The “Higher Realm” of Practicing Law: Another Post About Steven Pressfield

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At the risk of being annoying about it, I want to commend another Steven Pressfield blog post to you. This one is titled Worthy Thoughts and Unworthy Thoughts. Mr Pressfield has been on the road lately, and he has had to work hard to focus on things that matter. Instead, because he is not working, his mind has been on lower things:

I don’t know about you but when I wake up in the morning, all kinds of incendiary crap is rolling around in my head. Grievances, complaints, bitching to myself. I work myself into a lather over perceived slights and imagined injustices. I just got an e-mail this morning, out of the blue, from a guy who wants me to send him 30 copies of War of Art for free. Should I waste even one milli-second of my time thinking about this? But instead it’s rattling around in my brain like a ball bearing in a pinball machine. Why? Because I’m not working.

If you practice any type of law, appellate law in particular, you probably find yourself in the same situation. You should be in your office with the door closed focused on the structure of the appellate brief that will be soon due or comparing a questionable precedent in your state to trends in other states as you contemplate the history of some area of the law and how your case might fit into it. Instead, you’re busy feeling insulted by the jailer at the front desk who is making you put your cellphone in your car and explaining to someone why you can’t put 25 enumerations of error in his brief. Law has its higher realm and its lower realm as well. And, amazingly enough, when you are doing the work, writing the brief, putting the trial notebook together, interviewing the witnesses, and thinking through the bigger picture on your cases, the other parts of practicing law (lawyers, you know what they are) aren’t as consuming. And, interestingly enough, the opportunities to go off course don’t often come from your opponent, the judge, or the witnesses. The source of insults and pettiness, the stuff that can really bog you down, comes from other places in the practice of law. Let’s just say that, while there are likely too many lawyers, there are way too many non-lawyer who think that they are lawyers. So, if you can’t change it, you can practice in a higher place by doing the work.

So, I will say, as I have said before, Steven Pressfield is the one non-lawyer whose work lawyers should be reading, particularly lawyers who write. He’s made me think about the nature of the work that I do. And he even inspired me to re-read some Hemingway.

What to Do When Litigating in “Foreign Lands”

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Last week, I had a post-conviction motion in a county where I never practice. The motion is under advisement, so I won’t go into the particulars about it or what happened at the argument. I write today about the things I did before the hearing started and I plan to do those things even when I find myself in court in more familiar places.

The first thing is that there is a sign in the hallway, just as you enter, warning you to turn your cell phone off. The sign said nothing of putting it on silent or on vibrate. Off means off. So, off it went. Next, I pulled out my laptop just long enough to get the files I needed for the hearing onto the desktop. Then, I did the worst thing I can ever do when I’m in a courtroom waiting for my case to get called and bored. I checked my email. I am reminded what productivity guru David Allen said about email: “Any email could be either a snake in the grass or a berry.” Many of my phone messages go to email. So, for me, checking email means also checking voicemail. And that day’s inbox was filled with snakes. But even berries were not what I needed to see at that moment.

I was dumb, but not that dumb. I saw from the snippets in the in-box that I had read too far. But I stopped before I opened any of them. In fact, it was time to close the laptop and step slowly away. I also knew I couldn’t trust myself so I turned off the wifi receiver on the laptop. With the phone off and its array of distractions away, I had three solid hours to sit there in this South Georgia Courtroom while the court handled other business. What, then, to do with my time?

I took a small notebook and a pen, and I moved from the jury box where I normally sit over to the pews, dead center of the courtroom where I could watch the lawyers, the judge, the witnesses, the court reporter, the bailiffs, and the clerk. I took notes on the things I saw. It was among the best two and a half hours I ever spent in a courtroom. I watched a pre-trial conference where two sets of pissed-off South Georgia family members would soon be pitted against one another in a jury trial without a lawyer to contest a will. I watched two motions to suppress, and I watched the calling of the calendar in its entirety.

