Bryan Garner’s SCOTUS Interviews Now Available in Print

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It is now the talk of the appellate bar nationwide. Bryan Garner has recently released transcripts of his interviews with 8 United States Supreme Court Justices. If you plan on doing any legal writing (whether it’s before the SCOTUS, another appellate court, or any where else), you need to download the interviews, available at The Scribes Journal of Legal Writing (PDF), and start reading them. It may be the best free resource for appellate advocacy available anywhere. There is so much to like in these interviews. The advice is spot-on. The justices are a tremendous resource. And, best of all, the interview are incredibly engaging.

If you have time to only read one, take a look at the interview with Chief Justice John Roberts. And if you have time for two more, read Justice Scalia’s and Thomas’s. Most of the bloggers who have covered this publication also recommend these interviews. Jay O’Keeffe’s De Novo features a post titled, I am John Roberts and So Can You. The Wall Street Journal’s blog, discusses Justice Scalia’s tip to avoid legalese in briefs: “If you used the word at a cocktail party, wyou people look at you funny? You talk about ‘the instant case’ or ‘the instant problem.’ That’s ridiculous.”

Justice Scalia also agreed with Mr. Garner’s suggestion that we should complete a well-crafted brief long before it’s due and spend the rest of the time refining it.

Writing advice in these interviews is not monolithic. Chief Justice Roberts discussed how he spent much of his time writing the statement of facts and noted that “every lawsuit is a story.” Justice Thomas, on the other hand, almost never reads the statement of facts, choosing, instead, to read the recitation of facts from the appellate court. Chief Justice Roberts highlights the importance of a summary at the beginning. Justice Scalia thinks a summery is superfluous.

Bryan Garner is the co-star in every interview. His questions and comment would be worth reading, even if he weren’t interviewing SCOTUS Justices. It makes for a fantastic introduction to him if you are not already reading his work. He’s also on twitter, and he’s as engaging 140 characters at a time as he is in his booklength prose.

Judge Beverly Martin Provides Picture of the Perfect Oral Argument

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Judge Beverly Martin of the 11th Circuit Court of Appeals spoke to the Georgia Bar’s Appellate Practice Section yesterday on the subject of “What Makes an Effective Appellate Advocate.” More specifically, her focus was on effective oral argument. I’ve heard many talks on this topic, and I read about it all the time. I even write about it from time to time. Judge Martin’s approach to the talk was different from the typical talk on effective advocacy at oral argument, which often takes a very nuts and bolts (do this, don’t do that) approach with little attention given to what the result should be. Instead, she spent her time describing, virtually inviting the audience to imagine, the perfect oral argument. She left us with the task of working hard to find our way to that destination. In this post, I want to summarize what, in her eyes, the perfect oral argument looks like.

The Advocate is Fearless

A fearless advocate is one who knows the facts and the law cold and has thought about the possible implications of each. The advocate is fearless as a result of focused concentration on the case in the weeks leading up to the argument. The fearless advocate also is prepared to engage in a calm conversation with the Court about the case. Judge Martin spoke of a level of preparation so great that there is little that can’t be answered or discussed.

The fearless advocate is calm because that advocate is “ready to discuss any and every fact in a way that weaves into the lawyer’s theory of the case.”

Preparing to have a conversation and preparing to give a canned rehearsed speech are two different things. In addition, this picture of a perfect argument also presumes that the bench is equally prepared to have a conversation.

She cited a judge who told her, in her earliest days on the bench, that being an appellate judge feels like advocacy again. She explained that judges often come to oral argument having taken a position on the case, and that other judges often have different positions. The questions they ask the lawyers before them are often “adversarial” in nature and work as a tool to argue positions to the other judges on the panel. Which leads to the next part of the portrait of the perfect oral argument.

