Blog - Scott Key & Associates

Three Things You Should Know About Parole in Georgia

April 20, 2011/by J. Scott Key

A few days ago, I met with two perspective families of potential parole clients. They had different kinds of problems. I had seen both problems before. The first had a loved one who was ten years into a twenty-year sentence for armed robbery. The second had a loved one who was puzzled that he had been in prison for more than four years already for a ten-year prison sentence for possession with intent. In the first case, a competing attorney I had never heard of had offered an outstanding deal to represent them for parole on the armed robbery conviction. In the second instance, the legal advice came pre-plea. The law had negotiated a trafficking charge into a lesser offense for possession with intent to distribute. The lawyer advised the client to take it because he would be out after serving a third of his prison time. The family wanted a lawyer to work on parole but also to figure out what the hold-up was. In these two clients, I encountered the three things people don’t know about parole in Georgia.

How Much Longer Before The Georgia Appellate Court Rules?

April 14, 2011/by J. Scott Key

As a father of three children (one still in a car seat and one in a booster) and as an appeals lawyer in Georgia, I get two recurring and related questions. From the children, on car trips, I frequently hear, “Are we there yet?” From my clients and their families, I frequently hear, “when will the court decide my case?” For the former, there never really is an answer. Atlanta traffic mandates that today’s twenty-minute trip will be tomorrow’s three hour journey. But for the client’s question, there’s a pretty straightforward answer. And I always have to look it up. But after I finish this post, I won’t have to look it up again and neither will you.

One caveat. I’m speaking of direct appeals only in this post. The timing for applications from habeas, cert. petitions, interlocutory applications, or applications for discretionary review is a good subject for another post. And if any of those things get anywhere, though, you’ll find yourself back in a situation where merits briefs have been submitted, the case has been argued, and you’re waiting for a decision. Then you’ll get this question. And when you find yourself there, this post is for you.

The Two-Term Rule

We’re lucky here in Georgia. If cases aren’t decided in two terms of court in the Georgia Court of Appeals or Supreme Court of Georgia, they’re affirmed by operation of law. In the whole history of Georgia, a case has never been affirmed this way (cases have been remanded and docketed creatively as a work-around, but such a situation is truly rare).

Our two-term rule is a creature of the Georgia Constitution. In Article 6, Section 9, Paragraph 2 of the Georgia Constitution, you will find this language: “The Supreme Court and the Court of Appeals shall dispose of every case at the term for which it is entered on the court’s docket for hearing or at the next term.”

When Does the Countdown Start?

The clock starts running in the term that the case would be set for oral argument, if oral argument were held. This provision is a little tricky. What if you don’t get oral argument or don’t ask for it? Check out your docketing notice. It will tell you when oral argument would take place if such were set. Regardless of whether you have oral argument, the clock starts ticking in the term of court oral argument would happen, if at all (regardless of whether oral argument ever actually does happen).

The Court must come to a decision in your case in the term of court when argument is set or the term of court immediately afterward.

But What are the Terms of Court?

The Supreme Court of Georgia and the Georgia Court of Appeals each have the following three terms every year:

The January Term begins the first Monday in January (the January term ends on April 14; 15 days before that is March 31)
The April Term begins the third Monday in April (the April term ends on July 31; 15 days before that is July 16)
The September Term begins the first Monday in September (the September term ends on December 16; 15 days before that is December 1)

By law, no second term case can be decided within the last fifteen days of the term, except upon a motion for reconsideration. So, if your case reaches the term, do the math accordingly (or check out the parentheticals above).

If you want to cite to something more authoritative than Scott Key’s blog (yes, there could be such a thing), the terms of court and their closing dates may be found at OCGA Section 15-2-4. And the law that makes the terms of the Supreme Court and Court of Appeals the same is OCGA Section 15-3-2.

The Client’s Right to Participate in Georgia Criminal Appeals is Quickly Eroding

April 12, 2011/by J. Scott Key

The state of Georgia once brought us the Leo Frank trial, the Andersonville prisoner of war camp, and a series of lynching over the years. I never knew that Georgia law was so traditionally weighted against the State. The legislature seems to think otherwise. Yet, the legislature of late has enacted new laws that have taken away historic provisions that have traditionally protected the accused, including: historic provisions that gave the defense more jury strikes than the prosecution; recent legislation that took away the defense’s right to give a closing to the jury last; and a set of minimum mandatory sentences that presume that Georgia is a bastion of liberal judges. One would think that, in the midst of all the hangings that have taken place in Georgia’s history, that we haven’t coddled criminals too long. Most recently, the law has relegated criminal appellants to the role of distant correspondents as the lawyers battle out their case in a courtroom, sometimes hundreds of miles away. We’ve only recently gotten there, but there may be a way to change things.

