Use the Tomato to Write More Words

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The Pomodoro Technique has helped me to write briefs, prepare for trials, and stop procrastinating. It has also assisted me in getting more done over less time than it would ordinarily take. There’s a whole set of books and culture around it, but the method is easy to explain. Set a timer for twenty-five minutes. Work without allowing yourself any kind of interruption for that period of time. At the end of that block of time, you have earned a pomodoro (a tangible sign that you’ve completed a block of work). Take a five-minute break. Then reset the clock for another twenty-five minutes. Once you have four pomodoros, take a twenty-five minute break restart the entire process. On days when I don’t have court, my goal is to do eight to ten pomodoros. By the way, the technique was named by Francesco Cirillo, the guy who came up with I’d. Pomodoro is Italian for tomato, and apparently the timer he used was a kitchen timer shaped like a tomato. Hence, the Pomodoro technique. Here’s how the technique has helped.

* It forces you to go distraction-free for a period of time. A feature of The Pomodoro Technique is that you don’t get the pomodoro if you are interrupted by anything other than the task at hand during that period of time. You’re literally to reset the clock to twenty-five minutes. When you’re in a pomodoro, you’re ruthless and all out. Twenty-five distraction-free minutes is better than an hour of sort of doing work, while you check email, respond to texts, and take a peek at twitter. 

* The work compounds over time. The gathering of pomodoros allows you build momentum. By the time you stand up for your long break, you have done 100 minutes of work. And while your brain sees the four tomatoes you’ve earned, your brain also has accumulated the product of 100 hours of work. Another session of four, it’s eight pomodoros and 200 hours of work. Here is a sad commentary on what it was like for me before I employed this method. I would spend an entire day and and have little to show for my efforts aside from a bunch of outgoing email. Just doing four pomodoros was a huge increase in my daily output.

* A side benefit is that the time is tracked. If you keep a written log of your results, you can look back over time and see exactly what you worked on. Even if you write down what you did in a line or two, you can use this technique to built a work journal.

* It gets you working. It can be depressing and overwhelming to imagine the prospect of writing an entire brief, a paper, or preparing some big project. But you can easily wrap your head around the idea of doing twenty five minutes of work. There’s a sort of working inertia here. Your body at rest wants to stay at rest. And you’ll find, at the end of 25 minutes, if you’re on a roll, that a body in motion wants to stay in motion. So, you’ll sometimes not want to stop when the bell rings twenty-five minutes. And it’s easy to jump-start after a short break.

* You trick the brain. The brain can’t wrap itself around the idea of some big nebulous thing like “write the report,” or “get some work done.” Your brain can also have trouble with things like “complete a paragraph.” But “grab a tomato” is simple and tangible for the brain to see and accomplish

* You’re moving from goal-oriented thinking to systems thinking. Yes, you may be working toward the completion of a particular project. Yes, you may have a particular outcome in mind when you sit down to write. But the Pomodoro technique is a system. If you tell yourself that you will show up each day and complete 250 minutes (or whatever number you choose) of work, then you have committed to a particular set of behaviors — not to the achievement of a particular goal. Goals aren’t particularly helpful. At the beginning of every football season, every coach has the goal of winning a championship. But not every coach has a winning system. Many people set goals on December 31 for the new year. But almost nobody installs a system. The Pomodoro technique or any other process you might put into place provides a way to accomplish things, no matter what those things may be. It professionalizes a way of work. And while it’s not goal-oriented, goals have a prominent place. And you will find that somehow goals are achieved better when you do more than merely have them.

To anticipate a question, there is nothing magical about twenty-five minutes. You can experiment with the format all you like. You can completely overhaul it if you like. However, for me, this process has been a tangible and effective way to avoid procrastination, block out distractions, and move the ball down the field every single day that I do it. 

Good Stories are Better than Great Arguments

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This post is part of a series on legal writing. I suspect that what follows in the next few days will be contrarian and controversial.

People aren’t logical. The ones of us who think we are logical are most susceptible to an emotional appeal. If we were swayed by logic, then political and theological opinions would change over the course of Thanksgiving dinner around America, home shopping networks would not be a thing, and Facebook would be the home of polite discourse. 

I practice appellate law with a small dose of trial law. What that means is that I craft arguments aimed for judges. When I do trials, I craft arguments for juries. I think in terms of arguments for the reader’s eye versus the reader’s ear. We appellate lawyers can be full of ourselves. Ours is highbrow work. We think we appeal to the mind. The trial lawyers are the ones who make the emotional pitch. Judges don’t help matters much. They go around speaking to continuing legal education seminars and civic clubs. They say in their speeches that they are like umpires. They call balls and strikes. They are impartial. Justice is blind. 