The Advocate is a Masterful Manager of Concessions

Then came the other part of the portrait of the perfect oral argument, which is more of an internal piece. It is important to concede the things that should be conceded to avoid embarrassment at having assumed a ridiculous position. But the need to make concessions must also be balanced with the knowledge that oral argument is “not a popularity contest.” Which means that it is equally important not to concede things that should never be conceded. Judge Martin explained that her colleagues are masters at getting lawyers to concede points at argument that will undermine the lawyer’s case and the other colleague’s position.

How do you know where this balance is between things that must be conceded and should never be conceded? It requires mastery of the facts of the case and the law governing the issues. Sometimes, even sufficiency of evidence arguments can be abandoned to the client’s peril.

The Rest of her Talk

Judge Martin’s discussion of the management of concessions then moved to the difficulty that comes in some cases, which is that “the rule of law does not bend to exclude distasteful people.” Which may be a clue in the handling of cases where there is a good legal issue but distasteful facts. Sometimes, perhaps, we undermine our argument in trying to sanitize things about cases that should not impact the outcome if we assume a set of participants in the legal system that are applying the rule of law dispassionately.

Judge Martin characterized the flow of work at the eleventh circuit as “shocking” in its volume for ten judges to undertake. She also explained that the court handles it very well because “if you don’t move it, you’ll be buried.”

It was a good talk on an area of growth for me. I’ve often said that I think oral argument is the hardest thing about being a lawyer but also potentially the most rewarding. I never feel more like “a real lawyer” than after an appellate oral argument that went well, and I never feel more like I should start some other kind of business than after a really bad one. Judge Martin’s portrait of a great oral argument has given me something to aspire to and to envision in the future.

Third Circuit: Mere Physical Proximity of Guns to Drugs Not Enough for Sentencing Enhancement

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Caroline Vodzak  reports at Vodzaklegal that the Third Circuit has found that mere spatial proximity of guns to drugs is not sufficient to enhance a defendant’s sentence of drug possession without a specific finding of fact that the gun “facilitated or had the potential for facilitating the possession of drugs.”

Mr. West was caught in possession of a small amount of marijuana and cash during a routine traffic stop. Police then found a handgun in the car’s glvoe compartment and another in Mr. West’s trunk. They later found a gun on his girlfriend’s dresser near a bed where Mr. West sleeps. The trial court (MD of Pennsylvania) interpreted the sentencing guidelines in reliance on another third circuit case broadly to give Mr. West a four-level sentencing enhancement, reasoning that the guns needed only to be possessed “in connnection with” the possession of drugs.

The Third Circuit reversed, reasoning that “the mere connection with the drugs” was not enough, and remanded for sentencing, with instructions about the correct standard for application of the enhancement.

The interesting thing about this case is that the Thrid Circuit relied upon the Fourth, Fifth, and Eighth Circuits, which distinguish between drug possession and drug trafficking cases. It is not clear, from reading the opinion, whether other circuits make such a distinction and whether, on this issue, there is or might be a circuit split ahead.

Georgia’s New Evidence Code: How & Why We Changed

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Here are some reasons why this development is good.

Regularity

Less Vagueness (bent of mind, course of conduct, res gestae)

A modern evidence code that fits the kinds of evidence lawyers seek to admit

A playing field that, for a brief time, will reward the prepared (and that’s generally the defense)

As Professor Miller noted, Georgia has now gotten its evidence code up to speed and has largely adopted (98% of it) the Federal Rules of Evidence. I’m going to keep following the Law Prof Blog as this provision moves forward

Georgia is getting a much-needed change to its evidence code, and Colin Miller’s Evidence Prof Blog has the post I’ve been wanting to read. Professor Miller does two things really well in his post. First, he points out that Georgia is finally catching up with the rest of the nation as we become the 43rd State to enact an evidence code modeled after the Federal Rules of evidence. Secondly, he discusses why Georgia’s evidence rules were long overdue for an overhaul.

