My Interview with Erin Gerstenzang

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A new episode of the podcast of the Georgia Association of Criminal Defense Lawyers is out. This one features an interview with Atlanta criminal defense attorney Erin Gerstenzang. Erin and I discuss the basics of marketing for lawyers. We discuss her office in a co-working space at Ponce City Market. And my favorite moment was when Erin and I discuss her decision to give her cell phone number out to clients — the number on her website is her cellphone number. It turns out that this is not a modern millennial thing. Rather, it was a lesson she learned from her father who gave out his home number frequently to clients when Erin was growing up. I have been experimenting with giving my cell phone out to a small sample of clients. And I have been surprised at how well it works. I hope you enjoy the podcast.

New Podcast from GACDL

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The Georgia Association of Criminal Defense Lawyers has a new podcast up. In episode 1, I interview criminal defense attorney and author Jason Sheffield about his new novel. But we get into some other topics such as attorney-client relationships, law practice management, and the good and bad of law school education in America. This was a fun interview. And I think you will enjoy it, too.

We have another episode recorded and in production

The podcast is available on iTunes and Soundcloud. Please go to iTunes and leave us a comment or a rating. And please reach out to me to suggest a guest for an upcoming show.

In Defense of Expertise

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I recently listened to Sam Harris’s interview with Tom Nichols on Harris’s Waking Up Podcast. Nichols discussed the “Dunning-Kruger Effect.” If there is a zeitgeist for our age, it may well be the Dunning-Kruger Effect.

Before I define the Dunning-Kruger Effect, let me describe the setting where you may have experienced it. Most often you observe it at a family get-together. Likely, your loudest relative on topics in the political arena fancies himself an expert is likely not much of a political scientist. And you also may experience it in client consultations in the form of the relative who comes to the office who took a business law course at one time about a decade ago. This relative arrives at the office with the client and acts as the family spokesperson. Or you may see it in the thick handwritten correspondence from the client who has been spending time in the law library.

The Dunning-Kruger effect is a cognitive bias in which people with very little knowledge about a topic are overconfident about what they actually know. Meanwhile, folks with expertise tend to see the nuance within a topic and limit their commentary to what can be confidently known. Language may be understated and carefully precise. In the political sphere, a sizeable number of voters fall victim to the phenomenon and vote for the most vocal and confident-sounding candidate. Add to that phenomenon a bias or resentment of professionals (egg heads in their ivory tower) and a bias for “just folks” and you have the Dunending-Kruger effect.

If you are in the business of  law, the Dunning Kruger effect can be tricky. We went through a painful process as 1Ls that taught us to “think like a lawyer.” And this thinking process was as important if not more important than the topics we were learning. In many ways, torts was a vehicle that we used to learn a method of thought. And this approach to legal problems was why we spent the tuition dollars.

It is fairly easy for the client in the market for an attorney to go on FindLaw and find cases that appear to be relevant. And the client can go into a prison’s law library or contraband electronic device and have access to the same database of law that you have. But the context of a legal education and years of courtroom experience do not come with the material. And it can be easy to become bogged down or incorrectly directed when you divorce the material from all the of sleepless nights learning how to understand it in context. Add to all of this, a national ethos of distrust of experts, a suspicion of the legal system and its officers, and the Dunning Kruger effect can take hold.

To make matters worse, the law is not a computer into which we feed facts and out comes an answer. Statutes and precedent are malleable. And the client’s fate is often subject to the preferences, biases, and even mood of the trier of fact and interpreter of law — the judge and/or jury. When asked such questions as “how is it looking for me?” “was the officer wrong to do what he did?” Or “when will this be over?” We give an honest answer that speaks to the uncertainty. Ask those questions to 10 honest lawyers, and about 8 of them will answer “well, it depends.” Clients are invariably frustrated by how tentative we are about things and wonder why we aren’t “shooting straight” with them. The irony is that we would not be shooting straight if we answered their questions with the level of certainty that they want. However, the jailhouse lawyer or the “family expert” has arrived at a more definite and most certainly optimistic answer. And they state it more confidently that you will. But the client comes to you looking to hire a lawyer.

