June 2011

Above the Law has a good recent post on the use of video arraignments and how judges find that the process makes them feel safer. I don’t know whether video Arraignments make the process any safer or not. But the process certainly makes the process more efficient. In fact, many of the rituals of court aren’t just antiquated. They’re anachronistic. The other part of the article that I liked was a link to a story from a few months ago about Judge David Emerson’s decision to allow a defense attorney to call a witness at trial via Skype. These posts point to a good future for those of us who participate in the appellate and post-conviction process in Georgia.

There is an annoying thing you sign up for when you do post-conviction work in Georgia. And that is a clientele located hundreds of miles from where the lawyers and most of the witnesses are. Chances are that your appellate client will be located in South Georgia, and there will be an issue of whether to produce him for court. For the client, being produced for the hearing and returning to prison means starting back at square one as a new inmate at the facility. That situation can result in a complete upheaval of the client’s life, essentially representing a move to a new dorm with different cellmates. For the court, it means expense and potential security issues.

When the case ends, appellate counsel often becomes the witness in the former client’s habeas case, entailing another drive to a distant city. In fact, the whole show travels south, with assistant attorneys general driving down for court with boxes of files. The whole thing is needlessly inefficient and expensive.

There is no reason that much of the process couldn’t be done over Skype. Already, oral arguments at the Supreme Court are being done that way (not via Skype but by video feed from satellite locations in south Georgia). Arraignments and probation hearings are being done that way.

Why couldn’t attorney visits be done via Skype? And certainly why couldn’t court be done that way. The process would have several other advantages.

  • It would allow for more frequent meetings. Right now, a single visit requires a day (and sometimes two if you have to stay over) away.
  • It would make court run faster.
  • It would provide for better security. There would be fewer people in the room to protect.
  • The personnel cost savings would be significant.
  • Cases would move more quickly
  • There would be fewer appellate issues involving transfers and other weird little things that arise in the habeas setting right now.
  • There would be fewer continuances due to lawyer and witness unavailability.

In fact, it would allow appellate practices to be more efficient. Right now, many appellate lawyers face a tough choice. Do they want to put the work into working on these tough cases, which the clients want their lawyers to do. Or do they want to take time out from writing the briefs and reviewing records to meet with and reassure the client about the work that isn’t getting done during the day it takes to drive to the prison and have the meeting? Right now, there are tough choices to be made between working on the cases and driving around the state merely to talk things over with clients and family. The adoption of video could really eliminate some of these tough choices.

We can only hope that prisons and habeas courts will follow Judge Emerson’s excellent example.

It’s been a bad month for my most recent crop of Supreme Court cases, both in terms of cases where I represent the party and in cases where I am amicus counsel. But I try to learn from them all. And here’s my takeaway from the month. To have and cite a case is not the end of the story, particularly if the precedent was set in the Court of Appeals and hasn’t been heard yet by the Supreme Court. This was the lesson I take away from State v. Thackston. The Supreme Court there overturned a few decade’s worth of precedent to hold that the exclusionary rule does not apply in the probation revocation context. Blue Line Lawyer aptly points out that officers who search in violation of the 4th Amendment can still be held liable  in a civil rights action. Then again, we’re in the 11th Circuit. My initial reaction was, “this is terrible.” Then came Black Monday, where two cases of mine (one as amicus counsel and another as party counsel) went south. I’ve now had a few days to reflect. And during that time I was writing a brief in a murder case.

In that murder case,an issue arose where the precedent looked pretty bad on an issue. So, taking some advice from an appellate judge who spoke to my class earlier this year, I dug a little deeper to see what lies behind the holding in the recent cases. I took the Court of Appeals holding that I did not like, and I began tracing the precedent backward, all the way back to when the Supreme Court first commented on it. How old was the case? It involved a search incident to arrest in a buggy (the horse-drawn variety). I learned that the Court of Appeals, in the 1970s and 1980s took the line of cases from the Supreme Court and twice took the precedent way out of context. And the Supreme Court never adopted the new reasoning. If the Supreme Court could reverse decades of precedent from Thackston because it wasn’t their precedent, then surely they wouldn’t appreciate the Court of Appeals taking their case law out of context and expanding it.

But my point is that it is important not to view precedent as the end of the story, particularly if the Supreme Court has never visited it before or if a line of precedent has developed in both courts. It’s important to track the history of the cases with Article I, Section 1, Paragraph 3 in mind (“The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedent.”). In the murder case, the Thackston case reminded me that the bad case I found wasn’t necessarily the end of the story. And an issue I might have been tempted to abandon became a significant part of the brief. With a Supreme Court more willing than ever to consider old arguments anew, it is important to look a little deeper even if the first wave of cases on your Lexis or Westlaw search are less than inspiring.

Alyson Palmer at the Fulton Daily Report has noted the passing of David C. Baldus. Mr. Baldus authored a study in 1986 showing that, in 2,000 murder cases in Georgia in the 1970s, defendants accused of killing white victims were more than four times as likely than defendants accused of killing black victims.

That study figured prominently in McClesky v. Kemp, a 5-4 decision in favor of Mr. McClesky’s conviction and death sentence. Justice Powell later noted that his vote in that case was the one he wished he could change.

The New York times also reports his passing.

