One of my favorite bloggers on trial advocacy is Mark Bennett. Mark has written a series of great posts at Simple Justice, Scott Greenfield’s blog on the topic of opening statements.

Mark offers 11 rules for better opening statements. One tip is to limit your opening statement to fifteen minutes. From experience, this is a solid tip. The rest of his rules could be summarized in a single sentence. Your opening should tell a story. Stories are all the rage in trial advocacy these days. If you have been to a CLE on trials. You have heard about story and why openings should be more like a story and less like a lawyerly presentation. The reason is simple. Jurors and judges love stories. Stories are more persuasive than speeches. Stories draw is in.

I have become frustrated with all of this talk of story. I was convinced, years ago, that storytelling is important for opening statements, for briefs, and even for simple motions. But CLE programming is light on nuts and bolts instruction on how to tell a good story. And that was why I was excited to learn about Pixar’s online class on storytelling offered through Kahn Academy. The class is excellently done, with great videos (each one tells a story) and activities to work on to get better at story telling. The video series is not aimed at lawyers, but it is exactly the storytelling 101 I’ve been looking for. I cannot give a comprehensive recommendation here because I am at the beginning of the lesson.

And, in case you aren’t aware of Pixar— Pixar is the company that perfected computer animation in the 1990s with Toy Story and with other great films. I have long been a fan of their work. They have not just made some of the best animated films of the past century, but some of the best films, period. Their success lies not just in technological achievement — though they have done some remarkable stuff — but in the craft of storytelling. Here are some screenshots of the table of contents for the series.

 

If you have been told that you need to embrace storytelling but you aren’t sure what to do, I hope that this will be a good resource for you. And how cool is Kahn Academy? It has been a go-to place for my children to supplement their school instruction for quite some time. But I had no idea that there was such great stuff on there for adults.

Over at Simple Justice, Scott Greenfield has a post about the future of Twitter (with a scatalogical title). In summary, the problem with Twitter and several other “tools” is that, while it has attracted many eyeballs, it is difficult to turn those eyeballs into money.

I can’t speak to the broader economic trends. I can only speak to my use of Twitter and how it is changing. In the broader sense, I’m making similar changes in my use of Twitter, Facebook, and Instagram. I’ve not quit these services (yet). I have, however, taken all of the apps related to these sites off of my phone. At a practical level, it is difficult to write briefs and prepare for court when the Siren’s call of these things is a click away. And with all of these services, I’m reminding myself that I’m not the customer; I’m the product.

I’m getting more work done, I don’t miss these things one bit.

cc: Rudolf Vlček
cc: Rudolf Vlček

Recently Scott Greenfield wrote about David Aylor’s rather noisy departure from accused murderer, Michael Slager’s case. So much went wrong and was analyzed in the post. But there’s one piece of it that I want to emphasize here. Mr. Greenfield writes:

It’s hard to blame Aylor for being sucked in by Slager’s lie. Clients lie sometimes. And just as a more experienced lawyer might ask the client whether he really wants his lawyer to be the stupidest guy in the room, the less experienced lawyer might not question whether his client is being forthright. He may rely on his client’s denials. But then, he might also take those denials and do the one thing that commits them to posterity: shoot off his mouth.

When the New York Times broke the video, Aylor’s world spun on its axis. Two critical things happened simultaneously. The first was that Aylor realized that he had gone out on a limb for Slager, and the limb just broke.

Overall, I love representing clients. On most days, I love being a lawyer. I like winning cases, whether the “win” comes in the form of an acquittal, a dismissal, a reversal, or simple damage control. But I long ago took the advice of a colleague who is now on the bench.

As a young lawyer, I asked this older criminal defense lawyer how he handles situations where the client insists on knowing whether the lawyer believes the client’s story. That lawyer told me that he tells the client that he is completely “agnostic” about the truth of anything that anybody says in a case. He would tell his clients that he does not believe anybody. He doesn’t believe the client. He does not believe the cops. He does not believe the witnesses who claim that they have information. He enters the case with a neutral believe about everybody’s version of the events. He explained to the client that he was most effective by not getting attached to anybody’s version of the events, even the client’s.

