Ex-Magistrate’s Lawsuit Blackens Eye of Ga. Judiciary

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This won’t end well. Anthony Peters, the former Catoosa County assistant Magistrate Judge has filed a civil rights suit against the his former boss as well as the Sheriff of Catoosa County. When I read Joy Lukachick’s article (hat tip to her) in the Chattanooga Times Free Press about the lawsuit, I had to pull the Complaint off of PACER, the same way rubberneckers have to slow down to watch the traffic disaster in the oncoming freeway.

And, to my fellow rubberneckers, I offer this Complaint for your entertainment. Take a gander, and sleep well in the assurance that there is some lawyer out there who will file your lawsuit for you. No matter how many lawyers have turned you away, don’t be deterred. You will meet the right lawyer one day:  Peters Complaint (PDF).

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Williams v. Illinois Asks More Questions than it Answers

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Williams v. Illinois, the newest Confrontation Clause case from the Supreme Court, leaves unresolved some key issues on the Confrontation Clause and its applicability to lab reports. Some things to note:

  • Williams has no majority opinion
  • It is very fact specific
  • A similar case with a better set of facts might go the other way

Stated with a bit more specificity, the plurality opinion is tied closely to the facts of the case. The two concurring justices believed that there were too many loose ends to state a definitive rule. Those two justices could possibly vote with the dissenters in a different case with more definitive facts.

Basis for the Opinion in Williams

  1. The expert testimony did not violate the confrontation clause because the expert did not testify to the truth of the matter asserted. Rather, she simply relied upon information about the profile of the evidentiary DNA to answer hypothetical questions about the likelihood of a person’s DNA profile being exactly the same as someone else’s. Since such testimony is neither substantive nor probative, it does not implicate the Confrontation Clause. Scott Greenfield calls this the “truthy” part of the opinion.
  2. The profile of the evidentiary DNA, nevertheless, was not testimonial because law enforcement did not profile the DNA in the semen to strengthen the State’s case. Rather, the evidentiary DNA was profiled with an aim to later identify a suspect from the world of unknown people whose profiles were in a database. In a case where a suspect has been already identified, we have a different matter.

And the case is tied to some fairly quirky facts, each of which is material to how the decision was made.

Factual Issues

In Williams a woman was raped in Illinois by an unknown assailant. After a rape kit was done, a scientist identified semen on the vaginal swabs. Law enforcement sent the sample to Cellmark Diagnostics Laboratory in Maryland for DNA testing. Cellmark conducted tests and produced a report with a DNA profile. Illinois law enforcement took the profile and compared it to a database of known DNA samples created to take the DNA profile of arrestees. The evidentiary DNA profile matched that of the petitioner. The victim then successfully picked the petitioner out of a lineup

The petitioner was tried by a judge. The victim identified the petitioner in open court. Then the State relied upon three forensic witnesses.

  1. The first testified that he had identified the presence of semen in the vaginal swab.
  2. The second testified that he drew the blood from the petitioner, and that he entered the profile into the database.
  3. The third testified how DNA profiles are developed from forensic evidence and how those profiles could be matched based upon the individual’s unique DNA code. She testified about Cellmark’s accreditation and how it is common for one DNA expert to rely upon another DNA expert. She talked about how the chain of custody was maintained in the shipping of the evidentiary DNA to Cellmark lab. Then, she testified about how she matched the profile from the database to the profile she obtained from Cellmark and how the profiles were the same. The Cellmark report was neither admitted into evidence nor shown to the factfinder. She did not quote from it or identify it as the source of any of the opinions she expressed.

For the plurality, there were several key facts that rendered the testimony not a violation of the Confrontation Clause

  1. Cellmark’s report was not admitted for the truth of the matter asserted. Unlike the report in Bullcoming that was admitted for its truth, the Cellmark report was never even admitted. The witness merely testified about a DNA profile she received from Cellmark and how it matched that of the DNA profile contained in the State database for the petitioner.
  2. No possibility of cross-contamination, and no testimonial analysis at Cellmark For the Court in Williams, it was important that Cellmark tested the semen without any particular suspect in mind. The test was not performed to incriminate or to strengthen the State’s case against a known suspect. And, for the plurality, it was important that “the admissible evidence left little room for argument that the sample tested by Cellmark came from any source other than the victim’s vaginal swabs.” In a case where law enforcement tests the DNA of an actual suspect for comparison with evidentiary DNA or where multiple DNA samples are on location at the same lab at the same time, the testing would be testimonial and the possibility of cross-contamination would be a possible area for cross-examination.
  3. Bench Trial versus Jury trial For the plurality, this distinction was key. From the plurality:

