December 2013

On January 10, 2014, at noon, the Appellate Practice Section will host a luncheon at the Georgia Bar’s midyear meeting, at the Intercontinental Buckhead Hotel. The deadline for the early registration rate for lunch has been extended until January 1, 2014. The price for the luncheon until then will be $35. After that, the price will go up to $55.

The topic of the program will be The Next 50 Years of Appellate Practice in Georgia. Topics will range from the impact of electronic filing on the way cases are handled by the court, the future of our appellate courts, and the statutes governing appellate practice.

The panel will feature the following speakers:

The registration form can be found at this link. However, the deadline for online registration is passed, and it will be necessary to fax this form to the State Bar at 404-527-8717. Don’t try to register online if you want the reduced rate. The Bar will not process refunds for online registration.

Judge Carla McMillian’s campaign for re-election is in full swing. The Augusta press ran a full interview last month. And Judge McMillian took some time out to speak to the Appellate Practice Section’s monthly luncheon, where she reflected on a year on the Court and shared her top ten lessons and tips from her time as an appellate judge. Aly Palmer of the Fulton a Daily Report covered the event (article behind the pay wall). The article from the Fulton Daily Report talks more about how Judge McMillian was made a judge and her reaction to the appointment. The article also details some of Judge McMillan’s reflections upon her first year on the bench. This post focuses on the practical tips from Judge McMillian’s presentation.

The top 10 lessons are:

  1. Jurisdiction is not always clear cut. Judge McMillian said that many cases are transferred from the Supreme Court to the Court of Appeals based upon the Supreme Court’s position that it lacks jurisdiction over the case. What is a practitioner to do? She advises that it is best to file first in the Supreme Court if jurisdiction is doubtful. The Supreme Court will then transfer the case down to the Court of Appeals. Beginning in the Court of Appeals in such cases has the downside of creating what Judge McMillian calls “a ping-pong match” of the case being transferred up only to be transferred back. The relevant statutes on jurisdiction can create much confusion in “edge cases” where there is an argument to be made that either court might have jurisdiction.
  2. Even if you don’t get a docketing notice, your brief is still due. This bit of advice created the scariest moment in the room as lawyers (at least I did) began to think about what might be sitting in their spam folder. Judge McMillian noted at least two instances where lawyers did not get their docketing notice. In such situations, the court has some discretion regarding whether to dismiss the case or not. But, if you have recently paid the costs to send the record up, you may do well to check with the court every week or so to make sure the cases not been docketed. Docketing notices go out electronically now, and it is easy for emails to get lost in the shuffle of the inbox or inadvertently placed into a spam folder.
  3. When you do not know whether to file a discretionary or direct appeal, err on the side of discretionary. Some matters can be appealed directly, and others must be appealed by discretionary application. Choosing the wrong form can be fatal to the case. If you file a discretionary application in a case where you have the right to appeal directly, then the court will allow you to appeal directly. If you file a direct appeal where you are required to file a discretionary application, your case will be dismissed. So, it is best to file discretionary when in doubt. On a related note, Judge McMillian pointed out the value in making discretionary applications lengthy enough to explain the case but not so lengthy that the court is overwhelmed with material.
  4. If you want the full court to examine the case then request that precedent be overruled. In any case where a judge votes to overturn precedent, the matter will go to the full court. If you can get one judge to agree overturn precedent, then all 12 judges will decide the case.
  5. Be more creative in helping the court understand the case. Judge McMillian noted that it is perfectly acceptable and welcome for advocates to place graphics or photographs into their briefs. She noted by way of example an advocate who placed a map of disputed land into the brief to illustrate the major concepts at issue in a dispute over a deed. She also noted that the judges like to see relevant exhibits displayed on screen during oral argument. I would note that judicial opinions differ on these points.
  6. Don’t disparage the trial judge, opposing counsel, or other judges on the panel. Judges often make this point when they speak or write about professionalism. Judge McMillian cited a recent and real-life example of a lawyer who had compared the judges to some characters from Mayberry. There is a temptation to disparage on a motion for reconsideration; she advises just don’t do it.
  7. Formatting / fonts. Judge McMillian offered several comments about formatting and fonts. First, formatting is important to her. She noted a recent walk with her husband, another lawyer, where the two argued about fonts. However, if opposing counsel makes a formatting mistake, then it is likely not worth raising unless opposing counsel has derived some unfair advantage from it.
  8. Recordings. Recording don’t automatically go up with the record. Do not assume that they have. If the recording is critical to you, make sure that it is included in the record. If it wasn’t, then move to supplement the record on appeal.
  9. Oral argument requests should be self-contained. The judges who read the request for oral argument will not be familiar with the case. Also, they likely will not have read the brief by the time that they consider the request. Therefore, the request should summarize the case well enough for the judges to make an informed decision. Also, if you want argument, go ahead and request it. Any one judge can grant the request.
  10. If one of the judges on the panel concurs in judgment only, then you should file a motion for reconsideration. A JO often indicates some doubt about the decision by one of the judges. Filing a motion for reconsideration may change the outcome or draw a concurring opinion. (Note: After this post was published, Judge McMillian clarified in a tweet that this advice relates to J.O.s that come at or around distress time. Don’t know what a J.O. is? Check out Court of Appeals Rule 33. Don’t know what distress time is? Check out a previous post I wrote about it).