Two things have happened to bring about this turn of events. First, the legislature recently took away the right for criminal appellants to remain in the county jail while their appeal was pending. Not many lawyers even knew that the law provided such a right, and many judges simply ignored it. But, for me, keeping my client in a local jail was very helpful on appeal. It allowed me to build an attorney-client relationship, and it provided my client with a sense that he had a voice in his case. Trial lawyers have this right from the very beginning when their clients are incarcerated. But the legislature took this right away – proving that the appellate process is the red-headed stepchild of the criminal justice process in Georgia.

I average about 5 travel days a month so far in 2011. All the prison in Georgia are located far away from me. And the clients still need to be seen. Relationships still need to be formed and maintained. While this process is good for the folks at audible.com from whom I purchase many audio books and from Exxon from whom I purchase gas at around $4.00 a gallon. It is not good for my overall productivity. Because for every 3-4 hours I spend driving there is maybe 1 good hour of meeting time with my client. And, as the law is developing, I may be on the road even more.

The trend started earlier but has culminated in the Mantooth. This is the total bad facts make bad law package. The lawyer was given every opportunity to proffer to the trial court a reason to produce his client for the motion for new trial hearing, and he passed up, baldly claiming that he wanted his client to attend the motion for new trial hearing. Out followed the holding that a non-death penalty defendant has not right to attend a motion for new trial motion hearing unless he can show his presence would contribute to the “fairness of the proceedings.” Of course, the whole test seems circular. When is it ever fair to holding a hearing on a person’s life and status as a felon while the defendant is involuntarily absent? Never mind the fact that the opinion appears to misconstrue the holding in some earlier cases. Andthe whole body of caselaw that has developed in Georgia ignores United States Supreme Court precedent in Snyder v. Massachusetts (thanks, Jim Bonner, for telling me about this case). My client should see and hear his hearing. And, when evidence is introduced, it is important for me to be able to consult with my client, likely the only person at counsel table with me who was present at the trial and in pretrial meetings and proceedings to know what to ask witnesses at the motion for new trial hearing. Georgia courts are moving in the other direction, it appears.

Take this Issue Up

One thing to keep in mind is that the Georgia jurisprudence in this area is not particularly well developed. Yes, there are many cases to reach this issue. But seldom has there been much analysis. When the Supreme Court has reached it, it has typically done so in a very short paragraph. So, there has never been a better time to start moving this issue to the Supreme Court of Georgia.

Preserve This Issue by Motion

After all, for an appellate lawyer, the next best thing to winning a motion at the trial level is losing motion of the trial level. So, I would encourage lawyers, at motions for new trial, to file motions to produce the end where you assert why your client’s presence at his motion for new trial hearing is essential to the fairness of the proceeding. Allege it on due process on and sixth amendment grounds.

Affidavits are Your Friend in this Regime

In addition, seize the opportunity to use the absent client introduce evidence that cannot be cross examined. If the court will produce your client, then the trial court leaves you no choice but to present evidence from your client in the form of an affidavit. Since the courts tend to do with state wants, then the Court will likely produce your client to give the State the opportunity to cross-examine your client. If not, then use this wrinkle in the law to put up some evidence that is beyond the reach of the State’s questions. Second best, an affidavit will likely get your client produced.

Above all, this is an area of law that needs to be further developed. So, start filing motions to produce. You’ll plant issues in your case and show your client that you are fighting to give him his day in court at the appellate level. Better yet, you might have a way of putting up evidence beyond the State’s cross-examination or maybe show how eager some trial judges are to produce your client when the State needs him but not when you do.

Handling Criticism Gracefully is Part of Criminal Appellate Practice

April 4, 2011/by J. Scott Key

A colleague of mine who has a thriving domestic practice tells me that, at the end of many divorce cases, two people often hate him – the ex-spouse and the client. He’s a great lawyer, so the ex-spouse part of that equation does not surprise me. As I think about the nature of domestic practice as I understand it, I think I understand the part about the client, too. It’s not the lawyer, it just that he’s there.