This case, however involves, a bench trial (author’s emphasis) and we must assume that the trial judge understood that the portion of Lambatos’ testimony to which the dissent objects was not admissible to prove the truth of the matter aserted. In a jury trial, the Cellmark profile might had been excluded or it would likely have been referenced but with a mandatory limiting instruction “that out-of-court statements cannot be accepted for their truth and that an expert’s opinion is only as good as the independent evidence that establishes its underlying premises.” And, if the State could not independently corroborate the foundational facts, then the expert’s opinion would be accorded no weight.

So, the advice for defense attorneys going forward should this issue arise — insist on a jury trial. With a jury present, we have a whole new ballgame.

Justice Breyer’s Appendix

There is an appendix to his concurring opinion that describes all of the steps in the DNA profiling process. This Appendix describes what happens in the process. The appendix is very helpful to practitioners looking to figure out the process or in trying to figure out which witnesses was not called by the State

In conclusion, much is left unresolved. A case where (a) a suspect’s DNA is tested for comparison with evidentiary DNA, (b) where all samples are tested together in the same lab; and (c) where the case is tried before a jury would appear to be a fantastic candidate for cert.

Savannah Morning News Recognizes Terry Jackson’s Life

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Today, the Savannah morning news has a fantastic article about the late Terry Jackson, a hero of mine and of many Georgia criminal defense lawyers. I did not know Terry until late in his life. He referred me some cases in the past couple of years, and I am working now on one of his last appellate cases.

Terry received the first Terry Jackson Friend of the Constitution Award from the Georgia Association of Criminal Defense Lawyers. And, as well as I got to know Terry through GACDL, I did not know just how many big cases he had handled in his life until I read the article.

If you knew Terry, this article is worth the read. And if you didn’t know Terry, stop what you are doing, and read the article right now to learn about him.

In Memoriam: Strickland v. Washington

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While working on a brief, we discovered a Georgia Supreme Court case that I was sorry to have missed when it came out (hat tip to Margaret Flynt). A paradigm shifted in 2010, and I completely missed it. From an optimistic viewpoint, this case shows that almost nothing adds up to ineffective assistance of counsel. To be less than optimistic, this case marked the end of the concept of ineffective assistance of counsel jurisprudence in Georgia.

Let me tell you the story. In the case, two parents were tried for murdering their 8-year-old child. The facts were fairly bad, with a history of child abuse. But the prosecutor’s trial tactics were also fairly horrible. During her closing, she clicked her fingers, which signaled a deputy to dim the lights. An associate prosecutor produced a birthday cake with the victim’s name written on it. The cake had eight candles on it, which were then lit. And the prosecutors sang happy birthday to the victim during the closing (if you were paying attention to the opinion, you’d note that the victim was already eight years old. To blame the defendants for the fact that there would never be an 8th birthday party requires that we scold them for not perfecting time travel.).

Defense counsel never objected or moved for a mistrial. And appellate counsel raised the failure to object as ineffective assistance of counsel. On the stand, trial counsel defended the decision not to object as “sound trial strategy.” Trial counsel gave the standard defense that he “didn’t want to call attention to” the spectacle by objecting. This display, and attempts to call attention to it make me think of Frank Drebin from the movie, Naked Gun. How could you possible call more attention to what is already a P.T. Barnumesque event?

The case reads like self-parody. Have you ever thought that you were reading The Onion only to realize that you were reading an actual news story? The Smith case reads like a satirical version of an IAC narrative written by a person trying to make a point about the state of ineffective assistance of counsel jurisprudence.

I am trying to imagine the backstory. I think, for instance, about the meeting where this idea orgininated. Prosecutors, the true believers anyway, say that they are in it for justice for the victims and not merely to win. So, I wonder if the actual intent of the cake and stuff was to honor the victim’s memory and things just got out of hand. That such a display would trivialize the victim or come off as a little offensive might have been overlooked.

I would also be willing to bet that the bailiffs and courtroom staff ate the cake during a break in the proceedings.