And yet the better story wins all of the time. The lawyer who crafts the better story from the facts wins the case. Here’s the other little secret. Legal briefs are a collection of stories. When we cite a case, we are telling the court a story about how their court or a higher court dealt with a person who was just like our client or just like our opponent. We even tell a story about that story. The concept of legal precedent is basically this: a person came before this court who had something happen to him. And you cut him a break. Today, the same thing happened to us. The fair thing to do would be to cut us that same break. The opposite can also be the pitch. There was this one other time where you guys refused to cut someone a break. But our story is different. And because of that difference, please cut us a break. 

It all boils down to a set of stories. And we ignore this state of events at our peril. I know it all works like this, and it all surprises me. When I receive an opinion I’m often shocked — sometimes I’m shocked that I won. When I’m surprised by a win, 100% of the time I wrote a brief that told a compelling story. And when I am shocked by a loss it’s because I thought the law was completely on my side. But the other side had a better story. 

Stories fill a basic need. There is food, air, and water. And there are stories. Your favorite ride at Disney tells a story. The safety briefing on the plane you take to Disney tells you a story. There’s even moral to it — secure your breathing mask before Gish try to help others with theirs. When we are little, we want to be told stories before we go to bed. We buy stories at theaters, from bookstores, and from stream services. 

Your writing, no matter what it is, involves a story. Your term paper tells a story. So does the sign on the break room’s refrigerator at the office that implores people to take their old Tupperware containers out by Friday or they will be thrown away. It is a story of mold. And smells. And limited space. And basic courtesy. It may also be a story of condescension and control.  But there is a story behind all such signs. 

No matter what you are writing, your reader is not logical. And your reader is not logical because your reader is human. 

And yet there is a place for logic and reason. Reason follows emotion. Reason is the second punch in a one-two combination. Your story, if it is compelling gives the reader a desire to do what you are asking (Free the client. Fasten the seatbelt. Buy the deodorant. Take your smelly old lunch home from the breakroom). Logic gives the reader the tools to do the thing you’ve made them desire. Stories trump, but do not replace, logic. If nothing else, logic gives the reader cover that they aren’t being impulsive. 

But make no mistake, the walls of the house are built of logic. But the foundation is built of story. If you want to write well, get good at stories. 

People Aren’t Logical. Write Accordingly.

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This post is part of a series on legal writing. I suspect that what follows in the next few days will be contrarian and controversial.

People are not logical. And there is an inverse relationship between how emotion-driven you are and how logical you perceive yourself to be. Trust me on this one. Or close this essay right now, go out and find yourself a copy of anything by Robert Cialdini, or Amos Tversky and Daniel Kahneman. Then come back. Your audience, whether that audience is your uncle at the Thanksgiving dinner table, a judge reading a brief, or a jury of your client’s peers. I’ll illustrate what I mean with a little story about the best continuing legal education seminar I ever heard. 

The Friday before I was to begin a horrific child abuse case, I had the good fortune to hear a CLE talk on persuasion. My client was accused, along with his girlfriend, of breaking the ribs, fingers, and fingers of a young baby. The case seemed virtually unwinnable. And the client had turned down multiple offers that seemed reasonable to me. I almost didn’t attend the lecture because the venue was far away, and I had the trial coming up.

Using techniques developed by James McComus, the speaker said that winning at trial comes down to understanding the “outcome levers.” An outcome lever is a fact or theme in the case that is so compelling that the case may turn on it. Outcome levers are seldom logical. And even if they are, they likely are bundled with a strong emotional component. At some point, a person asked him how you prepare for trial when you have multiple counts in the indictment that are paired with their own essential elements. Brett’s response was “nobody gives a damn about counts and elements. And, if you’re using this language, you’re playing a losing game.” The good news is that there are only a limited number of themes for outcome levels. And they are generally as follows. 

* Violence. The State generally seizes upon these themes, particularly if the case involves a violent crime. It’s why medical examiners testify. While they may talk in terms of science and anatomy, they function merely as narrators to gruesome pictures. The savvy criminal defense attorneys can use the theme of violence as well. Perhaps they describe the violence that their client suffered at the hands of the victim, bullies from school, or another an abusive parent. Crime shows are popular. Crime documentaries and news shows are all the rage. And that’s because violence is an emotional hook. If you can find it, use it in your writing.