Criminal appellate practice is not quite as emotional but there are times when, no matter what you do, you aren’t the source of joy for many of the other players in the case. It’s not you, it’s just that you’re there. For the prosecutor, since he can’t talk to your client, you get to be the proxy. The same goes, sometimes, for an appellate panel at oral agument or for a trial judge. Unfortunately the critical stream flows in two directions. For the client and the client’s family, you often are the proxy for the State, the investigating officers, the judge, and the appellate panel. You are often the messenger. And the old adage about shooting when it comes to the messenger holds true. It only seems odd that you sometimes find yourself in a place where everyone is angry at you – the client for not “standing up” for him, the Court for taking too firm a line and asking for too much, and the DA for being too zealous. Take a closer look and you’ll see, it’s not necessarily you. But don’t ignore the criticism, particularly if it might help.

So, it was great to see Leo Barbauta’s post at Zen Habits titled The Art of Handling Criticism Gracefully. I would put the ability to handle criticism right up there with the ability to write a good brief, how to spot issues, and how to respond to questions at oral argument. If you are a lawyer who finds yourself in the middle of the triangle of criticism – between your client, opposing counsel, and the Court, head over to his post right now.

If you want to stay here, check out this synopsis of what I think his key points are.

Interview with Ross Guberman, Author of Point Made: How to Write Like the Nation’s Top Advocates

March 27, 2011/by J. Scott Key

There’s a new book on my shelf. I’ve placed it right next to McFadden’s book on Georgia Appellate Practice, Aldisert’s Winning on Appeal, and Butterick’s Typography for Lawyers. That book is Ross Guberman’s Point Made: How to Write Like the Nation’s Top Advocates. Unlike many books on the subject, this one takes legal writing from the top appellate advocates and breaks their work down into techniques you can immediately begin applying to your legal writing.

I also found that many of the basic techniques also work well for oral presentations in court. Even better, this book is more affordable than most legal publications. You don’t have to go through West or Lexis. You can buy this one at Amazon for an affordable price. Ross Guberman was kind enough to let me interview him about his new book, which you will find below in a Q&A format.

And you will find below a basic overview of his book along with a couple of workflow tips for how to write excellent briefs even if you are a busy solo practitioner or a busy public defender. Even if you already have his book, you’ll find in this interview even more tips, including how to write excellent brief even if you have a huge caseload.

Using Visuals at Oral Argument is Not an Appealing Proposition

March 21, 2011/by J. Scott Key

Last week, I came to the Supreme Court to watch the parties argue a case where I had written the amicus brief. With no pressure on me, I could pay closer attention to the lawyers than I usually do.What I took from the session I watched was a bunch of questions about whether to use visuals at oral argument and how best to do It. I’ve been wondering about these things for quite some time. But a couple of things happened to make me think some more about whether visual aids at oral argument are a good idea.

The lawyer for the appellant in the first case, one of the best appellate lawyers in the business, had a Keynote presentation on his iPad. The visuals were good for conveying some points about a statute at issue in the case. The trouble is that the argument began with a bit of a hiccup. The slides on the iPad did not come on when he started. What followed shortly afterward was a few moments of awkwardness as the Chief Justice reminded him that his time was running while he tried to fix the exhibit. Moments later, all was saved. Someone came to the lectern to assist, and the visuals were up and running. The lawyer remained calm during the moment it took to get the visuals up and running, and they ultimately became an effective part of the argument. I hope that I, too, would have remained calm. But, I’m not sure I would have. Keynote and Powerpoint can work great with juries. But I haven’t quite figured out how to integrate it into appellate oral argument yet. And I am not sure that I am going to try it again for a while. I’ve found that it to be one more thing to worry about. And when you represent the appellant in criminal appeals there’s plenty to worry about already. To illustrate, let me move to my own story from the last case I argued there.

Lessons I Learned About Doing Appeals from the Georgia Appellate Practice Seminar

February 27, 2011/by J. Scott Key

Every now and again, I attend a CLE that does more than satisfy the hours requirement. Occasionally, there is a seminar where I walk out of the room with a new set of tools to become a better lawyer. Such was the case with the Georgia Appellate Practice Seminar sponsored by the Appellate Practice Section of the State Bar of Georgia. I moderated a panel titled, “The Winning Brief: How to Capture the Judge’s Attention (And How to Lose it).”