As I imagine the backstory, I think about all of the times that the brakes could have been applied. Like maybe when the prosecutor was at the Kroger bakery. As the details were being ironed out with the baker, you would almost expect an epiphany along the lines of, “did I get all this education and study for the bar so that I could be here doing what I’m doing right now?” But alas, no.

Or maybe a great opportunity was when the prosecutor told the deputy, “Hey, man. Listen. During my closing argument, I’m going to snap my fingers. When I do that, I need you dim the lights for me.”

I’m trying to imagine a defense attorney attempting a similar conversation with a Georgia courtroom deputy. It would never happen. It’s scary to imagine starting that conversation. The defense attorney would be summoned into chambers and yelled at. At the very least the deputy would get offended and say something like “I don’t work for you.”

But while we are on the subject of double standards, I want us to think about this case alongside an earlier IAC case, Nejad v. State. In that case, trial counsel testified that he was ineffective when he ordered his client not to testify at trial.

In a concurring opinion, a Georgia COA judge chided trial counsel, questioned his honesty, and noted that there should be some sanction for lawyers who testify that they made a mistake at trial:

I concur fully in the majority opinion, but write separately to point out an area of increasing concern in claims of ineffective assistance of counsel. Trial counsel’s testimony in this case demonstrates a worrisome trend with serious implications for the bar and the administration of justice. …

Typically, trial counsel in such situations testify primarily to the factual details of their conduct and decisions, and admit errors only with reluctance and with due regard for their professionalism and pride in their work. The developing trend of emphatically and even eagerly testifying to one’s own incompetence or misconduct is dangerous to the administration of justice, particularly if it is allowed to continue without any consequences for the testifying trial counsel.

By contrast, the majority in Smith spends about a paragraph dispatching the IAC claim. The dissent, even in taking defense counsel, the trial court, and the DA to task, never questions the honesty of the “trial strategy” claim or suggests that there should be consequences to such testimony.

Defense attorneys who testify “with pride in their work” at motions for new trial get the same hedge of protection as cops who testify at suppression hearings. The defense attorney who defends his conduct at an appellate or post-conviction hearing enjoys the same treatment as the police officer who explains how he smelled two ounces of raw marijuana that was wrapped in layers of packing, within a closed trunk. Such evidentiary moments assume a willing suspension of disbelief, reminiscent of Samuel Coleridge. Trial courts hear and accept such fictions on a regular basis, and those findings are accorded an extremely deferential standard of review on appeal. The defense attorney is celebrated as an officer of the court until he says that he made a mistake.

Strickland reached the end of its road. Today, we take an opportunity to mourn its passing. I’m headed to the Wal-Mart bakery right now to buy a cake for the birthday that it will never celebrate again.

Should You Post Bond? Not Always

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Last week, I closed out an armed robbery case quite successfully. The case was reduced down to robbery, the client was sentenced under Georgia’s First Offender Act (meaning that he has the opportunity to come out of this with no conviction on his record), and after completing a one-year residential program, he is on probation. There were a number of things that made this outcome possible, but one factor stands out. The client never bonded out. He was arrested ten months ago, and we never even sought a bond.

Things got tough along the way. The client implored his family to seek a bond for him, and the pressure on them was difficult. Things got particularly difficult during the holiday season. But we never petitioned the court for a bond. And, by the time 10 months passed and this case was at its “resolution point” in court, we had 10 months served under our belt. The client, a very young man, had suffered some consequences, and he had seen some things. He had seen folks get released only to return back to jail. He saw enough of the inside to wake him up but not enough to embitter him. He and his family would likely tell you that he did more than 10 months of growing up in the last 10 months.

Our plea was non-negotiated, and when the judge pronounced sentence, he told my client that he likely would never have agreed to my recommendation had he not served a great deal of time already. The family’s decision regarding bond reflected well on them. Judges are often more willing to take a chance on a person when they know that the family can provide structure upon release. And their decision to leave the client in jail during the pretrial months reflected well on their ability to provide structure once this young man was out on probation.

When I became the lawyer 10 months ago, I advised my client not to seek a bond, and I told the family to try their best to resist when the asking got tough. And I had to remind them of these things a few times throughout the year. But when I made the strategic decision not to seek a bond a year ago, I imagined that things might come together like this by the time we resolved the case. The decision paid out.