The Appellate Practice Section frequently invites judges and justices shortly after they are elected or appointed. Judge McMillian was a particularly engaging speaker who gave practical insightful tips about how to practice before the court.

In the past year, I have worked on a new category of appeal in an area that did not exist when I came out of law school and was in its infancy when I started focusing on appellate law. Those appeals have been in a Georgia administrative agency called the Sexual Offender Registration Review Board.
That agency doesn’t decide who should be a sex offender (the legislature has done that). It doesn’t punish people who fail to register or abide by residency and work restrictions.

Rather, the agency rates sex offenders and determines into which of three possible categories they should fall. Level One offenders are those who can one day, upon proper petition and with a judge’s permission, come off the registry. Level Two offenders will have a tougher time getting off of the registry.The third category consists of Sexually Dangerous Predators. These folks are required to wear an ankle monitor for the rest of their lives with GPS tracking. As another lawyer in my office tells it to perspective clients: the last thing they do after you die and before they put your body in the casket is cut the monitor off of your leg. The software that probation officers use to track offenders is set to allow for real time monitoring. It also sends an alert if somebody tampers with the monitors or removes it or if a person goes into a restricted zone such as a school, daycare center, or park. The monitor itself goes on the ankle and is about the size of a late 90s Nokia cell phone (bigger than the one in the picture).

There are three times when a lawyer will get called about the Board. Those include when a person has just been convicted of a sex offense and is worried about how he might be classified; when a person is interested in coming off the registry and has never been leveled; and when a person has been leveled a sexually dangerous predator. I typically get called in the second and third situation, though the first would probably be the best from a preventative standpoint. Many newly minted sex offenders probably don’t know that this agency even exists. The vast majority are Level One. If you are Level One, you get a letter telling you that and your life probably is not going to change very much. If you are leveled a sexually dangerous predator, you get a letter and a call to your probation officer. Life is about to get a whole lot worse.

That’s generally where I’ve come in over the past year. A client has had an ankle monitor put on his leg and a letter notifying him that he’s a Sexually Dangerous Predator. He wants to know what to do. The first step is a request for re-evaluation. There are tight deadlines that you can look up, or that (better yet) a lawyer can help you out with. There’s a deadline for initial materials and another for supporting documents.

A couple of things to know about the Board. For a board with such power to change the lives of the people it evaluates, it does not have a bureaucratic feel to it.

  • It’s a very transparent Board. I’ve been able to do a few basic procedural things and get my client’s entire file. I’ve also been able to get a real person on the phone and to return my emails. For an administrative board, it’s quite friendly. Your mileage may vary. I’ve dealt with courts and clerks long enough to know how to be nice. And I’m a lawyer. Registered sex offenders and their families may have a different experience. I can only share mine.
  • They are open to both sides. It just may not feel that way. When you get materials from SORRB, you will see the original discovery from your client’s case or cases. If you’ve handled criminal cases before, you know that discovery is the State’s story of guilt. Discovery doesn’t focus on and rarely even contains mitigation. Does that mean that they are only interested in hearing one side? Not at all. The problem is that there is no repository if information out there with your client’s side. It is often good to consider filing motions or putting evidence into the record with an eye toward how it will look to SORRB one day. It’s also a good idea to check in with them to see when your client will be reviewed. That way, you can send informs it’s before the evaluation is done.
  • They Respond to Science. At least I think they do. If you can have your client assessed, and the conclusions are helpful, this information has more impact than a letter from your clients great grandfather who hasn’t seen him since he was a child.
  • The Ground Level Experts are Powerful. Ultimately, the Board classifies. But they do so in meetings that don’t last very long where many cases are considered together. The real work is done by evaluators, generally masters level mental health experts who know the assessment tools and who review the case. When a request for re-evaluation is filed, it goes to a second expert before it goes to the whole Board. When you write your petition, this is your audience. If you’re an appellate lawyer, this is nothing new. Your audience is the judge and the staff attorney who will read the brief initially and prepare a summary for the judge’s review.

Some of what I’ve said here may soon change. The SORRB lacks much of an institutional history. It’s a new agency. The assessment tools it uses are new (one as recent as 2002). Even the notion of a GPS tracking device is relatively novel. And this post covers only a piece if the appeals process. If a petition for re-evaluation is unsuccessful, the next step is a trial court. And the process goes even deeper. And, like any appeal, your chance to succeed is inverse to how far you go. The standard of review gets decreasingly appellant friendly as you climb deeper into the appeal.

One final tip, a request for leveling an unleveled person carries a certain amount of risk. The Board may rate a person a sexually dangerous predator who might otherwise have escaped notice. If there’s ever a situation where a pro se person can get in over his head, it’s this one. Everything looks user friendly until it isn’t.