A few weeks ago, I argued DHS v. Steiner at the Georgia Supreme Court. The case involves a Constitutional challenge to Georgia’s child abuse registry. My former law student, new associate, and co-counsel Kayci Dennis and I filed the Brief of Appellee. She’s pictured to my left. And we combined our efforts with a set of appellate lawyers to do a moot court to prepare for the argument. The moot court groups is pictured in the photo with me and Kayci.

And I was more recently interviewed by Ryan Locke about how I write and prepare for argument. Ryan also posted the audio of the argument. You can also view the video on the Georgia Supreme Court’s website.

Amateur HourIn episode #12 of First Mondays, Dan and Ian play cringe-worthy clips from the recent Supreme Court argument in Lee v. Tam, a case involving the disparagement provision of the Lanham Act and the First Amendment. There is a similar case in the pipeline involving the Washington Redskins. And counsel in that case argued that cert should be denied because of the poor quality of counsel for the band, The Slants. Counsel argued that the case involving the Redskins was a better case because of better counsel. Last week, the commentators speculated that the lawyer might be angered by the criticism and rise to the occasion. Alas, he did not.

At 20:27 in the podcast, Dan and Ian play some regrettable moments that seem to reinforce the choice of counsel argument. In the first clip, counsel responds to a hypothetical question by saying “that’s not a question before the Court.” Judges hate this response. Every panel I have ever watched at a CLE on oral argument features a judge or justice saying that judges hate this response. And it goes downhill from there.

The First Mondays guys, both former SCOTUS clerks, go on to say that the poor advocacy problem is most prevalent in criminal cases before the Court, to the tune of three to four arguments per term. Typically, the criminal lawyer who handled the case keeps the case all the way to the Supreme Court. Most criminal lawyers I know talk of their dream of one day presenting a SCOTUS argument. Often, I try not to picture how that might go. So, I’m not surprised at the notion that it so often doesn’t go well.

They then draw a medical analogy. Imagine a patient is diagnosed with a rare disease and the local general practice doctor chooses not to hand the case over to a specialist because the procedure will make the doctor famous. Such a thing would not happen in medicine but does happen in the law. And it apparently happened in this copyright case.

The problem at issue here goes deeper than advocacy at the US Supreme Court. Far too often, a lawyer tries a complex criminal case because he did a great job at drafting Aunt Jean’s will. When I take a new criminal appeal, this is generally the background. Or the lawyer handles an appeal simply because a potential client with an appellate issue walked in the door one day. And the client comes to me with a mess and a prayer for possible habeas relief. And it is not uncommon for me to get a call from a lawyer with a question about an appeal that they are handling. It becomes clear, not far into the phone call, that the deeper problem is that the lawyer is in over his head and should not be doing the case.

Dan and Ian go so far as to say that the choice of counsel doctrine should not apply at the Supreme Court level. Not only do I agree. I think the argument doesn’t go far enough.

Ash If CC
Ash If CC

There is a psychological concept known as the curse of familiarity or the mere exposure effect. So the theory goes, we can develop a certain myopia with regard to things for which we have become intimately familiar and gathered expertise. This familiarity can make us see the world through that lens only. Then we lose sight of the fact that others may not be as familiar with the facts as we are. Our arguments can become old friends, and we can sometimes underestimate the value of our opponent’s argument. Also, we tend to gravitate toward the familiar and reject different ideas, not for their inferiority, but simply because those ideas are different.

The Perils of Overestimating Your Argument and Underestimating Your Opponent’s Position

This priciple is no more dangerous than when it happens with our argument or our position in a case. Over time, lawyers can fall so in love with our own argument that we cannot even wrap our head around our opponent’s. The result is that we do not see the strength of the argument and cannot plan to meet it. We make the mistake of preparing for the weak version of the argument that we perceive in our mind. Unfortunately, when we miscalculate the strength of our opponent’s position, we come to court unprepared. When it’s game time, find ourselves pitted, not against the straw man we trained for, but against the real opponent with the real argument. Suddenly, things come at us we did not anticipate.

My Pre-Argument / Pre-Court Ritual

I have a ritual that I do before every major court appearance or appellate oral argument. Instead of starting by  preparing to present my argument in outline form (presumably I know my argument already). I begin my preparation by pretending that I am my opponent. And I prepare his argument. What points would I lead with? What points would I de-empasize. What witnesses would I call? How would I attack me, if I were my opponent? Once I have prepared as my opponent, I truly understand that I am up against. Having put my own materials aside, I take out my opponents brief, my opponent’s main pleadings, transcripts of arguments for my opponent, and I spent the time it takes to get a full and very sympathetic grasp of my opponent’s argument. I try to resist the temptation to cut this exercise short or get dismissive. I pretend that I will be presenting my opponent’s argument. The exercise generally brings with it rude awakenings.

When I’ve truly gained an understanding of how my opponent will try to beat me, I change hats. I put on my judge hat and think of mine and my opponent’s argument from the point of view of a neutral third party.This process has prompted me to make last-minute shifts in my argument.

