November 2010

voter.jpgIf you haven’t already done so, please vote in today’s election. Polls close at 7:00 p.m. this evening. I voted at 8:00 a.m. this morning, and the woman at my precinct told me that I was only the fifth voter to darken their doors. This is a very important election, and much is at stake. If you are a lawyer, then you know why this election is important. If you have less experience in Georgia Courts, let me tell you a little more about why this election is important.

  • Our appellate courts make decision on individual cases that shape the way future cases are decided. Most decisions that come out of our Supreme Court and Court of Appeals become the law in terms of how we interpret our the United States Constitution, Georgia Constitution and Georgia statute. Though the governor’s office and the legistlature get the bulk of the attention, much power is placed in the hands of our appellate judges. An individual appellate judge is arguably more powerful than an individual state senator.
  • The Supreme Court is ultimately responsible for regulating attorney discipline in the State of Georgia. The Georgia bar is self-regulated, but decisions on how or whether to discipline lawyers are left in the hands of the justices on the Supreme Court, with the hard work and assistance of lawyers who work for the State Bar of Georgia. It is important to put the best person for the job in that office.
  • Finally, though many people will never end up in court, I meet with many moms, dads, uncles, brothers, spouses, sons, and daughters who are good “regular people.” They come to me because they have found themselves supporting a loved one who has been convicted of a crime or who has some other type of matter pending before our appellate courts. If you get sick and require the assistance of a specialist in the medical field, you have some choice in your doctor. When you appear in front of a judge, the moment to choose has already passed.
  • “The people get the government they deserve.” Alexis de Tocqueville is credited with saying it, but he more likely source is Joseph de Maistre. It rings true.

I’ve shared with you in previous blogs my choice for the Court of Appeals and Supreme Court. I’ve also shared resources with you where you can read up on the candidates. Even if you think my choices are way off base and you are going to vote the other way, please vote today. This election is just as important as any other election. And these offices deserve the involvement of the people.

McFadden 006.jpgI recently wrote about my decision to vote for Justice Nahmias over challenger Tammy Lynn Adkins. That post was picked up by Aly Palmer on the ATL Law Blog, the blog of the Fulton Daily Report. The post has generated thoughtful emails to me about the election. I hope that you’ll research the candidates yourselves and make the choice you believe is best for the Georgia Supreme Court bench. For what it’s worth, I’ve always valued competence over philosophy in judges. I’m not a big John Roberts fan, but I thought that he was well-qualified to be an Associate Justice for the United States Supreme Court and now Chief Justice of the United States. And Senator Lindsey Graham’s stock went way up in my book when he broke from the Republican ranks and voted to confirm Elena Kagan to to an Associate Justice of the United States Supreme Court.

Anyway, I tried to research some more about Ms. Adkins after some emailers suggested I had been hasty. I’m still in the dark about her. This voters’s guide is a good example of what I’m talking about. 

Enough about that race. Over at the Court of Appeals, there is a great deal of information about Chris McFadden and his opponent, Toni Davis. Both have run campaigns intended to inform Georgia voters about the importance of the Court of Appeals and their respective positions. Both have experience in the appellate courts.

I’m casting my ballot for Chris McFadden for several reasons. One, he is a lifelong student of our appellate courts and an experienced appellate practitioner. He will bring a lifetime of experience and a wealth of knowledge to the Court. He’s the author of the hornbook on Georgia appellate practice. His book sits on my desk, in arm’s reach at all times. It’s dog-eared, highlighted, tabbed, and heavily annotated. He’s the founder of the appellate practice section of the State Bar of Georgia and is active in that organization. He’s also worked hard as a candidate and will work hard as a judge. I also consider him a friend.

So, please research the candidates and vote. Also, take the time today to inform your friends that the upcoming election is important. Tell them what you know about the candidates, and encourage informed voting for these very important offices. Help them by guiding them to some places where they can learn about courts and the candidates.

victory.JPGI’m not just posting about Ling v. Georgia (PDF) because I’m her criminal appeals lawyer. Although it is pretty nice to have lost a motion for new trial and an appeal to the Georgia Court of Appeal and ultimely win in the Supreme Court on cert. while helping to secure a new substantive new substantive Constitutional right along the way. I think I’d be posting about this case even if I weren’t Mrs. Ling’s lawyer.

