Blog - Scott Key & Associates

Rickman Offers Insight into How Young Appellate Judges Read Briefs and Motions

October 22, 2017/by J. Scott Key

Today, I cut a weekend beach trip short to come to Macon to attend a one-day meeting and seminar for a group of Georgia DUI lawyers. My family returned home later, but I traveled up I–16 to a farm in Macon. Instead of the typical hotel ballroom environment, we met at a farm cabin on some property owned by a middle-Georgia personal injury lawyer. Chief among the lessons learned today was that I should be doing personal injury. Beyond that, I picked up a few valuable tips on regarding the inner workings of the Georgia Court of Appeals.

One of the day’s speakers was Hon. Brian M. Rickman of the Georgia Court of Appeals. Judge Rickman is relatively new to the Court, and this was my first opportunity to meet him and hear him speak. While the majority of what he shared comported with what I had heard from other judges at CLEs over the years, there were a couple of points that were new to me. I will focus on those.

The “Younger Judges” are doing most of their work electronically. Judge Rickman did not list out which judges he considered being among the youth of the court, but I have a fairly good idea of who they are. Given that many of the judges work at least a day or more from home, most review briefs and the record electronically on their computer. But here was the surprise. A good bit of the court’s work is done on iPad and even smartphones. For example, the judges receive an alert whenever a lawyer files a motion for extension or a request for oral argument. This alert pushes out the judge electronically, and the pleading can be read and approved on a phone or tablet. So, judges can handle some of the motions caseloads remotely. And most records and briefs are available in electronic form from anywhere. I googled the name of the software system I thought he cited, but I could not find any links to share.
Judge Rickman welcomes graphics and embeds of evidence (such as photographs and charts) in the briefs. Presumably, the judges who do most of their work in electronic form would see color exhibits and graphics in color (I am not sure if the judges who work in paper print out the briefs in color). If you file briefs with color graphics, you will likely stand out from your opponent and from most of the other lawyers.
There is a side benefit to requesting oral argument. Regardless of whether oral argument is granted, the request is an opportunity to provide your panel with a condensed version of your argument. For such a busy court, any opportunity to request that the court spend more time with your case — even if that time is spent reviewing a request for oral argument — is a chance to distinguish it from the mass of cases taking the court’s attention. Other judges have made this point before. What I didn’t know was that the judge gets a notification electronically when you file a request for oral argument. And the judge may review that request from a smartphone.

As I left the massive farm and pondered if it is too late for me to do personal injury, I also walked away with further insight into the Court of Appeals from one of its newest judges.

Building a Cross Around Refreshing Recollection

October 21, 2017/by J. Scott Key

A few days ago, I was preparing for cross-examination. The event never happened because the hearing was terminated on a technical point before the other side could put on any witnesses. But court preparation is never a waste. All the research you do for it keeps until later. Here are a few things I learned about refreshing recollection as an alternative to putting up substantive impeaching evidence.

I anticipated crossing the adverse party in what would have been a pivotal moment in the trial. The witness had previously given a recorded interview with two law-enforcement agents. I knew that the witness would contradict the previous statement in a significant way (because the relief she sought depended upon an alternate version). And there was great impeachment material to be found on this audio recording. However, it was doubtful that I would be able to have the agents produced for this hearing. So, I had to prepare to use the recordings without the witnesses who recorded the interview. And my witness had no incentive to cooperate with any effort to authenticate the recording.

In addition, the witness had sent some texts to my client that I wanted to use. had the cell phone company’s records of these texts that my client had downloaded from the cell phone provider’s website. I also had some texts that I wanted to use that law-enforcement had extracted from her phone But, again, we did not necessarily want to pay to bring in subpoena compliance folks from the cell phone provider due to cost concerns

Refreshing Recollection to The Rescue

Here is how I prepared. First, I made a detailed and indexed digest of the recording with minute and seconds noted for all the things I would need to use. Then I practiced with the audio file on the computer until I could reach any spot instantly. I also had a transcript prepared of the entire interview.

