Blog - Scott Key & Associates

When Opposing Counsel Tries to Bully You

September 30, 2015/by J. Scott Key

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Part of the fun of doing appeals and post-conviction work is hearing from colleagues with questions about things that arise in cases. Recently, I spoke with an attorney with an unusual situation. The lawyer was defense counsel on a serious child abuse matter. The prosecutor, when she supplied statutory discovery, told the lawyer that he was not allowed to show the discovery to the client, upon possible risk of prosecution. The prosecutor is obviously wrong, but this was a dangerous situation, at least from my perspective as a risk averse person.

Here’s what made it tricky. At first blush, my thought was to tell the lawyer to tell the prosecutor to go kick sand or simply to ignore the warning. The prosecutor was more wrong than a football bat. But there’s nothing more dangerous in a quasi law enforcement agent (these folks have badges) than a zealous belief combined with an unsound opinion. The prosecutor was either being a bully, actually believed that it is against the law to provide the client with discovery, or both. In either event, this person has the right to take pretty much anything to a grand jury, seek an indictment, and place the colleague’s career and life in jeopardy. The colleague would likely prevail in the end, but the journey would not be a fun one. So, I didn’t advise ignoring the prosecutor or giving the prosecutor a well-deserved middle finger. Here’s what I advised.

Get the prosecutor to commit the threat to writing. I advised that the lawyer send an email to the prosecutor to confirm that the prosecutor actually held that position. Something along the lines of “Dear Eliot Ness. I’m just following up on our conversation about the Smith case. I want to see if it is still your position that you believe I am not allowed to share the discovery with Mr. Smith. Do you still believe that I cannot share it with my client? Do you still believe that I would break the law if I did so? In the event that I shared the discovery with my client, what would the State’s position about what should happen to me? I will assume that if I do not hear from you within 5 days, that you are holding course on what you told me, which is ‘_________.'” With any luck, the prosecutor will change course at this point and say so in writing. However, if the prosecutor maintains the same position, you have a statement in writing, which will be useful in point two.
File a Motion. I advised that the lawyer then take the issue to the judge. The lawyer said what many lawyers say when I suggest filing a motion, which was “there’s a motion for this?” And I said, “yes, you can move for anything. Draft a motion entitled ‘Motion to Allow Defense Counsel to Provide Discovery to His Client.'” I suggested that the motion be constitutionalized, with a particular emphasis on the right to effective assistance of counsel under the Sixth Amendment and due process under the Fifth and Fourteenth Amendment. Remember the email that I advised the lawyer to get from the prosecutor? Attach it as Exhibit A. This email will prevent the DA from coming to court and saying, “I don’t know what Mr. Defense attorney is talking about. I never told him he couldn’t share discovery with his client.” The filing of the motion may force the DA to change course. If not, have a hearing.
The Hearing. Hearings end one of two ways. You win or you lose. I told the lawyer that either is really good for his client. If the lawyer wins, further bullying from this DA might stop. The DA will likely be embarrassed. And the lawyer will come out of the hearing as the one with more credibility than his opposing counsel. If there are further discovery disputes, the defense attorney will likely be presumed right, and the DA will be operating under a cloud.
If the Judge Rules with the DA, Oh What Fun! However, if the lawyer loses, then oh the fun that will be had as things unfold in the case. First, the lawyer will have planted reversible error in the record. Secondly, the lawyer will have a fun little tool to use at various stages as the case progresses. At the calendar call, if there’s some deadline to have decided whether to accept the State’s offer, the lawyer can say something like “Your honor, I understand that today is the deadline. However, I cannot advise my client whether to take the plea. Since he can’t view his discovery, he cannot assess whether this is a good offer or not.” If you get to trial, announce, “Judge, I cannot advise the client whether to testify. He is not allowed to see his discovery, and he cannot exercise this decision.” Even if the client takes a plea, the lawyer can say, “He feels hamstrung, judge. He’s taking this plea because he is afraid of facing a trial where he cannot know what is in his discovery.”
Stop Subsequent Non-Written Communications with this DA. I advised this course for future cases. There are few DAs with whom I do not get along. However, for those, I limit person to person contact and conduct plea negotiations in writing. It actually makes life much more easy. I get what I need for the Court. And anything hinky can just get an exhibit sticker on it one day.
A Kind Voice Turneth Away Wrath. So goes the Proverb. The louder, angrier, and less reasonable the DA is, the softer, happier, and more reasonable shall the defense attorney be. Don’t get in a spat with a DA in court. Efficiently and calmly make your record. Also, if the DA makes you mad, wait at least a day before deciding whether you will respond in kind. As Warren Buffett recently advised a young author, you can always tell them to go to Hell tomorrow. In other words, if you are going to take a harsh track, wait a day to see if you aren’t caught up in the emotion of the moment. You probably are.