Fight too hard against the Dunning-Kruger effect and the client will go elsewhere — to the lawyer who charges a third of what you charge and who is willing to agree with anything that the family’s legal expert says. This lawyer is in the client entertainment business and does not mind that the folks in the courtroom are going to roll their eyes when the lawyer comes in the door. Go along with the “expert” for too long and you will find yourself in front of a judge who will not be amused to hear what you have to say.

There is no clear answer to how to handle the phenomenon in legal practice. It requires active listening and a calm and steady effort to talk the client down from the ledge. Also, to be fair, we must be careful that we are also not falling victim to the Dunning-Kruger effect in being dismissive at competing ideas. The canary in the coal mine for whether you are suffering from the Dunning-Kruger effect is a sense of confidence confidence that you know the outcome. In the long term, I have to believe that authenticity is the best long-term strategy for marketing and reputation. I have to believe this, because an alternative to that view of things is frightenting to imagine.

Taking a Witness’s Testimony by Skype

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A couple of weeks ago, I had a critical witness who would be unavailable to attend a hearing. The Court insisted on a particular date, and the expert had travel plans and non-refundable plane tickets. We decided that we would take his testimony by Skype. Moments after making the decision to Skype the witness, I asked myself “How do you take a witness’s testimony by Skype?” And here is my story. Note, I refer to Skpe throughout this post. But there are other videoconferencing platforms out there.

Your jurisdiction may vary. But Georgia’s provision for taking a witness by Skype is Uniform Superior Court Rule 9.2. 9.2 (A) lists an assortment of situations where video conferencing may be done. The list includes such routine things as applications for search warrants and first appearance hearings. For my situation, there was one matter that applied to me, which was found at (A)(12), “post-sentencing proceedings in criminal cases.” And the catch-all provision applied as well.

For everything else, the place to look in 9.2 (C). There the rule provies:

In any pending matter a witness may testify via video conference. Any party desiring tocall witness by video conference shall file a notice of intention to present testimony by video conference at least (30) days prior to the date scheduled for such testimony. Any other party may file an objection to the testimony of a witness by video conference within ten (10) days of the filing of the notice of intention. In civil matters, the discretion to allow testimony via video conference shall rest with the trial judge. In any criminal matter, a timely objection shall be sustained; however, such objection shall act as a motion for continuance and a waiver of any speedy trial demand.

In a nutshell, if you want to take a witness by Skype, you should seek your opponent’s consent. And if you anticipate a problem, you should file the notice 30 days in advance. Your opponent’s objection (in a criminal case) is deemed a motion to continue. In my case, my opponent consented to take the witness by Skype.

Once you have your opponent’s consent or a court order for skype testimony, there are a few other things to worry about. Take a close look at (E), which sets out the technical mimimums for video conferencing testimony.

  1. All participants must be able to see, hear, and communicate with each other simultaneously;
  2. All participants must be able to see, hear, and otherwise observe any physical evidence or exhibits presented during the proceedings, either by video, facsimile, or other method.
  3. Video quality must be adequate to allow participants to observe each other’s demeanor and nonverbal communiction; and
  4. The location from which the trial judge is presiding shall be accessible to the public to the same extent as such proceeding would if not conducted by video conference. The court shall accommodate any request by interested party two observe entire proceedings.

In other words, when the witness appears on screen, there should be no difference between that experience and what it would be for the witness to be present in court. And, as techy as I consider myself to be, I am paranoid about technological fails in the courtroom. So, here is what I did.

Two weeks before my court date, I took my laptop and iPad to the courthouse (in a very rural area in Georgia). I used the empty courtroom to call my witness by Skype using the courtroom WiFi and my cellular connection as a backup. Everything worked. I check to see if the court had a video monitor. And the Court did. When I tested out the video, I noticed that I needed an hdmi adapter for my iPad and laptop. So I put those on my shopping list. I ran at test on Fast to make sure that I had a sufficient connection. It turns out that my cellular connection would be faster than the court’s WiFi.

In the intervening weeks, I made sure that the witness had a copy of every potential exhibit that might come up. The only glitch was that the witness was not at his office. I asked him to test out his Skype in the location he would be.

On the morning of court, I arrived early to do a final check. I made sure the court reporter could hear everything well. I noticed that there was a little lag, so I made sure the witness spoke slowly.

