September 2015

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Part of the fun of doing appeals and post-conviction work is hearing from colleagues with questions about things that arise in cases. Recently, I spoke with an attorney with an unusual situation. The lawyer was defense counsel on a serious child abuse matter. The prosecutor, when she supplied statutory discovery, told the lawyer that he was not allowed to show the discovery to the client, upon possible risk of prosecution. The prosecutor is obviously wrong, but this was a dangerous situation, at least from my perspective as a risk averse person.

Here’s what made it tricky. At first blush, my thought was to tell the lawyer to tell the prosecutor to go kick sand or simply to ignore the warning. The prosecutor was more wrong than a football bat. But there’s nothing more dangerous in a quasi law enforcement agent (these folks have badges) than a zealous belief combined with an unsound opinion. The prosecutor was either being a bully, actually believed that it is against the law to provide the client with discovery, or both. In either event, this person has the right to take pretty much anything to a grand jury, seek an indictment, and place the colleague’s career and life in jeopardy. The colleague would likely prevail in the end, but the journey would not be a fun one. So, I didn’t advise ignoring the prosecutor or giving the prosecutor a well-deserved middle finger. Here’s what I advised.

  1. Get the prosecutor to commit the threat to writing. I advised that the lawyer send an email to the prosecutor to confirm that the prosecutor actually held that position. Something along the lines of “Dear Eliot Ness. I’m just following up on our conversation about the Smith case. I want to see if it is still your position that you believe I am not allowed to share the discovery with Mr. Smith. Do you still believe that I cannot share it with my client? Do you still believe that I would break the law if I did so? In the event that I shared the discovery with my client, what would the State’s position about what should happen to me? I will assume that if I do not hear from you within 5 days, that you are holding course on what you told me, which is ‘_________.'” With any luck, the prosecutor will change course at this point and say so in writing. However, if the prosecutor maintains the same position, you have a statement in writing, which will be useful in point two.
  2. File a Motion. I advised that the lawyer then take the issue to the judge. The lawyer said what many lawyers say when I suggest filing a motion, which was “there’s a motion for this?” And I said, “yes, you can move for anything. Draft a motion entitled ‘Motion to Allow Defense Counsel to Provide Discovery to His Client.'” I suggested that the motion be constitutionalized, with a particular emphasis on the right to effective assistance of counsel under the Sixth Amendment and due process under the Fifth and Fourteenth Amendment. Remember the email that I advised the lawyer to get from the prosecutor? Attach it as Exhibit A. This email will prevent the DA from coming to court and saying, “I don’t know what Mr. Defense attorney is talking about. I never told him he couldn’t share discovery with his client.” The filing of the motion may force the DA to change course. If not, have a hearing.
  3. The Hearing. Hearings end one of two ways. You win or you lose. I told the lawyer that either is really good for his client. If the lawyer wins, further bullying from this DA might stop. The DA will likely be embarrassed. And the lawyer will come out of the hearing as the one with more credibility than his opposing counsel. If there are further discovery disputes, the defense attorney will likely be presumed right, and the DA will be operating under a cloud.
  4. If the Judge Rules with the DA, Oh What Fun! However, if the lawyer loses, then oh the fun that will be had as things unfold in the case. First, the lawyer will have planted reversible error in the record. Secondly, the lawyer will have a fun little tool to use at various stages as the case progresses. At the calendar call, if there’s some deadline to have decided whether to accept the State’s offer, the lawyer can say something like “Your honor, I understand that today is the deadline. However, I cannot advise my client whether to take the plea. Since he can’t view his discovery, he cannot assess whether this is a good offer or not.” If you get to trial, announce, “Judge, I cannot advise the client whether to testify. He is not allowed to see his discovery, and he cannot exercise this decision.” Even if the client takes a plea, the lawyer can say, “He feels hamstrung, judge. He’s taking this plea because he is afraid of facing a trial where he cannot know what is in his discovery.”
  5. Stop Subsequent Non-Written Communications with this DA. I advised this course for future cases. There are few DAs with whom I do not get along. However, for those, I limit person to person contact and conduct plea negotiations in writing. It actually makes life much more easy. I get what I need for the Court. And anything hinky can just get an exhibit sticker on it one day.
  6. A Kind Voice Turneth Away Wrath. So goes the Proverb. The louder, angrier, and less reasonable the DA is, the softer, happier, and more reasonable shall the defense attorney be. Don’t get in a spat with a DA in court. Efficiently and calmly make your record. Also, if the DA makes you mad, wait at least a day before deciding whether you will respond in kind. As Warren Buffett recently advised a young author, you can always tell them to go to Hell tomorrow. In other words, if you are going to take a harsh track, wait a day to see if you aren’t caught up in the emotion of the moment. You probably are.
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Jim Galloway, in the Atlanta Journal’s Political Insider Blog, reports that the Governor is formulating a push in next year’s session of the legislature to increase Georgia’s seven-member Supreme Court by two justices.