With notebook in hand, I watched every objection, heard every argument, sized up how the judge talks to people in conferences, noted how witnesses are sworn (every courtroom is a little different. Sometimes the judge swears them in. Sometimes it’s the clerk. Sometimes it’s the lawyer. The oath is sometimes a little different, too). I noticed the atmosphere of the courtroom (the judge likes it to be quiet and orderly. There isn’t room for a lot of drama. The judge, not the lawyers, runs the courtroom. He quietly contemplates objections before ruling on them). I noticed where sequestered witnesses go before being called in (turns out, it’s in a room behind the bench and not out in the hall). I noticed a number of things I would not have seen had I been responding to email, fiddling with my phone, or going out into the hall to take calls.

There was a fifteen minute break between the first few cases and the next few before mine was ultimately called. I used that fifteen minutes to huddle with my client in the holding cell and my client’s family. We made a few changes to the game plan in light of what we observed.

I also saw how the prosecutor responded to certain situations. And I likely saw several things that changed my approach beneath the level of consciousness. For a couple of hours, I took it all in.

Had I been someplace else, I might have read some advance sheets, edited a brief, or responded to some “pressing matters” on the phone or laptop while I waited. Had I been in a more familiar place, I might have “visited” with other lawyers. And, had I not moved, I would have “watched” the whole thing from the sidelines instead of moving to a place where I could see all the body language and facial expressions.

I am going to integrate the lessons in to future court appearance even in closer lands. After all, just as you “can’t step into the same river twice,” you never step into the same courtroom twice. A courtroom is a dynamic thing that changes with the mood of the participants, the types of cases on the calendar, the weather outside, the witnesses who appear, and what the drive to the courthouse was like. I hope to really be in the next courtroom I enter. In fact, the next time I go to a distant one, I think I’ll come down a few days before just in case I don’t get the gift next time of being last on the calendar.

New UGA Law Review Article Takes Georgia to Task for the Way We Handle IAC Claims

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I returned from vacation pleased to find in my in basket at the office a copy of Ryan C. Tuck’s article from the Georgia Law Review on the confusing state of the law as it relates to ineffective assistance of counsel in Georgia. The article is titled “Ineffective-Assistance-of-Counsel Blues: Navigating the Muddy Waters of Georgia Law After 2010 State Supreme Court Decisions.” This article is as good as its title is clever. The article centers on where the law in Georgia is after Garland and Moody.

And the news is not particularly good. And why am I excited about a law review article on a case I lost (sort of) and that demonstrates some issues with how we handle IAC claims in Georgia?

The reason is that maybe things will change. The way we do things in Georgia makes it tough to be a criminal appellate lawyer, disincentives trial lawyers from preserving issues for appeal, and needlessly separates the appeal from the trial in a way that interferes with attorney-client relationships and in a way that probably hurts the client in the long run. And this article give me some hope that the legislature will move Georgia to a system of handling IAC claims more akin to the majority rule.

Mr. Tuck picks up in a familiar place to me. Jim Bonner’s article in the Appellate Review, the Georgia Appellate Practice Section’s Newsletter covered some of the same ground.

What’s Wrong Now?

Under Georgia law, new counsel must raise ineffective assistance of counsel at the earliest possible moment, or he waives it. As claims go, IAC not really good. It’s rarely successful. I have litigated it more times than I can remember, and it’s worked on appeal exactly one time (it’s worked a few more times at the trial level, but generally with a wink and a nod as part of negotiations).

The problem is that clients think that it will work for them, and they pressure new counsel to raise it. There are many reasons why it should rarely be raised. For one, there rarely is a good claim. Secondly, it has a way of becoming the focus of the appeal. Third, even when it doesn’t it can be a big distraction from other real issues of merit. Fourth, analysis under the second prong of Stickland, invites trial courts to weigh in on how strong the evidence was against the defendant at trial. Such careful scrutiny of how good the State’s case was can have a spillover effect to other issues in the case making it that much easier to proclaim that other errors were harmless.

