I almost never work in my office. The office is mainly a place to meet a client for the first time or a week or so before court. It is also the place where I retrieve mail that will be scanned into our system. My actual office is in my briefcase. I sprawl the contents of this office on tables in various courtroom law libraries or coffee shops throughout the state. Today is a prime example. I finished up a case this morning that required a court appearance. With the court appearance complete, I went to the closest coffee shop, where I called opposing counsel on a case tomorrow. But the real fun was in the written work I completed today. I work with an associate. She doesn’t even come to the office and works almost entirely remotely. We meet in person every week or two. But today I received an edited version of an amended motion for new trial that she reviewed for me. And I worked on editing an amended for new trial she prepared. We both work in the Apple universe, each with MacBooks and the big iPad pros. It’s a process that works great and one I’ll explain more in future blog posts.
This week, I became involved in an appeal much later than I typically do. The Court of Appeals had already made its decision, and I drafted a motion for reconsideration for my new co-counsel. Typically, when I draft a motion for reconsiderayion, I am getting my ducks in a row for a petition for certiorari or I am trying to throw a hail mary pass for a devestated client. My typical motion for new reconsideration is a couple of pages in length and written in the style of a trial motion, with numbered paragraphs. Never before have I been asked to enter a case at the MFR stage. Since this was my sole mission, I wanted to add even more value to the process. And so I went to the first place we should all go if we want to up our game in a particular court — the rules of that court as they relate to the subject at hand. It turns out that the MFR stage offers us quite a few options.
In the Georgia Court of Appeals, you go to Rule 37 to learn all about how to prepare an MFR. In short, there are opportunities and ways to get in trouble. Let’s start with the ways you can get in trouble
Ways to get in trouble
- You must file your MFR within 10 days of the decision by 4:30 p.m. Ordinarily, you can e-file things with the COA until 11:59 and you get credit for the day of filing, even if the clerk doesn’t docket your brief until they open the next day. If you file your MFR at 4:31 p.m. on day 10, the Clerk of Court will docket your MFR as if filed on day 11. And if you file your MFR on day 11, bad things may happen to it.
- The clerk of court can shorten your 10 days. I’ve never seen it happen. But it potentially could at the end of a term.
- Let’s talk about the standard for granting a MFR. According to Rule 37(e), “a reconsideration shall be granted on motion only when it appears that the Court overlooked a material fact in the record, a statute, or a decision which is controlling as authority and which would require a different judgment from that rendered, or has erroneoulsy construed or misapplied a provision of law or controlling authority.” I read 37(e) as a fairly liberal standard. With that said, a MFR should be narrow, short, and targeted. You are telling three COA judges that they made a bad mistake. So, tread lightly.
- Blame yourself. Typically, when I write an MFR I blame myself for the adverse decision in the way I briefed the matter — essentially “I was likely unclear in the way I wrote. So, this is all my fault. Better advocacy would have taken you to the right result.”
- You have some space to write. Rule 37(a) refers us over to Rule 24, which is the section that deals with the physical preparation of briefs. So, your MFR can literally be a brief. The only limitation imposed is that your MFR is limited to 4,200 words, or about 7–8 pages of text using a 14-point font and double spacing.
- If you draft an MFR in the form of a brief at 4,200 words and cover the topic, you will probably file the best brief you have ever written. You may even wish that your original brief had looked like this brief. Had the brief been this clear and succinct, your opponent might be writing an MFR right now.
I make no comment about whether the strategy here is a winning one. You are likely still throwing a hail mary pass in any event. I offer these comments as a lawyer who entered the game just to throw the pass. The ball is in the air as I write these words.
Last weekend, I chaired a two-day seminar on appellate and habeas practice. GACDL hosted the seminar at my alma mater, the Georgia State University College of Law. I’m jealous of their new building. We didn’t exactly have it tough at the old Urban Life Building, but the new kids are lucky to be in such a cool space. As for the seminar, I took good notes and plan to steal from our speakers for the next several posts.