Yesterday, the Supreme Court of Georgia reversed the Georgia Court of Appeals and found that a criminal defendant has a Constitutional right to an interpreter. The Court also found that courts, when faced with an issue of whether an interpreter is needed, must make an explicit finding on the record on the issue.

The Court also rejected the notion that a trial attorney can unilaterally decide to forego an interpreter based upon a claim of trial strategy because a decision like that renders the client absent from her own trial.

The decision has gotten well-deserved coverage since yesterday. CNN posted an article on its Justice page. Kate Brumback posted a story on AP yesterday. CBS has a report of it as well.

It was a hard-fought victory. And I hope that the precedent assists other similarly-situated defendants in future cases.

If you’re interested in how we got here, my oral argument is available for viewing.

 

share communicate.jpgYesterday, I was honored to be the guest of the State Bar of Georgia General Counsel’s office for their in-office CLE. The Office of the General Counsel is the group at the State Bar of Georgia who, among other things, that deals with bar complaints and attorney discipline. 

I was one of two speakers for this group yesterday. I was there to provide an overview of how criminal appeals work in the State of Georgia from conviction to direct appeal and to the State habeas process. The other speaker was Brian Mendelsohn, with the Federal Defender Program for the Northern District of Georgia. Brian talked about the Federal process.

Brian was great. The audience was great. Brian and I both got off of our prepared remarks and truly dialogued around the conference table.

It turns out that all Federal appeals have the same key events in the life of a case where the attorney-client relationship can go sour. State appeals in Georgia have their own key moments. In the Federal system, it all boils down to whether to take on an appeal waiver as part of a plea agreement or to plea without such a waiver. Conflicts also center around choosing when to object to information contained in a pre-sentence report.

In the State system, the three main areas where the attorney and client may find themselves at odds with one another include which issues to raise on appeal (particularly whether to assert an ineffective assistance of counsel claim), delays in getting the transcript from the court reporter, and the client’s desire to get his own copy of the transcript so that he can “help” with the appeal.

Beyond these key substantive things, there was one common theme that resounded in our presentation and our discussion with the group: communication is key. Even if the choice of issues is ultimately yours, it is important to explain as much as you can why you are doing what you are doing.

Even if communication involves relaying information that is not particularly earth shattering, it is important to communicate. For instance, “I don’t have the transcript yet” is news though it feels like it isn’t news. Making the client understand the process and the progress of his case is important even if the process is at a stand-still and there has been no progress.

So, thanks Brian and thanks State Bar General Counsel’s Office for the opportunity to share our thoughts on the criminal appeals process in the Federal and Georgia State system and how best to serve the clients who find themselves within that process.

David_Nahmias.jpgJustice David Nahmias is picking up endorsement from both sides of the political aisle. Bill Rankin, at the Atlanta Journal-Constitution reports that Gov.-elect Nathan Deal and Mayor Shirley Franklin have pledged their support to Justice Nahmias. Mr. Rankin also reports that Republican Attorney General-elect Sam Olens and Ken Hodges, the recently defeated Democratic nominee for that race have also endorsed Justice Nahmias. He has also been endorsed by 48 lawmakers and 11 past presidents of the State Bar of Georgia.

Justice Nahmias is in a race with Tamela Adkins after he captured 48% of the popular vote in the general election. Ms. Adkins did not run a campaign but changed the way her name appeared on the ballot to read Tammy Lynn Adkins.

Justice Nahmias is a former clerk for Justice Antonin Scalia and the former United States Attorney for the Northern District of Georgia. Ms. Adkins is a divorce lawyer in Lawrenceville, Georgia. She has never argued a case before the Supreme Court of Georgia.

