December 2010

256px-Computer_monitor.jpgWith the Georgia Supreme Court, Georgia Court of Appeals, and other courts moving to e-filing, an important question arises. Should appellate lawyers write for the page or for the screen? Much would turn, it seems, on whether workflow within the courts matches the way work flows to the courts. Are the judges and justices reading briefs on their computer screens, or are they printing out the briefs and reading them the way they always have? We can probably assume that there is a mixture of workflow within the court, so you should probably write for both – unless, of course, you know your panel very well and can taylor the layout of your brief accordingly.

The ABA Journal recently posted a blog, written by Debra Cassens Weiss, that probes some of these questions. The ABA Journal’s article links to a couple of other blogs who have considered this question. Martin Siegel, in an article written at Texas Lawyer, discusses the necessity of structuring briefs for the screen rather than the page as more appellate courts require lawyers to e-file. Also, James Levy at the Legal Skills Prof Blog, questions whether much change is necessary if the “audience” is really printing out the briefs.

To throw another curveball at lawyers, some appellate judges are putting briefs into e-book platforms, which may be more like reading on paper than reading on a screen.

What Are Judges Doing With Your E-filed Briefs?

As far as the Georgia appellate bench goes, I am not sure. Generally, it would be safe to assume that the bench is more likely to read your brief in an electronic format now than a year ago. Judge Dillard, recently appointed to the bench, was a prolific blogger while in private practice. And the recent election for seats on the Court of Appeals and Supreme Court featured blogs, Twitter, Facebook and other social media. If we assume that computer savvy translates to a higher likelihood of a paperless workflow, then the judges deciding your case may not read your brief on paper.

It is interesting to see how some judges and justices nationwide are reading briefs. Justice Kagan reads briefs on her Kindle. Justice Scalia reads briefs on his iPad.

Why are jurists switching to a paperless format? Likely, for the same reason I am. I like being able to work anywhere, and it’s not fun to be home only to realize that the file is at the office. Lugging the record and briefs around is not particularly fun either.

Of course, reliance on the iPad or Kindle may mean that you shouldn’t change a thing because the reading experience is much like reading on paper.

 

What Should You Do Differently?

Now, assuming that at least some of your court may never see your brief on paper, what should you do differently.

First, be mindful of the fact that readers generally tend to read on a screen differently than they read on paper. Mr. Siegel writes that online readers:

jump around, skimming and seizing on bits of text. …Eye-tracking studies show they seek content in an F-shaped pattern, looking down the left side for structural cues and then focusing on headings and first sentences of paragraphs. Heaven help the content provider with important text consigned to the bottom right of the screen.

If your audience is going to read on the screen, then it is important to do a couple of things differently. The ABA article cites to research that suggest that lawyers do a few key things:

Put your most important points in headings and the first sentences of paragraph

* Use bullet points

* Quickly get to the point

* Use short paragraphs

* Divide chunks of information into smaller pieces. A great blogger says that “chunks are good”

I would add a few other suggestions. Some fonts work better on the screen than they do on paper. The screen renders them differently, even in the form of a pdf.

The last suggestion is that it may be important to keep online reading patterns in mind even if your audience will read your brief on paper. I have zero research to back this up, but I wonder if the amount of online reading we now do is hard-wiring us to read everything differently. If that is the case, then it may be time to make some changes.

The list of things above actually sounds like good writing advice in general, considering the sheer volume of material that the court must consume and respond to.

And if you are representing the appellant in a criminal case, there is even more reason to rejoice. Prosecutors are way behind the curve in Georgia in moving to e-filing and will take even longer to think about how they should repackage their briefs with the screen in mind. While this may sound way optimistic, it is cool to think that maybe a judge or justice working from home and logging in to the Court’s server might only have access to your brief while the prosecutor, who filed hers on paper, has her brief sitting in a filing cabinet somewhere at the courthouse.

 

Evernote_Icon_256.jpgBeing an appellate lawyer is pretty much the same thing as being a professional writer – with a few notable exceptions. Writer’s block and procrastination are not really an option in the kind of writing I do. The penalty for incurable writer’s block isn’t mere artistic angst. Consequences for writer’s block include a client’s anger, the court’s anger, contempt, fine money, and possibly even jail. When writer’s block is not an option, I like using a great tool to stay on track. Over the past year, I have been using Evernote. Not only does it help my appellate practice. It’s like it was made for an appellate lawyer.

