steamsaleCriminal calendars may be handled slightly differently in every jurisdiction. But they have one thing in common. At some point in every case, the lawyers will argue about why a person did that he did. And a judge or jury will evaluate this question and make a decision about what to do in light of that decision. In some instances, this evaluation will literally amount to life or death. In most, this decision will determine whether a person goes a away to a prison, is able to continue a course of education, or has her career choices forever limited by a label. But in each of those moments, not only the choice a person made but that person himself is judged. For that reason, how we think about free will is an important subject.

For those who are represented by thorough defense counsel, this judgment is made early and in the charging stage. The sooner you can bring a person’s full humanity to the attention of “the system” the more hope you can bring to that person. From the defense attorney’s perspective, the more complex that decision is, the better. It’s easy to pass judgment on a file and difficult to pass judgment on a person. So, you do everything you can to show to the system your client’s full humanity. Ken White wrote about this very thing:

If judges confronted the defendants’ individual humanity as they caged them one after another, they’d go quite mad.  It’s impossible and inadvisable.

The trick is to light a spark that catches the judge’s eye, that transforms your client even momentarily from an abstraction or a statistic or a stereotype into a human being with whom the judge feels a connection.  Judges are people, and people connect with each other through commonalities – family, hobbies, sports, music, and so forth.  At sentencing, a good advocate helps the judge to see the defendant as someone fundamentally like the judge, with whom the judge can relate.  It’s harder to send a man into a merciless hole when you relate to him.

Ken White was writing about the Stanford swimmer whose sentence struck many around the country as exceedingly light given his conduct.

What the system is asking itself when it passes judgment is not just how we judge the person’s action or the person himself. The best among our profession challenge the moral framework that the system uses to even pass those judgments. And that moral framework inevitably turns to free will.

Free will is a touchy subject. It is perhaps the third rail of jurisprudence, politics, and religion. For those who are interested in exploring this moral framework and the role free will has to play in it, I commend to you Sam Harris on this topic.

Harris posits that free will is an illusion and that it matters that we develop a more sophisticated understanding of it. And Harris argues that (1) we are not free to make choices independently; and (2) that our choices are not even the product of our conscious mind.

And where he goes with this argument is not where you might expect.

We live in a world of cause and effect. Even within our body, we are doing things well beyond our conscious control. We are making red blood cells, but we are not in control of whether we make them. And we did not choose who our parents or where we were born. And, for Harris, our choices emerge from “a wilderness of cause and effect” that we neither see nor fully appreciate. We carry genetic information from ancestors and a lifetime of experiences with us. And that material may well be dispositive of every decision, including whether to buy coffee or cocoa on our way to work. In short, Sam Harris argues that free will is an illusion.

The Consequence for Us and For How We View the World

For one, if our free will is an illusion, then we should chill out about a couple of things. We should be more humble about our good choices. To a certain extent, we should be no more prideful about our good choices than we are about our height. At the same time, if we have managed to choose well, we should feel fortunate about this fact in the way we feel fortunate about good health. And if we have chosen badly in the past, we should perhaps go a little easier on ourselves.

More importantly, Harris’s view of free will is important for how we view others. If other people’s choices are a manifestation of their genetics and life experience, then we should feel more compassionate and less of a sense of hatred toward those who have made exceptionally bad choices.

Let me Anticipate Your Argument

If free will is an illusion, then why have a criminal justice system? Why send any defendant to jail since there is not free will. This takes us to our next point.

Free will is an illusion, but choice still matters. Says Harris,

The fact that our choices depend on prior cause does not mean that choice doesn’t matter. To sit back and see what happens is also a choice that has its own consequences. So, the choices we make in life are as important as people think, but the next choice you make will come out of a wilderness of prior causes that you cannot see and did not bring into being.

And an understanding of free will can guide future choices in a more systematic and perhaps grander way. We can shift the the ground from which our choices arise. And I hope you will pardon me for putting in another block quote:

A creative change of inputs to the system — learning new skills, forming new relationships, adopting new habits of attention — may radically transform one’s life. Becoming sensitive to the background causes of one’s thoughts and feelings can, paradoxically, allow for greater creative control over one’s life.