Please don’t hear me to say that it is usually a good idea to leave a loved one in jail. Rather, I share this story with you to let you know that there may arise a case, from time to time, where bonding a person out is not the best thing for the client. All cases are, of course, different, and whether to make bond is one of those decisions best thought through with your lawyer. But here are some things to think about when it comes to deciding whether to post a loved one’s bond.

Are people counting on the loved one for support?

Obviously, if a client is the provider for a family, it is likely better for the client to fulfill his duties to those she loves. If a prolonged pre-trial incarceration will make others suffer or result in lost employment, then by all means incarceration for any length of time is not the best idea. But for a youthful defendant without such responsibilities, particularly if the defendant is on a road to increasing criminality, some extra days of pre-trial incarceration can help the client “get it” and may take him away from friends, from drugs and alcohol, and other opportunities to get in worse trouble.

Is the case beatable, or will a conviction inevitably mean probation?

If the case is defensible, is likely to be reduced, or will likely result in probation, then it makes little sense to prolong pre-trial incarceration. However, if the case is one of those that will be plead one day, if there is minimum incarceration involved, and if a judge will likely believe that the client should do some time eventually, it can make sense to remain in jail and not make a bond. There are a couple of harsh things about incarceration and how it works on the human psyche.

  • We can get accustomed to just about anything in short order. But it can be torture to dread something. Everytime I go to a swimming pool, I look like a big wuss. I hate jumping into water that feels the least bit cold. But once I’m in, I’m fine. The dread of the cold is much worse than the cold itself. Once a person is in jail, it sucks, but it’s a level of suckiness that can be tolerated for a few days. And as bad as it is to spend another day there, there is one thing worse — to leave there and think about coming back. That dread can lead to irrational decisions and disastrous no-win trials.
  • The devil you know. People generally prefer to do time in their home town over going through diagnostics and doing time in the prison system. So, doing time on the front end can be preferable. Of course, this advice is not intended as one size fits all. If you live in Mayberry where Aunt Bee is preparing biscuits for the inmates, you’d probably prefer to do your time there. If you just got arrested in Fulton County, then you may prefer to do your time on the back end of the sentence or in one of those places you see featured in the show Locked Up, Abroad.

Think about what your bargaining chips are

Defense counsel gets to bargain with two kinds of chips. First, you can bargain over likely outcomes of a hypothetical trial. Part of your job as defense counsel in a negotiation is to portray trial as a losing proposition for your opponents. Obviously, you do that through your giftedness with the English language, your ability to perceive weaknesses in your opponent’s case, and your ability to strengthen your own. The risker the bet trial becomes for you opponent, the more likely you are to work this all out with minimal damage.

The other bargaining chips consist in debating the seriousness of the conduct, the relative goodness of your client, and the number of people who can say that he will never do this sort of things again. When you are talking about things like this, you are really bargaining about what the case is worth. In a civil case, “worth” is measured in terms of dollars. In the criminal context, “worth” is measured in terms of punishment. And, it can be very powerful to tell a prosecutor or a judge that he’s been punished already. So, being able to take on a sentence pre-trial, may give you greater bargaining power when others try to demand that your client go to jail. There’s no better argument than “he’s already been there, and he never asked to come out until now.” In money parlance, a few months in a county jail can be a very good “investment” that minimizes your client’s net sentence.

Again, I am not claiming that most people should remain incarcerated pretrial. Rather, I want to suggest that the question of whether to make bond can sometimes be more nuanced than it might appear.

An Update to the Typography Post

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This week, I received an email from Don Roch at Bowers & Roch in Canton, Georgia, in response to a post on a CLE talk I gave on typography.

He took issue with my claim that, in Georgia appellate courts, you are stuck with Courier New 12 or Times New Roman 14. Don did a “double take” because he has been using fonts other than those. He goes on to point out that you can go beyond those two suggested fonts and not run afoul of Georgia Court of Appeals Rule 1 or Georgia Supreme Court Rule 16. Technically, he is right. Both rules are concerned with type size. The former calls for type no smaller than “10 characters per inch.” The rule says that Times New Roman 14 is fine. While the latter calls for type no smaller than Times New Roman 14 or Courier New 12, meaning that you are safe if you use those.

Don is absolutely right.

Thanks for the “catch” Don. I did misstate the rules as being more restrictive than they are. The better way to have said it is that you know you are safe if you go with those fonts. You may choose different ones as long as your font size is otherwise in compliance.

