At yesterday’s GACDL Winter Seminar, Dean Strang spoke, not so much on Making a Murderer but on systemic failures of the criminal justice system that are on display in the documentary series. Those issues include poverty, the fact that the treatment of juveniles has not caught up with the research on brain development, and issue with the media.

However, my takeaway was when Dean spoke about social media. When asked about media attention, he revealed that he has no social media presence. A shy person, he pointed out that he doesn’t always feel particularly social and that he sees no real need to “mediate” some sort of online social presence.

Without social media, he cannot be harassed on it. And he reports having perhaps ten uncomfortable moments since Netflix premiered the documentary (versus many death threats while the trial was going on). But there’s an even bigger lesson.

Cal Newport may well be right when he says that social media is not at all crucial to career success. It turns out that the lack of Facebook, Twitter, or Instagram isn’t a hindrance from becoming well known and respected all over the world.

Yesterday, I spoke on my aversion for offices and love for working pretty much anywhere. Here are a few more details. This morning, I had calendar in Gwinnett County, Georgia, which is pretty far away from where I live. Since I was taking over for another lawyer, I had to file a document known as a substitution of counsel. It’s a document that lets the court know that a new lawyer is taking over the case. After the substitution is filed, previous counsel no longer receives court notices, orders, etc., and all of that starts coming to me. Halfway to court I realized that I hadn’t printed out this document. And the court doesn’t have e-filing in criminal cases, which meant a brief detour to an Office Depot print center before arriving at the courthouse.

Speaking of courthouses, there are 159 of them in Georgia. Depending on where the case is, you can either walk into a historic architectural wonder or something thoroughly modern. I don’t know what the word is for the Gwinnett County Courthouse. I call it the Mall of Justice.

You might also call it Spaceship Court. Once inside, it feels more like an airport than a mall. Each floor is kind of a long corridor with skylights and big windows on each end. The courtrooms themselves are completely windowless, which is a feature I’ve noticed in modern courthouses. Older courthouses (I was in one yesterday) tend to have darker more windowless hallways with big windows in the courtroom. But back to the airport motif, all the courtrooms in Gwinnett County are even numbered like gates in a terminal. Today, I was in courtroom 3C. Of course, in a criminal calendar the flights go no place good.

The waiting area has a nice shiny hallway, which is likely a perk of inmate labor. Just before court started, the deputies unlocked the courtroom. A great perk of being a lawyer is that we get good comfy seats in the courtroom most of the time. We are allowed to cross the bar and hang out in the jury box. You’d be surprised to know that jurors sit in jury boxes a small percentage of the time. The rest of the time, at routine calendars and motions days, the lawyers occupy the jury box. Seats for the general public are generally wooden pews. This jury box had a cool little metal bar at the bottom as a little foot prop. The seats also swivel and rock back and forth. I’ve had great stealthy cat naps in jury seats in my career while waiting out a civil calendar.

When I was in Brooks County, Georgia, a few weeks ago, the jury box was made up of wicker chairs that swiveled and rocked and made me crave a mint julep. Most counties what have modern courthouses also retain the old courthouse on the town square as a place for wedding receptions or pottery classes and the like. Gwinnett is a perfect example. After court, I needed to run to an Apple Store to get something fixed. On my way out of town and out toward the mall, I passed the historic Gwinnett County Courhouse.

Most of the courthouses I work in are exactly like this building. And the older buildings are way more fun. Before they renovated the Pike County Courthouse, a big chunk of the ceiling once fell on me while I was arguing. In a novel, such an event would be symbolic of something ominous. And here’s fun fact, it was on this courthouse square that Larry Flynt, the founder of Hustler, was shot on the way back from lunch during a hearing on an obscenity case. And while I waited for an opening at the Apple store to have a person look at my tech, I took out the mobile office and knocked out some work on a case for next week.

I’m trying to cut back on my coffee intake. So, I opted for an overpriced mineral water while I waited. And this is what a day of working on the go is like. Many days will often go by where I don’t even see my office. But there’s always adventure to be had in some courthouse, old or new or in the pdf pages I read on a tablet or with the person on the other end of a call I’m returning.

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.

Opportunities

  • 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.

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.

  1. All participants must be able to see, hear, and communicate with each other simultaneously;
  2. 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.
  3. Video quality must be adequate to allow participants to observe each other’s demeanor and nonverbal communiction; and
  4. 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.