What is Evernote

In short, it’s a place to put stuff, organize stuff, and easily find stuff later. The more you use it, the more it becomes something of an external brain. The CEO of Evernote,Phil Libin, defines it in his quick Evernote elevator pitch.

I’m not the first lawyer who’s written about how awesome it is. Ben Stevens wrote about it on his blog a year ago. The Evernote Blog profiled Andrew Flusche, a Virginia lawyer who uses it in his criminal law practice. Eric Mazzone wrote a few years ago about how he uses Evernote for contact resource management.

I don’t think I have thought up all the ways to optimize it yet. But below are some examples of how I use it for my Georgia criminal appellate practice.

 

First Client Meeting

I have terrible handwriting. And stuff I write on paper tends to find its way far away from where it can be useful to me.  The process of getting retained for appeal is often more involved than getting retained in a trial case. It often takes several phone calls, interviews, and tracking down records just to get a handle on a case’s procedural posture. So, I may gather several documents and take a bunch of notes in a case where I have not technically opened a file. Where to put all of the stuff you accumulate in the getting retained/exploratory phase? There are also other issues that arise after I am retained.

I don’t like paper files for several reasons. One is that I don’t just work at my office. I work at home, in restaurants, in prison attorney booths waiting for guards to locate my client, courthouse conference rooms, jury boxes and holding rooms (not while juries are in them), in various Starbucks locations, and various other places the glamorous life of a sole practitioner/father of three might take me. Appellate files are huge, too.

Evernote is perfect for all of the above. I use it as a simple text editor to take notes during initial interviews, as I call clerks’s offices around Georgia, and as I research where a potential client is being held.

After I am Retained

I use RocketMatter to manage my ongoing cases. Even still, I find Evernote helpful. I type up transcript digests there. I send case law there. I even record interviews and put them in Evernote with interview notes. I also use Evernote as a place to track tasks.

There is an app on my Android phone that can be used to convert documents into pdfs through the use of the phone on the camera. So, if I find myself in a clerk’s office with a couple of pages to copy, Evernote is a great place to track all of that.

 

Using with Many Platforms

I have Evernote on my laptop, office computer, Android phone, and iPad. So, whenever I need to capture information via typing, a photograph, or audio recording, I can easily get things into it. I can then extract it later into RocketMatter or into a brief I am writing, or an argument I am preparing.

 

Sharing

With a recent update for Mac, you can also share notebooks. Which I suppose could be used to share information with un-incarcerated clients who also use Evernote. I haven’t tried that yet. But the sharing function is good for working with co-counsel in another office or with an administrative assistant.

 

Getting Some Writing Done

Evernote is also a great place to draft briefs, articles, pleadings, memos and letters. You can then block and copy the text into Word, Pages, or other word processors.

I’ve been using it to with Scrivener on larger projects by extracting my Evernote materials into the research section or into the draft of a writing project.

And I think I’ve just scratched the surface in all that I could be doing.

And finally, I can take a picture of my parking place at oral argument and upload it to Evernote. One less thing to worry about for someone like me who can remember the name of an obscure case from 1907 but not what floor of the parking deck where I left my car.

Yellow Card.jpgIf any case qualifies as an old chestnut, it would be Mapp v. Ohio, the landmark case that provided that evidence gathered in violation of a suspect’s Fourth Amendment rights should be excluded from use at trial. Restricting the use of illegally-gathered evidence is the punishment for the illegal conduct. If there’s a case that high schoolers might read about in a civics or government class, this is it. Mapp is hardly cutting edge law in Georgia. Or is it?

There are two cases in the Georgia Supreme Court right now that test out the boundaries of the exclusionary rule. One case might expand its reach, and another might limit it. Both of these cases are fascinating and will have far-reaching implications for Georgia lawyers in the future.