So, now to the part of this blog that might cost me some “street cred.” with the Georgia criminal defense bar. I’ll vote for Justice Nahmias in this election. I’m not a big fan of his judicial philosophy in criminal cases and I have disagreed with his opinions. But I recognize that he is qualified to be a justice on Georgia’s highest court. I have argued a handful of cases before the Court since Justice Nahmias took office, and I enjoy his level of engagement in cases at oral argument. His opinions are reasoned and thoughtful, even the ones where he has ruled against me.

I don’t have much experience with Ms. Adkins. I recently heard her give a campaign speech at the Fall Seminar of the Georgia Association of Criminal Defense Lawyers Fall seminar. I did not get a sense from that speech of what she would bring to the Court. I’m not entirely sure that in the brief time I heard her speak that I was able to get a sense of her qualifications to write scholarly legal opinions and engage advocates in the weighty issues that come before the Court. My sense is that she’d have to learn a great deal about the appellate process very quickly while on the job. She didn’t seem to have any theme behind her campaign except that she’s not Justice Nahmias. She even referenced herself as “Tammy Lynn Anyone But Nahmias Adkins”

With the exception of one person, everybody in the world isn’t Justice Nahmias. But everybody in the world shouldn’t have his job. So, maybe I score one in her column for judicial philosophy (though she never really said what hers was if she’s developed one).

Though I and others might wish that there was a credible alternative to Justice Nahmias in terms of philosophy, I cannot ignore the element of qualifications, experience, and background to perform the job at a high level. Perhaps in another election season I’ll vote differently if I had to choose whether to re-elect Justice Nahmias. But this year is not that year.

 

typeface.jpgDesign is an important part of brief writing. And the font and layout you choose will have an impact on how the Court receives your brief. It certainly shapes how I feel about writing the brief and submitting it. I cannot see the Courier New Font without thinking of the research, writing, and advocacy in my first year of law school. The font feels scary and oppressive and conjures up images of red ink and biting comments written in the margins. 

The people who read your briefs at the courts where you submit them are likely reading a stack of briefs that look pretty much like yours. “Oh look,” the staff attorney might be saying, “another brief in Times New Roman 14. Awesome.”

I’m guilty of going with the good old default font a good bit of the time, but I am learning to do things differently. 

Two of my favorite legal blogs have featured posts on this very topic. Over at Simple Justice, Scott Greenfield features a review of Matthew Buttrick’s Typography for Lawyers. I haven’t ordered it yet, but I likely will. One great tip that I read elsewhere is to eliminate the double space at the end of sentences. I’ve been doing that since my tenth-grade typing teacher told me to do it. I stopped after reading somewhere else that I should. That extra space is not necessary, it turns out. In fact, as I review Mr. Butterick’s book for this post, I think I’m about to order it. You probably will too if you check out the sample chapters (PDF) from his website. 

My other favorite blogger, Kendall Gray, has been writing about layout and typography at his blog, the Appellate Record.  He has written a three-part series about page layout. Part one introduces his general idea of how a brief should look. Part two focuses on the concept of proximity. His third post deals with justification (no, I have not lapsed into theological discourse. I’m talking about how the text should be aligned).

By no means do I suggest that the document’s appearance is a substitute for its substantive content. Rather, designing the brief into a document that the reader wants to read, a document that does not appear just like the other briefs the clerk is reading in that big stack, and that looks better than the one the DA is submitting, is important.

I’ve just scratched the surface on the design element. And I look forward to learning more about it. All they taught me in law school was the importance of the ugly Courier font and something mechanical about a rule proof. It does’t mean that you won’t lose to bad writing sometimes (that’s what representing the appellant in criminal cases is like sometimes). It just means that the close case might just go your way more often than it does right now.

boxing gloves.jpgThe new advisory opinion (PDF Page 92) for the handling of conflict cases for the Georgia Public Defender Standards Council was the talk of the recent Fall Seminar (PDF) for the Georgia Association of Criminal Defense Lawyers. This issue has been divisive among the criminal defense bar. GACDL has not weighed in as amicus counsel in litigation involving the conflict rule. The conflict rule is a step in the right direction but does not go far enough. And the rule will be ripe for challenge under the Sixth Amendment in future appellate cases. First, a little background on the rule and a discussion of why it’s a step in the right direction. Finally, I’ll discuss why it will probably be an invitation for future Sixth Amendment Ineffective Assistance of Counsel claims because it doesn’t go far enough.