I adopted this approach, and it has served me well. It has prevented me from saying things to a judge or opposing counsel that I may later regret (I haven’t been perfect on this point. And I have said things I regretted for other reasons from time to time). I have had the flexibility to change defenses as the discovery comes in and as my investigation has unfolded. I have been in a position to put the client on the stand one day or to refrain from doing so. And, there have been times when I have spared myself the embarrassment of making a really ridiculous declaration to a client that we both would have known was ridiculous.

Take this approach and you also avoid finding yourself where David Aylor found himself. In law, when dealing with the media, opposing counsel, or a judge, there is more danger in saying too much than there is in saying too little. Think of it like a reporter. Generally, reporters will not publish something unless they can get that fact from more than one source. This rule of thumb is perfect. Before telling judge at a bond hearing that your client has no arrests or prior felony convictions, ask the client for her criminal history. But also go the next step to obtain the client’s criminal history. Clients sometimes don’t know or don’t quite remember what their criminal history is. Never tell the media that your client will be vindicated. I assume that you already do not make promises like that to the client, right? Tell the media that you are going to work hard and complete your own investigation of the facts and that it is premature to comment on how this will all turn out. If you make a claim regarding a legal principle in court, have a highlighted case to show the judge.

You never have to extricate yourself from a limb that you never climb. And there is no reason to take what your client says and run with it. Mark Bennett wrote an excellent post about this business of clients who want you to believe them. His words are well worth repeating.

You have told me repeatedly that you are innocent. You don’t mean “legally innocent”—that is, unconvicted—but “factually innocent.” I don’t know whether you’re telling me the truth or not (people lie to me all the time), but please know that it doesn’t matter to me. It won’t decrease my fee, and it won’t make me do any better job.

You might wonder whether I believe your protestations of innocence. Don’t wonder. At this point, I listen without judgment. I neither believe nor (unless your story is bad to the point of incredibility) disbelieve. You don’t want a dumb lawyer, so if you are factually guilty, you don’t want a lawyer who is dumb enough to believe you when you lie to him. And you don’t want a lawyer who thinks it’s his job to judge you, so if you are factually innocent, you don’t want a lawyer who is judgmental enough to care.

Take my opinion for what it is. And there may be wildly successful lawyers who take a different approach. I am an agnostic when it comes to the facts (and also when it comes to what “the law” is). I tend to listen to all the facts without necessarily committing to any. As the case progresses, a theme or theory will emerge. I will do everything ethically within my power to see that my theory defeats the State’s. Which is why the classic cocktail party question that lawyers get “how can you defend the guilty?” is not a particularly interesting one. It isn’t interesting because it is the wrong question to ask an agnostic.

In Georgia, juries generally don’t get to decide the sentence. Only where the State is seeking death does the jury get a hand in sentencing. Not only do Georgia juries not get a say in sentencing decisions, our law is designed not to let them know a great deal about what might happen at sentencing. The idea is that jurors might be swayed by sympathy in the guilt-innocence phase of the trial if they knew what was in store for the defendant after a guilty verdict. For instance, an armed robbery conviction in Georgia carries with it a minimum mandatory ten years to serve without the possibility of parole. For certain repeat offenders, a guilty verdict means life without the possibility of parole. Jurors are not told about minimum mandatory sentences unless they stay to watch the sentencing hearing.

Scott Greenfield posted at Simple Justice about a Federal Judge who consulted with the jury on what a fair sentence ought to be in a case. Turns out that most jurors would sentence well below the sentencing guidelines. And I imagine, on the State side, that jurors would often sentence below the minimum mandatory.

A few months ago, I tried a case in Federal Court where the jury reached a guilty verdict. I noticed that many of the jurors were crying as they walked into the courtroom (never a good sign). After it was all over, they asked me to come back to the jury room to talk to me about their decision. They then asked the prosecutor to be lenient.

In between the verdict day and the ultimate sentencing date, I consulted with many colleagues who regularly practice in Federal Court about whether it would be a good idea (or even ethical) to invite jurors back to testify in mitigation. Opinions varied, but the consensus was that I should not do it. There was no way to know how a judge might respond to this kind of testimony or whether such a move might appear to be a stunt. I ultimately decided against doing it, thinking that the potential downside outweighed the potential good. After all, the judge saw the same trial they did. And he hopefully saw things the way they did.