Pressures from the client and systemic pressures (raise it or waive it) can create a real conflict with the lawyer’s ethical obligations not to raise frivolous claims under Rule 3.1 of the Georgia Rules of Professional Conduct. To quote Mr. Tuck’s article,

By creating pressures for new appellate counsel to raise IAC claims against trial counsel, critics contend that Georgia’s approach contravenes this warning from Strickland [that there will be two trials. In the first, the defendant is tried. In the second, the lawyer is, as Mr. Tuck puts it “tried for IAC.”] and institutionalizes a level of antagonism between defendants and their attorneys that can be damaging to overall standards of representation. As one critic asserted, “[i]t causes hell for attorney-client relations if both know from the beginning that they will end up on opposite sides.

And from my experience, this issue marks the place where things can go bad between the attorney and the client. I don’t raise IAC unless I see at least a colorable issue and if it won’t hurt other claims by serving as a distraction and if the second prong won’t spill over into the harm analysis of other issues.

Where Should We Go From Here?

We should require that IAC claims be held until collateral proceedings and take them out of the direct appeal except in the rare case when it can be resolved from the record itself. And, the failure to raise it should not act as a waiver of the issue. It would better the system and make it easier to practice criminal appellate law. And, above all, it would protect the clients from going for a low percentage issue at the cost of other issues of merit, which provide a better chance of success even if they don’t quite understand those issues.

Video Arraignments are a Step in the Right Direction

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Above the Law has a good recent post on the use of video arraignments and how judges find that the process makes them feel safer. I don’t know whether video Arraignments make the process any safer or not. But the process certainly makes the process more efficient. In fact, many of the rituals of court aren’t just antiquated. They’re anachronistic. The other part of the article that I liked was a link to a story from a few months ago about Judge David Emerson’s decision to allow a defense attorney to call a witness at trial via Skype. These posts point to a good future for those of us who participate in the appellate and post-conviction process in Georgia.

There is an annoying thing you sign up for when you do post-conviction work in Georgia. And that is a clientele located hundreds of miles from where the lawyers and most of the witnesses are. Chances are that your appellate client will be located in South Georgia, and there will be an issue of whether to produce him for court. For the client, being produced for the hearing and returning to prison means starting back at square one as a new inmate at the facility. That situation can result in a complete upheaval of the client’s life, essentially representing a move to a new dorm with different cellmates. For the court, it means expense and potential security issues.

When the case ends, appellate counsel often becomes the witness in the former client’s habeas case, entailing another drive to a distant city. In fact, the whole show travels south, with assistant attorneys general driving down for court with boxes of files. The whole thing is needlessly inefficient and expensive.

There is no reason that much of the process couldn’t be done over Skype. Already, oral arguments at the Supreme Court are being done that way (not via Skype but by video feed from satellite locations in south Georgia). Arraignments and probation hearings are being done that way.

Why couldn’t attorney visits be done via Skype? And certainly why couldn’t court be done that way. The process would have several other advantages.

  • It would allow for more frequent meetings. Right now, a single visit requires a day (and sometimes two if you have to stay over) away.
  • It would make court run faster.
  • It would provide for better security. There would be fewer people in the room to protect.
  • The personnel cost savings would be significant.
  • Cases would move more quickly
  • There would be fewer appellate issues involving transfers and other weird little things that arise in the habeas setting right now.
  • There would be fewer continuances due to lawyer and witness unavailability.

In fact, it would allow appellate practices to be more efficient. Right now, many appellate lawyers face a tough choice. Do they want to put the work into working on these tough cases, which the clients want their lawyers to do. Or do they want to take time out from writing the briefs and reviewing records to meet with and reassure the client about the work that isn’t getting done during the day it takes to drive to the prison and have the meeting? Right now, there are tough choices to be made between working on the cases and driving around the state merely to talk things over with clients and family. The adoption of video could really eliminate some of these tough choices.