Two New Justices on the Ga. Supreme Court? Why Would the Governor Make Such a Move?

September 23, 2015/by J. Scott Key

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Jim Galloway, in the Atlanta Journal’s Political Insider Blog, reports that the Governor is formulating a push in next year’s session of the legislature to increase Georgia’s seven-member Supreme Court by two justices.

Mr. Galloway opines that the governor’s move could expand his influence beyond his eight year tenure and compares a potential Franklin Roosevelt’s push, during the depression, to “pack” the court with like-minded Supreme Court justices. Such is an interesting take on the Gov.’s move. However, I don’t know that the comparison is necessarily apt. A presidential appointment certainly has the potential to expand a president’s influence beyond his own term. After all, United States Supreme Court justices have lifetime appointments. Also, the United States Supreme Court hears issues, in the aggregate, that are likely to shape the direction of public policy. While there are certain cases like that before the Georgia Supreme Court, that court also takes on its fair share of routine criminal and civil matters. Again, it’s an interesting theory. But I have never thought of George’s appellate courts as an extension of the governors who appointed the justices that sit on it. Perhaps I haven’t thought of it enough.

While the governor may have some hand in creating these new judgeships, his appointment would not extend for life. Georgia Supreme Court justices seek reelection at the end of their term. Though incumbency has its benefits, particularly in judicial elections. Interestingly, the Court of Appeals was expanded by three judges in the most recent legislative term. From an initial field of nominees of approximately 200, approximately 100 applicants remain.

Mr. Galloway reports that two “inducements” are on the table to increase the number of Supreme Court justices by two. There is a promise to build a new judicial building as well as talk of reducing the jurisdiction of the state Supreme Court. That jurisdiction is already significantly narrow. And it seems strange that the Supreme Court would undergo a historic expansion as part of a package deal to reduce the court workload. Also, it is difficult to imagine that either court would like such a proposal. For the Supreme Court, loss of jurisdiciton is a loss of power.

For the Court of Appeals, increased jurisdiction brings with it an increased caseload. It also seems odd that there would be a push to potentially increase the workload of the Court of Appeals. The Georgia Court of Appeals is known as one of the busiest if not the busiest intermediate appellate courts in the nation. The Georgia Court of Appeals hears on average about 3200 cases per year over the last five years. That workload means that each judge has a caseload of approximately 280. The addition of three Court of Appeals judges will significantly decrease the workload of each judge and probably increase the quality of opinions being authored as judges will have more time to spend on each case. By contrast, the seven justices on the Supreme Court here fewer direct appeals and have a good bit of discretion over their caseload where petitions come before them. I’m certainly not in the loop for any of this, but I wonder what category of cases would be taken away from the Supreme Court.

I will be interested to see how this all falls out and what the debate is about these two new additions. From a lawyer’s perspective, a move to increase the resources of either court is welcome. A better staffed court is can only help the litigants before it.

Were Briefs Better in the 40s-60s? If So, Why?

September 16, 2015/by J. Scott Key

Today, 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.

Client Intake to Build the Team

September 8, 2015/by J. Scott Key

Hiring a criminal defense attorney, whether at the trial court or appellate level, is a pretty complex thing. No matter how life-altering the case might be, the lawyer decision is huge. For the lawyer, taking on a client, whether at the trial court or appellate level, is a big decision, also. The client literally puts her life in the hands of the attorney. And the attorney makes a decision on taking the client that will have a significant impact on the lawyer’s life over the next few months to years. Not all clients and lawyers are a good fit for one another. I’ve learned that there are no small legal matters.

Any lawyer who has represented a client bound and determined to demonstrate that he was not, in fact, speeding, can attest that misdemeanors often mean as much to the client as the person that they are representing for murder. For both the attorney and the client, the decision to retain and to be retained is a big one. For that reason, I put a great deal of attention into the first client meeting.