When I introduced the panel, I confessed up front that I was shamelessly taking advantage of the situation. In essence, the panel was made up of people I would like to corner at a cocktail party and ask questions about how to write a brief until they run away or leap from a window to stop taking questions from me. Friday, they were a captive audience for well over an hour, and I had a big outline of questions prepared to ask them. I asked all the stuff I wanted to know about the most. I hope that the audience (and it was a big audience) didn’t notice that I was taking notes to try to remember as much as I could of what the panelists were saying. I’m going to share some of it with you here. Later this week, I will share with you the great lessons I learned from the panel that spoke on oral argument (most of the lessons they taught were things that I have learned over the years by making the mistakes and learning from them).

The panel was made up of Presiding Judge Herbert Phipps, from the Georgia Court of Appeals. Also on the panel was Judge Stephen Dillard and Judge Christopher McFadden. The practitioner on the panel was Gerard Kleinrock, who is the appellate division for the DeKalb County Public Defenders Office. I was trying to moderate the panel and take notes at the same time. So, there may be some wisdom that doesn’t make it here. I also may be giving the wrong panelist credit or not attributing some of it to anyone because I don’t remember who said what. So, here are things I learned moderating the panel on Oral Argument.

Your Opportunity to Ask Appellate Judges About Writing Better Briefs

February 1, 2011/by J. Scott Key

On February 25, 2011, the Georgia Appellate Practice Section will host a CLE on Appellate Practice at the State Bar of Georgia. The event has something to offer lawyers who practice before Georgia appellate courts, whether the lawyer is a seasoned appellate practitioner or only handles the occasional appeal. The event will cover all the major steps in the appeal from preserving the record, to writing the brief, to filing the brief, to handling the oral argument. The unique component of this event is that it features judges from the appellate courts and seasoned appellate lawyers conversing in panels. It won’t be a day of speeches. Rather, it will be a day of interactive learning and conversation.

I will be moderating a panel titled The Winning Brief: How to Capture the Judge’s Attention (And How to Lose it). Panelists will include three judges from the Georgia Court of Appeals, including Presiding Judge Herbert Phipps, Hon. Christopher McFadden, and Hon.Stephen Dillard. And Gerard Kleinrock, a great criminal appeals attorney who recently won a case in the United States Supreme Court, will participate.

This panel is great because it offers a combination of insight from the point of view of both sides of the bench. Mr. Kleinrock is a seasoned appellate lawyer. Presiding Judge Phipps has been on the Court since 1999. Judges Dillard and McFadden are new to the bench and can offer a fresh perspective on both preparing briefs for the court and reading briefs as judges.

The panel will converse about what makes appellate briefs effective and how briefs can also harm the client if the writer makes poor choices.

I am drafting an outline to guide the panel’s conversation. But I’d welcome the input of readers here. Even if you aren’t from Georgia, you could possibly benefit from hearing from this panel about writing appellate briefs.

Obviously, if you attend the CLE, you will get the full benefit of the discussion. But I will write a blog entry to sum up the best lessons I learn from this panel.

Help the Judge Help You at the Motion for New Trial Hearing

January 24, 2011/by J. Scott Key

When appellate lawyers talk about judges, we ordinarily talk about how wrong they often are and about how to preserve their mistakes for later use. Otherwise, we don’t much speak of the trial judge. Yet, at least in Georgia, every direct appeal begins at the trial court level where appellate lawyers have the unenviable task of convincing trial judges that they made mistakes so bad that the your client should get a do-over. Trials are expensive. Dockets are full. And lawyers and judges aren’t fond of being convinced that they made a mistake. For all of those reasons, it is pretty difficult to win motions for new trial. But when you signed up to handle the appeal, you signed up to do the new trial motion, too. So you might as well do it right.

Having done more of these motions than I can count, I have found that judges take them seriously most of the time. There are a number of good reasons why. If a mistake was made, there is no better time for that fact to come to light than on a motions calendar. Mistakes exposed under the bright light of a published opinion are less preferable. Also, when the average case on the docket calls upon a judge to decide whether the wife gets the tupperware and whether the husband gets the Ginsu knife set, the prospect of taking some time to engage in a dialogue on transferred intent and transferred justification feels like weighty stuff.

