I’ve spoken at 2 CLEs in the last few weeks. Both presentations were to groups of public defenders. The first was on the topic of preserving a record on appeal. And the second was on motions practice in child abuse cases. Whenever I speak on these topics, I invariably hear the same response from folks in the audience: “my judge will never grant this motion / allow me to do what you are explaining / allow me to say the words you are advising me to say.”

To this, I always lend my perspective as an appellate lawyer. And I used two phrases in both talks. “Best case scenario, the judge grants your motion. Second best case scenario, the judge denies your motion.” If you win your motion, then you’ve made your trial more fair than it otherwise would have been. And if you lose your motion, then you have created an issue for appeal. After all, the fair trial is the appellate lawyer’s worst enemy. The second phrase is, “your job is to gather rulings and quotations.”

Whenever I enter a case as the appellate lawyer member of the trial team (every trial team should include an appellate lawyer, by the way), my goal is two-fold. I want to gather rulings. And if the judge is being nasty, I want to gather quotations. Rulings are the basis of argument section of the brief. And quotations from an angry judge make great stocking stuffers for the statement of facts.

Motions are the gift that keep on giving, no matter how they turn out.

Two recent cases from the Court of Appeals demonstrate the need to put the appellate record together in a reasonable time period, the need to respond to post-trial motion regarding the record with the statutory time frame, and to be vigilant that the record stays together as the case moves its way through the court system. The record is the engine beneath the hood. And there can be problems that the gauges in the dashboard will not always catch. Sometimes, we need to check the oil, the belts, and the hoses.

Frazier v. State, A11A0196

In this opinion, written by Presiding Judge Anne Barnes, the Court of Appeals affirmed a trial court’s decision that a defendant’s confession was voluntary and would be admissible for impeachment purposes if the defendant decided to testify. The defendant had not been Mirandized before he spoke with law enforcement, so the State was not allowed to use the statement when it presented its case. On appeal, the defendant argued that the statement was involuntary, because he was intoxicated when he spoke with law enforcement, and should be inadmissible for any purpose. He urged that the error was harmful because, without its admission for impeachment purposes, he would have testified at trial. This was the case’s second trip to the Court of Appeals. And, somewhere along the way, the videotape of the confession, was lost. The Court checked with the trial court clerk and others to no avail. The Court did not have the tape to review in making its decision and was left to rely solely upon the trial court that viewed it.

Mr. Frazier filed a Motion for Reconsideration and a Motion to Supplement the record after the opinion was rendered. The Court denied the Motion for Reconsideration, reasoning “Further, as Frazier has only now requested that the record be supplemented with the missing videotape, and has moved the trial court to produce a videotape, he obviously made no attempt to ascertain the location of the missing videotape prior to the issuance of our opinion.”

One wonders, though, whether Mr. Frazier would have achieved anything in acting earlier. The Court, on its own, looked for the tape “prior to its review of the present appeal” and was unable to find it.

What is clear from the opinion is that a lawyer’s responsibility for keeping up with the record on appeal does not terminate when evidence is tendered to the Court and when documents are filed in the record. At a panel discussion on appellate advocacy, Judge Dillard spoke about his practices with respect to the record on appeal. He talked of his earlier practice as an appellate advocate going to the clerk’s office and making an exact duplicate of the record to keep in his file. It turns out that such a practice is more than a helpful suggestion, it may well be the standard of care since Frazier.

It also would be a good practice, post-Frazier, to check the record when the case is docketed to ensure that everything put in the record is still in the record.

Bush v. Reed, A11A0978

And it is also important to get the record assembled in a reasonable way. In another opinion, authored by Judge Barnes, and decided by the same panel that decided Frazier, the Court affirmed a decision by a trial court in a civil case, where a trial court found that a plaintiff’s delay in paying for a transcript was inexcusable and unreasonable. It takes a timeline to explain this case fully. On October 27, 2009, the plaintiff filed a notice of appeal, moving to only send up certain portions of the record. A month later, the defendant moved that the complete transcript be prepared and sent up. In January, 2010, the Court granted a motion for additional time to file the transcript. A month later, the court reporter told the plaintiff that $3,500 was needed to begin the transcript and that it would be unusual only to prepare certain portions of it. So, later the plaintiff moved to require the Court to make the plaintiff and defendant apportion the costs of the appeal, which the trial court denied. On July 29, 2010, the defendant moved to dismiss the appeal, prompting the plaintiff in August to pay the deposit finally. But the plaintiff did not answer the motion to dismiss until October, and that answer was struck as untimely.

Finally, on November 15, 2010, the trial court dismissed the appeal.

