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.
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
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.
I spend hours of time at least once a month traveling to various prisons around the State of Georgia. Most of these facilities are far away and involve travel deep down Interstate 16. Very little substantive progress is made on cases in these visits. They tend to be venting/counseling sessions. And, for an hour or two of client discussion, the lawyer is away from the office for a day. It is difficult to mix a prison visit with productivity in other areas. Many times, I have had things arise where I had to work as a mobile office from a Subway, Cracker Barrel, or Public Library out in the hinterlands. It all works quite well except that there is still the matter of the multi-hour drive home. Added to the time-consuming nature of doing the prison visit is the fact that you need to set up the visit in advance by faxing paperwork and getting on the phone. Contrast this process with seeing an inmate at a county jail, which is generally local and able to handle drop-in visits. Also, in a pre-trial setting, the inmate has substantive help to offer such as assistance in pre-trial investigations or witness preparation. So, as I made my way to South Georgia, I thought of ten things that the Georgia DOC could do to make their lives and our lives better.
- Provide Secure Attorney/Client Video Conferencing on the JPay Pad. All inmates are given a free tablet. The inmates then “owe the company store” for every email, music file, and other meaningful use of the pad. Emails with everyone are monitored. However, it would be fairly simple to maintain a database of counsel fo record and allow secure video-conferencing between the client and the attorney. JPay could easily charge me a steep premium, and I would pay it to avoid all the driving around.
- Provide Secure Email Communications with Counsel. Ditto, everything I said in 1, but add email to it.
- Provide Secure Phone Communication with Counsel. Ditto, everything I said in 1, but add phone communication to it.
- Provide Document File Sharing of Attorney Files. Oh, the fights I have had with clients over the transcript, the discovery, and a broad category of materials known as “the file.” I’m paperless, so the file exists in sometimes terabyte-sized data packets. I don’t feel good sending a metallic disc into the prison. I don’t love the idea of printing thousands of pages of material. And that paper file is just the thing to educate a potential snitch in the preparation of his fictitious story of a confession. Not to mention that the sharing of the transcript will lead to a series of jailhouse legal treatises to counsel that cite the 1978 edition of ALR and the 1965 edition of Am Jur. A secured electronic file sharing service where the client has his own password would facilitate the sharing of materials.
- Collaborative Tools. I would love some sort of Google Drive or Microsoft Track Changes system where the Client could embed notes in written documents rather than sharing lengthy hand-written letters.
- A Uniform System for the Use of iPads/Laptops. I don’t have files in paper form. And that’s fine for half of the facilities I visit. They allow me to bring may electronic materials inside. However, there is no uniform policy. And many places do not allow me to bring in such materials. There should be a single standard. And the DOC should realize that the state of practice is such that laptops are a part of practice. Indeed, the lawyers who visit are working on an appeal or habeas, which are both writing-based endeavors.
- A Pre-Screening Process Such as the one that the TSA Uses. Alas, it has already been done. It is called Bar Fitness. We went through it before we took the bar.
- A Streamlined Way to Set Up a Visit. The current system in a mish-mash that inevitably involves blowing the dust off of a fax machine and sending down a copy of my bar card and driver’s license. There should be a centralized electronic place to request a prison visit where much of the necessary information is pre-populated with the information from item seven. You should receive an email confirmation of the approval of the visit.
- A Designated Attorney Conference Area in Each Facility. Oh, the number of times I’ve waited around for someone to find an office or set up a card table in a day room. If each facility had a designated spot, things would move faster.
- Delay of IAC claims Until Habeas With a Magistrate Screening of Habeas Claims Before Habeas Hearings. The Feds have this process totally figured out. And if we adopted it, the direct appeal would be a place for pure legal issues. And habeas would be the place to litigate IAC. But there would be a filtering process ethat level. The dockets would immediately begin to move efficiently.
Each step wouldn’t just make life better for the appeals lawyer. They would help the DOC as well. And I would spend less non-productive time in my car driving to the nether-areas of the state so that folks can vent their frustrations.
Last night, I attended the Griffin Historical Society’s “Drink in History” event at the old Griffin Jail, featuring the fine products of the Jailhouse Brewery. I had spent my entire afternoon at the new Spalding County Courthouse, and this event was in a building that was once the old Spalding County Courthouse, from approximately 1860 unit approximately 1914. In 1914, the county converted the building into a county jail. The building functioned as the jail until 1984, when the Sheriff’s department opened another facility across town. The whole facility was open for a tour, including all the creep showers, the two solitary confinement cells, the women’s unit (with six beds), and the gallows. On the third floor, there was a trapdoor. You could look up to see the eyelet hook for the rope. And the lever for the trapdoor was there as well. I was told that there is no record of the gallows ever being used, as the public preferred outdoor hangings in the field out in front of the old courthouse.