The judge had some questions during the testimony. And he was not close enough to the mic for the witness to pick up his voice. But this problem was largely solved by my repeating the questions. So, the next time I do a Skype witness, I will make sure that the computer can pick up the judge from across the room. This can either be solved by the location of the set up or perhaps an external microphone.

The overall experience was good. And it was great to be able to conduct a hearing with a witness off in Florida. Skype is certainly a potential solution to put up trial counsel’s testimony in habeas proceedings and in keeping down the cost of using an expert witness. However, it takes much more work to arrange for Skype testimony to pull off without a glitch than it does simply to have a witness there — particularly in more rural courtrooms where connectivity is a potential issue.

Beyond A Reasonable Doubt is Only a Criminal Law Concept

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In the wake of recent stories in the Washington Post where women have accused Republican Senate candidate Roy Moore of inappropriate sexual contact with them when they were teens and when Mr. Moore was in his 30s, there has been much discussion of the legal concepts of “innocent until proven guilty” and “proof beyond a reaonsable doubt.” A popular refrain from the right is that it is unfair for Mr. Moore to be evaluated as an unfit candidate for Senate when he has not been confronted by his accusers in court and where a jury has not weighed in on guilt beyond a reasonable doubt. This is not a policital post. If it were, I would discuss how odd it is to hear folks with certain political and religious leanings suddenly embracing core civil liberties concepts. And I would express my hope that their sudden interest in these concepts will remain with them when the accused is not a Republican candidate for the United States Senate.

What I would like to do, instead, is talk a bit more about where proof beyond a reasonable doubt and the presumption of innocence matter and where they don’t. I offer this perspective from having represented folks for years who are accused and who have been convicted crimes.

Proof beyond a reasonable doubt is necessary to overcome a legal presumption of innocence where a person has been formally accused of a crime and is facing trial for that crime in court. And, beyond that limited space, those concepts mean very little.

The overwhelming number of people accused of crimes do not wish for the opportunity to make a prosecutor prove their guilt beyond reasonable doubt. They would rather forego that opportunity in favor of a dismissal of charges, a plea to a lesser offense, a deal that results in no record of a conviction, or even an admission of guilt in exchange for probation. But the arena of proof beyond a reasonable doubt is a terrifying one. I suspect that the candidate, himself, and his followers would wish to forego the opportunity. That whole system, by the way, comes with some major flaws and a whole bunch of risk. We lawyers go to classes and read books to help us use marketing principles to influence juror behavior — both sides do it. Proof beyond a reasonable doubt and presumption of innocence are patriotic concepts that we run to when we feel an affinity for the accused. But the reality of all that is very messy.

Where else does the presumption of innocence and proof beyond a reasonable doubt matter beyond a criminal court? I am straining to think of a place outside of court where it actually matters. Consider the collateral consequence of being merely accused of a crime or of working out a case short of a pronouncement of guilt.

  • For employment purposes, a mere arrest may be sufficient for termination. This is particularly the case in employment at will states. I’ve had this discussion with many folks accused of crimes. And vast numbers of employers do not apply anything close to a beyond a reasonable doubt standard.
  • Licensing and Immigration. Many States offer deferred adjudication and dismissal opportunities such as Georgia’s First Offender Program. In the eyes of the criminal justice system, there is no conviction beyond a reasonable doubt. Indeed, the accused stands legally acquitted. Immigration will view the disposition as a conviction as will many licensing agencies for such things as real estate, insurance, law, and teaching.
  • Newspaper Articles and Candidate Evaluation. If proof beyond a reasonable doubt were the standard to run a news article, then there would not be much news being produced. Different papers have different standards for what it takes to substantiate a claim. Check out All the President’s Men to get a sense for what it takes (or once took) to run an expose in the Washington Post. Alas, voters are left to vet candidates for political office without the benefit of a criminal jury deciding whether something actually happened. And we can do that short of a jury trial on matters of character.

We make choices every day based upon truths derived other than by a criminal jury under a proof beyond a reasonable doubt standard. And many peoples lives turn upon an accusation of committing an act that would be a crime but where the claim is not tested by a jury. I’m not sure that we should give candidates a pass just because a claim hasn’t been tested by a jury. If that was the requirement, I’m not sure that we would have a way to choose. Or, in the alternative, many candidates would be getting charged with crimes for political purposes.