  • State v. Hulon Thackston – The Supreme Court granted certiorari to ask the following question: Does the exclusionary rule apply in probation revocation hearings as a matter of Federal or State Constitutional law? Assuming that this question is answered in the affirmative, there are inquiries in the cert. order. The other interesting questions is whether the doctrine of collateral estoppel applies when a trial court grants a motion to suppress in a new substantive case and later seeks to introduce the evidence in a probation hearing were the revocation petition arose out of the same facts and circumstances. In the Court of Appeals, the Court assumed that the exclusionary rule does apply and found that the doctrine of collateral estoppel does apply in such a factual scenario. The Georgia Association of Criminal Defense Lawyers is filing an amicus brief in this case.
  • State v. Aron Mussman – The Supreme Court granted certiorari in this case (PDF) to determine, in part, what the proper remedy is where the State fails to preserve physical evidence containing biological material which is relevant to determining the identity of the actual perpetrator. The case involves a charge of vehicular homicide, where the State released a totalled car to the defendant, who was in a car that was wrecked and where the vehicle’s other occupant was killed. Police concluded that the defendant was the driver but did not charge him until after they released the car and it was unavailable for testing by defense experts. A divided panel in the Georgia Court of Appeals determined that the State had failed to preserve the vehicle pursuant to a statute that requires the preservation of biological evidence. However, one of the three judges reasoned that the exclusionary rule should apply where this statute is violated. I was the amicus author for GACDL in the Court of Appeals and will be preparing one at the Georgia Supreme Court as well. So, I have a few thoughts on this subject.

One way or another, Georgia could be in for a big change.

Before I weigh in on this topic as a lawyer, I’d like to analogize this issue as a parent. All the books I read in my first year as a parent to the contrary, parenting is more an art than it is a science. And part of the art is determining when to punish for bad behavior and what the best punishment is. Punish too harsly or inappropriately, and you cause harm. Punish lightly, and your child might opt for the behavior with the punishment as just a cost of doing business.

The State has reached a pretty global solution for bad conduct with respect to the criminally accused. But how do we punish the wrongdoers when they are State actors engaged in investigating our clients?

If the police can enter a residence, search it, find incriminating evidence, and later use it in court, you can’t put them in time out. You can’t spank them. A fine for such conduct might simply become another “cost” of enforcing the law. The exclusionary rule is the best punishment for such conduct. 

What happens if the police are required to preserve biological evidence for later testing where there is fear that some court down the road might order that the evidence be retested and throw open the entire case? Flush the evidence? If you can toss the evidence and there is no consequence, then the statute is merely advisory. 

The hot issue when Mapp was decided was whether a Federal prosecutor, unable to use illegally seized evidence could simply cross the street and hand the file to a State prosecutor, who had a blank check to use it. For the majority in Mapp, such a scenario was unthinkable. How different, then, to imagine a prosecutor not being able to convict on an indictment against a suspect who is on probation but who can draft up a quick petition and use the exact same evidence in a ten-minute revocation hearing – even before the same court that granted the suppression motion in the new criminal case.

In Florida, the land that brought you depositions for criminal cases, the Supreme Court has held that the exclusionary rule applies to statutes that create rights for the accused where the legislature has chosen not to set forth another remedy. The 11th Circuit has held that, where Congress enumerates specific sanctions for violating a statutory right of the accused, those sanctions are exclusive of an exclusionary rule. The logical endpoint of such analysis is that, in the absence of such enumerated sanctions, it is proper for the exclusionary rule to apply. 

Stay tuned. Things are about to get interesting. 

blueprint.jpgI just finished my second draft of a Brief of Appellant for a case I will soon be filing in the Supreme Court of Georgia. It is the first brief I have filed since I purchased and read Matthew Butterick’s fantastic book, Typography for Lawyers. I’ve written about this book already, and I don’t want to do a full review of it. The real review will come over time as I integrate the valuable tips in this book. However, I am changing the way I prepare briefs and pleadings as I work with this book. So, I think it might be helpful to check in from time to time as I learn more. I want to explain a couple of things about some key lessons I have learned so far.