Why were we due for an overhaul? The current rules of evidence were enacted in 1863. Changes in the way we do court as well as little technological developments like the invention of the automobile, airplane, and the internet, have taken us int a different world than the world inhabited by the framers of the evidence code. Too often we were trying to match up the proverbial square peg and round hole. He cite to another of his posts, which demonstrates how antiquated the Federal Rules of Evidence are by reference to how to admit a computer printout under the Best Evidence Rule.

Why did it take so long? The move to change the rules began in 1986, and the legislation died “a thousand deaths in different committees” and faced “strong opposition from solicitors and prosecutors.” How did it get done this time? Professor Miller credits Representative Wendell Willard who pushed for adoption of the Federal Rules of Evidence in 2009. As the process began, he acknowledged the concerns of prosecutors. He convened a study committee, which discussed those concerns at length, highlighting the differences between the Georgia Rules of Evidence and the Federal Rules of Evidence. Eventually, the bill passed by an overwhelming margin, and we have a new evidence code on the way.

As Professor Miller noted, Georgia has now gotten its evidence code up to speed and has largely adopted (98% of it) the Federal Rules of Evidence. I’m going to keep following the Law Prof Blog as this provision moves forward.

Excellent Oral Argument on Lawyer Disqualification

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I’ve been following this case closely because the Georgia Association of Criminal Defense Lawyers submitted an amicus brief on behalf of the Appellant.  In a nutshell, the trial court disqualified the former DeKalb School Superintendant’s law firm where there actually was no conflic; rather, there was the speculative potential for a conflict where the clients had waived a conflict in writing. We were alarmed about the precedent that could be set if prosecutors could freely choose their opposition.

Today was the oral argument before the Georgia Court of Appeals. The Fulton Daily Report covered it, and Oral argument is available on video of today’s session. Beyond the fact that the issue is important, it is worth taking a look simply to see good appellate advocacy from Bernard Taylor. Here are three things I particularly enjoyed watching.

  • Time Management. Mr. Taylor managed his time well. He had his argument prepared and was able to get his main points out. He reserved plenty of time for a well-developed rebuttal and for the Court to ask questions.
  • Strength of Argument. Mr. Taylor struck a nice balance between the scholarly tone necessary for appellate argument with the passion necessary for a case with issues like these.
  • Answers to Hypotheticals. Appellate judges often warn lawyers away from the “those aren’t the facts of this case” response to hypotheticals. Mr. Taylor almost gives that answer at one point, but he does so by reference to law that conflict/disqualification isses are fact intense and unique. He then acknowledges that, under the hypthetical as framed, there might be “issues.” He struck a nice balance.

It is truly great that such a strong advocate is representing the Appellant in this important case.

How Can You Defend These People?

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I’ve watched with interest the news regarding former Solicitor General Paul Clement’s resignation from King & Spalding, after the firm moved to withdraw from its representation of House Republicans in defense of the federal statute that prohibits same sex marriage.

Every criminal defense lawyer should learn as much as possible about this story and save it up for your next cocktail party where there are a bunch of non-lawyers or prosecutors in attendance.

The next time someone asks you the typical questions that criminal defense lawyers get about how you can defend someone charged with ____ (fill in heinous crime) or asks you how you can defend someone you know to be guilty, you can cite the inquisitive person to this chapter of Paul Clement’s career. A lawyer’s duty sometimes means defending rapists, murderers, and even House Republicans.

I wonder if those who pressured for K&S to withdraw from this case would support law and order types if they brought similar pressure to bear upon a law firm to withdraw from the appeal of a criminally accused or convicted. There’s lots of irony to go around in this story.

Making the Most of Your Georgia Prison Visit

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As I’ve mentioned before, I make many prison visits. It’s part of the job in Georgia appellate practice. All the appellate courts, the parole board, and most of the counties where convictions originate are in or near Atlanta. And most of the prisons are south of Macon. I’ve learned some things over time about how to do them right and how to do them poorly. Here are my tips for a successful prison visit.