We can only hope that prisons and habeas courts will follow Judge Emerson’s excellent example.

Lessons I Learned from This Month’s Appellate Losses

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It’s been a bad month for my most recent crop of Supreme Court cases, both in terms of cases where I represent the party and in cases where I am amicus counsel. But I try to learn from them all. And here’s my takeaway from the month. To have and cite a case is not the end of the story, particularly if the precedent was set in the Court of Appeals and hasn’t been heard yet by the Supreme Court. This was the lesson I take away from State v. Thackston. The Supreme Court there overturned a few decade’s worth of precedent to hold that the exclusionary rule does not apply in the probation revocation context. Blue Line Lawyer aptly points out that officers who search in violation of the 4th Amendment can still be held liable  in a civil rights action. Then again, we’re in the 11th Circuit. My initial reaction was, “this is terrible.” Then came Black Monday, where two cases of mine (one as amicus counsel and another as party counsel) went south. I’ve now had a few days to reflect. And during that time I was writing a brief in a murder case.

In that murder case,an issue arose where the precedent looked pretty bad on an issue. So, taking some advice from an appellate judge who spoke to my class earlier this year, I dug a little deeper to see what lies behind the holding in the recent cases. I took the Court of Appeals holding that I did not like, and I began tracing the precedent backward, all the way back to when the Supreme Court first commented on it. How old was the case? It involved a search incident to arrest in a buggy (the horse-drawn variety). I learned that the Court of Appeals, in the 1970s and 1980s took the line of cases from the Supreme Court and twice took the precedent way out of context. And the Supreme Court never adopted the new reasoning. If the Supreme Court could reverse decades of precedent from Thackston because it wasn’t their precedent, then surely they wouldn’t appreciate the Court of Appeals taking their case law out of context and expanding it.

But my point is that it is important not to view precedent as the end of the story, particularly if the Supreme Court has never visited it before or if a line of precedent has developed in both courts. It’s important to track the history of the cases with Article I, Section 1, Paragraph 3 in mind (“The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedent.”). In the murder case, the Thackston case reminded me that the bad case I found wasn’t necessarily the end of the story. And an issue I might have been tempted to abandon became a significant part of the brief. With a Supreme Court more willing than ever to consider old arguments anew, it is important to look a little deeper even if the first wave of cases on your Lexis or Westlaw search are less than inspiring.

Author of study of Georgia criminal justice system has died

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Alyson Palmer at the Fulton Daily Report has noted the passing of David C. Baldus. Mr. Baldus authored a study in 1986 showing that, in 2,000 murder cases in Georgia in the 1970s, defendants accused of killing white victims were more than four times as likely than defendants accused of killing black victims.

That study figured prominently in McClesky v. Kemp, a 5-4 decision in favor of Mr. McClesky’s conviction and death sentence. Justice Powell later noted that his vote in that case was the one he wished he could change.

The New York times also reports his passing.

Uniform Rule on Electronic Court Filing: A Step in the Right Direction For Georgia

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Yesterday, I noticed that there is a proposed rule from the State Bar of Georgia to provide for electronic filing in Georgia courts. Of course, it’s just a proposed rule (PDF). And what comes of it may be simply a model rule for trial courts to follow if they choose to allow electronic filing. But it also might be light at the end of the tunnel for lawyers like me who are way sick of paper. In fact, the way trial courts work right now in the handling of documents is enough to make me want to poke my eyeballs out with a spoon. It’s not exactly fun to figure out a way to get a physical document to some distant land by 5:00 tomorrow to meet a deadline on a motion for new trial or habeas matter, and e filing would fix it. It’s also not fun to file a document in the courthouse basement and wonder how or when the judge on the case might learn of it.