The first meeting with the client is too important to waste any part of it. When I sit down with a client, I already know the charges or the essential facts about the conviction. I already know the client and family’s contact information. I generally have already obtained many of the important needed additional documents. From the moment that the client is seated in my conference room or office, we start talking about possible legal strategy and the next procedural steps. I do not like to spend the first 15-30 minutes getting background information such as DOB, phone number, and address. Our time is too valuable. And I strive to have a certain sense of mastery over the case before I meet with a client.
Our first contact usually involves me giving the client a homework assignment. Usually, I want, in writing, a narrative of the client’s basic bio, including criminal history, educational history, and work history. I want to know basic family information. I want to know how bond was made if it was not made yet. I want to know the identity of lawyers who have worked on the case before me. I want to hear the matter described in the client’s own words. If there’s a conviction, I want to know “what went wrong.” I will sometimes want to gather documents. Before we meet, I will want to know as much as I can about the client and the case. This process also give me an opportunity to see what it will be like to work with the client and for the client to see what it will be like to work with me.
Things I generally will not tell you on the phone.
- What the cost will be. No lawyer can really know what it will cost to represent you within seconds of talking to you on the phone. Cost is connected to complexity and experience. If a lawyer quickly tells you what something will cost over the telephone, he is either guessing or is trying to get you off the phone.
- Whether I can “beat this.” First, we will not know the answer to this question until the case is over. And I will not be able to make even a rough assessment until I know something about this case. If a lawyers ever tells you that he “can beat this,” particularly on the first phone call, then run quickly away from this lawyer.
- Whether I believe a certain set of things to be true. I don’t make guilt/innocence decisions within seconds. I don’t commit to any belief that anything either is or is not true. I commit to keeping an open mind about anything I might here, whether from the client, the person who made the arrest decision, or any witness. But I’m not going to lie to a client or pretend to have committed to any belief in anything within seconds of speaking on the phone. Clients probably do not want a lawyer who is either that gullible or dishonest.
By the time we meet, I will have thought about your case. When you hire me, we will have some momentum going. Or, if you don’t hire me, you will walk away with a better understanding of what will come next. I put more into an initial meeting than many lawyers. But I also recognize that my decision to take your case and your decision to retain me is a huge one.

I’m learning to fly. And the process of finding an instructor is about as close as I have come to what it must be like to be looking to hire an attorney. I interviewed four different prospective flight instructors before committing to the one who is putting up with me now as we go up in a plane that is about the size of a Volkswagen. The teacher I chose came to our first meeting prepared. He had a syllabus, and he took the time to explain the process. He then introduced me to another flight instructor because he was concerned with me finding somebody who was the right fit, even if he was not that person. He was the flight instructor version of me as a a lawyer. I also got the very real sense that he was sizing me up as a prospective student.

I am not sure what other lawyers do, but this is my process. I field more calls from prospective clients than clients who hire me. I meet with more clients than clients who hire me. Some clients want to hire a lawyer as fast as possible. Some clients are looking to pay as little as possible. Some clients are not a good fit for me. I also have gotten into the process and learned that the client is not the client for me. But I am deliberate about the process because I know that I’m not the lawyer for every client and not ever client is the right client for me. I also know that it is easier to put some work in to find the right fit than it is to get into an attorney-client relationship where we are not.

Updates on Cases, Media, Editing

July 1, 2015/by J. Scott Key

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.

The Importance of Lawyerly Agnosticism

April 11, 2015/by J. Scott Key

cc: Rudolf Vlček

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

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

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

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

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

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

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

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

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

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

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

A Connection and Valuable Lesson from the Alma Mater

April 8, 2015/by J. Scott Key

Over the weekend, I received a package from my undergraduate school, Mercer University. Generally, when I receive correspondence from Mercer, Georgia State, or Emory, it’s alumni spam. This was in a hand-addressed manilla envelope. I have a recurring dream where a school I attended figures out I’m a credit short and revokes my degree. I also keep waiting for the Bar to rescore my exam to tell me that I didn’t make it after all.

I opened the envelope to find a small paperweight sort of a trophy. The date of the giving of the trophy was May 24, 1993, for service as a Mercer Ambassador in the 1992–1993 school year. Mercer Ambassadors function as young smiling faces for alumni events and certain school functions. I recall being involved in it my sophomore and possibly my freshman year. There must have been some sort of trophy presentation — perhaps at an awards day — that I missed.