* Sex. Sex is not even a close second to violence as an emotional trigger. The two are co-champion. It’s why the State almost always has a winning hand if they can bring up something sexual about the defense — particularly if the accusation surrounds matters that are sexual in nature. the savvy defense attorney turns sex on the State — perhaps in the form of the sexual motivation of the accuser. Perhaps the main witness was jilted in some way or there is some sexual theme to employ against a co-Defendant, witness, or another villain in the case. 

* Race. Race may sometimes not be an issue. However, if a jury or judge is a different race from the defendant, the accuser, the arresting officer, or one of the lawyers, then race is in your case. Only if literally every participant in a matter is the same race is race not an issue. Ignore this reality at your peril. Grasp this issue and come up with a way to turn it. If you do so, then you will be in possession of a valuable persuasive tool. The 2016 election turned on race. And the 2020 election is being waged on race. The 2024 presidential election will likely turn on race as well. 

* Food. If you want to make your point memorable, try to think of a way to describe food. If you are writing in about travel, make it a point to describe food. If you are writing a work of fiction, try to find a way to go on and on about what your characters are eating. If you are working on a criminal matter, and some of the witnesses, the police officers, or the defendants met up for dinner, even if at a McDonalds, make it a point to be as descriptive as you can about the food. your story will be memorable. 

*Senses. People are way more sensory than logical. Write about what people heated, the way the air smelled, the way it felt to hold objects, the way the food tasted, and the colors of things. A former district attorney in a metropolitan-Atlanta county used to ask witnesses a great question when he was direct examining them. He would say, “paint a picture with words.” To the officer responding to the scene, he would ask some background questions, such as “where were do you work? Who called you? Etc.” But those were all just set-ups to the real question. He would gesture to the jury and he would say “Paint a picture for us with words.” When you are writing, no matter what you are writing, pretend that you are that witness. Paint a picture with words

So, here is what I did to prepare for trial. I took out a single piece of paper. I drew a vertical line down the center of the page (a single page forced me to identify the critical few outcome levers for the case) I wrote down the State’s outcome levers on the left and mine on the right. And I literally shaped everything I planned — jury selection questions, opening statements, questions for cross-examination, questions for my witnesses, motions, and selection of wardrobe for the client — to neutralize their outcome levers and emphasize my own. I de-emphasized pretty much everything else, even the law, to maximize impact on the emotional levers.

I knew that the state would come strong with violence and would try to play upon the natural parenting instinct of jurors. Which was fine because my client — the child’s father — was in his late teens when the child was born. And the mother — my child’s girlfriend — was in her forties when the child was born. I could deflect the violence theme onto her by playing on another outcome lever. And that outcome lever was sex. As far as the parenting theme went, I could talk about my client’s mother’s abandonment of him and now his girlfriend had played upon that for her own prurient purposes. I countered violence with sex. And I did so at every turn. Literally, I let the law take care of itself. I focused on the critical few outcome levers. 

And it worked. The jury convicted my co-Defendant on all counts and acquitted mine on all counts. He is now free and building a better life for himself.

Your term paper, work memo, a legal brief, speech to the city council about the need for a red light at a dangerous intersection, or a love letter is not a criminal jury trial. But if you pull out a sheet of paper you won’t have to look far to find some outcome levers — those things that, by themselves, will help you achieve whatever goal you are hoping to achieve with your writing. 

Let the logic take care of itself. Lead with emotion. Follow with logic. People, including me and you, are not logical. If you know this fact, your writing — particularly your persuasive writing — will be infused with a sort of superpower. 

Don’t Write Above a Sixth-Grade Level (But Don’t Tell the Reader About This Decision)

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This post is the first in a series on legal writing. I suspect that what follows in the next few days will be contrarian and controversial.

When I started law school, I thought I was hot stuff. I majored in English in college. I knew a bunch of fancy literary terms as well as the names of French deconstructionist critics. I completed an honors project in English and graduated at the top of my class. To make things worse, I completed a masters program. And I finished up that experience with yet another honors program. I was at the top of my game — or so I thought.

Then I went to law school and attended my legal research and writing class. The teacher had written on the marker board “Bored and Busy.” She explained that these words described the average reader of legal writing. Judges are bored and busy, she said. She advised that we write with this audience in mind. I shrugged my shoulders. My view of judges was from the movies. I thought they were all scholars with robes. I had not yet met any of them.