 

The Conflict Rule

The State Bar of Georgia issued a formal advisory opinion holding that a circuit public defender’s office is a “law firm” as defined by Georgia Rule of Professional Conduct 1.10(a). Under that rule, a conflict in representation that would prevent a lawyer from representing co-defendants in a single matter is imputed to other lawyers working in the same firm and is an ethical bar to any lawyer in the firm representing the co-defendant.

To use a legal term of art that can be traced back to the time of Sir William Blackstone: “duh.”

We were quickly developing into a State with two sets of conflict rules: one for rich people and another for the other 90% of the criminal calendar. Case law from the Supreme Court of Georgia was starting to go in the other direction. For instance, in Burns v. State, 638 S.E.2d 299 (2006), the Supreme Court of Georgia declined to adopt a per se rule that lawyers in a single public defender’s office cannot represent multiple defendants in the same matter. The Supreme Court of Georgia found that there was no conflict in the particular case and declined to make any rule. The decision also seemed politically expedient for 2006 when GPDSC was just beginning to financially melt down. The mess got worse. Conflicts were being ignored with impunity when the defendant happened to be poor.

Then, the State Bar of Georgia stepped in and issued the formal advisory opinion (PDF Page 92). The opinion was not well-received by Georgia’s Republic legislative regime. Senator John Wiles, R-Kennesaw supported a proposal to abolish the State Bar of Georgia. The former Bar President then sent an email to the Georgia Bar’s Board of Governors asking them to oppose his candidacy. He lost in the Republican Primary.

Quoting Blackstone again: bwa ha ha ha ha

 

So, Here’s the Sixth Amendment Problem

The State Bar has held that a public defender in one office can represent conflict clients in another circuit public defender’s office. And that is the route GPDSC has chosen. Think of the levels of Sixth Amendment problems and how, to quote Mr. Blackstone, “whacked out” this system is

  1. GPDSC is a single statewide law firm governed by approximately 40 managing partners, directed by a council of senior partners, and a centralized chief partner. If it isn’t, then why can’t I open an office in another Georgia county and use that office to split co-defendants with the guy I allow to “run” that office? More profit for me, right?
  2. How can assistant public defenders possibly manage a caseload that is already too high plus a load of conflict cases from neighboring counties?
  3. What about direct appeals? A big cause of conflicts is a claim of ineffective assistance of counsel by a convicted defendant. So, under the new system, trial attorneys will likely mix busy trial practices and an appellate practice (handling most of every calendar in an assigned courtroom plus running an appellate practice). It’s an invitation to ineffective assistance of appellate counsel
  4. The resource problem remains. In the Advisory Opinion, the Bar notes that part of why you should impute a conflict within a circuit defender’s officer is that a single supervisor might have an incentive to manipulate resources to move the cases. (“oh, your guy won’t claim the dope in the car. Well, let me show you your new office, back there by the copier.”) And there would be a tendency to compete for investigative resources. So, now imagine the conflict defender walking into a foreign office and trying to ask the local Public Defender to devote resources for this interloper or the APD’s own supervisor to allocate resources for the foreign office when he goes to another county to do a conflict case.

So, habeas counsel, get ready to start raising new IAC claims. And yes, conflict issues are in 6th Amendment territory. For more on that idea, check out Holloway v. Arkansas, 435 U.S. 475 (1978).

As I mentioned in a previous post, there are two run-offs for Georgia appellate seats — one for the Georgia Court of Appeals and one for the Supreme Court of Georgia. According to the Atlanta Law Blog, the Blog for the Fulton Daily Report, there are many judicial seats that will be decided by a run-off. Of course, the Daily Report’s audience consists of the Georgia legal community, and not much explanation is necessary there for what the courts do or what’s at stake in those elections. The readership knows the offices and the players involved.