40 Questions

From there, particularly if I have an oral argument coming up, I will write out the top 10 tough questions I might expect to face during the argument. I then turn to draft the top 10 tough questions my opponent might get. After I’ve done this task, I will draft what I believe the top 10 softball questions are for my opponent and for myself. By softball question, I mean those questions that would help push my argument along if those questions were to come from a friendly judge or jury. A knowledge of these 40 or so questions helps me know what lies ahead in terms of challenges and strengths. I try to come up with an answer to all 40.

Then, and only then, will I prepare the outline of my argument. The outline of my argument is a whole separate post. But that outline is always better if I have prepared my opponent’s argument first.

Have a big argument coming up or brief due? Spend a few minutes walking in your opponent’s shoes. I think you’ll learn something valuable that will help you with your own argument if you do that.

Today, I had my first oral argument at the Court of Appeal in perhaps two years.

Argument is granted more frequently in civil cases than criminal ones at the Georgia Court of Appeals. So, most of my arguing is at the Supreme Court down the hall.

The presiding judge began most of the cases with a summary of the facts. I wasn’t sure if the purpose of the summary was to inform the public of the context or if it was to help move the argument along.

I assumed it was the latter and truncated my presentation. Many of the advocates I heard today went forward with the factual presentation they intended to give. I think I did the right thing, but I’m not completely sure.

I found it helpful. And if you haven’t argued there in a while, you might take note (though don’t rely on it. Not every case had a summary). I don’t know if every panel is doing it or not. And I don’t know how long this practice has been in place.

If you practice in the Ga. COA, please leave a comment to share your experience.

Last week, I had a post-conviction motion in a county where I never practice. The motion is under advisement, so I won’t go into the particulars about it or what happened at the argument. I write today about the things I did before the hearing started and I plan to do those things even when I find myself in court in more familiar places.

The first thing is that there is a sign in the hallway, just as you enter, warning you to turn your cell phone off. The sign said nothing of putting it on silent or on vibrate. Off means off. So, off it went. Next, I pulled out my laptop just long enough to get the files I needed for the hearing onto the desktop. Then, I did the worst thing I can ever do when I’m in a courtroom waiting for my case to get called and bored. I checked my email. I am reminded what productivity guru David Allen said about email: “Any email could be either a snake in the grass or a berry.” Many of my phone messages go to email. So, for me, checking email means also checking voicemail. And that day’s inbox was filled with snakes. But even berries were not what I needed to see at that moment.

I was dumb, but not that dumb. I saw from the snippets in the in-box that I had read too far. But I stopped before I opened any of them. In fact, it was time to close the laptop and step slowly away. I also knew I couldn’t trust myself so I turned off the wifi receiver on the laptop. With the phone off and its array of distractions away, I had three solid hours to sit there in this South Georgia Courtroom while the court handled other business. What, then, to do with my time?

I took a small notebook and a pen, and I moved from the jury box where I normally sit over to the pews, dead center of the courtroom where I could watch the lawyers, the judge, the witnesses, the court reporter, the bailiffs, and the clerk. I took notes on the things I saw. It was among the best two and a half hours I ever spent in a courtroom. I watched a pre-trial conference where two sets of pissed-off South Georgia family members would soon be pitted against one another in a jury trial without a lawyer to contest a will. I watched two motions to suppress, and I watched the calling of the calendar in its entirety.

With notebook in hand, I watched every objection, heard every argument, sized up how the judge talks to people in conferences, noted how witnesses are sworn (every courtroom is a little different. Sometimes the judge swears them in. Sometimes it’s the clerk. Sometimes it’s the lawyer. The oath is sometimes a little different, too). I noticed the atmosphere of the courtroom (the judge likes it to be quiet and orderly. There isn’t room for a lot of drama. The judge, not the lawyers, runs the courtroom. He quietly contemplates objections before ruling on them). I noticed where sequestered witnesses go before being called in (turns out, it’s in a room behind the bench and not out in the hall). I noticed a number of things I would not have seen had I been responding to email, fiddling with my phone, or going out into the hall to take calls.

There was a fifteen minute break between the first few cases and the next few before mine was ultimately called. I used that fifteen minutes to huddle with my client in the holding cell and my client’s family. We made a few changes to the game plan in light of what we observed.

I also saw how the prosecutor responded to certain situations. And I likely saw several things that changed my approach beneath the level of consciousness. For a couple of hours, I took it all in.

Had I been someplace else, I might have read some advance sheets, edited a brief, or responded to some “pressing matters” on the phone or laptop while I waited. Had I been in a more familiar place, I might have “visited” with other lawyers. And, had I not moved, I would have “watched” the whole thing from the sidelines instead of moving to a place where I could see all the body language and facial expressions.

I am going to integrate the lessons in to future court appearance even in closer lands. After all, just as you “can’t step into the same river twice,” you never step into the same courtroom twice. A courtroom is a dynamic thing that changes with the mood of the participants, the types of cases on the calendar, the weather outside, the witnesses who appear, and what the drive to the courthouse was like. I hope to really be in the next courtroom I enter. In fact, the next time I go to a distant one, I think I’ll come down a few days before just in case I don’t get the gift next time of being last on the calendar.