This understanding reveals you to be a biochemical puppet, of course, but it also allows you to grab hold of one of your strings.

A very wise friend of mine who counseled some of my clients and testified on behalf of some of theme at sentencing, would tell them that the way to recover from an addiction had less to do with the choice to “use” in the moment and more to do with avoiding the moment. She drilled clients on what she called the “PPTs” or “persons, places, and things.” Change your landscape and eventually your “free will” acts differently.

Harris provides a helpful view of the world and a paradoxically liberating escape from free will.

I just e-filed an appellate brief. Current time is 9:38 p.m. Yes, it was one of those days. Yes, I need a shower. And, yes, it will take a while to come down from this coffee. But I want to keep a commitment I made to myself to blog every weekday. And here is what I have.

During breaks for lunch and dinner today, I listened to a little bit of the podcast, This Week in Tech. At about minute 33:00, Mike Elgan claims that if you quit social media, you would for yourself enough time to read approximately 200 books per year. I wondered where he was getting this claim, and I found the reference. The opening of the piece struck me:

Somebody once asked Warren Buffett about his secret to success. Buffett pointed to a stack of books and said,

Read 500 pages like this every day. That’s how knowledge works. It builds up, like compound interest. All of you can do it, but I guarantee not many of you will…

The average American spends 608 hours on social media and 1642 hours on television. It would take about 417 hours to knock out 200 50,000-word books. The 417 hours of book reading would likely be more valuable than spending those 417 hours on social media.

How does Mike Elgan get his news? He subscribes to a right-leaning publication and a left-leaning publication. Then he takes what he learns from reading long-form journalism and shares it to others on social media. He is a producer and not a consumer on social media. He is not at risk to get taken in by fake news.

For today, I was in my basement home office finishing up an appellate brief. So I neither watched television, consumed social media, nor read any books. I read statutes, caselaw, transcripts, and my own writing until my eyes went all blurry. Tomorrow, I have a good book waiting.

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.

I’m feeling a bit guilty. Well over a year ago, the publisher of Typography for Lawyers sent me a review copy. I have been using my free copy for quite some time, and I never wrote a review. It sits on the shelf next to the first edition, which I purchased. And this shelf is fairly sacred space that includes Aldisert’s Winning on Appeal, my collection of Bryan Garner’s greatest hits, and Ross Guberman’s Point Taken.

My original review of the first edition is worth a read. And I won’t repeat what I have already written. The second edition has about twenty additional pages. Among the things covered in the new edition, you will find a section on email, updates on the newest version of word processing programs, and an updated list of fonts. If you write and file pleadings in court, you should purchase the book. And if you already have the first edition, you may not necessarily need the second edition. But I would encourage you to buy it just to support what Matthew does for the legal community. He wrote an excellent article for Georgia’s appellate practice newsletter a few years ago when I was the section chair. And his work is helping us to help clients with more professional-looking briefs. Whatever profit he has made, I think it should be doubled.

For several years now, I have been aware of this book and have used it to produce better briefs. I’ll admit that I could do much better. And if you are new to his work, here is what I would suggest. The next time you are preparing a motion or a brief, open his book (or go to his website) and apply just one principle to your writing. Perhaps, eliminate the extra space after a period or figure out how to prepare case caption using a table rather than with colons and tabs. Next time, add another technique. I made the mistake of trying to incorporate the entire book into my writing at once. I do the same thing with Garner’s books. And I even do the same thing with materials I read on running. Take Typography for Lawyers, and aim to make your next legal writing 1% better from a typography perspective.

I found another helpful byproduct from these books. If you are going to care about the typography of the brief, you must start early on your writing. Typography is important, but there isn’t time to devote to it unless you get the content done first. But if you give yourself the time for the typography, it can make a significant impact on what you write. The goal of good typography is not to make your writing prettier or different from the competition (though both of those things will happen). The goal of good typography is to make your writing easier to read. The goal is to make yours a work that the judge wants to read. And you cannot attend to this important piece until the content is where you want it to be.