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.

A few weeks ago, I assisted on a multi-day motion for new trial hearing in Barrow County, Georgia. My co-counsel used a PowerPoint to present his opening statement. I had not thought of using a PowerPoint in a bench proceeding, but I have frequently used them in jury trials. My colleague did such a great job using the technology to supplement his persuasive style, that I decided to use a PowerPoint in mine as well. I want to talk a little bit about why I did it and what I learned.

  • It is probably not for every case or every situation. What my case last week and the case in Barrow had in common were complex facts that could be simplified and packaged up in a persuasive package with graphics. In both cases, for instance, the timeline was critical to the case. And It was helpful to put some snippets from the pleadings and relevant statutes up for the judge to see while we spoke.
  • It is important to know your courtroom. I made the false assumption that the courthouse, an older building, did not have the technology built in for a presentation. It turned out that I was wrong. I posted on the local bar association’s Facebook and was pleasantly surprised to learn that the courtroom was equipped with a “smart tv.”

I made the sound decision to stick with my original game plan where it comes to courtroom technology. Allow plenty of time to test everything out, and leave ample time to practice. One of the worst things that can happen in court is that you have a technology problem right at the beginning of a hearing when all eyes are on you. I came an hour and a half early. And it was a good thing. The Smart TV did not have a port for VGA input. My only option was HDMI. But neither my computer nor tablet had a computer with HDMI port. And I did not have the HDMI adapter. A colleague from the courthouse, however, did have a laptop and was kind enough to assist. So, we hooked everything up and put the PowerPoint file on his laptop. And I practiced going all the way from the turn on of the computer to the beginning of the presentation 2–3 times before I left the courtroom to grab a quick lunch.

When it was “go time,” everything worked. But I cannot imagine how horrible it would have all been if I had shown up with my laptop and said, at the beginning of the hearing, “where do I plug this in?”

The other thing was that I was prepared to go “old school” had everything failed. However, everything went without a hitch, and I think that the PowerPoint was a big help.

I have now written a thank you note to the helpful attorney. And I have ordered an HDMI adapter for my laptop and tablet. And all is now well.

A few days ago, I was preparing for cross-examination. The event never happened because the  hearing was terminated on a technical point before the other side could put on any witnesses. But court preparation is never a waste. All the research you do for it keeps until later. Here are a few things I learned about refreshing recollection as an alternative to putting up substantive impeaching evidence.

I anticipated crossing the adverse party in what would have been a pivotal moment in the trial. The witness had previously given a recorded interview with two law-enforcement agents. I knew that the witness would contradict the previous statement in a significant way (because the relief she sought depended upon an alternate version). And there was great impeachment material to be found on this audio recording. However, it was doubtful that I would be able to have the agents produced for this hearing. So, I had to prepare to use the recordings without the witnesses who recorded the interview. And my witness had no incentive to cooperate with any effort to authenticate the recording.

In addition, the witness had sent some texts to my client that I wanted to use. had the cell phone company’s records of these texts that my client had downloaded from the cell phone provider’s website. I also had some texts that I wanted to use that law-enforcement had extracted from her phone  But, again, we did not necessarily want to pay to bring in subpoena compliance folks from the cell phone provider due to cost concerns

Refreshing Recollection to The Rescue

Here is how I prepared. First, I made a detailed and indexed digest of the recording with minute and seconds noted for all the things I would need to use. Then I practiced with the audio file on the computer until I could reach any spot instantly. I also had a transcript prepared of the entire interview.

I called a friend of mine who teaches trial advocacy and who is an excellent trial lawyer. He confirmed that I could get where I needed to go by refreshing recollection. He gave me some helpful tips to plan this cross-examination. First, he told me to preface each question about the statements using the phrase “do you recall…” The use of the word “recall,” put us in a memory framework.

The second piece was to build up the interviews themselves. In fact, in planning the cross-examination, I built several chapters up to point the witness to that time, place, and circumstances of the interview. I wanted to direct the witnesses attention to the fact that the witness knew that the interview was being recorded. And I wanted to establish, in the witnesse’s own words, that the interview was important in its nature and scope.