I called a friend of mine who teaches trial advocacy and who is an excellent trial lawyer. He confirmed that I could get where I needed to go by refreshing recollection. He gave me some helpful tips to plan this cross-examination. First, he told me to preface each question about the statements using the phrase “do you recall…” The use of the word “recall,” put us in a memory framework.

The second piece was to build up the interviews themselves. In fact, in planning the cross-examination, I built several chapters up to point the witness to that time, place, and circumstances of the interview. I wanted to direct the witnesses attention to the fact that the witness knew that the interview was being recorded. And I wanted to establish, in the witnesse’s own words, that the interview was important in its nature and scope.

Rule 612 and Available Materials

Some judges mistakenly believe that a witness can only have recollection refreshed with a document the witness prepared. The reality is that a witness’s recollection can be refreshed with anything. “As long as the witness is willing to swear from his memory as refreshed, his memory may be refreshed from any kind of stimulus, ‘a song, or a face, or a newspaper item.’” Bianchi v. State, 327 Ga. App. 440 (2014). If you use a written document, then there are a few other things to keep in mind — you need to make the writing available for opposing counsel to review under Rule 612. When it came down to time to impeach, I would simply have said “would it refresh your recollection of the interview if I showed you a transcript of it.” Of course many objections could come at this point. The adverse lawyer could question the authenticity of the transcript. In which case, my response would have been that I am just showing the transcript to see if it refreshes her recollection. I could then give the judge and the witness the option of my playing the interview itself in the specific portion that is relevant to refresh recollection.

Over time, the witness looks bad by having her recollection refreshed. The fear is that the witness will hear herself on the recording and pretend her recollection is not refreshed. At this point, you probably win because the witness loses all credibility.

Setting the Stage

The other piece involved an early arrival in court. I came to court two hours early to use the audio equipment and have everything ready to go. Had it been necessary use the recording, I wanted to move to the computer quickly and I wanted the audio to be sufficiently clear for tn judge to hear it.

Again, the hearing ended before we could hear evidence. But all the work I did will be helpful for a future Court date

All Jail Visits Should Be Like This

October 20, 2017/by J. Scott Key

Last night, I attended the Griffin Historical Society’s “Drink in History” event at the old Griffin Jail, featuring the fine products of the Jailhouse Brewery. I had spent my entire afternoon at the new Spalding County Courthouse, and this event was in a building that was once the old Spalding County Courthouse, from approximately 1860 unit approximately 1914. In 1914, the county converted the building into a county jail. The building functioned as the jail until 1984, when the Sheriff’s department opened another facility across town. The whole facility was open for a tour, including all the creep showers, the two solitary confinement cells, the women’s unit (with six beds), and the gallows. On the third floor, there was a trapdoor. You could look up to see the eyelet hook for the rope. And the lever for the trapdoor was there as well. I was told that there is no record of the gallows ever being used, as the public preferred outdoor hangings in the field out in front of the old courthouse.
I had forgotten that there was a time when the counties did not outsource their executions to the Georgia Department of Corrections. At one time, hangings were a local spectacle. Standing on the trapdoor (even with the device cemented over) gives one a queasy feeling. Also, this was the first time I have visited a jail in a while where I did not have the overwhelming feeling that they were going to find my name on the computer system and attempt to keep me. It is a recurring nightmare that many in our profession have.

One of the attendees recalls visiting clients in that old facility. And he
said that it looked pretty much the same now as it did then — peeling paint and all. He says that there were no attorney booths. You just pulled your chair up to a cell and had a talk. Otherwise, the place had a familiar feel to it. The more things change the more they stay the same. I just wish that all jail visits included jailhouse beer.