Typography for Lawyers is a deceptively short book. It is a short book of typography in the same way that Kibran’s The Prophet is a short book of philosophy. I made the mistake of thinking that I could “install” all of the principles from the book at once. I have since learned that, just as the law is a “practice,” so is “typography.” With the release of a second edition, Matthew has shown a commitment to updating his work to keep pace with emerging technology. I hope you order ourself a copy of the book and enjoy the journey that is outlined in the pages.

When you go on a family vacation, the people you live with have the opportunity to learn more about you and how you are feeling. And so it was in Oregon a few weeks ago, that my wife noticed my anxiety level. And when she noticed it, I began to notice it, also. And after I noticed, I began looking for the source. I’m not sure that I’ve found it. But I think I have a few leads.

For one thing, I have been devouring too much election coverage — way too much of it. So, I decided to do the one thing about the election that I could actually control. I voted. With that done, the media’s coverage was fairly irrelevant to me. With my vote already cast, no infomation could possibly influence it. So, I went the next step. I unsubscribed from the New York Times and deleted the app from my devices. When I woke up the next morning, I reached for the iPad to click the app. It was no longer there. Then I noticed that there was more of it on Facebook. So, away went went the app on my phone and iPad. Then there was Twitter. Away it went.

I happened upon a TED Talk by Cal Newport. He encourages his listeners to quit social media. I had his book on my shelf and re-read the chapter on quitting social media. Then I took stock.

I tried to weigh the benefits of it. I could not think of a single case I have ever brought in by being on Facebook or Twitter. I also could not think of a single case I had won because of it. Then I tried to imagine the time I have devoted to them over the years. So, then I took a radical step. I deactivated Instagram, Facebook, and Twitter. Those services have beeen gone now for two days. Before that, I had not logged in for about a week. If anyone has noticed my absence, they haven’t told me. The people who have needed to talk to me, have seemed to find me.

When I am writing a brief and I hit a rough spot, I find myself reaching for the phone for that quick hit of dopamine. And I realize it is not there. And I almost immediately let out a relaxing breath.

Something else I have done. I have installed an extension on Chrome called Inbox Pause. This nifty service allows me to pause incoming mail everywhere until I log back in and unpause it. I pull in emails every day or two and process it all at once. When the email is paused, it is not available on my phone. I put more thought into emails when I return them. Or I pick up the phone and respond. When I am tempted to seek answer to a question by email, I know that there will be a delay. So, I am either okay with it or I call the person. I find myself having more meaningful interactions. If someone has noticed my new email habit, they haven’t said anything. I have found that email is sometimes an exercise in avoidance. It can be a place to avoid a topic that should be tackled at a higher bandwidth.

Here is something else I have discovered. I find emails that seem urgent. Then as I scan my inbox or call the person back, they say, “never mind. It resolved itself.” Or “never mind. I found the answer.”

Yesterday and today, I sat to write a brief. I found myself in a state of enjoyment. When I’ve reached from email, Facebook, or Twitter, they have not been there. “Oh, yeah,” I have thought to myself before getting back to work.

I need to hang out with my family more. They are very good at noticing things.

 

p.s.

I don’t consider the writing of this blog to be social media. It’s long form and offers the opportunity to reflect.

Recently, while listening to Sam Harris’s podcast, Waking Up, I happened upon a guide to engaging another person in debate. It comes up when he introduces his interview with philosopher Daniel Dennett. Whether you are a lawyer preparing a brief or courtroom argument or a layperson engaged in a political discussion with a friend, it is worth taking a moment to understand and give the rules a shot. The podcast episode is worth a listen. Or for a quick read, check out Maria Popova’s post on Mr. Dennett over at Brain Pickings. Also, here they are:

1. You should attempt to re-express your target’s position so clearly, vividly, and fairly that your target says, “Thanks, I wish I’d thought of putting it that way.
2. You should list any points of agreement (especially if they are not matters of general or widespread agreement).
3. You should mention anything you have learned from your target.
4. Only then are you permitted to say so much as a word of rebuttal or criticism.