In fact, just a few days ago, I presented a legal issue that could only occur in Georgia and her sister states. That issue involved whether an affirmative answer to a question from a prosecutor that used the word “y’all” was sufficient to establish that one person was a victim within a group of victims. That’s right, we debated the actual meaning of, “y’all” in a Georgia courtroom. The judge was engaged.

So, assume that the judge will give it the judge’s all when you have a motion for new trial hearing. And the following suggestions will help you give it your all as well. I think that you’ll find that these suggestions work in other hearings before trial judges as well.

Time and Attention are Your Biggest Obstacles

Time for a little bad news. The judge’s caseload is bigger than yours. Even if you’re the public defender assigned to the judge’s courtroom, the judge’s caseload is still bigger than yours. And the judge has a small fraction of the time that you have to spend on the case even if you think you don’t get enough time to spend on it. The judge has the entire calendar, plus the rest of the criminal docket, plus the entire civil docket. That’s just the way life is.

Time for some even worse news. Your case is more important to you than it is to the judge. And chances are that if this case is important to the judge it’s for reasons you might not like. The judge is concerned with your case to the extent that it is one item in a list of to-do items, to the extent that the judge doesn’t want to get reversed, and to the extent that the judge would like to do a good job on every case. Make sure that you align your goals with the judge’s.

And finally, though the client paid you and has spent some time with you as this case has made its way to this point, your client is not your audience. The judge is. Resist the temptation to hurt your client’s case so that you can impress your client. Taylor your presentation to impress the judge. If you think that deciding to do that might create a problem, make sure you have the discussion with your client. Take careful notes for the file.

Credibility is Key at a Motion for New Trial Hearing

Credibility is the most important thing that you bring to a hearing. It is better to bring credibility to court than the best precedent. And if you aren’t credible, the judge won’t believe your representation of the precedent and probably will never bother to read it. There are two things that you can do to keep your credibility intact. Take ownership of the negative stuff. And don’t say stupid stuff.

There is good and bad in every case. If you’re representing the defendant in a criminal case, the dealer of facts likely gave most of the good cards to your opponent. Spin is okay. So is putting your best foot forward. But don’t ignore bad facts. And never misrepresent them. Assume that your opponent knows the bad facts and will start her argument rubbing your nose in them and the fact that you chose to leave them out. The suggestion that you left them out is far worse than the facts themselves. The judge will wonder what else you left out. You may lose so much credibility that it impacts the next cases you present in that court. So, own your bad facts before your opponent can.

For instance, if you are representing someone whom you know will be sentenced eventually, the process of ownership should start early. Own your bad facts by acknowledging them in your argument or by doing something about them early in the case. Better for you to bring them up than your opponent. And when you own your bad facts, you are more believable when you discuss your good facts.

Your soundest blows land more squarely when the judge knows that they are honest blows.

Secondly, don’t say stupid stuff. Really, don’t. I don’t know if you’re like me in this respect or not. But I find that stupid stuff is easier to spot when other people say it than when I say it. That’s what candid colleagues are for. Run your argument by someone who knows you well enough to call you on it. Don’t have an “accountability partner”? Here are a couple of phrases that might be stupid:

▪ “Judge, this is fundamentally unfair.” Sometimes things are fundamentally unfair. But I’m thinking that something happens that a judge would consider “fundamentally unfair” about 0.1% of the time. Leave that little phrase in the toolbox a much as you possibly can. Chances are you’re calling something fundamentally unfair because you couldn’t find a case on that point.

▪ “Judge, this is a slippery slope.” It probably isn’t. It is better to point out the flaws in the opponent’s argument or the constitutional problems with what the state did than to be the 10th person of the day to try to convince a judge that the sky is falling.

▪ “Judge, it’s been really hard on my client to adjust to the demands of probation” Say this or something like it, and you deserve what happens to you.

▪ With all apologies to clients, because we love them all, corroborate any information whose sole source is your client before you adopt that information as true – particularly, if you are talking about your client’s prior criminal history.

There are a range of other dumb things that one might say in court. What you plan to say probably isn’t dumb, but maybe it is a good idea to check it out with someone you trust before you say it. Don’t say it in brief or letter brief either.