When it was all over, my client received a sentence significantly below the guidelines.

Scott Greenfield’s blog post raises an interesting question. Should jurors have a role in the sentencing process in more cases? And could jurors be consistently be counted on to recommend or impose a sentence below guidelines or below a mandatory minimum?

Philosophically, I don’t think I’m into the idea of jurors imposing sentence. There’s a reason that we give jurors their job and judges theirs. However, it’s appealing to me to wonder if legislatures would be as prone to enact mandatory minimums if they were taking the sentencing power away from jurors rather than judges? I’m not sure what the answer is. I suppose they would do in the sentencing world what they’ve done to damage caps in the civil world. However, the minimum mandatory universe makes me a little less certain about whether juries should have a hand in the sentencing process. Perhaps outraged jurors would put pressure on their legislature to eliminate some mandatory minimums.

It’s been a long holiday season, and January’s been a busy time. I’m hoping to re-develop the blogging habit. And I find that I am much better at writing posts when I’m reading posts. Toward that end, I opened up the RSS app and caught back up on my favorite blogs, Simple Justice and Defending People. Scott Greenfield is as prolific as ever. He writes more blog posts before 8:00 a.m. than some people write all year. Mark Bennett is doing some sort of thing where he is numbering his blog posts.

Two of their posts caught my attention. One post is about listening and the other is about asking for advice. To be in a helping profession, lawyers are pretty bad at both. Law school doesn’t help us in the listening department. After all, we are trained to spot issues, to separate wheat from chaff, and to separate the most pertinent components of the fact patterns from the fluff. Clients need us to have that skill. But clients often have other needs — namely to “vent” or have somebody hear their story. A tension exists between those two needs. So, sometimes it’s good to just let the client go. Sometimes, it’s best to direct the story to the most pertinent facts. It’s not always easy to know when to do which. Moreover, sometimes lawyers get so busy that some of us avoid communicating with the client at all (under-communication is a common source of bar complaints). Scott Greenfield quotes Bennett:

Listening is vital to trial lawyers. It’s probably more important than any other single skill, but it is less studied, less trained, and less practiced. Lawyers often don’t listen very well. I’ve seen egregiously bad examples from all sides of the criminal bar; many times I’ve wanted to shake a lawyer or judge by the collar and shout, did you not hear what that person just said?

But the listener is not the only party to the conversation who needs to step up his game. The person asking for advice needs to do some work as well. I very often get calls from colleagues with tough legal issues who want to “pick my brain.” It’s often an honor to be a person whom other professionals might want to turn for advice on how to think about things. It is also an honor to be a person whom a potential client seeks out for help. The best “seekers” of advice do their homework before coming to me. The worst have no real sense of what their problem is and look to you to define it for them. He has three pointers for asking for advice:

before you ask for advice do whatever legal research you can yourself. You’d better have spent some time on the problem before bringing it to mentors. Not doing so is lazy and disrespectful—if your mentors thought your time was more valuable than theirs, you would be the mentors and they would be the proteges. If you haven’t already done a bunch of online research, their advice is probably going to be “get back with us after you’ve spent some time on Westlaw” or Lexis or CaseMaker … or even Google Scholar.

Secondly, you should know the facts inside out and be prepared to answer questions about them before you go to another person for advice.

Third, be able to explain succinctly the problem and be able to explain the work you have done before coming to the person for advice.

* From other lawyers, it can be difficult when a person calls to say, “I’m doing an appeal, and I’m not sure what to do. How do you do a criminal appeal?” I have gotten those calls. They’re maddening.
* From potential clients, it can be difficult if the client does not know whether or how many times she has been convicted in the past, does not know exactly what her charges are, and is not all that certain what the status of the case is.

How to ask for advice and how to listen to a person who needs advice are two great topics for a new year. On this blog, I’m hoping to “listen” more to other bloggers, to courts, and to clients to make this website more valuable. I also hope to use this more of a forum to seek the wisdom of others in a more deliberate way. I hope to get better at these things in my practice as well.