Mr. Galloway opines that the governor’s move could expand his influence beyond his eight year tenure and compares a potential Franklin Roosevelt’s push, during the depression, to “pack” the court with like-minded Supreme Court justices. Such is an interesting take on the Gov.’s move. However, I don’t know that the comparison is necessarily apt. A presidential appointment certainly has the potential to expand a president’s influence beyond his own term. After all, United States Supreme Court justices have lifetime appointments. Also, the United States Supreme Court hears issues, in the aggregate, that are likely to shape the direction of public policy. While there are certain cases like that before the Georgia Supreme Court, that court also takes on its fair share of routine criminal and civil matters. Again, it’s an interesting theory. But I have never thought of George’s appellate courts as an extension of the governors who appointed the justices that sit on it. Perhaps I haven’t thought of it enough.

While the governor may have some hand in creating these new judgeships, his appointment would not extend for life. Georgia Supreme Court justices seek reelection at the end of their term. Though incumbency has its benefits, particularly in judicial elections. Interestingly, the Court of Appeals was expanded by three judges in the most recent legislative term. From an initial field of nominees of approximately 200, approximately 100 applicants remain.

Mr. Galloway reports that two “inducements” are on the table to increase the number of Supreme Court justices by two. There is a promise to build a new judicial building as well as talk of reducing the jurisdiction of the state Supreme Court. That jurisdiction is already significantly narrow. And it seems strange that the Supreme Court would undergo a historic expansion as part of a package deal to reduce the court workload. Also, it is difficult to imagine that either court would like such a proposal. For the Supreme Court, loss of jurisdiciton is a loss of power.

For the Court of Appeals, increased jurisdiction brings with it an increased caseload. It also seems odd that there would be a push to potentially increase the workload of the Court of Appeals. The Georgia Court of Appeals is known as one of the busiest if not the busiest intermediate appellate courts in the nation. The Georgia Court of Appeals hears on average about 3200 cases per year over the last five years. That workload means that each judge has a caseload of approximately 280. The addition of three Court of Appeals judges will significantly decrease the workload of each judge and probably increase the quality of opinions being authored as judges will have more time to spend on each case. By contrast, the seven justices on the Supreme Court here fewer direct appeals and have a good bit of discretion over their caseload where petitions come before them. I’m certainly not in the loop for any of this, but I wonder what category of cases would be taken away from the Supreme Court.

I will be interested to see how this all falls out and what the debate is about these two new additions. From a lawyer’s perspective, a move to increase the resources of either court is welcome. A better staffed court is can only help the litigants before it.

14244199385_7f444f30f1_zToday, I attended a continuing legal education seminar featuring Ross Guberman. Ross is the author of Point Made: How to Write Like the Nation’s Top Advocates. When his book first came out, I briefly reviewed it and interviewed Ross here on the blog. I have enjoyed Ross’s book immensely and have used it as a reference over the last few years.

I could write many blog posts on the points that Ross covered today. However, it was a minor point that intrigued me the most. Ross believes that briefs today are not as good as they were in the 40s, 50s, 60s, and 70s. Why is that so? Ross said that briefs were better when lawyers dictated their work rather than sitting at the keyboard and writing. When lawyers dictated, the product was conversational and direct. When lawyers sit behind the keyboard, our work tends to be less conversational and more cumbersome.

I believe that Ross is on to something. I have been on the fence about using Dragon Dictate, the Mac version of Dragon Naturally Speaking. I have had the software in some form on my computer for years. I go through spurts where I try to use it. In each instance, I have ultimately shelved the project for months before picking it up again. Now, dictation is a feature of my phone and iPad. I have been willing to dictate short projects and found it to be a good way to get work done.

However, I find the exercise of dictation to be easier for short documents or for lengthy summaries than for substantive writing projects such as briefs and complex motions. Even blog posts are difficult to imagine doing using any form of dictation (However, I am preparing this blog post using dictation software on my laptop.) I have feared that dictating a brief would be inferior to typing because of problems with citation and keeping the document organized as I write it. I’ve actually been afraid of dictating briefs and more complex writing.