A Quick Explanation of the Holding in the New SCOG DUI Case

October 18, 2017/by J. Scott Key

There has been much talk in the media about Olevik v. State. My algebra teacher long ago would make me “show my work” on tests and sometimes at the chalkboard. I’ve linked to the opinion where you can see where the Supreme Court has shown its work in 49 pages of legal writing. But I’ll highlight a few key points.

The holding in Olevik is that the Georgia State Constitution’s protections against self-incrimination apply to acts of the accused that generate incriminating evidence as well as to statements made that are incriminating — and providing deep lung air is an incriminating act as defined by the Georgia Constitution. Under Article 1, Section 1, Paragraph VI of the Georgia Constitution, “no person shall be compelled to give testimony tending in any manner to be self-incriminating.” Note, the Georgia Supreme Court has not touched upon the Fifth Amendment of the United States Constitution. And the Georgia Supreme Court has overturned a line of cases going back to a case called Klink (aptly named).

The Court makes it clear that some acts are testimonial and are essentially the same as words when it comes to self-incrimination. Some examples from the case:

Self Incriminating Acts

Forcing a Defendant to put his feet on footprints located near a crime scene;
Requiring a Defendant to stand up at his trial so that the witness could verity that the defendant’s leg had been amputated in a way that corresponded to tracks left at a crime scene;
Forcing a driver to drive his truck onto scales to see if his rig is overweight.
Forcing a suspect to provide a handwriting sample.

Not Self-Incriminating Acts

Requiring the accused to be present so that law enforcement an undress him to remove bloodstained clothes;
Requiring the accused to stand in place to be photographed;
Requiring the accused to provide a DNA sample;
Taking an impression of the teeth of the accused;
Requiring the accused to undergo surgery for the removal of a bullet.

Blowing hard into a breath machine is a self-incriminating act because the defendant has to do some work to produce air from deep in his lungs to produce a sample. If you’ve ever taken one of these, either at a jail or at some booth at a beer festival where a DUI lawyer was a sponsor, you will know what I mean. If scientists ever perfect a technology that will allow police to extract fog from a mirror to test for blood alcohol, then future drunk drivers will be in big trouble. For now though, the method of extraction is an incriminating act.

What Does it All Mean?

It all means nothing to Mr. Olevik, who lost his appeal anyway. Future defendants, however, can testify at a motion to suppress hearing and say “when I heard what the police officer read that card, I felt like he was forcing me to give him a breath sample.” And, if the trier of fact finds that the statement is truthful, then the evidence of the breath test is inadmissible. However, if the police extract a blood sample, then there is no self-incriminating act. And if the finder of fact finds that a suspect voluntarily gave a breath sample, then there was no self-incriminating act. However, it is very likely that when a suspect refuses to provide a breath sample then the State will not be allowed to comment on such refusal at trial. A thornier question will be whether the State can comment upon the refusal to take a blood test.

And there, in a nutshell, is Olevik. By the way, this is not a Fifth Amendment case. It is only good in Georgia. Because it is an interpretation of the Georgia Constitution.

For Great Cross-Examination, Forget You Ever Knew Matlock, Perry Mason, or Jack McCoy

October 17, 2017/by J. Scott Key

I cut my teeth in law school on Terrance McCarthy’s cross-examination methods. During my 2L year, I recall preparing for a national mock trial competition. During our first practice of the year, our coach popped in a cassette (yes, a cassette.It was the year 2000) of Terry giving a talk in Las Vegas to a NACDL group. I thought the guy on the tape was about the coolest dude I’d ever heard. In a booming Irish/mid-western accent and in between references to getting drunk and a set of the most politically-incorrect jokes you can imagine was a blueprint for great cross-examination that I have taken with me to this day. When we advanced to the final round, who was on the bench in Chicago but the man himself, Terry McCarthy. And I got to do some Terry McCarthy stuff in front of Terry McCarthy. It was the courtroom equivalent of my son having LeBron James as a referee in a little league basketball game. I take the lessons from that cassette with me to this day. I’m sure that many of my clients would be in prison somewhere but for the lessons from Terry that I have retained.