  • Don’t try to do it all at once. I’m taking a buffet approach to the advice offered in this book. It is a little overwhelming to try to do a wholesale change. There are many rules to learn and track. I’m trying to bring something new into every brief I do. The fantastic thing is that, from the appearance of my opponent’s brief, it appears that he isn’t reading this book. And, comparing the layout of my brief to the layout of his, I have another edge on the competition (note, I am working on about three briefs right now. If you are the competition on one of them, I’m not necessarily talking about you. In fact, keep doing the same stuff. Your brief looks great).
  • White space is important. If I’ve learned one key thing so far, it is to look at your pages. How does your brief look? Is it a brief you would want to read? Mr. Butterick advises that you should have more than one-inch margins. Unfortunately, the Georgia Supreme Court is pretty serious about their double space rule. I got a little frightened about playing around with the spacing. Ideally, I would go to two inch margins. But they looked funny with double spacing. So, I went to inch and a half, and it made a tremendous difference in the look. This brings me to my next point.
  • You can still do some amazing things to your layout within the constraints of court rules. Alas, I stuck with Times New Roman 14, mainly because I am working with another lawyer on this case, and I didn’t want to shell out money to buy a new font set (Mr. Butterick says much about purchasing non-system fonts in his book) for this brief only to encounter issues as I collaborate with co-counsel. But, the margin adjustments really made a night and day sort of difference. I’m off to a good start
  • I’m using italics where I was underlining. It makes the brief look better. My opponent went crazy with the whole underlining thing. It’s like his brief is a “before” picture of my current brief. 
  • I’m using a real ellipsis ( … ) instead of typing out three periods ( … ). It looks better, and life is much easier when it ends up on the end of the line. Those three dudes stick together now.
  • I’m using a real en dash now ( – ) where I was just typing two hyphens ( — ) before. Oh, and I now know what an en dash is. I also know what an em dash is ( — ).
  • I stopped putting bad parenthesis art in the case caption and started doing my caption using tables. 

These are a few simple changes that I have made in the layout of the brief. It has made a world of difference. In addition, I am about a week ahead of deadline on this brief. So, I have the luxury of tending to the substance in addition to picking up more hands-on knowledge of layout. Which is my final lesson. Thinking about layout makes the whole process more fun than it already was

robteilhet92.jpgRob Teilhet has tendered his resignation as head of GPDSC after only three months in office. Peach Pundit reports on the resignation in a blog post yesterday. I thought his days might be numbered when I met him last month. He came to a conference of the Georgia Association of Criminal Defense Lawyers and spoke to the group. If you don’t know the history, the fact that the new-appointed head of defending the poor was coming to speak to a group dedicated to defending the accused would not seem particularly controversial. And anywhere else but Georgia, such an appearance would probably be expected.

However, if you know something about the history of this organization, you’d know that Mr. Teilhet’s appearance before GACDL might have not been a wise political move.

GPDSC is a political organization — a really unpopular political organization.

GACDL is a non-profit organization whose mission is, in part “to promote constant improvement in the administration of criminal justice.” In Georgia, the head of GPDSC is not expected to advance the administration of justice.In some other state maybe. But not Georgia. We don’t coddle criminals here. Go to some liberal state like Alabama if you’re looking for that. The people ruling Georgia didn’t major in political science so that they could help the poor or better the court system. The fact that the poor might need lawyers doesn’t inspire the inner Atticus Finch of Georgia Republican. The fact that Georgians accused of crimes might need lawyers inspires the same feeling that I get when I need to rake the leaves in the front yard. I generally would rather just cut down the trees once and for all.

I’m not saying that Mr. Teilhet’s appearance at GACDL was what cost him his job. GACDL probably doesn’t register enough on the Republican radar for that. Though an appearance of the head of GPDSC at a GACDL event is very rare (the goals of the two organizations being at odds with one another and all). Rather, it seemed that Mr. Teilhet was going to do a good job. And that may have been where things began to go wrong for him. 

Or a simpler explanation is that the governor-elect has someone else in mind for the job as a “favor.” Which may be even less benign than what I’ve suggested above. Because if being the head of GPDSC is essentially a political position, then indigent defense will likely continue to suffer. 

The criminally accused are not a very popular political constituency.