My first assignment was a memo, written to a fictitious supervising partner in a law firm. The subject was whether a person could recover a judgment for damages in North Carolina for a dog bite while on the job (I’m thinking the plaintiff was a delivery man) for big money in a traditional lawsuit or were damages limited only to what was available in worker’s compensation. How simple was this? I’d written about whether true friendship was better than romantic love. I had even written about the epistemology of writing itself. Dog bites? Worker’s compensation? Please! I turned in the same sort of academic prose that had won acclaim among faculty for years

Then my teacher returned my graded paper. There were more words in red ink on the page than typed words from me. And the words in the margin were kind of mean. The phrase I remember was “pseudo-lawyer mumbo jumbo.” Those words on the board were still there “Bored and Busy.” It took a semester for me to catch on. The reader, just about any reader, is busy. And the reader is bored. When lawyers write to other lawyers, they are looking for an answer to a question. And when lawyers write to judges, they are trying to figure out what do to with some problem.

Nobody cares how big your vocabulary is. Nobody cares what your grades were in school. Also, unless you are auditioning for somebody’s team for trivia night, nobody cares how much you know. I started writing at the sixth-grade level, even if I knew that my audience was learned. Why not write to impress? Because your reader doesn’t have time to be impressed or to parse out what you are saying. The reader is busy. And why not write more to really drive your point home? Because the reader is bored.

Fast forward two years. I went to work as a third-year law student in a busy criminal defense firm. The lawyer I worked for was farming out the legal writing to a former associate of his who had moved to the North Georgia mountains. My boss was quite the trial attorney, but his appellate practice wasn’t doing so well. I read some of the briefs that were getting filed. Those briefs were heavy on Latin phrases and legal inactions, “comes now,” “This Most Honorable Court” and such things were all over the place.

I asked to take a shot at a brief. I wrote at the sixth-grade level. My brief was about half as long as the average that this firm was putting out. My brief led to the reversal of murder conviction. All of that was likely beginner’s luck. But it didn’t hurt that I got to the point and took it easy on the busy and bored reader. This isn’t just a law thing. Anybody you write to — the person reading your article, text, tweet, or post — is bored. And anybody you write to is busy; if they aren’t busy, they perceive themselves as such. When is the last time you asked someone if they are “staying busy” and heard in response, “nah, I’m just hanging around?”

Just to give you some perspective, the Opinion Section of the New York Times is written on the tenth-grade level. ESPN writer Rick Reilly, who is considered a great columnist, consistently writes on the fifth-grade level. Compare that to Tucker Wyatt, a seventh-grader who once wrote for Sports Illustrated for kids. His writing was on the seventh-grade level. Let’s talk authors. Ernest Hemingway — fourth grade. David Foster Wallace — eight. Stephen King — sixth. And Thomas Pynchon — seventh.

When I say grade level, this isn’t about dumbing things down. Don’t condescend to do your reader. Rather, it’s about making your writing readable and relatable, particularly to an audience that is busy and bored. Just don’t tell judges that your briefs are at the sixth-grade level. And if your opponents are writing to impress, be sure to encourage them

It’s a Gray Day in Georgia for Motions to Modify Sentence

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There is an important new case that changes the law concerning motions to modify sentence in Georgia. In Gray v. State, a case published on August 26, 2019, the Court of Appeals held that trial courts lose jurisdiction, under O.C.G.A. Section 17-10-1(f), to modify criminal sentences following either 120 days after the remittitur where there was an appeal or one year after sentencing even if the motion to modify is filed sooner than those dates. I will provide some procedural history followed by analysis.

The defendant in Gray was sentenced by Judge A. He timely filed a motion to modify sentence, which was heard eleven months later by Judge B. Judge B granted the modification. Judge A, the original sentencing judge, found out what happened and, sua sponte, entered an order vacating the sentence.

Gray appealed, arguing that the order vacating was void. The Court affirmed, reasoning that the trial court lost jurisdiction to modify its sentence after the expiration of a year and after the end of the term of court in which the sentence was imposed. The Court ends the opinion pointing out nine cases allowing courts to modify sentence where the motions were filed within the statutory time and distinguishing (but not overruling) those cases.