The theft starts right now with this incredible one-liner from Justice Nels Peterson from the Supreme Court of Georgia. Here’s what he said about the difference between an appeal and a cert petition:
“The appeal is for your client. The cert. petition is for the public.” To quote Rule 40, “a petition for the writ will be granted only in cases of great concern, gravity, or importance to the public.”
This pithy statement has been the subject of many a discussion with lawyers who have reached out for advice on how to do a cert. petition. It is not much of a stretch to say to lawyers that the Court doesn’t particularly care about their client. When it comes to cert, the law is all that matters. The pitch on cert. is to the potential precedent not the client’s sense of injustice.
The New York Times ran an article this week about a lawyer in Galveston, Texas, who was penalized by a judge for working took hard on his cases. The matter is the subject of a Federal lawsuit. The lawyer was appointed by the judge to represent a man charged with breaking into a car. The defendant faced a year in jail. After the lawyer did a rigorous investigation, the case was reduced to a misdemeanor. When the lawyer submitted his bill for the work on his case, the judge cut his bill more than in half. The lawyer appealed the cut in his bill, and the amount was sustained. Over time, however, the lawyers stopped getting court appointments. And he was removed from some of his cases.
The practice of cutting the bills of court-appointed lawyers is so common that lawyers pretty much take it for granted. The Times article underscores some of the systemic issues in the court appointment system. In a 2011 study, the RAND Corporation found that indigent clients fared better when they were represented by a lawyer from an independent public defender organization rather than a court-appointed lawyer. The conviction rate was 19% lower. The chances of a life sentence were reduced by 62%. And the expected length of sentence was 24% shorter. According to the study, “judges have incentives to appoint counsel who file fewer pretrial motions, ask fewer question during voir dire, raise fewer objections, and present fewer witnesses.”
It’s a fairly open secret that bills are often cut by judges. It can be difficult to secure funding for experts and investigators on cases on appointed cases. And yet, as private counsel, the biases are hard to see. Generally, I find that judges enjoy a rigorous motions practice in my cases. But I’m not before any particularl judge every day. Perhaps if I were, all of the things I do would be perceived as a docket-clogging nuisance.
The headline of the article is “His Clients Weren’t Complaining But the Judge Said This Lawyer Worked Too Hard.” And why would a client complain about your hard work? When you are retained, you have an incentive to work hard. The person you represent and the person who is paying you is the same person. And your interests are aligned with one another. In the court appointed system, the person paying you is not the person you are helping. And sometimes the incentives can pull the lawyer in alternate directions. This scenario has played itself out with the situation in Galveston.
I can recall my first years of practice when my local county had a court appointed system. I would come to Magistrate Court when the judge appointed lawyers. I’d get the form, interview the clients, interview the arresting officer, then do a bond hearing. And I would walk out with three or four new clients. I took for granted that the judge would ultiamtely cut my bill. But I didn’t much care. I had no name or presence. And I knew that doing a great job for these clients was the best way to become known. Eventually, I quit doing appointed cases. But those appointed cases were my start. So, I did not particularly care if my bill was cut. I saw the experience as an extension of law school. If it were medicine, that experience was my residency.
However, most of the lawyers who were there hanging out with me on those days were not young lawyers trying to prove themselves. Many of them were lawyers in their 60s who were there to try to make ends meet. I’m pretty sure that the clients who had those lawyers had a bumpy ride. And, for that reason, it is good that we moved to a state-wide indigent defense system. The Time article doesn’t reveal anything new. It reveals a perennial problem.
I frequently receive calls from law students or lawyers looking to become appellate lawyers. And I find myself having lunch with people and discussing how I started out. What I am writing here is what I typically say on those calls or at those lunches.