The more interesting phenomenon is the way the media is covering Georgia Judicial Run-Offs. The Newnan Times Herald ran an editorial suggesting that “More Judges” should be selected by appointment. The editorial does not exactly define which ones should be appointed versus elected. But the article suggests that the Run-off is essentially a nuisance and that most voters know neither the candidates nor the issues

While the possibility of a runoff in the Georgia governor’s race did not materialize, every polling place in our state will have to be open on Nov. 30 for two judicial races because no candidate received a majority of the vote a race for the Georgia Supreme Court and another race for an open seat on the Georgia Court of Appeals. … It will costs our state hundreds of thousands of dollars to hold this election in which few voters will participate. This raises another question: Should these judgeships be appointee positions instead of elective positions?

There are many reasons why judges should be appointed instead of elected. In fact I wrote about some of those reasons in previous post. But I’ve never considered that it’s just too darned expensive to have an election or that it is just plain annoying that such an election will require a run-off.

I suppose that most voters don’t care about judicial offices, particularly appellate courts, because most have never had a case before any of those officers. Of course, as all of my clients can attest, those offices have a way of becoming important when your brother, spouse, or loved one has a case before an appellate court. Yet, many of these officers will hold peoples lives in their hands.

An editorial introducing the candidates and discussing what our appellate courts do might have been an interesting angle instead of the one the editorialist chose.

If the public doesn’t know the issues at stake in the election, to what extent does the Fourth Estate bear some of that blame? According to Justice Nahmias, who is in a run-off, quite a bit. He told an Associated Press reporter

We would have liked to get 30,000 more votes to end it yesterday,” he said. “But it’s a three-candidate nonpartisan race toward the end of a very busy and long ballot, and our race got virtually no media attention. Our hope is that the voters will have a very clear choice after they learn about my experience.”

The ones who show up for the run-off will know about the candidates, we would presume. They may actually be related to the candidates. The other media coverage I read about this Run-off either reports the fact that there will be a run-off, the fact that turnout will be low, or expresses what a nuisance this election is. 

The real problem with elections is the possibility that special interests will use judicial seats to advance a particular political agenda, an agenda that threatens the notion of impartiality. I heard an episode of NPR’s On Point today that discussed these possibilities. It’s also an issue that judges call upon attorneys to donate money to political campaigns. Of course, attorneys are a natural constituency, but the whole business is a little strange, particularly when you will end up before that judge eventually or the other guy if you “bet on the wrong horse.”

The appointment system is little better in Georgia. I have appeared before the Judicial Nominating Committe in Georgia to speak on candidates the Georgia Association of Criminal Defense Lawyers had vetted. I felt like the process was a rubber stamp and that my voice was pretty much like the teacher on Peanuts. The appointment system feels even more political when you’re inside it, particularly in a State like Georgia that seems like it will be a one party state practically forever. 

I just wish so much of the media would inform rather than whine about what a bother these elections are. Too much is at stake to continue the current trend

Gratitude.JPGToday, I received a thank you note from a client whose case I just successfully closed. The case resulted in a negotiated plea to probation. The case had its ups and downs, and the result was quite great. The gratitude was genuine and the praise was effusive. And, as I sit to write this post, I couldn’t quote a single word of it. The note is back at my office, and I am writing this post on my laptop at home. I can remember a negative word from a difficult client spoken weeks ago verbatim. Many of my clients are happy with what I have done for them. Many write thank-you notes or express their gratitude during and after cases, sometimes in spite of the outcome. Yet, the negative minority speak the words that resonate the most. I read two articles lately that speak to the vocal and very small minority of clients whom you cannot please and why things go bad in the first place.