In the late 1980s, when I was in high school, I worked for a law firm as their courier. My job was to go to various courthouses and file documents with various clerks, get the file stamp, and take physical copies to opposing counsel. The process seemed almost quaint then.

This year, I am approaching my 20-year high school reunion. And we’re still handling documents the exact same way in trial courts. Assembling the record for appeal, with a few exceptions, is still exactly the same process that it was the year the Titanic sank. I’m not sure what the issue is. Part of it is that lawyers can be un-innovative. For instance, what other profession is still using fax machines?

A uniform rule for e filing is, I hope, a step toward mandatory e filing in the future. Perhaps, then, I can retire the postage meter, and getting a leave of absence for a trip to Disney World or the filing of a conflict letter won’t burn a whole day every week for an assistant. It’ll have to be mandatory though. There are over 150 counties and Georgia and a blue million lawyers. Most will have to be sent kicking and screaming into the e filing era.

At the State Bar’s annual meeting, Chief Justice Hunstein announced that the Supreme Court of Georgia will require e filing there by the end of the summer and will soon move to the second phase of their e filing initiative to provide for the transmission of electronic records from trial courts.

My operation is paperless. I take notes on my iPad, my phone, or my laptop, and I maintain electronic files with a system for dealing with text notes and pdfs. It works great except for a few sets of occasions in my practice. One is when I visit an inmate in the prison system at a facility that won’t let my iPad or laptop in. You’ll see me often in distant lands buying convenience store paper and pen. The second is when I am in court and need to use paper with a witness or to fill out paperwork (you’ll see me borrowing pens a lot). The third is when I have any case in Butts County, Monroe County, or Lamar County where they equate electronic devices on par with weapons and refuse to allow anything but paper files in. The other is when I am working with co-counsel or opposing counsel that fetishizes paper (which is most of the bar, unfortunately).

The proposed rule will hopefully move us toward a system of file management throughout Georgia that is, if not in the 21st century, will at least be circa 1999.

Judge Christopher McFadden Offers Advice on Requesting Oral Argument

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How do you make the most compelling possible case for oral argument in the Georgia Court if Appeals? According to Judge Christopher McFadden, it is important to draft a self-contained request that summarizes the key issues in the case. It is important also to explain exactly how argument will assist the court under the unique facts and with the unique issues in the case. Finally, it is important also to explain exactly how argument will assist the court under the unique facts and with the unique issues in the case. It is also important to assume that the Court will not have seen your brief when they take up your request to argue.

Judges McFadden, Blackwell, and Dillard spoke to a combined meeting of the Appellate Practice Section and Criminal Law Section of the State Bar of Georgia. And, for Judge McFadden, this was an important issue. Below is a summary of Judge McFadden said, combined with a little editorializing from me.

Don’t spit out boilerplate.

Write a request tied to the unique facts and legal issues in the case. From time to time, lawyers call me requesting a form for a request for argument. I love helping other lawyers, so I don’t mind providing some of my past materials just to give folks a visual of what a request to argue looks like. But I get concerned when it appears that the lawyer is looking for assistance in how to word the request. There is no formula. In fact, if you fire up the computer and start generating boilerplate you probably wont’ be arguing this case.

Get to your point and theirs.

The request should quickly and succinctly educate the Court on the essential issues in your case, what your argument is, and without conceding the merit, a summary of what the other side’s position is. There’s a little art in all of this. You don’t want to concede your opponent’s position, but you don’t want to portray your opponent’s as a  straw man  either. If the case isn’t even close, I’d forego argument.

A request for argument is the opportunity to advocate.

It’s not only a reader’s digest condensed version of your argument but of your opponent’s anticicipated argument also. And it can be a great second brief in condensed form.

You can’t write it if you don’t really know your case.

By the time you’re drafting a request to argue, you should be in a position where you could tell your spouse or a friend or someone at a picnic or cocktail party the essence of your case in about 90 seconds. Because that’s what a request for argument is. It’s an elevator speech.