I have a background that suited me for appellate practice. Though, at the time, I had no idea that I was preparing myself for appellate practice. I came to college wanting to be a lawyer. Only, as I excelled in college classes, I wanted to become a professor instead. I chose as my major the typical cookie cutter pre-law route of political science. But political science ultimately became a minor. And I double-majored in English and Religion. So, I changed my mind about law school and decided to attend a seminary (my aim was to go from the M.Div. to a Ph.D. program and ultimately become a religion professor). And as seminary neared its completion, I decided to go to law school, which is what I wanted to do when I started college in the first place.
I entered law school three years older than most 1Ls and with a depth of research and writing experience. It never occurred to me that I would do appellate law after law school. In fact, I never even did moot court. I was a mock trial guy. And I was fairly convinced that I would go on to be a criminal trial attorney. And why was that? I wanted to be in the courtroom, and I knew that criminal practice would place me there early and often.
During my 3L year, I came to work for a criminal defense attorney. And on the days I was with him, we’d go from court to court together. His paralegal would lay out his day’s agenda in a little printout atop some gray files. And off we’d go in his little Porsche. As we went from place to place, he’d smoke tiny cigars. Eventually, all of my clothes, papers, and even my apartment came to smell like those tiny cigars. After court, we’d end up at a bar where he and his investigator would down Gin and Tonics. It was like living in a Michael Connelly novel.
After I had been with him a few months, I took a file on a rape case he was defending and prepared it for trial. I spent an entire weekend calling every witness on the State’s witness list, conducting interviews and preparing summaries what their testimony would. I printed these out, and I put them in individual files. Along the way, I found out that the victim had not actually made an outcry to the person the State would call as its outcry witness. They called the victim at trial and she doubled down on her claim that she’s outcried to the person. And the lawyer I worked for spent about 25 minutes of cross-examination really committing her to that story. The outcry witness was then called and she said on the stand what she’d said in my interview. The victim had never made an outcry to her. The jury acquitted in about 15 minutes. What I learned from this was that criminal cases are often won by calling witnesses, listening to them, and preparing detailed reports more so than big television moments. Yes, I was a big part of a trial win, but my contribution to the case felt like a graduate school research project more so than it felt like something from an episode of Law and Order. It was pretty clear that the DA hadn’t interviewed any of the witnesses. She tried the case just from the discovery file. If you outwork your opponent, you will likely beat your opponent. And lawyers don’t really have the time to do what I did in the case. I learned that it is pretty easy to gain the edge in law.
Then something else happened. I learned that the lawyer was doing appellate cases. But he was farming out the appellate work to a former associate of his who had retired to the mountains. The lawyer was handwriting the appellate briefs and mailing them to my boss’s paralegal. And she was typing up the briefs. The writing was pretty terrible, and the lawyer I was working for wasn’t doing very well when it cases to appeals. Shortly afterward, while we were on a tour of Atlanta and as I was buzzed from cigarillo smoke yet again, I asked my boss if I could try my hand at an appellate brief before he sent it out to the mountain man. My boss agreed.
The brief I wrote was on behalf of a guy named Thomas Graham. As I read through the transcript, I noticed something missing. The prosecutor had failed to establish venue in the county where the case was being tried. Back in the early 2000s, there was an absolute loophole in the law. The prosecutor had to ask a witness, “In what county did these events take place?” Only, in this case, the State had failed to check that box. And Mr. Graham had been convicted of murder. I worked hard on that case and ultimately my brief won the day in the Supreme Court of Georgia. And I went on a little streak of wins. I would write these briefs, my boss would review and sign them, and they’d go off to the Court. And we’d win. The law office bought me a laptop of my own. And when I was hanging out in the courtroom with the lawyer, I’d work on cases off in some corner. This was the era just before WiFi was a thing. And I remember having all of the Georgia cases on a set of DVDs. But things got done. When I became tired of working in the office, I’d take the laptop and go someplace else to work. Appellate practice, I was learning, was portable. I do not know ultimately what became of the mountain man. But I know that he was out of the appellate business with this one firm. And I, as a 3L was this little firm’s emerging appellate division. And as our days of touring Atlanta-area courtrooms would wind down, I’d be stuck at some bar. And off to a booth I’d go to work on appellate briefs as I listened to late afternoon bar banter in the background. I was having the most fun of my life. And I soon learned the value of not being stuck off somewhere without your own wheels and without a way to get work done.