Anchorman.jpgIn his blog yesterday, Kendall Gray referenced the Rules of the Georgia Court of Appeals, citing it as “a jurisdiction with rule-mandated ugliness.” Kendall’s blog post comes at a time when I am reading Typography for Lawyers by William Butterick. I’ve learned a great deal about fonts and layout and was all excited about using my new-found knowledge on a future appellate brief when I re-read the Georgia Court of Appeals Rules and found, well, “rule-mandated ugliness.” But it’s not quite as bad as it sounds. Here’e the language from Rule 1(c) of the Rules of the Georgia Court of Appeals:

All documents filed with the Court shall have no less than double spacing between the lines including quotations and footnotes. Letter spacing and type or font size shall be no smaller than ten characters per inch. Notwithstanding the 10 characters per inch requirement, the Court shall accept in lieu thereof Times New Roman Regular 14pt.

Also, there’s a little more good news. Now, to the issue of margin. According to Rule 24(c), there must be a “margin of not less than two inches at the top and a margin of at least one inch on the sides and bottom of each page.”

Matthew Butterick recommends two-inch margins, which you could do under the Rules of the Georgia Court of Appeals. He also recommends moving away from system fonts, which you can do as long as you meet the 10 characters per inch requirement. Of course, you still have “rule mandated ugliness” because you must double space. Butterick recommends spacing in the neighborhood of 1.2 to 1.3. inches. Which sounds odd if you’ve never written a brief like that. But it’s really not so odd. Are you reading a novel right now or a new non-fiction book? Take a look at it. I bet your margins are at least two inches, and I can pretty much guarantee that the lines aren’t double spaced. Why? Well, for one, because the publisher wanted to keep you reading. Two, it’s a book and not a term paper. In fact, pull random books off your shelf. See any Times Roman 14? See any double spacing?

Why, you might ask, would the rules mandate ugliness. First, I believe Kendall is correct. The rules were likely originally crafted in the typewriter era. However, I suspect that there’s a little more to the story. I think the rules were likely amended at the beginning of the personal computing era. I’d be willing to bet that the courts got worried that there would be an attempt to manipulate how many words could fit on a page with those new-fangled computers.

Of course, there was a better solution. The Court could have provided a word count limit instead of a page count limit. But that was a little too easy, I suppose.

And I wonder if any lawyer really gamed the system or if there was fear back in 1982 that somebody might potentially try to game the system. You know how appellate lawyers are. We’re a bunch of James Dean types and that’s been the case for a long long time. It ain’t ever gonna change. When I decided to become an appellate lawyer, it was hard to focus. Women with a penchant for the bad boy heard that there was an appeals lawyer in town.

Scott Greenfield’s review is what actually led me to buy the book. He wrote this about briefs with a pleasing layout:

No, they won’t make a loser appeal into a winner, but like wearing a decent suit to court, or polishing your shoes, it’s one less detriment and one more benefit. Butterick’s point, and mine, is that there’s no good reason not to do it as well as it can be done.

If good typography is like a good suit, then a brief typed in conformity with the Rules of the Georgia Court of Appeals is a powder blue polyester leisure suit, with bell-bottomed pants, huge lapels, and a wide flannel tie. It was a great suit for the day it was written and great for a 70s party now. I’m just not sure I’d wear it to court.

Now, over at the Supreme Court, the look is a little more modern. You might not look out of place on the show 21 Jump Street. Supreme Court Rule 18 reads:

 All filings shall be printed or typed with not less than double-spacing between the lines, except in block quotations or footnotes. Margins shall be no less than one inch at the top, bottom and sides. The type size shall not be smaller than 12-point courier font or 14-point Times New Roman.

The good news is that you can single-space block quotations and footnotes. The bad news is that they reference the courier font — literally the ugliest font ever made if you don’t count comic sans (which I don’t).

With all that said, you have some room to think about design and to make your brief stands out. Lawyers are a careful lot, particularly when sober. So, most will use the “example fonts” to play it safe. You may choose another that is the same size and be okay. Also, you can go for bigger margins to provide more white space.

And, if you think this is just kooky Mac user talk, check out the Rules of the United States Supreme Court (PDF), that hotbed of flashy design. In particular, check out Rule 33. Actually, check out the layout of the rules themselves. Mr. Butterick would approve. And there’s a word count limit, not a page limit. The things is, if your brief looked like the United State Supreme Court Rules, you would likely not be able to file it in the Georgia Court of Appeals. Though it was be the most readable brief in the stack.

If the United States Supreme Court Rules were a suit, it would look nice in court today.