  • Remember that it’s about the relationship as much as it is about the case. Representing a person on a major legal matter in a situation where you don’t get to talk that much is a formula for alienation, misunderstandings, and frustrations for both the lawyer and the client. So, make sure you carve out some time to learn some things about the person you’re representing as a person and not merely as a client.
  • Do some homework up front. When you can, tell the client that about your upcoming visit, list the things you would like to discuss, and ask him about the things he’d like to discuss. Prepare a loose agenda for your meeting.
  • Avoid scheduling visits near count time. Every prison does a count of all the inmates at least once a day. The count takes a while to do and can either delay your visit or shorten it. When scheduling your visit, be sure to ask when count is done.
  • Plan to wake up early or to stay overnight before. You have a long drive ahead. But it’s possible to have a visit early enough to make it back to the office for some quality time in the afternoon.
  • If you want to bring in a laptop or iPad, be sure to ask first. Even when you do, have a pad and pen ready in case the person at the gate didn’t get the memo. Every prison is different when it comes to allowing electronics into the facility, but most don’t allow them.
  • Don’t bring in items from family or friends to give to the client. If you are going to give the client anything, be sure to clear it with the facility first.
  • If you will need a document to be notarized, be sure to make arrangements with the facility
  • You’ll have three choices for lunch: something brought, something fried, or subway. If you want to sample local color, you’ll be going with fried. For years, I’ve been thinking of publishing a book for lawyers called habeas food, to serve as a guide for the best places to eat on a South Georgia Prison visit.
  • Bring in your keys, two forms of ID, your pen, and your paper. Leave everything else in your car.
  • Know your car tag number. You’ll have to write it on the sign in sheet.
  • Load the iPod with your favorite music or an audio book. Prison visits always bring out my inner Johnny Cash fan.

Above all, enjoy the road trip. It could be worse. There are much worse ways to practice law. Instead, you’re on the wide open road south of Macon.

Read Steven Pressfield’s New Book if You Want to Write Better Briefs

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Appellate writers face some of the same challenges that novelists and other artists face. Those things include procrastination, anxiety, self-defeating thoughts, and even alcoholism and other types of drug abuse. A brief is a peculiar type of artistic endeavor, and such things are tough. To make things worse, if you represent the appellant, the finder of fact (whether that was a jury or a judge) has largely taken your story away from you. All the facts are considered in the light most favorable to your opponent. And if you’re doing a criminal appeal, the appellee’s story is the story of a crime (Jay O’Keeffe warned in a blog post back in December that the appellant should never argue the facts presented because he is stuck with the facts found). How do appellate lawyers procrastinate? We check our email. We find six more cases on Westlaw or Lexis. We avoid the difficult work of finding a story we can tell – the alternative to the story about a crime. And when we lose a close case, it’s often because we never found or failed to tell the story.

There is another story by the way. It’s usually the story of a trial or the story of a defense investigation. All the procedural things that went south won’t matter if you don’t make them into a story. And you won’t find the story if you don’t do the work.

Steven Pressfield’s new book, Do the Work, offers a simple technique to find your story and your theme. It also offers a needed kick in the pants advice on how to get the work done. For a little more time, the Kindle edition of the book is available for free. But you can get the really important stuff from his blog. To go really in depth, you should check out his better known book The War of Art. To boil it all down to the bare essentials, take a few minutes to read about The Foolscap Method and The Three Act Structure.

Mr. Pressfield advises that you take a legal pad (the old school legal pad with the long pages) and divide the story (in our case, the brief) into three acts. You’ll soon find that you can’t write act three if you don’t know what your theme is. And your theme is nothing more than a one-sentence description of what your case is about. Your theme is what you’d tell a non-lawyer at a barbecue in your back yard if he asked you about the caes you’re working on right now.

Trust me when I say that taking the time to work out your case on a sheet of foolscap will make you feel immediately better about your case and give you some direction. A side benefit from reading about the three-act structure is that you’ll suddenly see the backbone behind every movie you watch, particulalry if you’re watching or listening to lots of Disney movies.