After I passed the bar, I stayed on as an associate in the firm. And my first solo break came. A man named Billy Collier hired me to be his appellate lawyer. He was an older man who had gotten into a bar fight in Columbus, Georgia, in a small juke joint called the Pop-A-Top Bar. My client came out of the fight better than his opponent. And he was convicted of aggravated assault and given a lengthy sentence to serve in prison. I recall meeting him at the Jackson, Georgia, Diagnostic Center. He was an elderly gentleman in big heavy cuffs and ankle shackles. And I vowed to myself that I would win his case. And I ultimately did — on prosecutorial misconduct.
It took a while, years even, to consider myself an appellate lawyer. But I think I backed myself into a career for which I was uniquely suited. Had I stayed on the political science track and gone straight to law school, I probably would not have been as ready. But what I found was a way to practice law that was sort of like being a graduate student or college professor. Had I gone on with my Ph.D. Plans, I might be in some cold climate teaching in a community college right now. And my work would be great, but I wouldn’t have overturned criminal convictions, which became sort of a guilty pleasure.
I also became active in GACDL (I’m now the President of it). One night, after a GACDL function, I gave a circuit public defender a lift home. And, over the course of that car ride, I was asked if I’d be interested in taking on their conflict appeals. This conversation led to a steady stream of appointed criminal appellate work. And through this, I started getting more active in the appellate courts. From there, things took off even more.
I still try cases. And when I do, it’s always fun. But appellate law is where it’s at for me. I think these are the lessons from my story.
- Before you can do appellate law, you should be suited for it. I think years of research and writing helped. Also, I chose majors where I read text after text. If you want to do appellate law, a deep background in reading and writing helps a great deal.
- There is some level of serendipity involved in getting started. I landed in a little practice that had a heavy caseload of appellate cases and a need for someone to step up.
- I had to be willing to do it all fairly cheap. There was no substitute for doing a bunch of appellate cases. And I took all of those cases and worked them hard.
- If you’re a good writer, a fast reader, and thorough, you will certainly have an unfair advantage over other lawyers. I hate to say this, but good writers are rare in law school and just as rare in the practice of law. Also, most lawyers would rather do anything but write a brief. If you’re willing to work, there are opportunities.
- You don’t have to be awkward, quirky, or anti-social to be a great appellate lawyer. I am very comfortable in a courtroom, at a party, or in a plea negotiation. But I happen to love appellate law. Emotional/social intelligence is just as important in appellate law as it is in other kinds of litigation. And most appellate lawyers are not at all the stereotype.
And remember that part of my story where I wanted to be a professor?It turns out that I’m doing that now. I teach regularly at a law school in an indigent habeas clinic. And I also teach Georgia Appellate Practice and Procedure. So, I’m now practicing appellate law and teaching!
So, there is my story. I hope that there are some lessons in there that will help an aspiring lawyer who is interested in doing appellate law. Also, if you want to ask me to lunch or call to ask for advice, please fire away! I happen to like lunch and talking about all of these topics.
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.
A new episode of the podcast of the Georgia Association of Criminal Defense Lawyers is out. This one features an interview with Atlanta criminal defense attorney Erin Gerstenzang. Erin and I discuss the basics of marketing for lawyers. We discuss her office in a co-working space at Ponce City Market. And my favorite moment was when Erin and I discuss her decision to give her cell phone number out to clients — the number on her website is her cellphone number. It turns out that this is not a modern millennial thing. Rather, it was a lesson she learned from her father who gave out his home number frequently to clients when Erin was growing up. I have been experimenting with giving my cell phone out to a small sample of clients. And I have been surprised at how well it works. I hope you enjoy the podcast.
The Georgia Association of Criminal Defense Lawyers has a new podcast up. In episode 1, I interview criminal defense attorney and author Jason Sheffield about his new novel. But we get into some other topics such as attorney-client relationships, law practice management, and the good and bad of law school education in America. This was a fun interview. And I think you will enjoy it, too.
