Happy Friday. I’m making a point to review a book or some other work on Fridays. Alas, I don’t have anything new that I’m ready to review today. But I wanted to mention a book that I’m listening to in audio form. That book is the latest by Michael Lewis, The Undoing Project. Lewis discusses the collaboration between Amos Tversky and Daniel Kahneman. The two researched the irrationality of the human mind. Lewis’s book is practically a prequel to Moneyball. From the New York Times review:

Their work revealed previously undiscovered patterns of human irrationality: the ways that our minds consistently fool us and the steps we can take, at least some of the time, to avoid being fooled. Kahneman and Tversky used the word “heuristics” to describe the rules of thumb that often lead people astray. One such rule is the “halo effect,” in which thinking about one positive attribute of a person or thing causes observers to perceive other strengths that aren’t really there. Another is “representativeness,” which leads people to see cause and effect — to see a “narrative” — where they should instead accept uncertainty or randomness.

I’m not very far into the Audible version of the book. And so far I like what I am reading. It appears to pair nicely with Robert Chialdini’s Pre-Suasion.

I’ll keep you posted. If anyone else is reading it and wants to discuss, please drop me a line.

Every now and then, I e-file things at the Supreme Court that require me to attach a set of exhibits. There are a few categories of things that require you to petition for the Court to take your appeal. And when you do that, you have to put together your own record into a sort of proffer of what the record would show if the appeal were granted.

In a way it’s much easier now than ever. There was a time, when this activity meant a trip to a copy shop or printer to make a huge set of binders with copies for each justice. Many trees died. Today, you e-file your exhibits.

E-filing the exhibits brings its own challenge. The Court prefers that you upload one big exhibit with internal tabs. Though the system is set up to take individually numbered exhibits. The problem there is that the numbers only go to ten, and sometimes there are more than ten exhibits. Another problem is that a multi-volume transcript may exceed the upload data cap. Then you must subdivide the exhibit. And it all gets confusing. pdfs, beyond a certain length, get kicked out of the system.

I learned yesterday from someone that you can e-file the discretionary application, await docketing, then log back in. At this point, when you upload your exhibit, the data cap goes away.

Today, as I nervously watched the status bar on my web browser go, I prayed. And voila. The Court took my 1,700-page exhibit packet.

14244199385_7f444f30f1_zToday, I attended a continuing legal education seminar featuring Ross Guberman. Ross is the author of Point Made: How to Write Like the Nation’s Top Advocates. When his book first came out, I briefly reviewed it and interviewed Ross here on the blog. I have enjoyed Ross’s book immensely and have used it as a reference over the last few years.

I could write many blog posts on the points that Ross covered today. However, it was a minor point that intrigued me the most. Ross believes that briefs today are not as good as they were in the 40s, 50s, 60s, and 70s. Why is that so? Ross said that briefs were better when lawyers dictated their work rather than sitting at the keyboard and writing. When lawyers dictated, the product was conversational and direct. When lawyers sit behind the keyboard, our work tends to be less conversational and more cumbersome.

I believe that Ross is on to something. I have been on the fence about using Dragon Dictate, the Mac version of Dragon Naturally Speaking. I have had the software in some form on my computer for years. I go through spurts where I try to use it. In each instance, I have ultimately shelved the project for months before picking it up again. Now, dictation is a feature of my phone and iPad. I have been willing to dictate short projects and found it to be a good way to get work done.

However, I find the exercise of dictation to be easier for short documents or for lengthy summaries than for substantive writing projects such as briefs and complex motions. Even blog posts are difficult to imagine doing using any form of dictation (However, I am preparing this blog post using dictation software on my laptop.) I have feared that dictating a brief would be inferior to typing because of problems with citation and keeping the document organized as I write it. I’ve actually been afraid of dictating briefs and more complex writing.

Things may soon come full circle If the heyday of brief writing was a time before lawyers would sit down and type out documents, then software may actually be taking us back to a new golden age. Dictation, not to an assistant, but to the technology itself, is becoming easier.

I have had the fortune of being mentored by lawyers who dictate much of their work. These lawyers are good writers. They have encouraged me to dictate. While I do some dictation in a traditional setting, I think there is an opportunity for dictation to the technology itself. I can’t wait to give it a serious shot.

Today, I had the honor to be interviewed by Celeste Headlee, the host of Georgia Public Broadcasting’s On Second Thought. We talked about the Georgia Supreme Court’s recent set of cases, both criminal and civil. Check out today’s show. Listen to the whole thing of skip to minute 30 for my segment on the cases. Thanks to Celeste and producer Sean Powers for inviting me on and for their thorough preparation.

In other news, I and co-counsel are celebrating a huge win in the Hemy Neuman case before the Georgia Supreme Court earlier this month. Opposing counsel has filed a motion for reconsideration, so my celebration will be muted for a few more weeks awaiting the final outcome.