Assume what you Write will Have Less Impact than What you Say

But while we are on the subject of letter briefs or formal briefs with a trial judge, now is a good time for a little word of warning. Judges get a bunch of mail. Have you ever seen the incoming mail for a trial judge? You aren’t the only lawyer sending the judge letter briefs. If you think your mailbox is full of handwritten unsolicited mail from inmates, you should see the number of such correspondence a judge gets. Your letter brief may be the equivalent of an ancient epistle, but it might be read in a moment, if at all. In fact, it might become an ancient epistle before anyone reads it. Think carefully about submitting matters on motions or on briefs. You probably won’t get the judge’s undivided attention the way you might even in a five minute oral argument. The oral argument is the most critical moment your case will spend before the trial court at the appellate stage. Don’t blow it.

Be Organized for When the Moment is Yours

You won’t get long, and you are likely to find your way onto a general motions calendar. In some counties, you may find yourself on a general motions calendar mixed with civil cases – even civil domestic cases. What that means for you is perhaps a day of watching other motions hearings culminating in five to fifteen minutes for your case. What’s worse, you may not quite know when your case will get called. But usually, it gets called just as your mind has gone numb from watching your seventh contempt hearing for failure to pay child support, your tenth probation revocation hearing, your tenth bond hearing, your second TPO involving people who will be back together within a week, and your third motion to suppress. If you think you’re annoyed by what’s just been presented, imagine being the judge.

Organization is key. Know what you will present, when you will present it, and anticipate the questions you are likely to get. Don’t make the judge work to understand your point. Use concrete language supported by case law. An organized presentation will help you get up to speed fast if your case is called while you are counting the number of tiles in the ceiling while two pro se divorce litigants go at it in reckless abandon of the rules of evidence and etiquette.

Don’t Machine Gun Case Cites

Don’t be that lawyer who stands up and starts reciting cases with their cites as you present your argument. It’s like giving the judge a little homework assignment. I can’t imagine the judge going on Lexis or Westlaw at the next recess and looking up those cases. Particularly, since you’re really the one with the homework assignment.

Hand the judge the case you’re discussing, and highlight the portion relevant to your argument. If the language is so great, then the judge will have it. And you’ve just saved her the time it would take to log on to a research program, find the case, and print it out. Which is time your judge likely doesn’t have.

Your window of judicial attention is narrow. And it could close at any minute. Present your best argument first. Present it well. You may not get to your second or third one. By the way, most cases boil down to one big issue anyway. Don’t believe me? Take a look at five random appellate opinions where cases were reversed and remanded. How many cases are there where the appellant won on multiple issues? Your client may be the only person in the room who believes that there are fifteen great grounds for reversal. Don’t become the second.

Don’t be Dramatic

Don’t be dramatic. You’re not speaking to a jury. If you have really must scratch the dramatic itch, then join a community theater group. You likely won’t win a new trial through tears, fist pounding, or with a raised voice. It’s okay to be passionate about an issue. But it is better to treat the judge like a senior colleague. Imagine you were discussing this issue with a partner in your law firm – a colleague more senior than yourself. If you yelled, cried, or pounded the table in that setting, you might be removed from the building. Don’t be dramatic at a motion for new trial hearing either. The trial lawyer who came before you may have done that stuff with the jury. Which may explain why this case is on appeal.

Good Motions Arguments Produce a Great Outline for the Notetaker

If a judge is ever kind enough to tell you what is bothering him about a case, then you should tackle that issue head on. Even if you think the judge’s concerns are misplaced or that the subject matter of the judge’s concerns are unimportant, you should tackle that issue first. For one thing, be glad that the judge is concerned about some component of the case. Because concern equals engagement. Judges aren’t always engaged. And, the great thing about being a judge is that whatever you happen to be concerned about becomes the central concern in the case. If your judge doesn’t signpost her concerns for you, there are some ways to figure them out.

As you read the trial transcript, where did the judge ask the most questions? What hearing took the longest. Of course, the judge might believe that enough time was spent on that issue and believe it to be resolved. There may not be very much more that the judge wants to hear on that point. Still, those area warrant your attention. Otherwise, find the issue that is most likely to be cause for reversal. That area would likely be a point of concern when you point it out.

Also, pay attention to the questions you are getting. Don’t be afraid to shift focus to that area. If the judge is thinking about a certain issue, then the issue is important. If you hadn’t anticipated questions in that area and feel you are not quite prepared, then go as far as you can and admit where you are uncertain. Ask for the opportunity to submit a letter brief or come back, perhaps even later in the day. If you think of other answers later, follow up with a letter brief with cases attached.