Do I wish the world worked differently? When I put on my criminal defense hat, the answer is yes. I have had many tearful meetings in my office with people whose lives are turned upside down by a criminal accusation who find that, after we win the court case, it is still very much upside down. That is how things work. It has been that way for a long time. Alas, there is not a Republican candidate for Senate loophole for any of it.

Storytelling: The Why and the How

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One of my favorite bloggers on trial advocacy is Mark Bennett. Mark has written a series of great posts at Simple Justice, Scott Greenfield’s blog on the topic of opening statements.

Mark offers 11 rules for better opening statements. One tip is to limit your opening statement to fifteen minutes. From experience, this is a solid tip. The rest of his rules could be summarized in a single sentence. Your opening should tell a story. Stories are all the rage in trial advocacy these days. If you have been to a CLE on trials. You have heard about story and why openings should be more like a story and less like a lawyerly presentation. The reason is simple. Jurors and judges love stories. Stories are more persuasive than speeches. Stories draw is in.

I have become frustrated with all of this talk of story. I was convinced, years ago, that storytelling is important for opening statements, for briefs, and even for simple motions. But CLE programming is light on nuts and bolts instruction on how to tell a good story. And that was why I was excited to learn about Pixar’s online class on storytelling offered through Kahn Academy. The class is excellently done, with great videos (each one tells a story) and activities to work on to get better at story telling. The video series is not aimed at lawyers, but it is exactly the storytelling 101 I’ve been looking for. I cannot give a comprehensive recommendation here because I am at the beginning of the lesson.

And, in case you aren’t aware of Pixar— Pixar is the company that perfected computer animation in the 1990s with Toy Story and with other great films. I have long been a fan of their work. They have not just made some of the best animated films of the past century, but some of the best films, period. Their success lies not just in technological achievement — though they have done some remarkable stuff — but in the craft of storytelling. Here are some screenshots of the table of contents for the series.

 

If you have been told that you need to embrace storytelling but you aren’t sure what to do, I hope that this will be a good resource for you. And how cool is Kahn Academy? It has been a go-to place for my children to supplement their school instruction for quite some time. But I had no idea that there was such great stuff on there for adults.

Some Great Advice from a “Door Lawyer”

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I heard some great advice a few days ago in an unexpected place — a county jail. I was there for a bond hearing and preliminary hearing. And it was the typical scene. Inmates were everywhere. Law enforcement agents were lining the walls as they awaited their hearing. The DA was there with a huge box of the day’s files. All of this activity was confined to a large stale institutional room inside of the jail.

It was there that I ran into a lawyer I had not seen in a while. The lawyer was one of many that you will encounter in small Georgia towns who practices “door law,” or whatever case comes in the door. On that day, it happened to be a preliminary hearing in a criminal case. We spoke for a few minutes. I observed that he was seated in one of the few chairs available in the room. He told me that he had been there for a while. And then he started telling me a story.

He once had a conversation with another small town lawyer, whom he described as the “elder statesman” of the county. This lawyer was known for arriving, on the day of court, as soon as the door was opened. And he would occupy a familiar spot in the jury box where he would watch all who had business enter the courtroom. The elder statesman had once told my friend, “when people pay you to handle their case for them, they do not need for you to give them one moment of anxiety. When it is time for court, you should always be there before they arrive. That way, they never have to wonder where you are.”

I am seldom late for court. And many criminal court calendars are like the one I just described — such bedlam that the judge would probably not notice your tardiness. With that said,  I often arrive somewhere between ten minutes before a hearing or right on time. And, as I thought back, I recall that there have been times when I’ve gotten seated and received a text from my office with something along the lines of “Did you make contact with the Smith family? They were looking for you.” This text will have been sent about 30 minutes before court. Of course, I wasn’t late, but I arrived later than the client.

I am doing to heed the advice of a “door lawyer” passed down to him by an elder statesman whose name he doesn’t remember and try reaching the courthouse before my client the next time we have court.