I am now the co-editor of What’s the Decision, a publication for the Georgia Association of Criminal Defense Lawyers. I will be reporting on 11th Circuit decisions.

It’s been a busy and fantastic time.

A few days ago, Seth Godin wrot about referrals and their true meaning in a profession. When they work well, a referral comes with it a high degree of trust. When you refer a client to another person, you stake some of your reputation on the person to whom you made the

imagereferral. In addition, the person to whom you made the referral will hold you at least somewhat responsible if the client turns into a pain in the neck or is a waste of time.

My best clients come from referrals. Good clients have found me through Avvo, this blog, or someplace on the internet, but most of my good clients have come from other lawyers, from judges, or from former clients. Where does my internet presence come in handiest? It helps the most when clients who have been referred to me start doing research.

But there is a dark side to referrals. Sometimes, a lawyer refers a potential client because the two lawyers have a special arrangement worked out as in “send me all of your personal injury cases, and I will send you all of my criminal defense calls.” Even worse, lawyers have arrangement to along the lines of “I’ll refer you every criminal case, but I expect you to send me 10% of every fee you get.”

At worst, those sorts of arrangements violate ethics rules. When a client pays a fee, the client should know if a portion of that money is going to a third party. And those funds should go to a person who is working on the case.

But even at best, referrals based upon an agreement between counsel shortchanges the client. After all, a referral is a lawyer’s way of saying that, while I am not the particular person for the particular matter and client right now, my colleague may well be the perfect person. The focus should be on getting the client the right lawyer, not just on securing business for a buddy and particularly not on securing a kickback.

When referrals work well, they are a wonderful thing. Referrals get a client access to the right professional and the professional a client who is a good fit for the practice. Referrals are  about trust. When they are solely about money, they do not work well at all. There is much to think about when it comes to referrals.

 

red stateThe Federalist has a piece up positing that Conservatives are outdoing Liberals at criminal justice reform. Until recently, I would not have taken an article like this seriously. I’m now a few weeks into my time as the Legislative Chair of the Georgia Criminal Defense Lawyers. In that time, I’ve watched a groundbreaking new eyewitness identification bill make it out of the Senate unanimously. And I testified as a witness before a subcommittee of the Georgia House Judiciary Non-Civi Committee on a very progressive DUI implied consent bill to limit forced blood draws to only the most serious cases. I was impressed with the level of engagement as well as the pushback when a line of prosecutors testified.

We may be permanently a red state, but I’m pleasantly surprised. And I think the Federalist society may be right.

Over at Grits for Breakfast, is a post discussing that, while cell phones are rampant in Texas prisons, there are few prosecutions. The writer references a comprehensive story about the number of cell phones seized in Texas versus few actual prosecutions for those offenses. The Texas Tribune reports:

Prison officials said one challenge was linking the smuggled phones to prisoners or correctional officers for prosecution, because the devices were secreted away in spots that were hard to find, or found in common areas. And it falls to prosecutors in the rural, cash-strapped regions where prisons are typically located to decide whether to spend resources on criminals who are already in prison or on local law enforcement officers. Critics say that without serious consequences, there is little to stanch the flow of illicit cellphones — and the cash that goes with them — into Texas prisons.

“Phones can be hard to find, and there’s a lot of money in introducing contraband,” said Terry Pelz, a prison consultant and former warden who advocates tougher punishments for guards caught with contraband.

The same could be said about Georgia. Most Georgia prisons are located in rural areas. There are bigger things to prosecute. And there’s every reason for corrections officers not to aggressively deal with cell phone possession. First, corrections officers are not paid very well. Inmates and families can offer them extra money (generally in the form of a pre-paid debit card) to either turn a blind eye to cell phones or to actively participate in snuggling them into the facility. Inmates may also be more easy to manage if they have cellphones. There is little incentive to crack down on cel phone possession. Though Georgia DOC official press releases say otherwise.

Lawyers who do post-conviction work are going to get calls from prisoners on cell phones. And it creates something of a catch-22. There is little to no expectation of privacy on a prison cell phone. There is no assurance that the call isn’t being recorded or monitored by an opportunistic future jailhouse informant. There is also no real assurance that the person on the other line actually is the client unless there is a pre-arranged attorney-client call through the prison. And yet, there’s probably another lawyer, a competitor for instance, who is perfectly willing to take cell phone calls from inside.

A professor of anesthesia at Harvard Medical School told the Washington Post that “Given these recurring problems with lethal injections, if I had to be executed, I would choose a firing squad.” That article and one in the ABA Journal details the problems with supply of lethal injection drugs throughout the nation.

Continue Reading Harvard Medical Professor would Take Firing Squad over Lethal Injection

Yesterday, I assisted with an oral argument at the Supreme Court of Georgia. I was on the 2pm calendar (The Court usually sits in two sessions). As I often do when I have an afternoon calendar, I watched the 10am session online. I’ve written before about the value of watching other cases  on the calendar when you have court. It’s a good way to get oriented if you’ve never been to the court before or to take the temperature of things even if you have. You can do that virtually at the Supreme Court before you leave your office.