Gray has petitioned to the Georgia Supreme Court for certiorari. The opinion in Gray raises a host of policy concerns. What exactly is the status of the line of cases “distinguished” in the opinion? Also, can a judge simply run out the clock by delaying a ruling on the case? What happens if the case is heard and the time runs out while it is under advisement? Finally, counsel will often advise clients to wait a while before filing motions to modify to let some time pass after sentencing, to allow for good conduct while in prison, for participation in programs, and other post-sentencing mitigation facts to develop. The law, as interpreted in Gray, places defendants in a position to file so soon that there is no opportunity to develop new mitigating evidence. Indeed, the modification statute has traditionally provided an incentive for good conduct after sentencing. Defendants who move to modify shortly after sentencing will be open to accusations of buyer’s remorse or the failure truly to accept responsibility.

This case presents excellent issues for certiorari and may prompt discussion at the Georgia legislature in the upcoming session.

Thoughts on Plea Bargaining and the Role of the Client

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Yesterday, appeared as an expert witness in the United States District Court for the Middle District of Tennessee on a 2255 hearing that involved a question of ineffective assistance of counsel at the plea bargaining stage. Essentially, the question for the Court was whether counsel’s advice led to Federal jury trial that should never have taken place. The Supreme Court held in Lafler a few years ago that there is the right to effective assistance of counsel at the plea bargaining stage — which makes sense. The criminal justice system is a system of pleas more so than a system of trials. This is particularly the case in Federal court where jury trials are rare. In the wake of Padilla and other cases, plea bargaining is a high stakes game with which comes a host of collateral consequences. I don’t make it a practice to comment directly here on the cases in which I am involved. So, I won’t do so here. However, my preparations for court yesterday caused me to reflect on some of the pitfalls criminal defense practitioners fact. And many of those pitfalls come from the curious intersection of criminal law and procedure and the mindset of the criminal defendant. I imagine the issues to involve three C’s — certainty, clarity, and completeness. All of these things sound easy on paper but are nearly impossibly complex in the trenches.

  • Certainty — There was an old joke in law school that all legal questions yield a single answer. And that answer is as follows: “that depends.” All clients and families are caught up in the trauma of the circumstances, even if that trauma is of their own making. And they seek certainty in their most essential questions. These are some but not all of the questions for which certainty is nearly impossible: What are my chances? Can you win this case? How can they go forward against me when they only have her claim about what I did but “no evidence” of my guilt? How long will this case take? Can’t you prove he’s lying? Worst case, what is going to happen to me? Best case, what is going to happen to me? Can you get me out of this? Clients will ask these questions, and you will say “It depends.” You will have a discussion. And a week later you will have the same discussion. They will then rephrase the question MMPI style. And if they don’t like your answer, they will sometimes seek to wear you down until you give a different response that soothes. Of course, you cannot spin reality to shape your words. And the temporary relief you experience from just saying what they want to hear will always revisit you ten-fold in misery when the case reaches its conclusion, particularly if the conclusion is unsatisfactory. “But Mr. Key, you told me ….” Key’s maxim number one: “never ever use the language of certainty when you are in an uncertain landscape.” If you think you’re right about the law and the State is wrong, you can say so. But you must do so with the additional proviso that the judge can and often does rule with the State when the State is wrong.
  • Clarity — But where the law provides clarity, you should so state the law. If a client is charged with two offenses for which the range of punishment is 1-20 years to serve, you should tell the client that he can expect a potential sentence of as little as a single year of probation or as much as 40 years to serve in prison. And you will not know the sentence until it is imposed. If you are taking a plea to ten years to serve in which the client will have parole eligibility, you should tell the client that parole is a matter of grace. You cannot say when or if the client will be paroled and that, in taking a plea to ten to serve he should be prepared for the possibility of serving every day of ten years on prison. Key’s Second Maxim: “where the law offers clarity, you should offer it, particularly where the clear possibility paints the bleakest landscape.” 
  • Completeness — Your advice should be complete and comprehensive. Yes, this seems an obvious point. Yes, this seems like a truism. But keep in mind, Key’s Third Maxim: Never provide legal advice where the environment does not allow for the giving of a complete answer. What do I mean by this? If the answer is better rendered in writing than orally, then do not try to answer without putting the answer in writing. And the answer should just about always be reduced to writing. Do not allow your opponent or the court to box you into a situation where the client has minutes to make a dramatic life-altering decision. Be mindful of the environment in which the question is posed, and be willing to refrain from answering the question until you can enter into the appropriate environment. A text message is virtually never the right environment to discuss a complex client matter. If circumstances allow for anything less than a complete response, then do not attempt a response. And if you have any doubts regarding whether the environment is proper for giving complete advice, then you are likely in the wrong environment.