There was a nice card enclosed from the Coordinator of Alumni Programs, a lady named Anneliese Newberry. The hand-written card said,

The enclosed award was found whle cleaning out an area of the office, and
we wanted to make certain it reached your hands. Being an Ambassador is
an honor, and you deserve the accolade!
Best Wishes,
Anneliese Newberry

I don’t remember much about being in that program. I recall that we wore Maytag Repairman looking blue blazers with a crest. The Mercer website shows that the bunch these days dress much more tastefully.

But, all that aside, Ms. Newberry did, in a simple gesture, something more valuable than all of the slick alumni magazines I receive every few months could ever do. She made a connection with me. How easy would it have been simply to throw away the “award”? It’s likely that I would have done precisely that had I been cleaning out a closet and found it. After all, some person from 1993 must be in a retirement home by now or too out of it to comprehend the correspondence.

I’m sure that Ms. Newberry will raise a zillion dollars for the school, and I will take from this kind gesture a very valuable lesson in customer service.

The Dark Side of Referrals

April 6, 2015/by J. Scott Key

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

referral. 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.

Vanity Fair Profile on Judy Clarke

April 1, 2015/by J. Scott Key

Are you an attorney looking for inspiration? Are you a client who disagrees with your criminal defense lawyer’s tactics even though you see she’s working hard on your case? Run, don’t walk to pick up a copy of Vanity Fair, or read online Mark Bowden’s piece on death penalty defense lawyer Judy Clarke. It was just the motivation I needed for the middle of a tough week doing this job.

New SCOTUS Case Will Have Big Impact on Some Georgia Sex Offenders

March 31, 2015/by J. Scott Key

Jonathan McIntosh Flickr CC

In a per curium opinion (pdf), the United States Supreme Court has held that the placement of a tracking device on a person is a search within the meaning of the Fourth Amendment, even if the person is compelled for life to wear the device as part of a sentence. As summarized by Robinson Meyer in The Atlantic Monthly, “[i]f the government puts a GPS tracker on you, your car, or any of your personal effects, it counts as a search—and is therefore protected by the Fourth Amendment.” This opinion could spell changes for Georgia’s regime of tracking persons in Georgia who have been designated as Sexually Dangerous Predators.

In Grady v. North Carolina, the Petitioner challenged a court order requiring him to wear a GPS tracking device for life as a violations of his right to be free from unreasonable search and seizure. The North Carolina courts rejected his claim, reasoning that the placement t of a tracking device was not a search. The United States Supreme Court’s per curium opinion held that the placement of a tracking device on the person of Mr. Grady was a search as defined by the Fourth Amendment. But the Court remanded the case for a determination of whether the search was an unreasonable one. This case could make its way back to the Supreme Court eventually.

What is the possible consequence for Georgia? Consider first the comparison between the way GPS tracking for sex offenders works in in North Carolina versus Georgia.

Under North Carolina law, a person convicted as a recidivist sex offender goes before a judge where, after a hearing, the decision may be made to place a lifetime tracking device on the person. In Georgia, all sex offenders with convictions, a move to Georgia, or a release from prison after 2006, will be reviewed by Georgia’s Sexual Offender Registration Review Board. The offender never has the right to a hearing.
The SORRB can choose to classify even a first-time offender as a Sexually Dangerous Predator and force the offender to wear a GPS monitor for life. And the SORRB can, and often does, rely upon police reports and other hearsay materials in reaching its conclusion. In North Carolina, GPS tracking for sex offenders does not become an issue until there is recidivist treatment.
In Georgia, there is an opportunity for judicial review in a Superior Court. However, the judge who considers the case may deny the petitioner the right to a hearing. In that case, the judge who decides whether to make a person wear an ankle monitor for life relies upon the hearsay that the SORRB used as well as the hearsay analysis that the SORRB prepared and sent over to the court. It will be interesting to see how those orders stand up in the wake of Grady.

For Georgia lawyers going forward, a claim under Grady can be made on SDP appeals. And for folks who have already passed that point, there is room for a HABEAS challenge raising Fourth amendment grounds. As the process is set up in Georgia, with little meaningful judicial scrutiny, it would be hard for the government to demonstrate that the decision to violate a person’s Fourth Amendment rights was reasonable. After all, even for something as routine as a search warrant, a magistrate hears or considers sworn testimony. Not so in many SORRB SDP cases. For more on that process, consider my previous post.