Anchorman.jpgIn his blog yesterday, Kendall Gray referenced the Rules of the Georgia Court of Appeals, citing it as “a jurisdiction with rule-mandated ugliness.” Kendall’s blog post comes at a time when I am reading Typography for Lawyers by William Butterick. I’ve learned a great deal about fonts and layout and was all excited about using my new-found knowledge on a future appellate brief when I re-read the Georgia Court of Appeals Rules and found, well, “rule-mandated ugliness.” But it’s not quite as bad as it sounds. Here’e the language from Rule 1(c) of the Rules of the Georgia Court of Appeals:

All documents filed with the Court shall have no less than double spacing between the lines including quotations and footnotes. Letter spacing and type or font size shall be no smaller than ten characters per inch. Notwithstanding the 10 characters per inch requirement, the Court shall accept in lieu thereof Times New Roman Regular 14pt.

Also, there’s a little more good news. Now, to the issue of margin. According to Rule 24(c), there must be a “margin of not less than two inches at the top and a margin of at least one inch on the sides and bottom of each page.”

Matthew Butterick recommends two-inch margins, which you could do under the Rules of the Georgia Court of Appeals. He also recommends moving away from system fonts, which you can do as long as you meet the 10 characters per inch requirement. Of course, you still have “rule mandated ugliness” because you must double space. Butterick recommends spacing in the neighborhood of 1.2 to 1.3. inches. Which sounds odd if you’ve never written a brief like that. But it’s really not so odd. Are you reading a novel right now or a new non-fiction book? Take a look at it. I bet your margins are at least two inches, and I can pretty much guarantee that the lines aren’t double spaced. Why? Well, for one, because the publisher wanted to keep you reading. Two, it’s a book and not a term paper. In fact, pull random books off your shelf. See any Times Roman 14? See any double spacing?

Why, you might ask, would the rules mandate ugliness. First, I believe Kendall is correct. The rules were likely originally crafted in the typewriter era. However, I suspect that there’s a little more to the story. I think the rules were likely amended at the beginning of the personal computing era. I’d be willing to bet that the courts got worried that there would be an attempt to manipulate how many words could fit on a page with those new-fangled computers.

Of course, there was a better solution. The Court could have provided a word count limit instead of a page count limit. But that was a little too easy, I suppose.

And I wonder if any lawyer really gamed the system or if there was fear back in 1982 that somebody might potentially try to game the system. You know how appellate lawyers are. We’re a bunch of James Dean types and that’s been the case for a long long time. It ain’t ever gonna change. When I decided to become an appellate lawyer, it was hard to focus. Women with a penchant for the bad boy heard that there was an appeals lawyer in town.

Scott Greenfield’s review is what actually led me to buy the book. He wrote this about briefs with a pleasing layout:

No, they won’t make a loser appeal into a winner, but like wearing a decent suit to court, or polishing your shoes, it’s one less detriment and one more benefit. Butterick’s point, and mine, is that there’s no good reason not to do it as well as it can be done.

If good typography is like a good suit, then a brief typed in conformity with the Rules of the Georgia Court of Appeals is a powder blue polyester leisure suit, with bell-bottomed pants, huge lapels, and a wide flannel tie. It was a great suit for the day it was written and great for a 70s party now. I’m just not sure I’d wear it to court.

Now, over at the Supreme Court, the look is a little more modern. You might not look out of place on the show 21 Jump Street. Supreme Court Rule 18 reads:

 All filings shall be printed or typed with not less than double-spacing between the lines, except in block quotations or footnotes. Margins shall be no less than one inch at the top, bottom and sides. The type size shall not be smaller than 12-point courier font or 14-point Times New Roman.

The good news is that you can single-space block quotations and footnotes. The bad news is that they reference the courier font — literally the ugliest font ever made if you don’t count comic sans (which I don’t).

With all that said, you have some room to think about design and to make your brief stands out. Lawyers are a careful lot, particularly when sober. So, most will use the “example fonts” to play it safe. You may choose another that is the same size and be okay. Also, you can go for bigger margins to provide more white space.