We have another episode recorded and in production
I recently listened to Sam Harris’s interview with Tom Nichols on Harris’s Waking Up Podcast. Nichols discussed the “Dunning-Kruger Effect.” If there is a zeitgeist for our age, it may well be the Dunning-Kruger Effect.
Before I define the Dunning-Kruger Effect, let me describe the setting where you may have experienced it. Most often you observe it at a family get-together. Likely, your loudest relative on topics in the political arena fancies himself an expert is likely not much of a political scientist. And you also may experience it in client consultations in the form of the relative who comes to the office who took a business law course at one time about a decade ago. This relative arrives at the office with the client and acts as the family spokesperson. Or you may see it in the thick handwritten correspondence from the client who has been spending time in the law library.
The Dunning-Kruger effect is a cognitive bias in which people with very little knowledge about a topic are overconfident about what they actually know. Meanwhile, folks with expertise tend to see the nuance within a topic and limit their commentary to what can be confidently known. Language may be understated and carefully precise. In the political sphere, a sizeable number of voters fall victim to the phenomenon and vote for the most vocal and confident-sounding candidate. Add to that phenomenon a bias or resentment of professionals (egg heads in their ivory tower) and a bias for “just folks” and you have the Dunending-Kruger effect.
If you are in the business of law, the Dunning Kruger effect can be tricky. We went through a painful process as 1Ls that taught us to “think like a lawyer.” And this thinking process was as important if not more important than the topics we were learning. In many ways, torts was a vehicle that we used to learn a method of thought. And this approach to legal problems was why we spent the tuition dollars.
It is fairly easy for the client in the market for an attorney to go on FindLaw and find cases that appear to be relevant. And the client can go into a prison’s law library or contraband electronic device and have access to the same database of law that you have. But the context of a legal education and years of courtroom experience do not come with the material. And it can be easy to become bogged down or incorrectly directed when you divorce the material from all the of sleepless nights learning how to understand it in context. Add to all of this, a national ethos of distrust of experts, a suspicion of the legal system and its officers, and the Dunning Kruger effect can take hold.
To make matters worse, the law is not a computer into which we feed facts and out comes an answer. Statutes and precedent are malleable. And the client’s fate is often subject to the preferences, biases, and even mood of the trier of fact and interpreter of law — the judge and/or jury. When asked such questions as “how is it looking for me?” “was the officer wrong to do what he did?” Or “when will this be over?” We give an honest answer that speaks to the uncertainty. Ask those questions to 10 honest lawyers, and about 8 of them will answer “well, it depends.” Clients are invariably frustrated by how tentative we are about things and wonder why we aren’t “shooting straight” with them. The irony is that we would not be shooting straight if we answered their questions with the level of certainty that they want. However, the jailhouse lawyer or the “family expert” has arrived at a more definite and most certainly optimistic answer. And they state it more confidently that you will. But the client comes to you looking to hire a lawyer.
Fight too hard against the Dunning-Kruger effect and the client will go elsewhere — to the lawyer who charges a third of what you charge and who is willing to agree with anything that the family’s legal expert says. This lawyer is in the client entertainment business and does not mind that the folks in the courtroom are going to roll their eyes when the lawyer comes in the door. Go along with the “expert” for too long and you will find yourself in front of a judge who will not be amused to hear what you have to say.
There is no clear answer to how to handle the phenomenon in legal practice. It requires active listening and a calm and steady effort to talk the client down from the ledge. Also, to be fair, we must be careful that we are also not falling victim to the Dunning-Kruger effect in being dismissive at competing ideas. The canary in the coal mine for whether you are suffering from the Dunning-Kruger effect is a sense of confidence confidence that you know the outcome. In the long term, I have to believe that authenticity is the best long-term strategy for marketing and reputation. I have to believe this, because an alternative to that view of things is frightenting to imagine.