Please, if you do, make sure that you are otherwise in compliance. Get the ruler out before you submit your filing.

Trial Objections are no Substitute for an Appellate Strategy

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The Lawyerist wrote an evocative post last week about when and how to object at trial. In it, Andy Mergendahl notes that “Objecting at times other than when absolutely necessary to keep crucial inadmissible evidence out will really hurt you.” He advises, instead, to handle as many objections as possible as motions in limine.

What I Mean by “Evocative”

When I said that the article was evocative, here is what I mean. At first blush, I was not keen on what he had to say. As an appellate lawyer, I read far too many transcripts where great issues are waived because there was no objection at trial or pre-trial motion where the appellant moved to exclude things. So, from the perspective of an observer who views many trials through the rearview mirror of the trial transcript, my first reaction was “you gotta be kidding me.” I have always wished that lawyers objected after just about every sentence spoken at trials. Why would anyone suggest that objections are a lose-lose proposition? Then I read and thought. And I concluded that he’s actually right.

Why Trial Objections are a Lose-Lose Proposition

What makes an objection a lose-lose proposition? Assuming that you win the objection, you actually lose because the jury could well figure out contextually what the evidence is or would have been. The jury thinks you are being slick and trying to hide things.

And if you lose the objection, you lose in multiple ways. First, you lose the objection. Second, the jury thinks you were hiding something. Third, you emphasize the stuff you were trying to keep out as particularly harmful to you. Finally, the guy with the robe on peers down over his glasses and proclaims publicly that you were wrong.

But again, what about the record?

Save Trial Objections to Crucial Make or Break Points

But I thought about it some more. And I actually think that he is right. Mr. Mergendahl did not say never to object. He said that it is best to save objections for “crucial” issues. Of course, if you have prepared well for trial, chances are that you have thought out what the most crucial issues are. And those issues are best handled in pre-trial motions. In a pre-trial motions setting, everything is handled while the jury is not around. The jury hasn’t already heard enough from the question to figure it out. You have put a great deal of thought and research into the issue. The judge has more time to think about the matter. And you are more likely to make a good record. If a proffer needs to be made, you are in a position to do it.

Beware the False Sense of Record Protection When You are Fighting Over Trivial Things

Actually, most of the junk lawyers fight over during trial has nothing to do with the outcome of the case. Think about the last time you objected in court. Were you really building a record, or were you really engaged in a pissing contest about the form of questions?

If you are enumerating as appellate error a trial judge’s ruling on “asked and answered” or “leading,” it’s time to go ahead and tell your client to unpack that last suitcase in his cell. Or a higher percentage way out of all of this mess may be a hacksaw hidden in a cake.

The real problem is not the failure to object during trial. Rather, the problem is that too few lawyers think through or have a reliable model for predicting what the big evidentiary and constitutional issue will be. And often it occurs to them in the middle of the trial, if ever. At that moment, they start blindly objecting. Next time you are in court and you see two lawyers really get into a fight over objections, I’d be willing to bet that you will really be watching a debate over the form of questions and not the substance of the evidence being admitted. And I’d also be willing to bet that you will be watching a debate over questions of leading, whether the question was “asked and answered,” or whether the question is argumentative. I won’t bet, I’ll guarantee, that neither lawyer is scoring any points for the appeal in this debate.

A Bunch of Objections to Form are no Substitute for an Appellate Strategy

But we’ve barely scratched the surface, dear reader. When you start objecting ad hoc in the midst of a trial with no real appellate strategy, you have even bigger problems. Let’s list some of them.