But, in Georgia, it’s Ron Burgundy time. So, here’s hoping that the rules are modernized. Until then, stay classy Atlanta.

referee.jpgLast Friday, I spoke at a conference in Atlanta devoted to training attorneys who represent parents in juvenile deprivation hearings. The overall conference was devoted to representing parents in juvenile court. And the focus of my topic was preserving a record for appeal in juvenile court. 

I still do cases out of juvenile court from time to time. Earlier in my career, I did these cases quite a bit. From listening to the conversation, it doesn’t sound like the juvenile court culture has changed very much.

I give the “preserve the record” talk quit a bit at conferences. This year, I’ve presented on this topic twice. And I’ve spoken at this particular conference for several years in a row. This conference is a little different because you must go back to challenge some bad assumptions underneath “business as usual” in juvenile court. I actually use a slide with a single sentence in my Keynote presentation. That sentence reads, “the rules of evidence apply in juvenile court.” 

The thing is that the rules of evidence aren’t really enforced in juvenile court all that much. When you appear in juvenile court and start making hearsay objections, the judge, opposing counsel and guardian often look at you as if you just landed in court from some distant planet. 

When I’ve gotten records and transcripts from cases in juvenile court where I was not trial counsel, they are terrible. They are terrible in a way worse that the average way that records are terrible.

There’s a pervasive “culture of cooperation” in the average juvenile deprivation that undermines the very concept of an adversarial system.

So, the focus of my talk was how important it is to overcome fear and simply start making objections in juvenile court. If my hour-long talk could be condensed down to five points, it woudl read like this:

  • If juvenile courts mistreat the parties, then the blame lies with the judge and the State. But it also lies with the attorneys who represent clients there. Unlike in basketball or football, where there’s a referee whose job description includes calling fouls and penalties, the parties must “throw the flag” before they can get a ruling. If you don’t throw the flag, your opponent will spend the whole game grabbing your client’s facemask.
  • Sure, the fix is in. DFACS and the State of Georgia control most of the courtrooms in Georgia. But just because you are going to lose the objections doesn’t mean that you shouldn’t make them. In fact, objections that my appellate client lost at trial are like music to my ears when I read a trial transcript.
  • Your job is to collect rulings at trial, not to win them. If your goal is to collect rulings, then you will position the case for appeal better than if your goal is to win them. Think of a trial as a basket that you will fill with rulings. The ones you collect that went your opponent’s way will form the basis of your appeal.
  • A ruling comes when a judge says, “sustained,” “overruled,” “granted,” or “denied.” “Move along,” “noted,” and “ask your next question” are pseudo-rulings that will do nothing but nuke your future appeal.
  • The more objections that your opponents has to deal with and the court has to decide means that the system must work harder to convict your client or take your client’s children away. Often, better deals will come just so that the people in court will make you go away. Even if your opponent clears all the hurdles you throw up, it takes energy to clear hurdles. If you assume that DFACS is predatory, they might let your client go in favor of easier prey in the form of the next case on the calendar where the lawyer is a big pushover.

The groups asked great questions, and I met several future friends and colleagues during the talk and in the hallway afterward. Once again, I learned just as much as I taught in the process of preparing the talk, giving it, and engaging in discussion with the CLE participants.

Justice David Nahmias and Judge-Elect Christopher McFadden have been elected respectively to the Supreme Court of Georgia and Georgia Court of Appeals. Both won by wide margins. Georgia votes made the right choice in both elections. Justice Nahmias is likely to continue to do excellent work on the Court. I look forward to his well-reasoned and finely crafted opinions. And I am eager to continue to be challenged by him at oral argument. Judge-elect McFadden is going to be a great addition to the Court of Appeals. He will be fair, and his opinions are going to be scholarly. Yesterday’s election was good for the Georgia judiciary and the people of Georgia. Our legal system is as good as the professionals who occupy the bench and those who argue from the bar. Yesterday was a great step for Georgia.

The voters who braved yesterday’s Georgia weather did the right thing. While it might be easy to be cynical that such a small percentage of eligible voters showed up to vote, it appears that they made an informed decision on both parts of their ballot.

I will look forward to Justice Nahmias’s continued work on the bench and the days ahead with Judge McFadden.