A couple of weeks ago, I had a critical witness who would be unavailable to attend a hearing. The Court insisted on a particular date, and the expert had travel plans and non-refundable plane tickets. We decided that we would take his testimony by Skype. Moments after making the decision to Skype the witness, I asked myself “How do you take a witness’s testimony by Skype?” And here is my story. Note, I refer to Skpe throughout this post. But there are other videoconferencing platforms out there.
Your jurisdiction may vary. But Georgia’s provision for taking a witness by Skype is Uniform Superior Court Rule 9.2. 9.2 (A) lists an assortment of situations where video conferencing may be done. The list includes such routine things as applications for search warrants and first appearance hearings. For my situation, there was one matter that applied to me, which was found at (A)(12), “post-sentencing proceedings in criminal cases.” And the catch-all provision applied as well.
For everything else, the place to look in 9.2 (C). There the rule provies:
In any pending matter a witness may testify via video conference. Any party desiring tocall witness by video conference shall file a notice of intention to present testimony by video conference at least (30) days prior to the date scheduled for such testimony. Any other party may file an objection to the testimony of a witness by video conference within ten (10) days of the filing of the notice of intention. In civil matters, the discretion to allow testimony via video conference shall rest with the trial judge. In any criminal matter, a timely objection shall be sustained; however, such objection shall act as a motion for continuance and a waiver of any speedy trial demand.
In a nutshell, if you want to take a witness by Skype, you should seek your opponent’s consent. And if you anticipate a problem, you should file the notice 30 days in advance. Your opponent’s objection (in a criminal case) is deemed a motion to continue. In my case, my opponent consented to take the witness by Skype.
Once you have your opponent’s consent or a court order for skype testimony, there are a few other things to worry about. Take a close look at (E), which sets out the technical mimimums for video conferencing testimony.
- All participants must be able to see, hear, and communicate with each other simultaneously;
- All participants must be able to see, hear, and otherwise observe any physical evidence or exhibits presented during the proceedings, either by video, facsimile, or other method.
- Video quality must be adequate to allow participants to observe each other’s demeanor and nonverbal communiction; and
- The location from which the trial judge is presiding shall be accessible to the public to the same extent as such proceeding would if not conducted by video conference. The court shall accommodate any request by interested party two observe entire proceedings.
In other words, when the witness appears on screen, there should be no difference between that experience and what it would be for the witness to be present in court. And, as techy as I consider myself to be, I am paranoid about technological fails in the courtroom. So, here is what I did.
Two weeks before my court date, I took my laptop and iPad to the courthouse (in a very rural area in Georgia). I used the empty courtroom to call my witness by Skype using the courtroom WiFi and my cellular connection as a backup. Everything worked. I check to see if the court had a video monitor. And the Court did. When I tested out the video, I noticed that I needed an hdmi adapter for my iPad and laptop. So I put those on my shopping list. I ran at test on Fast to make sure that I had a sufficient connection. It turns out that my cellular connection would be faster than the court’s WiFi.
In the intervening weeks, I made sure that the witness had a copy of every potential exhibit that might come up. The only glitch was that the witness was not at his office. I asked him to test out his Skype in the location he would be.
On the morning of court, I arrived early to do a final check. I made sure the court reporter could hear everything well. I noticed that there was a little lag, so I made sure the witness spoke slowly.
The judge had some questions during the testimony. And he was not close enough to the mic for the witness to pick up his voice. But this problem was largely solved by my repeating the questions. So, the next time I do a Skype witness, I will make sure that the computer can pick up the judge from across the room. This can either be solved by the location of the set up or perhaps an external microphone.
The overall experience was good. And it was great to be able to conduct a hearing with a witness off in Florida. Skype is certainly a potential solution to put up trial counsel’s testimony in habeas proceedings and in keeping down the cost of using an expert witness. However, it takes much more work to arrange for Skype testimony to pull off without a glitch than it does simply to have a witness there — particularly in more rural courtrooms where connectivity is a potential issue.