And, if you think this is just kooky Mac user talk, check out the Rules of the United States Supreme Court (PDF), that hotbed of flashy design. In particular, check out Rule 33. Actually, check out the layout of the rules themselves. Mr. Butterick would approve. And there’s a word count limit, not a page limit. The things is, if your brief looked like the United State Supreme Court Rules, you would likely not be able to file it in the Georgia Court of Appeals. Though it was be the most readable brief in the stack.

If the United States Supreme Court Rules were a suit, it would look nice in court today.

But, in Georgia, it’s Ron Burgundy time. So, here’s hoping that the rules are modernized. Until then, stay classy Atlanta.

typeface.jpgDesign is an important part of brief writing. And the font and layout you choose will have an impact on how the Court receives your brief. It certainly shapes how I feel about writing the brief and submitting it. I cannot see the Courier New Font without thinking of the research, writing, and advocacy in my first year of law school. The font feels scary and oppressive and conjures up images of red ink and biting comments written in the margins. 

The people who read your briefs at the courts where you submit them are likely reading a stack of briefs that look pretty much like yours. “Oh look,” the staff attorney might be saying, “another brief in Times New Roman 14. Awesome.”

I’m guilty of going with the good old default font a good bit of the time, but I am learning to do things differently. 

Two of my favorite legal blogs have featured posts on this very topic. Over at Simple Justice, Scott Greenfield features a review of Matthew Buttrick’s Typography for Lawyers. I haven’t ordered it yet, but I likely will. One great tip that I read elsewhere is to eliminate the double space at the end of sentences. I’ve been doing that since my tenth-grade typing teacher told me to do it. I stopped after reading somewhere else that I should. That extra space is not necessary, it turns out. In fact, as I review Mr. Butterick’s book for this post, I think I’m about to order it. You probably will too if you check out the sample chapters (PDF) from his website. 

My other favorite blogger, Kendall Gray, has been writing about layout and typography at his blog, the Appellate Record.  He has written a three-part series about page layout. Part one introduces his general idea of how a brief should look. Part two focuses on the concept of proximity. His third post deals with justification (no, I have not lapsed into theological discourse. I’m talking about how the text should be aligned).

By no means do I suggest that the document’s appearance is a substitute for its substantive content. Rather, designing the brief into a document that the reader wants to read, a document that does not appear just like the other briefs the clerk is reading in that big stack, and that looks better than the one the DA is submitting, is important.

I’ve just scratched the surface on the design element. And I look forward to learning more about it. All they taught me in law school was the importance of the ugly Courier font and something mechanical about a rule proof. It does’t mean that you won’t lose to bad writing sometimes (that’s what representing the appellant in criminal cases is like sometimes). It just means that the close case might just go your way more often than it does right now.

lawyer and client.jpgIt’s been a long week. I’ve had to have “the talk” with several of my clients. In case you don’t know what I mean by “the talk,” allow me to explain. There comes a point in just about every attorney-client relationship where there is an important decision to be made. You give your assessment, and the client takes your advice or rejects it. This week has brought with it a mixture of rejection with a healthy dose of acceptance laced with insults. Weeks like this always make me examine the complexities of the attorney-client relationship. 

These thoughts have been in process for about a week or so anyway. Scott Greenfield posted a great post on his blog about the importance of keeping your professional distance and how the failure to do so actually does the client a disservice. However, he does so while criticizing a law firm in Florida that overdoes the whole boundary thing. That firm, a family law firm, writes that they do not work weekends and do not deal with emergencies over the weekend. Of course, sometimes things happen with clients over the weekend, and you should respond. Mr. Greenfield talks about that fact at length.

Of course, balance is a factor, too. It is possible to go too far in the other direction, which may actually be worse for the client that being impersonal. Mr. Greenfield writes:

Ironically, one of the most troublesome ways to deal with clients is to become their best friend. Clients need lawyers. If they want companionship, they should get a dog. It confuses roles when lawyers assume the position of mother, therapist or pet. Clients often need someone to talk to, to vent, catharsis, during the pendency of a case. To some extent, lawyers can offer their ear. But when the ear gets chewed off, we’re appeasing the client but no longer serving him.