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.

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.

beverly-martin-2009-7-29-11-10-39.jpgJudge Beverly Martin of the 11th Circuit Court of Appeals spoke to the Georgia Bar’s Appellate Practice Section yesterday on the subject of “What Makes an Effective Appellate Advocate.” More specifically, her focus was on effective oral argument. I’ve heard many talks on this topic, and I read about it all the time. I even write about it from time to time. Judge Martin’s approach to the talk was different from the typical talk on effective advocacy at oral argument, which often takes a very nuts and bolts (do this, don’t do that) approach with little attention given to what the result should be. Instead, she spent her time describing, virtually inviting the audience to imagine, the perfect oral argument. She left us with the task of working hard to find our way to that destination. In this post, I want to summarize what, in her eyes, the perfect oral argument looks like.

The Advocate is Fearless

A fearless advocate is one who knows the facts and the law cold and has thought about the possible implications of each. The advocate is fearless as a result of focused concentration on the case in the weeks leading up to the argument. The fearless advocate also is prepared to engage in a calm conversation with the Court about the case. Judge Martin spoke of a level of preparation so great that there is little that can’t be answered or discussed. 

The fearless advocate is calm because that advocate is “ready to discuss any and every fact in a way that weaves into the lawyer’s theory of the case.”

Preparing to have a conversation and preparing to give a canned rehearsed speech are two different things. In addition, this picture of a perfect argument also presumes that the bench is equally prepared to have a conversation.

She cited a judge who told her, in her earliest days on the bench, that being an appellate judge feels like advocacy again. She explained that judges often come to oral argument having taken a position on the case, and that other judges often have different positions. The questions they ask the lawyers before them are often “adversarial” in nature and work as a tool to argue positions to the other judges on the panel. Which leads to the next part of the portrait of the perfect oral argument.

 

The Advocate is a Masterful Manager of Concessions

Then came the other part of the portrait of the perfect oral argument, which is more of an internal piece. It is important to concede the things that should be conceded to avoid embarrassment at having assumed a ridiculous position. But the need to make concessions must also be balanced with the knowledge that oral argument is “not a popularity contest.” Which means that it is equally important not to concede things that should never be conceded. Judge Martin explained that her colleagues are masters at getting lawyers to concede points at argument that will undermine the lawyer’s case and the other colleague’s position. 

How do you know where this balance is between things that must be conceded and should never be conceded? It requires mastery of the facts of the case and the law governing the issues. Sometimes, even sufficiency of evidence arguments can be abandoned to the client’s peril.

 

The Rest of her Talk

Judge Martin’s discussion of the management of concessions then moved to the difficulty that comes in some cases, which is that “the rule of law does not bend to exclude distasteful people.” Which may be a clue in the handling of cases where there is a good legal issue but distasteful facts. Sometimes, perhaps, we undermine our argument in trying to sanitize things about cases that should not impact the outcome if we assume a set of participants in the legal system that are applying the rule of law dispassionately.

Judge Martin characterized the flow of work at the eleventh circuit as “shocking” in its volume for ten judges to undertake. She also explained that the court handles it very well because “if you don’t move it, you’ll be buried.”

It was a good talk on an area of growth for me. I’ve often said that I think oral argument is the hardest thing about being a lawyer but also potentially the most rewarding. I never feel more like “a real lawyer” than after an appellate oral argument that went well, and I never feel more like I should start some other kind of business than after a really bad one. Judge Martin’s portrait of a great oral argument has given me something to aspire to and to envision in the future.

I’ve been following this case closely because the Georgia Association of Criminal Defense Lawyers submitted an amicus brief on behalf of the Appellant.  In a nutshell, the trial court disqualified the former DeKalb School Superintendant’s law firm where there actually was no conflic; rather, there was the speculative potential for a conflict where the clients had waived a conflict in writing. We were alarmed about the precedent that could be set if prosecutors could freely choose their opposition. 

Today was the oral argument before the Georgia Court of Appeals. The Fulton Daily Report covered it, and Oral argument is available on video of today’s session. Beyond the fact that the issue is important, it is worth taking a look simply to see good appellate advocacy from Bernard Taylor. Here are three things I particularly enjoyed watching.

  • Time Management. Mr. Taylor managed his time well. He had his argument prepared and was able to get his main points out. He reserved plenty of time for a well-developed rebuttal and for the Court to ask questions. 
  • Strength of Argument. Mr. Taylor struck a nice balance between the scholarly tone necessary for appellate argument with the passion necessary for a case with issues like these. 
  • Answers to Hypotheticals. Appellate judges often warn lawyers away from the “those aren’t the facts of this case” response to hypotheticals. Mr. Taylor almost gives that answer at one point, but he does so by reference to law that conflict/disqualification isses are fact intense and unique. He then acknowledges that, under the hypthetical as framed, there might be “issues.” He struck a nice balance.

It is truly great that such a strong advocate is representing the Appellant in this important case.