Rule 612 and Available Materials

Some judges mistakenly believe that a witness can only have recollection refreshed with a document the witness prepared. The reality is that a witness’s recollection can be refreshed with anything. “As long as the witness is willing to swear from his memory as refreshed, his memory may be refreshed from any kind of stimulus, ‘a song, or a face, or a newspaper item.’” Bianchi v. State, 327 Ga. App. 440 (2014). If you use a written document, then there are a few other things to keep in mind — you need to make the writing available for opposing counsel to review under Rule 612. When it came down to time to impeach, I would simply have said “would it refresh your recollection of the interview if I showed you a transcript of it.” Of course many objections could come at this point. The adverse lawyer could question the authenticity of the transcript. In which case, my response would have been that I am just showing the transcript to see if it refreshes her recollection. I could then give the judge and the witness the option of my playing the interview itself in the specific portion that is relevant to refresh recollection.

Over time, the witness looks bad by having her recollection refreshed. The fear is that the witness will hear herself on the recording and pretend her recollection is not refreshed. At this point, you probably win because the witness loses all credibility.

Setting the Stage

The other piece involved an early arrival in court. I came to court two hours early to use the audio equipment and have everything ready to go. Had it been necessary use the recording, I wanted to move to the computer quickly and I wanted the audio to be sufficiently clear for tn judge to hear it.

Again, the hearing ended before we could hear evidence. But all the work I did will be helpful for a future Court date

I cut my teeth in law school on Terrance McCarthy’s cross-examination methods. During my 2L year, I recall preparing for a national mock trial competition. During our first practice of the year, our coach popped in a cassette (yes, a cassette.It was the year 2000) of Terry giving a talk in Las Vegas to a NACDL group. I thought the guy on the tape was about the coolest dude I’d ever heard. In a booming Irish/mid-western accent and in between references to getting drunk and a set of the most politically-incorrect jokes you can imagine was a blueprint for great cross-examination that I have taken with me to this day. When we advanced to the final round, who was on the bench in Chicago but the man himself, Terry McCarthy. And I got to do some Terry McCarthy stuff in front of Terry McCarthy. It was the courtroom equivalent of my son having LeBron James as a referee in a little league basketball game. I take the lessons from that cassette with me to this day. I’m sure that many of my clients would be in prison somewhere but for the lessons from Terry that I have retained.

And now I combine my McCarthy stuff with what I learn from Posner and Dodd on cross-examination. The Pozner and Dodd book on cross-examination is like the Bible. I have tried to read both from cover to cover, and it has never quite worked out. But both books work well for regular study, particularly as life events dictate that you dive into particular things. Both are canonical works. Both can seem unwieldy at times. Posner and Dodd have worked out a method for just about everything a lawyer might encounter on cross examination. For instance, there is an entire chapter dedicated to “The Crying Witness.” (Preview:  there is much in there about using silence as a control technique.) But more to the big point from today’s dive into P&D. And that point is to forget you ever knew Matlock, Perry Mason, or Jack McCoy — fictional characters who all clean somebody’s clock on cross in the last ten minutes of a tv show.

No matter what method you use for cross, they all have one thing in common. All good cross-examination techniques emphasize planning. And all the cross-examination gurus would tell you to forget that you ever saw a tv lawyer doing a cross-examination. Don’t go for drama. Don’t go for the gotcha. A spectacular cross-examination might seem utterly un-dramatic at the time. Good crosses are planned crosses:

Many lawyers believe that it is possible to perform good cross-examination without a script. This is undoubtably true. It is also possible for a visitor to find her way in a city without a map, but it would be quicker and safer if she had one. It would be easier if she had studied the map and outlined a route in advance. … The lawyer works from a script in cross-examination, so she can avoid the “Oh no”! syndrome. [where cross-examination has been completed and] the lawyer returns to the counsel table where she looks down at her list of things she has to cover and sees one or more things she forgot completely to address. The lawyer says to herself, “Oh no!” (or worse).

Walk into any courtroom on any hearing or trial day and you are much likely to encounter a lawyer attempting to be Perry Mason than trying to be Terrance McCarthy, Larry Posner, or Roger Dodd. From time to time the former will get lucky. But more often than not, Matlock, Perry Mason, and Jack McCoy techniques only work where a team of writers have paid a tv jury for their verdict. The rest of us are better off being methodical planners. And with that, I’m off to continue planning a cross-examination for later this week.