Things may soon come full circle If the heyday of brief writing was a time before lawyers would sit down and type out documents, then software may actually be taking us back to a new golden age. Dictation, not to an assistant, but to the technology itself, is becoming easier.

I have had the fortune of being mentored by lawyers who dictate much of their work. These lawyers are good writers. They have encouraged me to dictate. While I do some dictation in a traditional setting, I think there is an opportunity for dictation to the technology itself. I can’t wait to give it a serious shot.

2369278479_294af9acda_zHiring a criminal defense attorney, whether at the trial court or appellate level, is a pretty complex thing. No matter how life-altering the case might be, the lawyer decision is huge. For the lawyer, taking on a client, whether at the trial court or appellate level, is a big decision, also. The client literally puts her life in the hands of the attorney. And the attorney makes a decision on taking the client that will have a significant impact on the lawyer’s life over the next few months to years. Not all clients and lawyers are a good fit for one another. I’ve learned that there are no small legal matters.

Any lawyer who has represented a client bound and determined to demonstrate that he was not, in fact, speeding, can attest that misdemeanors often mean as much to the client as the person that they are representing for murder. For both the attorney and the client, the decision to retain and to be retained is a big one. For that reason, I put a great deal of attention into the first client meeting.

  • The first meeting with the client is too important to waste any part of it. When I sit down with a client, I already know the charges or the essential facts about the conviction. I already know the client and family’s contact information. I generally have already obtained many of the important needed additional documents. From the moment that the client is seated in my conference room or office, we start talking about possible legal strategy and the next procedural steps. I do not like to spend the first 15-30 minutes getting background information such as DOB, phone number, and address. Our time is too valuable. And I strive to have a certain sense of mastery over the case before I meet with a client.
  • Our first contact usually involves me giving the client a homework assignment. Usually, I want, in writing, a narrative of the client’s basic bio, including criminal history, educational history, and work history. I want to know basic family information. I want to know how bond was made if it was not made yet. I want to know the identity of lawyers who have worked on the case before me. I want to hear the matter described in the client’s own words. If there’s a conviction, I want to know “what went wrong.” I will sometimes want to gather documents. Before we meet, I will want to know as much as I can about the client and the case. This process also give me an opportunity to see what it will be like to work with the client and for the client to see what it will be like to work with me.
  • Things I generally will not tell you on the phone.
    • What the cost will be.  No lawyer can really know what it will cost to represent you within seconds of talking to you on the phone. Cost is connected to complexity and experience. If a lawyer quickly tells you what something will cost over the telephone, he is either guessing or is trying to get you off the phone.
    • Whether I can “beat this.” First, we will not know the answer to this question until the case is over. And I will not be able to make even a rough assessment until I know something about this case. If a lawyers ever tells you that he “can beat this,” particularly on the first phone call, then run quickly away from this lawyer.
    • Whether I believe a certain set of things to be true. I don’t make guilt/innocence decisions within seconds. I don’t commit to any belief that anything either is or is not true. I commit to keeping an open mind about anything I might here, whether from the client, the person who made the arrest decision, or any witness. But I’m not going to lie to a client or pretend to have committed to any belief in anything within seconds of speaking on the phone. Clients probably do not want a lawyer who is either that gullible or dishonest.
  • By the time we meet, I will have thought about your case. When you hire me, we will have some momentum going. Or, if you don’t hire me, you will walk away with a better understanding of what will come next. I put more into an initial meeting than many lawyers. But I also recognize that my decision to take your case and your decision to retain me is a huge one.

I’m learning to fly. And the process of finding an instructor is about as close as I have come to what it must be like to be looking to hire an attorney. I interviewed four different prospective flight instructors before committing to the one who is putting up with me now as we go up in a plane that is about the size of a Volkswagen. The teacher I chose came to our first meeting prepared. He had a syllabus, and he took the time to explain the process. He then introduced me to another flight instructor because he was concerned with me finding somebody who was the right fit, even if he was not that person. He was the flight instructor version of me as a a lawyer. I also got the very real sense that he was sizing me up as a prospective student.

I am not sure what other lawyers do, but this is my process. I field more calls from prospective clients than clients who hire me. I meet with more clients than clients who hire me. Some clients want to hire a lawyer as fast as possible. Some clients are looking to pay as little as possible. Some clients are not a good fit for me. I also have gotten into the process and learned that the client is not the client for me. But I am deliberate about the process because I know that I’m not the lawyer for every client and not ever client is the right client for me. I also know that it is easier to put some work in to find the right fit than it is to get into an attorney-client relationship where we are not.