Plea bargaining is tricky because often the biggest hindrance to you doing an effective job in explaining the plea is the client herself and her mental or emotional status. The client craves positive news and will sometimes push you to be more positive than you can be at the moment or ever. Which leads to Key’s Fourth Maxim: practice as if the glass is half full but advise as if it is half empty. In your preparation, presentations, and negotiations, you should be confident and positive in your abilities and command of the law. Be unstoppable in the courtroom. But in the conference room be candid and maybe even a little pessimistic.

Meditation Apps Reviewed

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I don’t know that I’m a serious meditator. I’d confidently call myself a dabbler in meditation who is hopeful to be more than that one day. I’ve experimented with various apps to assist me. And I give you this brief report from the field. Also, I’d be remiss if I didn’t relate this back to the broader subject of appellate practice. If you’re a lawyer, I commend to you a meditation practice. It will help you manage the stress of it all, to be more present with your clients and their work, and it will help to round of some of the rough edges of living this life. If you’re a client of the family member of a client, this will help you, too. If all of this interests you, sit for a few minutes and pay attention to the breath. And if you’d like check out some of the apps listed above.

To start, I realize that the whole idea of a meditation app may run counter to the spirit of meditation and the spiritual traditions from which the practice has arisen. Whether you’re a Buddhist interested in meditation from that way of life, a Christian who considers meditation to be a subset of prayer, or an atheist who is simply interested in paying better attention, the use of an app may well be a form of heresy. You don’t need an app or a phone to meditate. And the use of such technology can easily get in the way. I find meditation apps to be helpful to be helpful as a component of situating me to time and place. I also like the tracking component of these apps. With that said, all you need is your mind and your breath to be in business. Or you could time a session with an hourglass, the timer on your microwave, or an inexpensive clock. And you could track your sessions with a pen and paper if you even track at all. Alas, if you are thinking about apps, here are my thoughts.

Headspace This is the app I come back to. The creator of headspace is a former monk. And his is the voice on all of the guided meditation offerings on the app. The user interface for Headspace is a delight. It’s easy to navigate, and it offers topics and series that cover everything from anxiety, to sleep, to peak performance. On the iPhone, you can link the app to the health app to track your sessions. I love this app and have used it for years. After a few sessions, which are free, the rest require a paid subscription.

Waking Up Sam Harris has put in a bunch of work on this app. I used it and subscribed to it for months. Sam Harris also has a podcast that I love. I’m a regular listener. While I was at first all in on this app, it wasn’t the best fit for me over time. Sam has a point that he’s trying to make. Or at least he has a pedagogical perspective about the nature of consciousness, the notion of free will as a fiction, and the way illusion of the self. While I love exploring and engaging these topics, I don’t love it being so obvious while I’m in the act of meditation. I wouldn’t exactly say that there’s an agenda in the mediations, but I started to sense something like an agenda that was getting in the way. I’m now back on Headspace. With that said, it’s an excellent app. And it keeps getting better. After a few sessions, which are free, the rest require a paid subscription. But Sam says that if you email him and tell him you cannot afford the subscription, it can be offered at no cost.

Enso Enso is a timer with many great features. There are no guided meditations there. Enso is a beautiful and wonderful app that chimes you into and out of sessions. You can adjust the time of sessions as well as the “lead in” and “lead out” to sessions. It also interacts with the phone’s health data to help you track trends over time. There’s no subscription beyond the cost of the app.

If you’re interested in meditation and want to use your phone or tablet as a guide, the above three apps may be helpful you. And, of course, none are necessary.

 

The Era of Attacking the Referee

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It’s not an easy gig to be a ref. And it gets harder every day. That is the thesis of “Ref, You Suck!” an episode in Michael Lewis’s new podcast series, Against the Rules. The episode explores a set of dilemmas, summarized in a perfect tagline courtesy of Lewis’s child: “Don’t pick sides, unless it’s my side.” We want an arena, a boardroom, a market, and a courtroom that is fair. That’s all well and good in the aggregate. But when we put on our advocate’s hat we are just like Michael Lewis’s son. In that instance it can be at least a little nice if the referee or judge picks our side.

But Lewis pushes an even bigger point. In just about every arena, referees are under attack. Go to any little league game, watch the news, or look at the relationship between the executive and legislative branch of government at the federal level, you will see that those who are tasked with ensuring fairness are increasingly under attack from those who want their side to be picked.