A judge who listens to your arguments and takes notes during your presentation is a rare gift. Make sure that you make the most of it. If you notice that the judge is struggling to write things down, then slow down. Repeat what you were saying. Make sure that you make your presentation in such a way that it lends itself to organized notes. Imagine how great it would be if the judge could walk into chambers with your entire presentation written in a neat outline on a piece of paper in the judge’s handwriting. And imagine how great it would be if the judge were unable to create such great notes from your opponent’s presentation. Make sure that you make your argument with previews, headlines, and signposts along the way.

Ask for Questions

A really great way to start your presentation is to ask for questions at the beginning. “Your honor, before I begin my argument, was there any particular concern or question that the court had that you would like me to address first?” If not, then likely you’ll want to make your presentation short.

Which brings me to my final point. Aim to stop talking at the moment your judge has has stopped listening. Only talk beyond that point if you feel you need something for the record. If the judge won’t listen where the judge should, and you are sure that you are right, that’s what the appellate court is for. And you’ll be there soon enough.

Judge McFadden Speaks on Getting Elected and Getting Started

January 17, 2011/by J. Scott Key

Approximately 16 attendees made the snow-ladened trek to the appellate practice section luncheon Nashville, Tennessee, held in conjunction with the State Bar of Georgia’s mid-year meeting.

The Honorable Christopher McFadden, newly elected to the Georgia Court of Appeals, gave a fascinating talk on the process of campaigning for the appellate bench, the process of moving into the court as a new judge, and his first days as the newest judge on the Court of Appeals.

Participants heard a “nuts and bolts” account of the process of getting elected to a statewide judicial seat and how Judge McFadden integrated lessons learned from his unsuccessful bid in 2008 to get into a runoff and ultimately win a resounding victory in the runoff

Hiring a strategist/consultant

Judge McFadden noted that there are a few people in the state that know how to best run for statewide election. For the 2010 election, he hired one of them. The most innovative contribution was the introduction of what Judge McFadden termed “Robo calls.” The consultant relied upon a list of phone call recipients likely to vote in the runoff election, the use of recorded endorsement messages by key Democratic and Republican figures throughout the state, and strategic times for calling. The bottom line is that robo-calls work, even if some people called him back to complain about them.

Meetings Meetings Meetings

In addition to working with a consultant and executing a set of recorded phone calls to his target audience, Judge McFadden said that he spent a great deal of time going to meetings. Toward that end he devoted a great deal of time to attending civic organization meetings as well as Democratic and Republican party meetings throughout the state.

However, one of the challenges that came from attending partisan party meetings was maintaining a sense of “neutrality” in partisan meetings. Judge McFadden seemed proud of the fact that the judiciary in Georgia is non-partisan. He noted that there were moments, though few and far between, where members of his audience pressured him to “reveal” his political leanings and threatened to assume things from his choice not to disclose.

The Use of Resources

One key strategy he noted for the use of resources was to raise money and use most of it at the end of the election. The strategy appears to pay off significantly if one considers that he finished second in the general election but finished resoundingly in first in the runoff

Qualifications Succinctly Discussed

Judge McFadden noted that one of the keys to winning a statewide election court judicial race is to pick a theme, a short phrase or single word and run with it throughout the entire election. In this election, his strategy was to compare his qualifications for the job to all of the others who he believed to be less qualified. “I wrote the book,” a reference to his appellate hornbook, became a campaign theme that was simple, resonated, and encapsulated the whole idea of superior qualifications in a single pithy phrase.

Starting Out as Judge

A new judge has to find an office. And any vacancy on the Court creates a great deal of activity as judges move to more desired offices than the ones they currently occupy. It’s a process Judge McFadden called “musical offices on a grand scale.”

Prospects for the Future

Judge McFadden wants to be proactive as a judge, getting involved in the opinions from the beginning rather than simply signing off on opinions drafted by staff attorneys. He has found that the sheer volume of work necessary as part of a Court of Appeals judge makes it difficult to get in front of the cases the way he would like. He also notes that the amount of time he has to spend own cases as a judge is less than the amount of time he had to spend on drafting briefs for clients.

As a practitioner, I think this news is good. It signals that a brief that is well written, accurate, and that judges can trust is important because the advocates have much more time to spend on cases than the judges have. The brief is very important, which is good news for prepared advocates and opponents of unprepared advocates.