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. 

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

When I started law school, I thought I was hot stuff. I majored in English in college. I knew a bunch of fancy literary terms as well as the names of French deconstructionist critics. I completed an honors project in English and graduated at the top of my class. To make things worse, I completed a masters program. And I finished up that experience with yet another honors program. I was at the top of my game — or so I thought.

Then I went to law school and attended my legal research and writing class. The teacher had written on the marker board “Bored and Busy.” She explained that these words described the average reader of legal writing. Judges are bored and busy, she said. She advised that we write with this audience in mind. I shrugged my shoulders. My view of judges was from the movies. I thought they were all scholars with robes. I had not yet met any of them.

My first assignment was a memo, written to a fictitious supervising partner in a law firm. The subject was whether a person could recover a judgment for damages in North Carolina for a dog bite while on the job (I’m thinking the plaintiff was a delivery man) for big money in a traditional lawsuit or were damages limited only to what was available in worker’s compensation. How simple was this? I’d written about whether true friendship was better than romantic love. I had even written about the epistemology of writing itself. Dog bites? Worker’s compensation? Please! I turned in the same sort of academic prose that had won acclaim among faculty for years

Then my teacher returned my graded paper. There were more words in red ink on the page than typed words from me. And the words in the margin were kind of mean. The phrase I remember was “pseudo-lawyer mumbo jumbo.” Those words on the board were still there “Bored and Busy.” It took a semester for me to catch on. The reader, just about any reader, is busy. And the reader is bored. When lawyers write to other lawyers, they are looking for an answer to a question. And when lawyers write to judges, they are trying to figure out what do to with some problem.

Nobody cares how big your vocabulary is. Nobody cares what your grades were in school. Also, unless you are auditioning for somebody’s team for trivia night, nobody cares how much you know. I started writing at the sixth-grade level, even if I knew that my audience was learned. Why not write to impress? Because your reader doesn’t have time to be impressed or to parse out what you are saying. The reader is busy. And why not write more to really drive your point home? Because the reader is bored.

Fast forward two years. I went to work as a third-year law student in a busy criminal defense firm. The lawyer I worked for was farming out the legal writing to a former associate of his who had moved to the North Georgia mountains. My boss was quite the trial attorney, but his appellate practice wasn’t doing so well. I read some of the briefs that were getting filed. Those briefs were heavy on Latin phrases and legal inactions, “comes now,” “This Most Honorable Court” and such things were all over the place.

I asked to take a shot at a brief. I wrote at the sixth-grade level. My brief was about half as long as the average that this firm was putting out. My brief led to the reversal of murder conviction. All of that was likely beginner’s luck. But it didn’t hurt that I got to the point and took it easy on the busy and bored reader. This isn’t just a law thing. Anybody you write to — the person reading your article, text, tweet, or post — is bored. And anybody you write to is busy; if they aren’t busy, they perceive themselves as such. When is the last time you asked someone if they are “staying busy” and heard in response, “nah, I’m just hanging around?”

Just to give you some perspective, the Opinion Section of the New York Times is written on the tenth-grade level. ESPN writer Rick Reilly, who is considered a great columnist, consistently writes on the fifth-grade level. Compare that to Tucker Wyatt, a seventh-grader who once wrote for Sports Illustrated for kids. His writing was on the seventh-grade level. Let’s talk authors. Ernest Hemingway — fourth grade. David Foster Wallace — eight. Stephen King — sixth. And Thomas Pynchon — seventh.

When I say grade level, this isn’t about dumbing things down. Don’t condescend to do your reader. Rather, it’s about making your writing readable and relatable, particularly to an audience that is busy and bored. Just don’t tell judges that your briefs are at the sixth-grade level. And if your opponents are writing to impress, be sure to encourage them

There is an important new case that changes the law concerning motions to modify sentence in Georgia. In Gray v. State, a case published on August 26, 2019, the Court of Appeals held that trial courts lose jurisdiction, under O.C.G.A. Section 17-10-1(f), to modify criminal sentences following either 120 days after the remittitur where there was an appeal or one year after sentencing even if the motion to modify is filed sooner than those dates. I will provide some procedural history followed by analysis.

The defendant in Gray was sentenced by Judge A. He timely filed a motion to modify sentence, which was heard eleven months later by Judge B. Judge B granted the modification. Judge A, the original sentencing judge, found out what happened and, sua sponte, entered an order vacating the sentence.

Gray appealed, arguing that the order vacating was void. The Court affirmed, reasoning that the trial court lost jurisdiction to modify its sentence after the expiration of a year and after the end of the term of court in which the sentence was imposed. The Court ends the opinion pointing out nine cases allowing courts to modify sentence where the motions were filed within the statutory time and distinguishing (but not overruling) those cases.