I had forgotten that there was a time when the counties did not outsource their executions to the Georgia Department of Corrections. At one time, hangings were a local spectacle. Standing on the trapdoor (even with the device cemented over) gives one a queasy feeling. Also, this was the first time I have visited a jail in a while where I did not have the overwhelming feeling that they were going to find my name on the computer system and attempt to keep me. It is a recurring nightmare that many in our profession have.
One of the attendees recalls visiting clients in that old facility. And he
said that it looked pretty much the same now as it did then — peeling paint and all. He says that there were no attorney booths. You just pulled your chair up to a cell and had a talk. Otherwise, the place had a familiar feel to it. The more things change the more they stay the same. I just wish that all jail visits included jailhouse beer.
At the beginning of the summer, I signed up for a marathon in Chattanooga. And I spent most of June through August training for it. At about the halfway point in my training (mid-August), school started back. Then I had a fairly slammed schedule of deadlines and work-related things. As a result, I began missing training runs. In the past, I would have moved an event like this over to the loss column. Instead, I reached out to the event organizers and asked them to move me over to the half marathon. So, Saturday morning, I took my older two children, and we headed up to Chattanooga. We had a blast at the expo, which included meeting Lazarus, the director of the famous Barkley Marathons. We also met some friends of ours who were running in the event. We had a great dinner Saturday and were up Sunday.
At about 7:00 yesterday morning, I saw my friend off on the full marathon. And at about 7:15, I was off on my half marathon adventure. This journey took me over the Tennessee River 4 times, in some of the most beautiful scenery you can hope for in a running event. Along the way, I met a bunch of great people. And though it wasn’t the full marathon and it was not my best time, I felt a sense of accomplishment when I crossed the finish line. And even better, I was at the finish line to cheer on some friends when they finished the half marathon and full marathon. I’m already looking down the calendar at some events on Thanksgiving Day.
Is there a practice lesson from this? I think it’s this. Even when things do not work out as perfectly as you planned them out in your mind, you can make changes and still achieve a perfect moment. Also, it is important to not let some expectation you have for the future get in the way of making forward progress. I could have stayed home this weekend. Instead, I had one of the best weekends of my life, had two great meals with friends, took in some Tennessee scenery, and had some great conversations with my children. Would it be bad to say that I’m looking forward to falling short of some more big plans in the future?
Our office is structurally fine, but our power is out. It also appears that our phones are out. If you are trying to to reach us today, please email me at firstname.lastname@example.org. I am checking email frequently there. Work has not stopped though. I have sought out the friendly dry environs of a coffee shop with wifi. And I am hard at work on transcripts, briefs, and hearing preparation.
I spent last Friday and Saturday in a certification class so that I can be an assistant coach on my son’s clay shooting team for the upcoming season. The class consisted of a classroom component and a hands-on component at a local gun club. There, we alternated between shooting at targets and coaching our partner in his effort to do so. And one of the program’s teachers coached our coaching. We were being evaluated for our coaching and not our shooting. But I felt nervous about shooting in front of a bunch of coaches. I’ve never fooled with guns before my son became interested in this sport. And while most dads lead their children to this sport, my son had led me. But this activity was all about the coaching even if it didn’t feel like it.
My student came up to the line and shot. He was a very experienced shooter. And he obliterated the first target he saw. I know because I watched the little orange flying saucer blow up. I watched it intensely. And in so doing, I made my first mistake of the afternoon. The coaching coach asked me to tell my student how had just executed the shot — to walk him through a narrative of the process from what I had just observed. Of course, I hadn’t watched how he executed the shot, and the coordinator knew that I hadn’t (this is a very common mistake, by the way). I couldn’t say anything about his stance, how he mounted the gun, or how he viewed and tracked the shot. I took my eyes completely off him and focused 100% on the result (in my defense, it’s hard not to focus on an explosion). So, I was in no position to tell my student what he had done right so he could repeat it. And if he had merely gotten lucky with very bad form, I was in no position to correct his form to create more consistent results. All I could say was “good job,” judging from the fact that I watched a target explode but with no knowledge of what happened to create that result. If I were to coach a student over the course of a day or a season, he would walk away from the experience judging himself by a standard that he did not fully understand. Engagement with the student trumps judging solely by a result.