  1. You focus on things that don’t really matter. Trial objections that are shot from the hip are largely about meaningless stuff. You are probably in a riveting debate over whether a witness is being “badgered.” When is the last time you saw a conviction overturned because a witness was “badgered.” And why the hell is badger a verb anyway?
  2. You lose sight of the fact that you are getting screwed by the trial judge no matter how the ruling goes. Suppose you win your big important leading objection. The judge sustains it. The prosecutor will re-phrase the question in some non-leading manner. The trial judge begins to appear magnanimous, and you look like you’re turning the whole process into a game of Simon Says. In fact, if you are in the latter stages of a trial, and the judge suddenly starts ruling for you, chances are that he thinks your client is getting convicted and he’s hedging his bets against your appeal. Some trial judges rule with you on “form objections” to make themselves feel better about what they are going to do to your client at sentencing. Show me a judge who sustains defense counsel’s every objection as to the form of the DA’s questions, and I’ll show you a judge who has his calculator out trying to figure out how best to light up the defendant when the sentencing starts.
  3. The “Kick Me” sign. Or if the judge is less subtle and has no interest in appearing magnanimous in front of the jury (the JQC is zapping most of these judges as we speak), your objection over some meaningless issue presents an opportunity to toy with you. You won’t have much you can do with it all on appeal because hearsay/leading/asked and answered/badgering comes under the huge umbrella of “trial judge’s discretion.” So, with the wrong judge, the exercise of objecting is like hanging a big sign around your neck that says “kick me.” And kick you he will.
  4. It all gets intoxicating. There’s an old adage that “to a man with a hammer, all problems look like a nail.” Criminal defense lawyers virtually never get told that they are right in a Georgia court. So, when you say “objection, asked and answered,” and the judge says “sustained,” it feels like you’re on a roll at the blackjack table. You’re the half-starved lab rat who was just been given a food pellet for touching the red button with your nose. You want to touch the red button again. And again. And again. The prosecutor, by contrast, is the hyper lab rat who gets an unlimited supply of cocaine pellets just for showing up in the maze. Our scientist, the judge, has suddenly removed a single pellet. And the rat is freaked. Suddenly there is a battle raging, little more than a contest of egos, over the form of an insignificant question. You aren’t on a roll at the blackjack table—you’re getting screwed over. Or maybe it is a blackjack table and you are winning. It’s just that the blackjack table is in the casino of a cruise ship. And that cruise ship is the Titanic.

So, yes, the Lawyerist is right, but for more reasons than he imagines.

The Best Time to Bring in Appellate Counsel is at Trial

I’ll end with a story from recent experience. I am appellate counsel on a case. And I was on the defense team at trial as appellate counsel (Not that anybody conceded defeat. I was sort of like an insurance policy). My role at trial was to keep an eye on the appellate record. I came to court for some of the pretrial motions, but during the trial I did most of my work from my office. The trial was televised and it was streamed online. I DVRed the proceedings. So, when issues arose, the trial team would call me. I’d review the proceedings. I’d draft the motion in the evening. And I’d watch the motion get argued the next morning before the jury came in or after the lunch break.

The motions I wrote were not about whether a question was “asked and answered.” There was some long-term strategy in mind. I was the one guy on the team who looked at all of the proceedings through the appellate lens all the time. And by not being present in court, I didn’t get emotionally involved.

There’s a really awesome thing about being an appellate guy on a defense team during a trial. You start thinking about how you’d like to see issues play out on the transcript. You think about what you’d love for the judge to say as he rules against you. You start thinking up the things that you’d love for the DA to say as he puts the squeeze on you at trial. If your motion prevents a bad ruling, cool. If the judge ignores you and rules incorrectly, cool. And as the appellate guy, you keep your fingers crossed that you lose some of those motions. You’d like to have things to discuss with the appellate court.

When an appellate lawyer cracks open the transcript at the beginning of an appeal, he hopes against hope that he doesn’t find a fair trial in those pages. The more rigged it was the better (and this is Georgia, where the JQC seems to remove a judge every day for rigging the game in one way or another. Lots of the trials are rigged.). For an appellate lawyer, the last thing you want to find is a trial that was fair. And in Georgia, you’re in luck … if you play your cards right. But how do you do that?

More objections are not the answer. The answer is a well-thought-out appellate strategy that begins when trial counsel opens the case at the trial level. The goal, after all, is to preserve issues that could win on appeal. The goal is not to get a series of “attaboys” from the judge or to turn trial into an academic exercise where advocates compete to see who craft questions in the best form.

 

Beware the Generic Brand

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Scott Greenfield, today, looks critically at a lawyer’s website. The lawyer boasts that he started his practice with nothing and now has 500 clients. Mr. Greenfield’s post struck a chord with my thoughts of late. If you have 500 clients, you aren’t giving much time to any one of them or their case. Worse than that, you are rendering legal service as a commodity. And what we do, particularly as criminal defense lawyers in private practice and especially in post-conviction practice, is not a commodity. Though there are times when clients see us that way. There are so many lawyers out there willing to take on cases for less than they are worth that it makes sense that we would be viewed that way. There are some real dangers of discounting legal work for significantly less than what it’s worth (namely that clients don’t value what they don’t pay for and the pressures to deliver according to price even though the bar rules expect so much more).