Defending the Worth County Sheriff

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I make no judgment here about whether the Worth County Sheriff is a good man, a good sheriff, or whether it was a good idea to lock down a high school and conduct a massive drug search of the student body without probable cause (he sounds like he has poor judgment). I write about whether he is guilty of obstruction for what he did to stop the GBI from interrogating his son. Based on what I read so far, I’d take his case to trial.

The Sheriff’s son was arrested for possession of marijuana with intent to distribute and criminal trespass. The young man, who was seventeen years old at the time, was being questioned at the Worth County Jail when the Sheriff and his wife (an employee of the Sheriff’s Department) burst into a room where the boy was being interrogated to advise him to invoke his right to remain silent. At this point, the GBI agents ceased the interview.

Under Georgia law,  “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” Yet, for a youthful suspect, the absence or presence of a parent is a factor for voluntariness. And the young man had a right to remain silent (I bet the agents read to the young man from a form that said he had a right to remain silent). If a lawyer had been present, a lawyer would likely have advised him to remain silent. Would an attorney, giving the young man the exact same advice, be guilty of obstruction? Or, had the sheriff told his son not to go to an interview, would he be guilty of obstruction? What is different about these facts?

Finally, the fact that the agents chose to cease the interview makes the whole thing an inchoate act. We really do not know whether the young man would have taken dad’s advice. It may well be that the interview would have run its course. I wonder if the attorney general will seriously charge the Sheriff with criminal attempt to obstruct an officer.

Also, does the presence at the Worth County Jail make the difference? Could GBI agents come to the sheriff’s home, enter the son’s room and interview him? If so, would the same interruption be obstruction?

It is not as if the Sheriff ran in and tackled the agents to stop the interview. Here, the sheriff came inside a room at his sheriff’s department and gave his son a solid piece of advice that would be perfectly legal for me to give him as an attorney. Indeed, it is my job to “obstruct” interrogations per the Fifth and Sixth Amendment to the United States Constitution. How is it a crime for the Sheriff to do the same thing?

Some Modest Proposals for Prisons Throughout the Land

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I spend hours of time at least once a month traveling to various prisons around the State of Georgia. Most of these facilities are far away and involve travel deep down Interstate 16. Very little substantive progress is made on cases in these visits. They tend to be venting/counseling sessions. And, for an hour or two of client discussion, the lawyer is away from the office for a day. It is difficult to mix a prison visit with productivity in other areas. Many times, I have had things arise where I had to work as a mobile office from a Subway, Cracker Barrel, or Public Library out in the hinterlands. It all works quite well except that there is still the matter of the multi-hour drive home. Added to the time-consuming nature of doing the prison visit is the fact that you need to set up the visit in advance by faxing paperwork and getting on the phone. Contrast this process with seeing an inmate at a county jail, which is generally local and able to handle drop-in visits. Also, in a pre-trial setting, the inmate has substantive help to offer such as assistance in pre-trial investigations or witness preparation. So, as I made my way to South Georgia, I thought of ten things that the Georgia DOC could do to make their lives and our lives better.