Very true. But it seems like there’s something more to this idea of client management/client relationship issue. I’ve thought about it all week and have drafted a Professionalism Matrix.pdf to help me think about client management issues. It helps me, and I hope it will help you.

The best place to be is objective and empathic. If you are subjective and empathic, you do your client the kind of disservice Mr. Greenfield discusses. If you are cold and subjective, you’re the kind of lawyer I sometimes encounter at general bar functions who wonders how I could possibly do a job like mine. Or you’re a prosecutor. If you are objective and cold, then you are the kind of person that many of your classmates were in law school — robotic and efficient. 

What does objective and empathic look like? It probably looks like a stroll across a tightrope. And it probably looks different for every client. Many of whom won’t like your objective advice. Many of whom would like for you to be their friend because you’re the only person who hasn’t rejected their personhood in the midst of an accusation or conviction or sentence. What does it look like? It looks like a worn out lawyer. It’s hard to have hard discussions. It would be easier to land somewhere else in the matrix. But then you’d be less than your calling requires. 

cans.jpgScott Greenfield wrote a good story a few days ago in his blog, Simple Justice. I say “good” in the sense that it made me evaluate the part of practicing law where it can be easiest to drop the ball. 

In the post, he tells the story of a call he received from the relative of a person in custody. She began the call saying “I need a lawyer.” She said that even though she had a lawyer. The lawyer had spoken to her about the case but she did not understand what he was saying. Mr. Greenfield was not particularly interested in taking it on, so he called the other lawyer on the client’s behalf.

Turns out that what the other lawyer had said was technically correct. The problem is that it was not being put in a way that the client could understand. The client had done some things to worsen her prospects of being released, and those facts had not been discussed very well. He goes on:

This is not about telling the client what she wants to hear, but about telling the client what she needs to hear. This is the client’s life, and they must understand what’s to become of it. Some clients will understand quickly, while others will take more time and care. It’s the lawyer’s responsibility to find a way to communicate that works for the client. Use an interpreter. Get another lawyer to help if you can’t seem to get past the communication wall. Use a different approach. Spend the time to make it happen.

The chilling thing about this story is the end. He points out that, had he wanted the client he could have had her, and the lawyer on the case would never have understood why. 

Things had gotten this bad with the lawyer and he was one of the minority of lawyers who was actually returning phone calls and doing all the necessary work. Think of the potential trouble those lawyers are in.

Now, take all of the dynamics at play in the story and magnify them. Welcome to appellate practice. Your client may be in prison hundreds of miles away from you. In the early stages of the case, you may not have met your client. He has just taken a loss at trial, and there are few small losses in Georgia criminal trials. As the case progresses, there are several things that will happen that just about virtually guarantee attorney-client alienation.

  • The client will turn the case over and over in his head because there is little else to do and will initiate conversations with you on the assumption that you are doing the same.
  • The client will go to the law library, and he will sometimes go down the wrong path. When he does, he will make “suggestion” to you about the direction of his case that are overly-optimistic and uninformed.
  • The transcript will not come as quickly as you or he will like.
  • Your client will think that the appeal is just like the trial. While you focus your efforts on whether the trial court should have given request to charge number 17 and whether the 911 call was covered by Crawford v. Washington, your client will expect you to prove to the appellate court that Officer Jones was lying.
  • The temptation to speak to your client in legal jargon will only increase because appellate law lends itself to it way more than trial does.
  • Appellate work makes you feel like a writer, and writing is largely a solitary activity. Plus, you are going to be busy, and all of the usual things you do to communicate when you are busy, like send a quick text or an email, will not be available for you to speak with your client. You will be doing a lot of letter writing — 19th century style. Visiting a single client will sometimes take an entire day. Phone calls have to be arranged and scheduled with the prison way in advance. All of this stuff is very alienating.

You have to work extra hard to make sure your client understands the appellate process and the differences between it and trial. You have to be a patient listener and understand that you will often be the lightning rod for many frustrations. You cannot take it personally. And, when you think you have explained it clearly, you may find that you haven’t

But Mr. Greenfield is right. Your job is to find away to communicate. It’s particularly so when your client is so far away from you and getting legal advice from other people in lock up.