Today, I opened a window on my computer and watched some oral arguments from today’s sessions. There’s a link on the Supreme Court’s homepage, and this one may work, too. The Court also keeps an archive of the current term’s arguments online. Don’t have time or a way to read the briefs that go with the argument? The Court has this covered with well-written summaries. Want to find out how it all turned out? The opinions are also available online.

Lawyers 100 years ago or even 10 years ago couldn’t have imagined that such a resource as this would be around and would have loved to have something like this. All of the better lawyers I know read the Opinions Weekly from the Fulton Daily Report or some form of advance sheets. It’s a good practice but a monotonous one as you search for the criminal cases of significance (most aren’t particularly significant in the criminal realm). A practice of regularly watching argument at the Supreme Court is similarly worthwhile

Looking for a good way to figure out which cases are most worth watching? Cases where the Court has granted cert. to review a Court of Appeals case or where the Court has granted a habeas petitioner’s Application for Certificate of Probable Cause to Appeal tend to be more exciting. Look for a (G) in the case number for cert. cases or an (H) for habeas cases. The website is a good place for non-lawyers to learn how the Court decides cases, for lawyers to keep up with developments in the law, and for lawyers to prepare for oral argument (by seeing what to do and what not to do). Murder appeals and family law appeals tend not to draw questions from the justices.

Earlier this week, I had a court appearance in Camden County, Georgia. Camden County is as far South as you can go on I-95 in Georgia without being in the Jacksonville, Florida, area. We have family close to there. So, I took my four-year-old son with me for a little time with his grandparents while I was out and about seeing my client and his family and taking care or business in court.

On our way home, we stopped in at a restaurant off of I-16 for a quick dinner. My son had been napping and was a little groggy and carsick when we came in. I was a bit tired myself. He told me he was feeling sick, which resulted in two trips to the restroom. Plus, he was whiney and not really in the mood to eat. Fearing that he might be sick there in the restaurant, I finished my food quickly to head out on the road.

When we were at the car (Acura MDX – hardly a kidnapper-mobile), I was accosted by the manager who told me he had been called there by some other customers because I had been “acting suspicious.” He demanded proof that my son was my son. Out the corner of my eye, I saw the patrons who had complained — two elderly white-haired folks. He told me that my license plate was photographed and that the police were on the way.

The encounter ended when I asked the owner if he was detaining me. It’s a question he couldn’t answer well. If he said yes, I told him I’d likely sue. If he said no, then there was essentially nothing for him to do. There’s also a chance that he just didn’t know the meaning of the word. I showed him my driver’s license and bar card and was on my way. All the way up I-16, I kept waiting to be stopped by a SWAT team or for an amber alert sound on my phone of which I would be the subject.

I am active in youth programs at my church, regularly attend my children’s functions, and have taught college undergrads and law students. I have been in and out of prisons, including juvenile facilities, throughout my whole career. If I put out a “creeper vibe,” it’s news to me.

I’m trying to think what I did to raise suspicion. Maybe lone men don’t come to restaurants with 4-year-olds in this part of South Georgia. Perhaps it was the whining, the trips to the restroom, and my desire to exit quickly. All of those things could be misread, I suppose. Yet, I also paid with my debit card and chose to go into a restaurant with my child. That behavior seems quintessentially non-suspicious. And, all things considered, the behavior was relatively subdued compared with children I’ve sat near on airplanes. Why are lone dads on airplanes with more upset children not viewed with even more suspicion.

I’ve thought back and wondered if I could have handled things differently. The detention question was, I think a good move. As was the decision to produce identification. There was no reason to do that. He wasn’t a police officer, and I’d done nothing wrong. If I hadn’t produced ID, I’d have almost certainly been stopped though.

I can also imagine ways that this could have gone much worse. I was offended, defensive, and humiliated. Those aren’t the best emotions for thinking critically. I can also imagine that much could have changed based on the dynamics of the people involved. If I had been questioned by the police, I’m assuming that the patrons/owner would have gotten the benefit of the doubt while I, the out of town white male with 4-year-old son in tow, would have been at a disadvantage. Also, I could have spoken out of anger and drawn some sort of disorderly conduct charge.

It was a bizarre scenario. It reminded me of how cases start where folks with active imaginations and misguided good intentions make bad choices on the basis of a rush to judgment (why not call the police themselves? Why did they call the owner to come to deal with me?). It also gave me sense of what it is like to be accused of doing something you haven’t done or to be viewed suspiciously. I’m not sure how younger men, angrier men, or men without legal training might have acted differently. But this could have ended much worse than it did had it been someone else or had it been me on a different day.

I also think I’ll be flying into Jacksonville on my next trip to Camden Superior Court.