Yesterday, I noticed that there is a proposed rule from the State Bar of Georgia to provide for electronic filing in Georgia courts. Of course, it’s just a proposed rule (PDF). And what comes of it may be simply a model rule for trial courts to follow if they choose to allow electronic filing. But it also might be light at the end of the tunnel for lawyers like me who are way sick of paper. In fact, the way trial courts work right now in the handling of documents is enough to make me want to poke my eyeballs out with a spoon. It’s not exactly fun to figure out a way to get a physical document to some distant land by 5:00 tomorrow to meet a deadline on a motion for new trial or habeas matter, and e filing would fix it. It’s also not fun to file a document in the courthouse basement and wonder how or when the judge on the case might learn of it.

In the late 1980s, when I was in high school, I worked for a law firm as their courier. My job was to go to various courthouses and file documents with various clerks, get the file stamp, and take physical copies to opposing counsel. The process seemed almost quaint then.

This year, I am approaching my 20-year high school reunion. And we’re still handling documents the exact same way in trial courts. Assembling the record for appeal, with a few exceptions, is still exactly the same process that it was the year the Titanic sank. I’m not sure what the issue is. Part of it is that lawyers can be un-innovative. For instance, what other profession is still using fax machines?

A uniform rule for e filing is, I hope, a step toward mandatory e filing in the future. Perhaps, then, I can retire the postage meter, and getting a leave of absence for a trip to Disney World or the filing of a conflict letter won’t burn a whole day every week for an assistant. It’ll have to be mandatory though. There are over 150 counties and Georgia and a blue million lawyers. Most will have to be sent kicking and screaming into the e filing era.

At the State Bar’s annual meeting, Chief Justice Hunstein announced that the Supreme Court of Georgia will require e filing there by the end of the summer and will soon move to the second phase of their e filing initiative to provide for the transmission of electronic records from trial courts.

My operation is paperless. I take notes on my iPad, my phone, or my laptop, and I maintain electronic files with a system for dealing with text notes and pdfs. It works great except for a few sets of occasions in my practice. One is when I visit an inmate in the prison system at a facility that won’t let my iPad or laptop in. You’ll see me often in distant lands buying convenience store paper and pen. The second is when I am in court and need to use paper with a witness or to fill out paperwork (you’ll see me borrowing pens a lot). The third is when I have any case in Butts County, Monroe County, or Lamar County where they equate electronic devices on par with weapons and refuse to allow anything but paper files in. The other is when I am working with co-counsel or opposing counsel that fetishizes paper (which is most of the bar, unfortunately).

The proposed rule will hopefully move us toward a system of file management throughout Georgia that is, if not in the 21st century, will at least be circa 1999.

How do you make the most compelling possible case for oral argument in the Georgia Court if Appeals? According to Judge Christopher McFadden, it is important to draft a self-contained request that summarizes the key issues in the case. It is important also to explain exactly how argument will assist the court under the unique facts and with the unique issues in the case. Finally, it is important also to explain exactly how argument will assist the court under the unique facts and with the unique issues in the case. It is also important to assume that the Court will not have seen your brief when they take up your request to argue.

Judges McFadden, Blackwell, and Dillard spoke to a combined meeting of the Appellate Practice Section and Criminal Law Section of the State Bar of Georgia. And, for Judge McFadden, this was an important issue. Below is a summary of Judge McFadden said, combined with a little editorializing from me.

Don’t spit out boilerplate.

Write a request tied to the unique facts and legal issues in the case. From time to time, lawyers call me requesting a form for a request for argument. I love helping other lawyers, so I don’t mind providing some of my past materials just to give folks a visual of what a request to argue looks like. But I get concerned when it appears that the lawyer is looking for assistance in how to word the request. There is no formula. In fact, if you fire up the computer and start generating boilerplate you probably wont’ be arguing this case.

Get to your point and theirs.

The request should quickly and succinctly educate the Court on the essential issues in your case, what your argument is, and without conceding the merit, a summary of what the other side’s position is. There’s a little art in all of this. You don’t want to concede your opponent’s position, but you don’t want to portray your opponent’s as a  straw man  either. If the case isn’t even close, I’d forego argument.

A request for argument is the opportunity to advocate.

It’s not only a reader’s digest condensed version of your argument but of your opponent’s anticicipated argument also. And it can be a great second brief in condensed form.

You can’t write it if you don’t really know your case.

By the time you’re drafting a request to argue, you should be in a position where you could tell your spouse or a friend or someone at a picnic or cocktail party the essence of your case in about 90 seconds. Because that’s what a request for argument is. It’s an elevator speech.

Finally, Judge McFadden explained that it’s important to explain exactly how oral argument will assist the court in deciding the case? What is it about this set of facts and this set of legal issues that lends itself to written and oral argument? Next to setting out the issues in a succinct fashion, your oral argument should set out exactly why it is important to have an exchange with the court before deciding the case.

If you follow Judge McFadden’s advice, even if you don’t win the request to argue, the process of honing your argument to its essence will likely help you refine your brief and know your case better. And if argument is granted, it is a good first step to prepare.

Two days at the annual meeting of the State Bar of Georgia in Myrtle Beach have given me enough material for a week of blogging. For today, the big news is that the Supreme Court will mandate e-filing for all attorneys before the end of the summer and will create a system for submission of appellate records in electronic form. E-filing was also the talk of the Appellate Practice Section luncheon, with Judge Keith Blackwell discussing the need for a a uniform system for indexing the record on appeal.

Kathleen Joyner, with the Fulton Daily Report, shared a story of some matters I e-filed with the Supreme Court of Georgia on my way out here (don’t worry, I wasn’t driving)