Gray has petitioned to the Georgia Supreme Court for certiorari. The opinion in Gray raises a host of policy concerns. What exactly is the status of the line of cases “distinguished” in the opinion? Also, can a judge simply run out the clock by delaying a ruling on the case? What happens if the case is heard and the time runs out while it is under advisement? Finally, counsel will often advise clients to wait a while before filing motions to modify to let some time pass after sentencing, to allow for good conduct while in prison, for participation in programs, and other post-sentencing mitigation facts to develop. The law, as interpreted in Gray, places defendants in a position to file so soon that there is no opportunity to develop new mitigating evidence. Indeed, the modification statute has traditionally provided an incentive for good conduct after sentencing. Defendants who move to modify shortly after sentencing will be open to accusations of buyer’s remorse or the failure truly to accept responsibility.

This case presents excellent issues for certiorari and may prompt discussion at the Georgia legislature in the upcoming session.

Yesterday, appeared as an expert witness in the United States District Court for the Middle District of Tennessee on a 2255 hearing that involved a question of ineffective assistance of counsel at the plea bargaining stage. Essentially, the question for the Court was whether counsel’s advice led to Federal jury trial that should never have taken place. The Supreme Court held in Lafler a few years ago that there is the right to effective assistance of counsel at the plea bargaining stage — which makes sense. The criminal justice system is a system of pleas more so than a system of trials. This is particularly the case in Federal court where jury trials are rare. In the wake of Padilla and other cases, plea bargaining is a high stakes game with which comes a host of collateral consequences. I don’t make it a practice to comment directly here on the cases in which I am involved. So, I won’t do so here. However, my preparations for court yesterday caused me to reflect on some of the pitfalls criminal defense practitioners fact. And many of those pitfalls come from the curious intersection of criminal law and procedure and the mindset of the criminal defendant. I imagine the issues to involve three C’s — certainty, clarity, and completeness. All of these things sound easy on paper but are nearly impossibly complex in the trenches.

  • Certainty — There was an old joke in law school that all legal questions yield a single answer. And that answer is as follows: “that depends.” All clients and families are caught up in the trauma of the circumstances, even if that trauma is of their own making. And they seek certainty in their most essential questions. These are some but not all of the questions for which certainty is nearly impossible: What are my chances? Can you win this case? How can they go forward against me when they only have her claim about what I did but “no evidence” of my guilt? How long will this case take? Can’t you prove he’s lying? Worst case, what is going to happen to me? Best case, what is going to happen to me? Can you get me out of this? Clients will ask these questions, and you will say “It depends.” You will have a discussion. And a week later you will have the same discussion. They will then rephrase the question MMPI style. And if they don’t like your answer, they will sometimes seek to wear you down until you give a different response that soothes. Of course, you cannot spin reality to shape your words. And the temporary relief you experience from just saying what they want to hear will always revisit you ten-fold in misery when the case reaches its conclusion, particularly if the conclusion is unsatisfactory. “But Mr. Key, you told me ….” Key’s maxim number one: “never ever use the language of certainty when you are in an uncertain landscape.” If you think you’re right about the law and the State is wrong, you can say so. But you must do so with the additional proviso that the judge can and often does rule with the State when the State is wrong.
  • Clarity — But where the law provides clarity, you should so state the law. If a client is charged with two offenses for which the range of punishment is 1-20 years to serve, you should tell the client that he can expect a potential sentence of as little as a single year of probation or as much as 40 years to serve in prison. And you will not know the sentence until it is imposed. If you are taking a plea to ten years to serve in which the client will have parole eligibility, you should tell the client that parole is a matter of grace. You cannot say when or if the client will be paroled and that, in taking a plea to ten to serve he should be prepared for the possibility of serving every day of ten years on prison. Key’s Second Maxim: “where the law offers clarity, you should offer it, particularly where the clear possibility paints the bleakest landscape.” 
  • Completeness — Your advice should be complete and comprehensive. Yes, this seems an obvious point. Yes, this seems like a truism. But keep in mind, Key’s Third Maxim: Never provide legal advice where the environment does not allow for the giving of a complete answer. What do I mean by this? If the answer is better rendered in writing than orally, then do not try to answer without putting the answer in writing. And the answer should just about always be reduced to writing. Do not allow your opponent or the court to box you into a situation where the client has minutes to make a dramatic life-altering decision. Be mindful of the environment in which the question is posed, and be willing to refrain from answering the question until you can enter into the appropriate environment. A text message is virtually never the right environment to discuss a complex client matter. If circumstances allow for anything less than a complete response, then do not attempt a response. And if you have any doubts regarding whether the environment is proper for giving complete advice, then you are likely in the wrong environment.

Plea bargaining is tricky because often the biggest hindrance to you doing an effective job in explaining the plea is the client herself and her mental or emotional status. The client craves positive news and will sometimes push you to be more positive than you can be at the moment or ever. Which leads to Key’s Fourth Maxim: practice as if the glass is half full but advise as if it is half empty. In your preparation, presentations, and negotiations, you should be confident and positive in your abilities and command of the law. Be unstoppable in the courtroom. But in the conference room be candid and maybe even a little pessimistic.