These rules have incredible value in any critical discourse. The most important reason is that your opponent or judge will be more likely to listen to what you have to say and be persuaded when you have disarmed them. Secondly, the rules encourage collegial and professional discourse (very lacking in the American political climate right now). Third, you will sound reasonable and potentially way more credible than an opponent who goes on the attack or reconstructs your opponent in a straw man form (inexperienced advocates often cannot resist). Finally, the argument you construct after articulating your opponent’s position fairly is likely to be a better one than the one you may have made out of emotion or in the form of an attack.

I hope that you will check out the rules. And when you finish with them, check out Sam Harris and Daniel Dennett.

On Monday, I stood at the start line of a hot, humid, and crowded 10k. Before then, I had done longer races, including a couple of half marathons and a full about seven months ago. And over the last three months I had been working with a coach to up my game. I had even begun to see improvements in short spurts during speedwork. In weeks leading up to Monday, I had recorded splits a minute and a half to two full minutes faster than my normal pace. And, while the temperature and humidity had been climbing here in Georgia, I had made it a point to get my run completed at the coolest point in the day early in the morning.

So, on the Fourth of July I found myself in a starting wave at around 8:00 in the morning awaiting the signal to go. The start was consistent with the runner I thought I had become. For three full miles, I was running splits comparable to my new faster times. But in the back of my mind, I noticed a crack. I wasn’t feeling quite right, even on the downhills. I pushed through until the first uphill, which I hit at my newfound faster pace. But this uphill did not lead to a downhill. It instead led to a more graduated slope and into another uphill. And by the latter part of mile 4, I was in some trouble. A glance at the thermometer showed me that the temperature was 83, and I looked ahead to the bobbing of heads as thousands approached and made their way up another hill.

Within my brain was a debate centered around a single question: “what the hell do I do?” Stop entirely? Slow down my running? Change to a walk? Or try to gut it out at my goal pace? There was a voice in that internal dialogue that said that I would get off this course and never run again. Meanwhile, I was sweating. And I was getting dizzy. At this point in my running (I’ve been doing it for about a year and half, having come to the sport later in life), I am unclear on where the line is between toughing it out and foolishly putting myself into a medical situation.

I Slowed to a Walk

I salvaged a split at mile 4 that was slower than goal pace but one that would keep my overall goal finish time in reach. But mile 5 ended all hope of my finishing pace. I slowed to a walk, went for water at the next station, poured a cup on my head and drank another. At a few points along the way, I tried to resume a run. But it is hard to move back into a run once I am extremely fatigued and have walked some. At the beginning of mile 6, I started a run. And as mile 6 unfolded (and with the help of a downhill and the sight of imminent finish line), I began to get back to where I normally am when I run. I was even passing people at the end.

I finished in disappointment and with a sense of dread. It was a dread of telling people how I did. And it was a dread of synching my Garmin data from the watch to the app on my phone, at which point this would all be memorialized.

Lessons Learned

I synced my data and texted a screenshot of the run to my coach. And I felt compelled to also share in my commentary that “I know I am much better than this.” Wrong! He texted me back, “actually, what happened here is quite consistent, except for mile 5.” I showered, came home, and began to look at the numbers. It turns out he was quite right. My average minutes per mile in that race, almost to a second, was squarely on point with my average minutes per mile over most runs. The funny thing to consider was mile five, the mile that I walked. But for that mile, I would have finished a pretty significant deviation from my average, albeit still below the goal I had set for myself. The body and mind rather dramatically brought me crashing down to my average of training. Did I give up at mile five? I’m not sure how to answer that question. I did stay on the course. And I did resume a run on the last mile. I did, in fact, reach the finish line. But I spent a mile essentially giving up. So, the answer to the give up question depends upon mood and perspective.