Let me give you an example of what I’m talking about from a recent United States Supreme Court decision. In Cullen v. Pinholster, Justice Thomas wrote the majority opinion for a very divided court in an appeal of a federal habeas decision of a death penalty case. You’ll see the three-act structure as you read the opinion. And, yes, it’s the story of a crime. He dispenses with Act One in two sentence.

Scott Lynn Pinholster and two accomplices broke into a house in the middle of the night and brutally beat and stabbed to death two men who happened to interrupt the burglary. A jury convicted Pinholster of first-degree murder, and he was sentenced to death.

Act One ends with the California Supreme Court twice denying habeas relief. But the “villain” enters the scene at the beginning of Act Two when a Federal District Court grants Federal habeas relief and the Ninth Circuit affirms. By the end of Act Three, the United States Supreme Court reverses, and Mr. Pinholster will once again be under a sentence of death.

There was another story, and it was compelling. From Mr. Pinholster’s brief:

Scott Pinholster’s trial attorneys were unaware that a death penalty phase would follow a guilty verdict at his murder trial; they had neglected to look in the file and read the state’s notice that it was seeking death. Six hours of preparation later, they presented one witness, Pinholster’s mother.

Later in act one, critical mitigating evidence isn’t found, such as the abuse he suffered as a child as well as head injuries in his early life. In Act II, the Federal district court and appellate court grant habeas relief. And the Third Act Mr. Pinholster wanted to see was a victory in the Supreme Court.

For every story of a crime told by the Appellee, there’s a story of a trial or of a pre-trial investigation that you can find and develop (most of the time). From Mr. Pressfield, there is a good beginning technique to find and develop that story and to find the central theme of your case. But, above all, it’s a technique to use to get to it and write the thing. Which is often the biggest hurdle.

The Changing Craft of the Appellate Brief

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Ben Kerschberg, wrote yesterday about his experience as a paralegal in the mid-90s in the appellate litigation section of Sidley Austin. More particularly, he wrote about the process of getting briefs ready to file in the United States Supreme Court in the pre-pdf era. True, the technology has now developed to the extent that it is possible to produce professional qualify printed documents from a desktop computer and printer. Indeed, a book like Typography for Lawyers wouldn’t have even been relevant to the appellate bar a decade ago. Many of the concepts in a book such as that would have been lost on almost everyone except graphic artists and printers.

But, in Mr. Kerschberg’s account of going to a professional printer and preparing appellate briefs for filing (granted, a US Supreme Court appellate practice is unlike any other appellate practice), I can’t help but wonder if the improvements in technology haven’t taken some of the craft out of being an appellate lawyer. We’re now wearing the hat of professional printer and lawyer. And we weren’t necessarily trained to be printers.

Take a look at his blog post and see if you don’t start feeling nostalgic for a time in history that really wasn’t all that long ago (during the Clinton administration, to give you a sense of how recent it was). My takeaway from it is that every brief, even and perhaps especially today, should be crafted and not merely written.

Choosing Fonts for E-filing to Cater to Screen or Page

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Some weeks back I wrote about whether lawyers should write for the screen or for the page in the era of e-filing (you can e-file in the Georgia Supreme Court and Court of Appeals now). It turns out that there is a way to hedge your bets, at least in terms of font selection. Kendall Gray, over at The Appellate Record, has teamed up with Matthew Butterick (I wrote about his excellent book earlier) to figure out the best fonts to choose when your appellate panel may either print your brief out or read it on the screen. Part 1 gives you the short answer. Part 2 gives you the even nerdier explanation (and nerd is not a perjorative term spoken from this law-nerd).

The answer is that, as long as you are submitting your brief as a pdf, you don’t have to use a screen-optimized font. Now, as to what font is best for a brief, take a look at Typography for Lawyers. It’s even reviewed over at MacSparky, my very favorite law-nerd sight (David Sparks doesn’t focus on the fact that he’s a lawyer, but it comes out a lot in his writing and in his Mac Power Users Podcast).

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