  1. Provide Secure Attorney/Client Video Conferencing on the JPay Pad. All inmates are given a free tablet. The inmates then “owe the company store” for every email, music file, and other meaningful use of the pad. Emails with everyone are monitored. However, it would be fairly simple to maintain a database of counsel fo record and allow secure video-conferencing between the client and the attorney. JPay could easily charge me a steep premium, and I would pay it to avoid all the driving around.
  2. Provide Secure Email Communications with Counsel. Ditto, everything I said in 1, but add email to it.
  3. Provide Secure Phone Communication with Counsel. Ditto, everything I said in 1, but add phone communication to it.
  4. Provide Document File Sharing of Attorney Files. Oh, the fights I have had with clients over the transcript, the discovery, and a broad category of materials known as “the file.” I’m paperless, so the file exists in sometimes terabyte-sized data packets. I don’t feel good sending a metallic disc into the prison. I don’t love the idea of printing thousands of pages of material. And that paper file is just the thing to educate a potential snitch in the preparation of his fictitious story of a confession. Not to mention that the sharing of the transcript will lead to a series of jailhouse legal treatises to counsel that cite the 1978 edition of ALR and the 1965 edition of Am Jur. A secured electronic file sharing service where the client has his own password would facilitate the sharing of materials.
  5. Collaborative Tools. I would love some sort of Google Drive or Microsoft Track Changes system where the Client could embed notes in written documents rather than sharing lengthy hand-written letters.
  6. A Uniform System for the Use of iPads/Laptops. I don’t have files in paper form. And that’s fine for half of the facilities I visit. They allow me to bring may electronic materials inside. However, there is no uniform policy. And many places do not allow me to bring in such materials. There should be a single standard. And the DOC should realize that the state of practice is such that laptops are a part of practice. Indeed, the lawyers who visit are working on an appeal or habeas, which are both writing-based endeavors.
  7. A Pre-Screening Process Such as the one that the TSA Uses. Alas, it has already been done. It is called Bar Fitness. We went through it before we took the bar.
  8. A Streamlined Way to Set Up a Visit. The current system in a mish-mash that inevitably involves blowing the dust off of a fax machine and sending down a copy of my bar card and driver’s license. There should be a centralized electronic place to request a prison visit where much of the necessary information is pre-populated with the information from item seven. You should receive an email confirmation of the approval of the visit.
  9. A Designated Attorney Conference Area in Each Facility. Oh, the number of times I’ve waited around for someone to find an office or set up a card table in a day room. If each facility had a designated spot, things would move faster.
  10. Delay of IAC claims Until Habeas With a Magistrate Screening of Habeas Claims Before Habeas Hearings. The Feds have this process totally figured out. And if we adopted it, the direct appeal would be a place for pure legal issues. And habeas would be the place to litigate IAC. But there would be a filtering process ethat level. The dockets would immediately begin to move efficiently.

Each step wouldn’t just make life better for the appeals lawyer. They would help the DOC as well. And I would spend less non-productive time in my car driving to the nether-areas of the state so that folks can vent their frustrations.

Using PowerPoint for Presentations to the Bench

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A few weeks ago, I assisted on a multi-day motion for new trial hearing in Barrow County, Georgia. My co-counsel used a PowerPoint to present his opening statement. I had not thought of using a PowerPoint in a bench proceeding, but I have frequently used them in jury trials. My colleague did such a great job using the technology to supplement his persuasive style, that I decided to use a PowerPoint in mine as well. I want to talk a little bit about why I did it and what I learned.

  • It is probably not for every case or every situation. What my case last week and the case in Barrow had in common were complex facts that could be simplified and packaged up in a persuasive package with graphics. In both cases, for instance, the timeline was critical to the case. And It was helpful to put some snippets from the pleadings and relevant statutes up for the judge to see while we spoke.
  • It is important to know your courtroom. I made the false assumption that the courthouse, an older building, did not have the technology built in for a presentation. It turned out that I was wrong. I posted on the local bar association’s Facebook and was pleasantly surprised to learn that the courtroom was equipped with a “smart tv.”

I made the sound decision to stick with my original game plan where it comes to courtroom technology. Allow plenty of time to test everything out, and leave ample time to practice. One of the worst things that can happen in court is that you have a technology problem right at the beginning of a hearing when all eyes are on you. I came an hour and a half early. And it was a good thing. The Smart TV did not have a port for VGA input. My only option was HDMI. But neither my computer nor tablet had a computer with HDMI port. And I did not have the HDMI adapter. A colleague from the courthouse, however, did have a laptop and was kind enough to assist. So, we hooked everything up and put the PowerPoint file on his laptop. And I practiced going all the way from the turn on of the computer to the beginning of the presentation 2–3 times before I left the courtroom to grab a quick lunch.

When it was “go time,” everything worked. But I cannot imagine how horrible it would have all been if I had shown up with my laptop and said, at the beginning of the hearing, “where do I plug this in?”

The other thing was that I was prepared to go “old school” had everything failed. However, everything went without a hitch, and I think that the PowerPoint was a big help.

I have now written a thank you note to the helpful attorney. And I have ordered an HDMI adapter for my laptop and tablet. And all is now well.

ADDRESS

199 W Jefferson St.
Madison, GA 30650

PHONE

678-610-6624

EMAIL

tori@scottkeylaw.com