When it was my turn to shoot, my “coach” was able to correct things about my technique and to point out to me the things I was doing right. At a couple of points along the way he had to ask, “did you hit the target?” I knew. The student always know the answer to this question. So, the coach is free to evaluate the student and not worry about finding it for himself.
I took some valuable life lessons and management lessons from the day (I also enjoyed the experience). If we always focus on results, we are not engaged enough with what we are doing. We’re grading ourselves on what happens “out there.” We are not learning what to do to be consistent and to build habits out of our correct actions. Practice doesn’t always make perfect. Sometimes is makes permanent.
When the students reach a competition, results will matter. When we go to court, results matter. But going into a competition, what we are doing on our next shot, how we stand, what we do with our eyes, what we do when the target comes out, and how we deal with it all is what prepares us for success. And, after the competition, what we take from it is what will matter. And some results are beyond our control. We don’t create the facts in our case. We do not create the precedent that controls how the case will be decided. And a student in a competition cannot control how talented a component might be. We can only control what we do and how well we prepare.
Just as it was a mistake to focus exclusively on the result when I should have been focused on how the shot was made, we should think about how we construct our briefs, how we prepare for court, how well we listen to the client in the consultation, and how powerfully we told our client’s story to a judge, jury, or panel of judges. When we focus on that progress, the targets tend to take care of themselves. We should all take a closer look at ourselves and honestly evaluate and not ride the wave of hearbreak and exaltation that comes from focusing only on results.
Robert Mueller recently made a serious move. He brought in an appellate guy. Michael Dreeben has argued 100 cases in the United States Supreme Court and has been with the Solicitor General’s office since 1988. The move indicated, even to the people at Fox News, that things are about to get serious. This investigation now has an Oceans 11 feel to it.
No matter what your politics might be, there is a lesson to be learned here. If you are serious about your upcoming trial, adding an appellate person to your team indicates that things are about to get real. It will help you preserve a record for appeal. And a solid motions practice often creates better plea offers.
I recently heard a new term. It is a term of art from a certain religious discipline. That term is “skillful speech.” The person who said it was Joseph Goldstein. He was a guest on on a podcast. He explained that speech often serves no useful purpose other than to announce your presence to another person. Or it can be speaking something other than the truth. And even when we tell the truth, it can be truth spoken in a way that advances no good cause, such as gossip. Or it can be truth delivered with an ill intent. A few mornings ago, I read up on the concept of skillful speech. In a review of one of Goldstein’s books, for instance, the concept is summarized as follows:
“Right speech”—speaking honestly and eschewing lies and gossip, divisive speech and idle chatter—is a crucial part of Buddhist ethics. Joseph invented a practice for himself in order to cultivate greater mindfulness about speech: for several months he refrained from speaking to anyone about a third person. This not only taught him that a large percentage of his conversation involved other people, but helped him notice that much of what he said included comments and judgments about other people. Stopping such speech for a while made his mind less critical toward others, but interestingly also less critical toward himself. Years later that practice continues to alert him when he begins to speak mindlessly about other people.
I decided to give it a try. A few hours later, I fell short of it in a disagreement I had with someone. And this all happened outside of the work context. And I began to wonder, if it is so difficult to speak skillfully in the personal context, how much more difficult is it to use speech skillfully in the litigation context.
In the work context, as a criminal defense attorney, I have begun wondering about the relevance of skillful speech. A good portion of my work is on the page. So, I have the benefit of taking my speech through multiple drafts. And, in the oral argument context, there is opportunity to anticipate questions that might arise. More difficult is the person who, as my children would say, “started it first.” When a person is aggressively unskillful in her speech to me, it can be a challenge to remain skillful in my response. Or when a judge or an opposing counsel speaks in an unkind manner to me, even when I don’t respond in kind in the moment, the real challenge comes in how I describe the event within my office. We often speak of it in terms of “venting” or having a sense of humor. Or we may relish the fact that we are good at it. Much of your social media feeds may consist of unskillful speech.
As I have reflected on it, skillful speech is perhaps most relevant in the work arena. After all, in this arena, I am paid professional in my speech. And as much as I work at what I say in a brief or a motion, I should work just as hard in how I speak to clients, the folks who work the courthouse door, opposing counsel, and the judge. In this area, I should strive to make all speech skillful speech.