the Senate. The Republican Party, then the party of Lincoln, was new on the scene. There was party upheaval and splintering in the election of 1860. The result of that election was the catalyst for succession.

The War wasn’t fought between Senators or even generals though. Over 750,000 died in the war. An interesting piece of data — 500,000 foreign-born soldiers served in the Union army. The Civil War was considered the first modern war but fought with the tactics of a bygone age. Many of the bloodiest battles consisted at men being hurled against artillery fire. The numbers were brutal. In the Battle of Shiloh, 23,000 were killed in two days of fighting — a single battle in the Western theater. Those who did the bulk of the dying on their respective sides had much common with one another. The stark differences in philosophy, views on slavery, and economic interest were to be drawn between those in charge. There were two conscription acts by the Confederacy. As an aside, North Georgians did not uniformly want to secede. But sitting it out, particularly in the South, was not an option. Near my home, there is a Confederate graveyard where the markers are small, rectangular, and uniform. If you are from the South, you have no doubt seen such a place. Generally, the generals — the kind of people depicted on Stone Mountain — are not buried there. The poor often die fighting the battles of the powerful. That much has not changed.

Most of the confederate monuments were built in the 20th century as part of what is known as the lost cause movement. They were built in reaction to anniversary dates of the civil war and often in response to efforts to further civil rights. And the impetus was generally aimed at mythologizing and rallying together around a common (most certainly racial) identity in the face of possible discomforting social change.

Now the Confederate statue I’ve walked by thousands of times is slated for removal. And I have thought on what it is like to live in this particular time. I have also tried to imagine what it would have been like then. I look and see some parallels — the breakdown of civil debate in the Senate, two sets of people stuck in their own narrative with little concept of nuance, and a political divide that resulted in hundreds of thousands of deaths (ours by a pandemic theirs in a brutal war of a different sort). Those dynamics were at play in the lead up to the Civil War, combined with the unraveling of party politics. And The Lost Cause movement was an attempt by those in power in Southern States to recast truth as they knew it. To use a phrase coined by a White House Official, the movement that led to the construction of Confederate memorials was all about the casting of “alternate facts.” The more things change, the more they stay the same.

To see into the build up to The Civil War and in the events that preceded the construction of monuments is to peer into the mirror. And, alas, I see the teachable moment being lost on those around me. Monuments do not seem to be the only things going away. Alongside this movement, perhaps even within it, I see the very forces at play that led to the monuments themselves.

“The past is never dead. It’s not even past,” said William Faulkner. We do not escape it and are perhaps never more wed to it than when it is beneath the level of our consciousness. When the day comes that the monuments are no more, what will wake us to the way we are acting? When we are freed from walking by the monument on the way to the courthouse, will we have the discipline to understand the history that led to what awaits us when we are inside the building? What does our present look like when we have taken down the reminders of our not-so-pleasant past?

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.