Finally, Judge McFadden explained that it’s important to explain exactly how oral argument will assist the court in deciding the case? What is it about this set of facts and this set of legal issues that lends itself to written and oral argument? Next to setting out the issues in a succinct fashion, your oral argument should set out exactly why it is important to have an exchange with the court before deciding the case.

If you follow Judge McFadden’s advice, even if you don’t win the request to argue, the process of honing your argument to its essence will likely help you refine your brief and know your case better. And if argument is granted, it is a good first step to prepare.

E-Filing is the Talk of the Georgia Bar Meeting

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Two days at the annual meeting of the State Bar of Georgia in Myrtle Beach have given me enough material for a week of blogging. For today, the big news is that the Supreme Court will mandate e-filing for all attorneys before the end of the summer and will create a system for submission of appellate records in electronic form. E-filing was also the talk of the Appellate Practice Section luncheon, with Judge Keith Blackwell discussing the need for a a uniform system for indexing the record on appeal.

Kathleen Joyner, with the Fulton Daily Report, shared a story of some matters I e-filed with the Supreme Court of Georgia on my way out here (don’t worry, I wasn’t driving)

What to do When You Get to Write the Order

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This week’s theme has been orders. Every now and them, you are lucky enough to win. And when you’re even luckier, you get to prepare the winning order. Sometimes, though, you get asked to draft an order, and your opponent does, too. Drafting an order in that situation is a little tricky, because you have to wear your advocate hat underneath your coat (although, if you’re writing good briefs, you are probably making your brief sound like the perfect order already). Sometimes, you get asked to write a brief because the judge is humoring you and wants to show the appearance of neutrality even though she has already made up her mind. Sometimes, you and opposing counsel have cut a deal, and you get to draft the order. Drafting the order is an awkward opportunity, and if you get it, want to share a few tips with you about how to do it well.

Make the Judge Look Good

The order, when filed, is a reflection of the judge, even if some lawyer opens the file in the Clerk’s office a century from now. Make the legacy a good one. If your order is going to compete with opposing counsel’s, make your look better than the one he presents. Think about the layout, font, spacing, and other things. Matthew Butterick’s Typography Lawyers is just as helpful here as it is for preparing the brief. So is the Bluebook. Make the order look like something the judge will be proud to sign before she reads the first word of it. When you cite cases, don’t forget to provide pinpoints. Make sure that the cases you reference really stand for your argument. All the things that you do for your credibility in a brief are even more important when you prepare the Order. If you betray the judge’s trust in this task, you will never get the opportunity again.

Just the Facts Ma’am

Think long and hard about the standard of review. Divide the order into findings of fact and conclusions of law. Put as much of the important stuff as you can think of into the findings of fact. If your order on the judge’s behalf is appealed, the facts are going to have a more favorable standard of review than legal conclusions. But don’t stop there. When you get to the legal conclusions section, place findings of fact there, too. Many legal conclusions are mixed with factual findings. And factual landmines are just the thing to sprinkle into a law section of an order.

Have the Order Written (or, at least in mind) Before the Hearing

There are 3 reasons to pre-write it. First, when you think about how you’ll win, you already have victory in mind. Secondly, you will enter the field of battle with the ability to perceive the matter from the judge’s vantage point (you’re already considering it from your opponent’s, right?). And, from a practical standpoint, you can get a signature, get it filed, and get your client that much closer to the relief you are seeking. And you can hand over the “spoils of victory” before you leave the courthouse. Plus, things you can finish up at the courthouse don’t go to your inbox. Also, if the judge knows that he won’t have some item to take to his inbox after court, you get another edge over your opponent who didn’t bring a fill-in-the blank-and-move-to-the-next-case option for the judge.

I’ve written 3 orders this week. One was probably never read. One is under advisement. And one will likely be signed before the week is up. They’re deceptively difficult to draft. But there are worse things that could have happened to me this week than writing the orders for my client.

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