But what did certainly happen is that my racing self ended up in a tie with my training self. And I think that there is a valuable lesson in that. It is very hard to outpace our training and a bit foolish to think that we can rally in a moment to outdo or undo our habits. Our bodies, minds, and spirits will revert to what we are generally like. That is not to say that we cannot change and improve. I thoroughly believe that the dial on my fitness and speed is moving to the right. But it is moving a slower pace than my hubris had led me to believe. When my training pace or habitual pace moves firmly to the right, so will the racing pace. Progress has come and will come over consistent effort, through showing up and giving it full effort on those Monday, Wednesday, Friday, and Saturday mornings. And perhaps to train for a race that, for me would kick off at 8:00 a.m. in high temperature and humidity, it might have been good to train in those conditions. I hadn’t crammed for the exam, exactly. It is just that I had prepared for the wrong one.

There’s a lesson here for the law practice and for clients. Just as a runner’s racing self will struggle to outrun his training self, a lawyer at a hearing, or writing a brief, or engaging in a jury trial will struggle to outperform the lawyer in his study, preparation, and practice for those events. Just as you cannot cram for a marathon, you cannot cram for a critical case moment.

Many of my clients commit crimes of addiction or crimes of impulsivity. And often the preparation for the judge involves a parallel effort to kick an addiction. Or that moment of impulsivity came from a lifetime of bad habits where the client lacked the requisite skills to react to a situation in a better way. But lawyers and their clients can improve. We improve by showing up. We improve by noticing that the needle can move, albeit at a pace that is almost undetectable and often at a pace that is slower than we think it has moved. We are the sum total of our habits and practices rather than the sum total of a small collection of aberrant moments.

And the race doesn’t begin at the start line. It begins months before on some track or on a sidewalk in our neighborhood as we work to improve, not just this one split but the average of all our splits over a longer period of time, maybe even a lifetime.

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.

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.

A lawyer wrote me yesterday with an interesting question. The lawyer is writing a Brief of Appellant where the client was convicted of child molestation. The lawyer’s question was whether it was proper to use the victim’s name in the Brief. Are there any rules or traditions that govern the use of the victim’s name?

Of course, how you label or name people is an important strategic consideration no matter what the age of your prosecuting witness. It is also a strategic consideration when you are referencing the judge in the lower court, the prosecutor, witnesses and other components of your appellate cast of characters. The government thinks about this stuff, also. It’s why your client is called “the defendant” before the lower court and the “appellant” in the Court of Appeals. It’s why you call the person that the State calls “the victim” the “complaining witness” or the “prosecuting witness.”

Most of the time, the trial court is the “court below.” A few years ago, the judge in “the court below” had been removed from office by the JQC, the agency that governs judicial ethics. The whole matter became a public spectacle. By the time that case reached the appellate courts, the lower court was changed to the judge’s name, a name I used throughout the brief. Sometimes, my opponent is the “appellee,” sometimes my opponent is “the State” or “the Government.” Recently, in a case where a DA had met a similar fate to the judge in the JQC matter, the State had a name, too.

When it comes to minors, it’s generally best to be classy and respectful. My default is to use initials. Although how you reference the minor is really a matter of preference as long as the name of the witness is listed in the indictment and is referenced in the transcript. The cat is already out of the bag, so to speak. If the complaining witness is a very young child, and the issue is that she was victimized by folks who influenced her memory and testimony for their own ends, then initials are the way to go. In that instance, perhaps the word “victim” is okay, too. She was victimized by those who twisted her words or memory to lie about  your client. If the complaining witness is older, perhaps a teen, and your defense is that she has fabricated a story for some selfish reason, then perhaps it would be okay to use the name. If you want to emphasize maturity and sophistication, then Ms. Jones or Ms. Smith is the way to go. A “Ms.” sounds older than a first name, after all, and much older than a Miss. But even then, I’d use the same sparingly and for those witnesses with the most serious of palpable credibility problems.

There’s no real rule here. What do you do in these situations? Would love to see some comments in this regard.