Lewis spends most of the episode interviewing officials in a New Jersey review center that analyzes instant replays in NBA games. The existence of a replay center, itself, suggests that we are in a new era. At one time, Lewis points out, the referee was God. And the existence of a replay center indicates that the referee is not the be all and end all to enforce fairness. But we soon learn that, even with a replay center, the NBA is “trying to do the impossible: adjudicate fairness.” What could go wrong with a system where a replay center can get the calls perfect? Consider these issues:

  • The $15 million dollar replay center reviews, on average, only two calls per game. The vast majority of the calls are never reviewed. But the presence of that center is suggestive that refereeing is inherently biased and unfair.
  • Referees must endure constant criticism. And yet, statistical trends persist. On average, calls tend to go in favor of the team that happens to be losing when the call is made. And calls also go in favor the home team. Trials, by the way, mirror this practice. In criminal cases, calls tend to favor the home team. The State, after all, has its office in or near the courthouse. I’ve found in many trial transcripts an interesting trend. Once the judge believes that the defense is losing the trial, calls will tend to go in favor of the defendant. Why risk the error in the event of an appeal? An experienced trial judge tends to know which way the wind is blowing and will start ruling for the defendant on routine evidentiary matters.
  • Referees have never been as good as they are today (NBA refs are more physically-fit and demographically diverse than ever before). Yet referees have never before been so under attack. NBA refs routinely receive death threats and require security escorts after the game. While refs can be freely attacked in the press, they cannot go on air and defend themselves. Judges have a similar gig.
  • Refs come under the most attack when they make purported mistakes at the end of the game. Questionable calls at the beginning of the game have the exact same impact as those at the end. But there is a greater perceived sense of injustice at the game’s end. We probably pay more attention to what judges do during jury trials than in pre-trial motions. But pretrial motions have way more impact on the trial’s outcome than some random “asked and answered” objection. And the time to make critical objections would have been better before the trial started. A really talented attorney I know says that trial objections are kind of pointless, but he files extensive pretrial motions packets and argues the case to death in the months before a potential jury trial commences.
  • The stars are the players who raise the biggest ruckus by getting in the referee’s face. Lewis pivots from this point about the NBA to make a more universal point. He references a study that demonstrates that an increased sense of privilege correlates to a sense that the rules don’t apply (drivers of junky cars tend to yield to pedestrians more than drivers of high end cars). I’ve seen, in many instances in my career, prosecutors who have moved to recuse judges, not for any particular issue related to judicial ethics but because they felt outraged by a ruling. More rulings by trial courts have gone against me than for me, but I’ve never gone near a recusal motion.

At a time in which judging is the best it’s ever been (take a look at Georgia appellate opinions from the 1850s or 1950s and compare them to opinions from today), judges have never been more under attack. And, alas, complain as we will, there is no perfect justice.

And Lewis leaves us with the big issue: “when you have a weak referee, you have a big problem. … one day you’ll eventually wake up in a world that seems not just unfair but actually sort of rigged. It’s incapable of becoming fair because the people who benefit from the unfairness have the power to preserve it.”

I am in the business of appealing the decisions of one set of referees — trial judges — to another set — appellate judges. And when I appear in front of trial judges, this fact is kind of a standing awkward joke. But my experience appealing judges has never been an issue of discord. Having reviewed thousands of trial transcripts in nearly two decades I have a respect for what a hard and often thankless task it is to be the referee, from the little league umpire to the trial judge. And Lewis’s podcast reminds me of how important the job of the referee is. We should think twice before we, in any form, chant, “Ref, you suck!”

Neil Gaiman and the Joys of Drafting with Pen and Paper

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It may be that putting pen to paper is the perfect way to compose first drafts. Tim Ferriss’s interview with Neil Gaiman has made me rethink my approach to drafting briefs and motions. Neil Gaiman is my favorite fiction author. And I loved much of his approach to writing, from the habits he uses to stay focused to his craft of putting pen to paper. Not until I listened to the podcast did I know about the notebooks and fountain pens.

Gaiman composes his first drafts in a nice notebook using fountain pens.. In an earlier interview, he described how the switch to notebooks changed everything for him. “I was sparser, I would think my way through a sentence further, I would write less, in a good way. And when I typed it up, it became a very real second draft – things would vanish or change. I discovered that I enjoyed messing about with fountain pens, I even liked the scritchy noise the pen nib made on the paper.”