 

Enter Merlin Mann

Merlin Mann’s blog post at his blog, 43 Folders, is written in the form of a parable set in a sandwich shop. In the story, a man enters the restaurant just at the beginning of the lunch rush. A customer comes in who is unwilling to commit to the idea of buying a sandwich. Yet, he wants to talk about sandwiches and what the shop might offer. As he is invited to peruse the menu, he demands a deep discount and attempts to engage the owner in further dialogue. Meanwhile, customers who have come to buy sandwiches become uncomfortable and impatient. Eventually, the man behind the counter decides that he has had enough of trying to deal with the customer and invites him to take a seat until he is ready to order. When things still don’t work out, the customers behind him in line escort him outside. Unlike most parables, this one comes with an explanation:

 

THE MORAL(S)?

The Sandwich Guy can’t do much for you until you’re hungry enough to really want a sandwich.

Once you’re hungry enough, you still have to pay money for the sandwich. This won’t not come up.

Few people become “a good customer” without understanding both 1 and 2.

Few companies become “a smart business” without understanding 1, 2, and 3.

Basing his business on an understanding of 1, 2, 3, 4, and 5 doesn’t make The Sandwich Guy a[n uncaring person]; it makes him a smart business.

He then references a blog on negotiation, which points out: “All […] variables can change except your worth. That can’t change. It’s an undeniable fact beyond subjectivity and beyond the reality-bending rhetoric of your client-to-be. You are worth what you are worth and unless you’re feeling charitable something else has to give.”

 

Application to Lawyers Representing Clients

The initial client meeting between an appellate lawyer and a potential client is not merely a sales call. After all, you will sometimes have a duty to turn the client away. And you are committing a considerable amount of your time and effort to the case that you may take. It’s important that you have a frank conversation about what lies ahead and the resources it will take for you to do the job properly. Maybe somebody else can do the job more cheaply. Maybe someone else has a different sense of worth. But if you sacrifice your worth or let your client’s willingness or ability to pay you substantiall less than the representation is worth, then your decision impacts you, your client, and those who are standing in line behind the client.

Enter Seth Godin

According to him, there are a vocal 2% of your customers who will protest any change you make in your practice or any innovation:

If you have fans or followers or customers, no matter what you do, you’ll annoy or disappoint two percent of them. And you’ll probably hear a lot more from the unhappy 2% than from the delighted 98. It seems as though there are only two ways to deal with this: Stop innovating, just stagnate. Or go ahead and delight the vast majority. Sure, you can try to minimize the cost of change, and you might even get the number to 1%. But if you try to delight everyone, all the time, you’ll just make yourself crazy. Or become boring.

The numbers are probably a little worse for criminal defense. And maybe they are worse still if you work in criminal appellate law. So, it is important to be a great lawyer. And it is also important to know your worth, know what it will take to do the job right, have an honest initial meeting, and serve the sandwiches for those with the means and desire to buy them. It takes hard work and skill to represent somebody well. And it’s harder to clean up another lawyer’s mess than it is to be the original lawyer doing the job right.

Anger.JPGAnger is not a good mix with the practice of law. Yet, law is a profession that puts the practitioner in a position where things could make him angry all the time. Litigation, even appellate litigation, is a business of fighting and arguing. Ideally, it’s done in a very scholarly collegial way. Arguing in real life often involves anger. And unfortunatley it is not always so easy to take off the normal person hat when we put on the lawyer hat. Boundaries can break down if you’re not careful.

And that’s just half the job of a lawyer. You must also manage client expectations and be the lightining rod because you’re the closest representative of the judicial system around when bad news comes, when matters are delayed, and when you are taking a course of action that the client either doesn’t understand or doesn’t quite agree with. Miscommunications sometimes happen. So, there are about a million things that can happen in attorney client relationships that lend themselves to anger.

Then comes the judge. You can’t get angry at the judge. Or, at least you can’t show anger toward the judge. But sometimes it’s tough being told by a person in a robe or panels of judges in robe telling you how wrong you are. Generally, it’s all in a day’s work. But in the real world being told you’re wrong can be an anger-invoking moment. We try to be professional. Most of the time we are. But that sort of things could lend itself to anger in the real world.

Continue Reading The Importance of Managing Anger in the Practice of Law