On appeal of the dismissal, the Court found that the trial court did not abuse its discretion in finding that there was an unreasonable delay in the preparation of the transcript. It is important to take note that there is no magical number of days that a case can be delayed before the delay becomes unreasonable. In fact, there is language in the opinion suggesting that a trial court would not abuse its discretion in finding a single day’s delay to be unreasonable. Next, the Court turned to whether the delay was excusable. There the original plaintiff had relied upon the trial court’s somewhat open-ended order allowing an extension of time to file the transcript. Practitioners should take note that even an order allowing an open-ended extension is not sufficient to delay paying the court reporter. The court reasoned that a court order “does not excuse a party from the consequences” of his unreasonable delay.

Conclusion

It is not enough to tender an item into evidence and put it into the record. The appellant has the responsibility to shepherd the record to the appellate court, even when the sheep are penned up in the clerk’s office or with the court reporter. It is also important to be diligent with the assembly of the record even if the trial court appears to have provided you with an excuse to do otherwise. Not even the trial court can excuse unreasonableness.

 

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.

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)

referee.jpgLast Friday, I spoke at a conference in Atlanta devoted to training attorneys who represent parents in juvenile deprivation hearings. The overall conference was devoted to representing parents in juvenile court. And the focus of my topic was preserving a record for appeal in juvenile court. 

I still do cases out of juvenile court from time to time. Earlier in my career, I did these cases quite a bit. From listening to the conversation, it doesn’t sound like the juvenile court culture has changed very much.

I give the “preserve the record” talk quit a bit at conferences. This year, I’ve presented on this topic twice. And I’ve spoken at this particular conference for several years in a row. This conference is a little different because you must go back to challenge some bad assumptions underneath “business as usual” in juvenile court. I actually use a slide with a single sentence in my Keynote presentation. That sentence reads, “the rules of evidence apply in juvenile court.” 

The thing is that the rules of evidence aren’t really enforced in juvenile court all that much. When you appear in juvenile court and start making hearsay objections, the judge, opposing counsel and guardian often look at you as if you just landed in court from some distant planet. 

When I’ve gotten records and transcripts from cases in juvenile court where I was not trial counsel, they are terrible. They are terrible in a way worse that the average way that records are terrible.

There’s a pervasive “culture of cooperation” in the average juvenile deprivation that undermines the very concept of an adversarial system.

So, the focus of my talk was how important it is to overcome fear and simply start making objections in juvenile court. If my hour-long talk could be condensed down to five points, it woudl read like this:

  • If juvenile courts mistreat the parties, then the blame lies with the judge and the State. But it also lies with the attorneys who represent clients there. Unlike in basketball or football, where there’s a referee whose job description includes calling fouls and penalties, the parties must “throw the flag” before they can get a ruling. If you don’t throw the flag, your opponent will spend the whole game grabbing your client’s facemask.
  • Sure, the fix is in. DFACS and the State of Georgia control most of the courtrooms in Georgia. But just because you are going to lose the objections doesn’t mean that you shouldn’t make them. In fact, objections that my appellate client lost at trial are like music to my ears when I read a trial transcript.
  • Your job is to collect rulings at trial, not to win them. If your goal is to collect rulings, then you will position the case for appeal better than if your goal is to win them. Think of a trial as a basket that you will fill with rulings. The ones you collect that went your opponent’s way will form the basis of your appeal.
  • A ruling comes when a judge says, “sustained,” “overruled,” “granted,” or “denied.” “Move along,” “noted,” and “ask your next question” are pseudo-rulings that will do nothing but nuke your future appeal.
  • The more objections that your opponents has to deal with and the court has to decide means that the system must work harder to convict your client or take your client’s children away. Often, better deals will come just so that the people in court will make you go away. Even if your opponent clears all the hurdles you throw up, it takes energy to clear hurdles. If you assume that DFACS is predatory, they might let your client go in favor of easier prey in the form of the next case on the calendar where the lawyer is a big pushover.

The groups asked great questions, and I met several future friends and colleagues during the talk and in the hallway afterward. Once again, I learned just as much as I taught in the process of preparing the talk, giving it, and engaging in discussion with the CLE participants.

rubber stamp.jpgJudges seldom grant motions for new trial. I have various theories about why. And they range from being sympathetic to the judge to utter cynicism. Sometimes, there just wasn’t any harmful error. Sometimes, the judge couldn’t fathom that he made a mistake. Sometimes, it’s just too dang expensive to try the thing twice. And some judges take a Roy Moore sort of pride in being battered by them judges in Atlanta. That said, I think you should load up and give motions for new trial everything you have. There are a few good reasons to do so. 