There is much here for legal writers to emulate. When I was in my first year of seminary, I enrolled in a seminar course on religion and literature. The professor started off the class with a writing exercise. We wrote by hand for a few minutes (laptops were rare then), crumpled up our page, and threw them to the middle of the table. Then we started again. His rationale was that the warm up phase of writing was not likely to produce much in the way of quality. The secondary lesson was that nobody ever needs to see a first draft. In legal writing, the court will absolutely never see your first draft because only pro se people and sovereign citizens turn in handwritten stuff.

I’ve experimented with handwritten motions, pleadings, letters, and this blog post. And there is something relaxing — almost luxurious about it. Also, the typing draft bears little resemblance to its handwritten ancestor. It is difficult to type an exact duplicate without implementing changes.

I’m reminded of other writers who draft with pen and paper. Civil War historian Shelby Foote took it to another level, with an elaborate process that involved a dip pen. At one point in time, he is said to have purchased up all remaining dip pens in the country. He said in an interview:

I use a dip pen. Everybody on earth used to have one. They were in every post office in the land. I like the feel that a pen or pencil gives you, being in close touch with the paper and with nothing mechanical between you and it. The very notion of a word processor horrifies me. When I’ve finished a draft, I make changes in the margin. Then I make a fair copy. I also edit the fair copy somewhat when I type it on big yellow sheets so I can see it in print for the first time. I correct those outsized yellow sheets, then retype them on regular eight and a half by eleven pages for the printer. I’ve had poet friends tell me they never type a poem until they are really satisfied with it. Once they see it in print it is very different from what it was in longhand. It freezes the poem for them.

My favorite presidential historian, Robert Caro, uses a hybrid process of outlines and handwritten prose for his first drafts. “First you fill it in in handwriting, and then you sit there for weeks going through the files, putting in the best anecdotes,” he says.

I like my experiment so far. It is relaxing to write by hand with a fountain pen. My tool of choice is a Dryden Design fountain pen I received as a gift. And I have some notebooks ready for briefs and other large-scale writing projects. For everything else, I love the feel of Docket Gold legal pads. The paper is heavy, and the cardboard backing has heft. You can take notes without much need to press the legal pad onto anything else. Also, paper does not receive texts or twitter notifications. And there is no newsfeed to pull you away from writing. My favorite writers may be on to something. I write this after spending about a decade moving to a paperless process.

Sage Advice on Gaining a Competitive Edge from Mike and Mo

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On the subject of peak competitive performance, I heard pretty much the same advice from two very different places this week — a seasoned appellate lawyer in one venue and a seasoned athlete in another.

This semester, I’m teaching Georgia Appellate Practice and Procedure with Chief Judge Stephen Dillard of the Georgia Court of Appeals. This week, our featured speaker was Michael Terry. He spoke on his top ten tips for preparing for oral argument. Oddly enough, his number one tip was all about parking. Yes, parking! He led with that. Mike says that your top priority for oral argument should be to figure our how you will arrange your transportation to oral argument (He assumes you’ve done all the other things necessary to prepare for the argument itself. Literally, plan how you will get there and where you will leave your car. If you’re interested, Mike takes Lyft.

The issue is stress and energy management. He says that all of this is hard enough as it is. And you don’t need to add stress to the mix by worrying about something like traffic or parking. You should focus your energy on the task at hand. If you worry about making it to court on time, you’re being foolish with your energy. Having done this for years, I’ve had my share of traffic and parking mishaps. And it has never helped. It is a bad use of energy best directed elsewhere.

Now to Mo. I track my running with the Nike Run Club App. I’m pretty sure that I’ve given Nike way more data about me than I’ve given Google (And yet, based upon my splits, they have not referred me over to Rockport). A feature of this app is coaching from famous athletes and coaches. During a run of a set duration or distance a person gives coaching direction into your speaker or headphones.

And it’s as right around minute 20 that Mo Farah’s advice made me think of what Mike said. His number one tip for competitive running is to start slowly. He speaks of what a mistake it is to spend energy that could be devoted to an event with nervousness before it starts doing something unproductive like psyching yourself out.

And here the wisdom of Michael Terry and Mo Farah converged. For both, the number one tip had more to do how you manage the trip to the starting line than what happens after you cross it. Whether it’s running or an oral argument, the lesson is the same. How you manage the case or the event depends on how you manage yourself leading up to it.

The best advice from two sages from different professions is to start slowly and arrive with a sense of calm. Take care of your self as you approach the starting line, and you are more likely to be happy what happens when you reach the finish.

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