I encounter the repercussions of the “WalMartification” of law at two distinct points in my practice.

  • First, I encounter it when clients or their families come in for an appeal. The story I hear is virtually formulaic (and perhaps not true some of the time). They were charged with a crime. They found a lawyer in the yellow pages or because he did a good job on a friend’s will. Or he was the least expensive of the ones interviewed. Or he oversold what he could do. Or he undersold all of the things that might happen. Or he underestimated the State’s case. After retaining the lawyer, he suddenly became impossible to get on the phone. The emails went unreturned. Some court dates came and went. The client would see the lawyer at those court dates, but he was in a hurry. The lawyer would have just enough time to reassure the client that everything was okay and not to worry. Until one day, the client came to court. This day was unlike the others. The lawyer had a grave look on his face. The offer involved jail time — a significant amount. And the choice was either to take it right there or start a jury trial a little later in the day. Either a plea was entered, and I am being asked what can be done to undo it, or a trial was had. In which case I am going to review the transcript. I read the transcript, and I am disappointed as I see objections not raised, motions not filed, defenses not asserted, and error waived.
  • I also carry some trial-level cases. When I meet with prospective clients about those, I carve out about two hours, more or less, to discuss the road ahead. I talk about how much work goes into doing a case right. I note that a lawyer’s ability to have an impact on the outcome diminishes the longer a case hangs around. Often, the most critical time is between the moment of arrest and the moment that the case is presented to a grand jury. Hard work and thorough preparation at this stage pays the highest dividends. And time and skill is all a lawyer has to offer. The higher the skill level and the more time devoted, the higher the fee. It is at this stage that I will often lose the case to one of the vast numbers of lawyers I described in the paragraph above.

If you have a high-volume practice, it is hard not to practice neglectfully of defensively. You saw neglectfulness described above. Practicing defensively is about as bad. When you practice defensively, you show up for the bond hearing. You wait for the case to get indicted. You wait for the discovery. You wait to hear a plea offer. You advise the client to take it. Sometimes you advise a trial. You shoot from the hip during the trial. Maybe it works or it doesn’t. You close the file. By the time you’re being assertive, the case has come out of grand jury, has been assigned to a judge, has lingered around for a while, and it’s almost time to try it (some cases should be worked that way, but it’s not a good general practice).

Law is not a commodity. But I’ve noticed it being treated that way in the past few months when I speak with families in my conference room. I spoke to someone facing a serious charge and who was on his way to be interrogated at the police station (in law enforcement parlance, “coming in to clear some things up”). I was informed that he thought he might be “in the market for a lawyer.” My concerns about not going to the interview without a lawyer or maybe not going to it at all were brushed off as if I were a car salesman giving him a pitch. I wonder how that all worked out? I never heard.

To take the commodity thing a step further, there are lots more generic lawyers out there than there are generic brands of peanut butter or mustard. But the generic brand of peanut butter or mustard isn’t toxic.

My Controversial Talk on Typography (No Kidding)

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If you read this blog regularly, it is no secret that I am a recent convert and evangelist for Matthew Butterick’s Typography for Lawyers. I have a long way to go in my legal writing before I reach a point of mastery, but I am happy to be paying attention. One of the chairs for the Spring Seminar of the Georgia Association of Criminal Defense Lawyers is also an acolyte, and I was invited to speak on typography for an hour. It turns out that I spoke on a little more than typography — subtopics included the need to provide a succinct summary of the desired result, the issues on appeal, and the reasons the court should grant relief, and the need to limit the number of issues on appeal as much as possible. Most cases, after all, are about just one thing.

I was the next to last speaker on the last day. And, as passionate as I am on the topic, I feared that the topic was a bit nerdy and perhaps boring for some. I hedged my bets by putting some serious work into my presentation and the Keynote slides. Writing materials for a talk on typography is also an intimidating task. The project invites a more critical look than others might. And I put as much planning as I could into making the topic engaging.

It turns out that I was wrong to be afraid. Lawyers, even criminal defense lawyers, are a conservative lot and sometimes not good with suggestions about the need for change. And so it came to pass that I was the only speaker of the entire conference to get heckled. That’s right, in a talk on fonts and the structure of appellate briefs, given on the last day of a three day seminar in Savannah, Georgia, I had a heckler. The guy who spoke on abortion, contraception, and the right to privacy sailed right through without as much as a sigh.