  1. Issue spotting and Issue experimentation. I view the motion for new trial as the ultimate issue spotting exercise. I like to sit down with the trial transcript and summarize it. I then work from the summary to spot as many errors as I can and put them into the amended motion for new trial. Many will be jettisoned when it comes time to draft the appeal. But I like to build the amended motion for new trial as a menu of possible appellate issues. This process serves several purposes. You learn the record. You figure out what works and what doesn’t. You force your opponent to research everything you list out and see where he is weak. Finally, if you find yourself on the habeas witness stand, the amended motion for new trial is tangible proof that you considered all of the possible viable issues during the preliminary stages of the appeal. I suggest that you place a memo to the file setting forth why you have chosen to abandon issues when you draft the brief of appellant.
  2. It is an opportunity to put things in the record. In Georgia, you must raise ineffective assistance of counsel at your earliest possible opportunity. You can try to bootstrap issues not raised at trial through an ineffective assistance claim and call witnesses to proffer what a better trial would have looked like.
  3. If you were the client, you wouldn’t want your lawyer to coast through any stage. You should manage your client’s expectations of the hearing, but you should still give it everything you have. I went to a high school that moved up a division when I attended. We were outmatched in every game we ever played. Everybody knew that they were going to lose when they went into those games. But everybody gave it their all. Your client deserves your all, too. If you don’t like battling long odds, the probably the whole criminal appellate process isn’t for you.
  4. You just might win. It is possible that your performance at the motion for new trial hearing will scare the judge so much about a reversal or the prosecutor so much about the prospect of a new trial, that you might get a good offer or even win a new trial.

So if you have a motion for new trial coming up, come to it dressed to play. While you will likely lose, don’t treat it like the rubber stamp that it is and it might just not be a rubber stamp all the time.

Preserves.JPGSo, I just got finished reading a transcript on a case I am appealing. Halfway through the trial, a witness for the State said something highly improper. Counsel moved for a mistrial. These moments in the reading of a transcript are a little like watching a really close college football game, because I am pulling for some magic words that preserved the record for appeal. So, I flip the page, and the lawyer explains why the testimony was improper and why a mistrial is necessary. Good stuff.

Cue the drama and suspense music. The judge dismisses the jury. As soon as the jury is out of the room, there’s a little more argument. The Court tells the State and the witness not to say it anymore. The Court makes the prosecutor warn all the other witnesses not to say it. The objection is sustained.

Then, the jury is asked back in, and the trial continues. No ruling on the motion. No renewal after corrective action. Nothing but a good appeal down the tubes. Mistrial issuesin a transcript are often the litigation equivalent of a Gilligan’s Island rescue. They almost preserve the issue for appeal, but they don’t quite make it.

So, since my theme this week is preserving the record for appeal, let me say a few things about managing mistrial motions in Georgia.

Continue Reading Managing Motions for Mistrial in Georgia to Preserve Them for Appeal

Court Reporter Pix.jpg

The Atlanta Journal reports that a Cobb County, Georgia, grand jury has serious concerns about the fact that court reporters in that county earn a salary and also charge the county and private attorneys highway robbery fees to produce transcripts. The article evokes all sorts of thoughts for me about the frustrations that accompany getting the trial transcript. From an appellate lawyer’s perspective, the transcript is one of the trickier parts of the entire appellate process. Some of the issues identified in the article are part of the problem of representing clients on appeal. The problem is that court reporters are pretty powerful people. In fact, am going to be careful about cranking my car for a few weeks after I post this blog.

There are some pretty serious issues with the whole transcript process in Georgia. Court reporters include a mixture of free lancers, official court reporters, and employees of corporations. While they are all governed by the Georgia Board of Court Reporting, procedures for getting transcripts and getting them expeditiously vary with each reporter’s personality and with the personality of the Court. The fees for transcripts can be so high as to discourage appeals entirely (It’s important to compare what you are being charged for a transcript to the approved schedule for court reporters). 

The other issue, and it’s a big one, is the matter of who owns the transcript. The client wants his own copy most of the time to “help,” and the lawyer gets one with an account accompanying warning not to copy it. Most appellate lawyers would prefer for the client not to have a copy because a bunch of time can be involved in trying to explain errant views of the law or an inappropriate emphasis on the facts (i.e. Sally was lying. Why don’t you make a bigger deal about that instead of this odd venue argument, Mr. Key? Whose side are you on anyway? I paid $3,000 for this transcript. Why can’t I have it?)

 If I could be king for a day, court reporters would work out of a pool. They would not be one particular judge’s court reporter. They would just plug in where needed. They would be paid a salary instead of a salary plus a per page fee for preparing transcripts. And, if they had a backlog of five trials, they would not be allowed back into the courtroom until the backlog is brought current.

This grand jury is really onto something. But they’ve just scratched the surface. The real issue is not whether the transcript is the county’s property versus whether it is the client’s property. The real issue is that many court reporters view the transcript as their property even after you bought it. It is not unusual to see warnings in transcript threatening all sorts of consequences about taking the transcript apart or copying it. It’s worth than the warning on mattress tags. One would think that taking the transcript out of its binding is tantamount to opening the ark of the covenant.

Hopefully the grand jury’s action will evoke discussion and possibly much needed reform.