I’ll add that I was thrilled to be heckled on this topic. It is heartwarming that anybody is passionate about typography to such an extent that she told me that an example brief I put on the screen “looked like [shiitake]” because I didn’t turn on full justify and that I was off my rocker for criticizing Times New Roman and Courier. I like passion, even when such passion is misplaced. I am thankful that the reception was so intense, and I also want to take a few lines to say more about these three things — justification (in a graphic design sense not in a theological sense, though I will strive to be graceful), the Courier font, and the Times New Roman font.

Full Justification is a Matter of Personal Preference

The audience member was a serious proponent of full justification, noting by way of simile, that my decision to left-align the text rendered an excrementitious product. The opinion was as wrong as it was hyperbolic. As to the hyperbole: at no point during the presentation did green flies begin to buzz about the screen where my Keynote was being projected. As to the heckler being wrong, I’ll respond here.

Butterick writes (and I defer to him because he wrote the book and because he is credentialed in this area) that “compared to left-aligned text, justification gives text a cleaner, more formal look.” He also notes that justification “alters the ideal spacing of the font, but in paragraphs of reasonable width it’s usually not distracting.”

In the end, he notes that “[j]ustification is a matter of personal preference. It is not a signifier of professional typography.” He cites as an example the fact that many newspapers mix it up.

I will add that I never endorsed either way. I just used a previous brief of mine, one where the text was left-aligned, as an example. The audience member has a strong preference for justification. She’s not wrong to have it but was wrong in the extent of her criticism of left alignment.

A Defense of Courier, Really?

I took some heat for my criticism of Courier. And I was actually quite surprised that anybody but a prosecutor or bureaucrat would feel so strongly about this font. This font served its purpose in 1955 when it was invented. The font was created for the “golfball” typing head that IBM was developing and would later premier in its 1961 Selectric Typewriter. The font, and other monospaced fonts, was created to deal with mechanical issues with the typewriter. To quote Mr. Butterick, “[monospaced fonts] were not invented to win beauty contests.”

To quote an article from Slate, “its design principles are little more than phantom limbs: Like any other typeface, it is whisked from the digital ether without regard for its original use. … What is most remarkable of all, of course, is that a typewriter font is still being used at all in the post-typewriter age.”

With the exception of Robert Caro, I do not know of anybody who still uses a typewriter. So, it really isn’t necessary to use a monospaced font.

When you use monospaced fonts, you get fewer words per page, and the font is hard to read when compared to proportional fonts. There really is no reason to use Courier unless a court rule requires it.

In 2004, Courier fell out of favor with the State Department. The preferred font is now Times New Roman 14.

It’s Time for the Decline and Fall of the (Times New) Roman Empire

The heckler also has a special place in her heart for TNR. It’s an okay font. Though its problem is its ubiquity. Using TNR is essentially not choosing a font at all. According to Mr. Butterick, the problem is the blah factor:

When Times New Roman appears in a book, a document, or advertisement, it connotes apathy. It says, “I submitted to the font of least resistance.” Times New Roman is not a font choice so much as the absence of a font choice, like the blackness of deep space is not a color. To look at Times New Roman is to gaze into the void.”

Finally, he advises, “if you have a choice about using Times New Roman, please stop. Use something else.” A person can choose Times New Roman and be passionate about it (I know one person who does and is). But that choice conveys apathy.

A Final Word

If you are in the Georgia Supreme Court or the Georgia Court of Appeals, you have little choice about your font selection. You can go with Courier New 12 and look like a prosecutor, or you can go with Times New Roman 14. At either of those courts, TNR conveys that you don’t want your appeal dismissed and that you don’t want to be sanctioned. It does not convey apathy. In client letters and in filings in other courts, you can and should (in the name of all that is holy) choose other fonts.

 

 

 

Video Interview: Discussing the Latest in the Trayvon Martin Case with LXBN TV

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Yesterday I had the opportunity to speak with Colin O’Keefe of LXBN TV on the latest developments in the Trayvon Martin case. In the short interview I give a brief explanation on the background of the case, touch on Florida’s unique “Stand Your Ground” self-defense law and compare the situation to two past cases that were similar and also received a significant amount of national media attention: the Duke lacrosse case and the Bernie Getz case.

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