And now I combine my McCarthy stuff with what I learn from Posner and Dodd on cross-examination. The Pozner and Dodd book on cross-examination is like the Bible. I have tried to read both from cover to cover, and it has never quite worked out. But both books work well for regular study, particularly as life events dictate that you dive into particular things. Both are canonical works. Both can seem unwieldy at times. Posner and Dodd have worked out a method for just about everything a lawyer might encounter on cross examination. For instance, there is an entire chapter dedicated to “The Crying Witness.” (Preview: there is much in there about using silence as a control technique.) But more to the big point from today’s dive into P&D. And that point is to forget you ever knew Matlock, Perry Mason, or Jack McCoy — fictional characters who all clean somebody’s clock on cross in the last ten minutes of a tv show.

No matter what method you use for cross, they all have one thing in common. All good cross-examination techniques emphasize planning. And all the cross-examination gurus would tell you to forget that you ever saw a tv lawyer doing a cross-examination. Don’t go for drama. Don’t go for the gotcha. A spectacular cross-examination might seem utterly un-dramatic at the time. Good crosses are planned crosses:

Many lawyers believe that it is possible to perform good cross-examination without a script. This is undoubtably true. It is also possible for a visitor to find her way in a city without a map, but it would be quicker and safer if she had one. It would be easier if she had studied the map and outlined a route in advance. … The lawyer works from a script in cross-examination, so she can avoid the “Oh no”! syndrome. [where cross-examination has been completed and] the lawyer returns to the counsel table where she looks down at her list of things she has to cover and sees one or more things she forgot completely to address. The lawyer says to herself, “Oh no!” (or worse).

Walk into any courtroom on any hearing or trial day and you are much likely to encounter a lawyer attempting to be Perry Mason than trying to be Terrance McCarthy, Larry Posner, or Roger Dodd. From time to time the former will get lucky. But more often than not, Matlock, Perry Mason, and Jack McCoy techniques only work where a team of writers have paid a tv jury for their verdict. The rest of us are better off being methodical planners. And with that, I’m off to continue planning a cross-examination for later this week.

The Weekend Perfection Wasn’t an Obstacle

October 16, 2017/by J. Scott Key

At the beginning of the summer, I signed up for a marathon in Chattanooga. And I spent most of June through August training for it. At about the halfway point in my training (mid-August), school started back. Then I had a fairly slammed schedule of deadlines and work-related things. As a result, I began missing training runs. In the past, I would have moved an event like this over to the loss column. Instead, I reached out to the event organizers and asked them to move me over to the half marathon. So, Saturday morning, I took my older two children, and we headed up to Chattanooga. We had a blast at the expo, which included meeting Lazarus, the director of the famous Barkley Marathons. We also met some friends of ours who were running in the event. We had a great dinner Saturday and were up Sunday.

At about 7:00 yesterday morning, I saw my friend off on the full marathon. And at about 7:15, I was off on my half marathon adventure. This journey took me over the Tennessee River 4 times, in some of the most beautiful scenery you can hope for in a running event. Along the way, I met a bunch of great people. And though it wasn’t the full marathon and it was not my best time, I felt a sense of accomplishment when I crossed the finish line. And even better, I was at the finish line to cheer on some friends when they finished the half marathon and full marathon. I’m already looking down the calendar at some events on Thanksgiving Day.

Is there a practice lesson from this? I think it’s this. Even when things do not work out as perfectly as you planned them out in your mind, you can make changes and still achieve a perfect moment. Also, it is important to not let some expectation you have for the future get in the way of making forward progress. I could have stayed home this weekend. Instead, I had one of the best weekends of my life, had two great meals with friends, took in some Tennessee scenery, and had some great conversations with my children. Would it be bad to say that I’m looking forward to falling short of some more big plans in the future?

The Hardest Part About Being in Jail

October 14, 2017/by J. Scott Key

Yesterday was Friday afternoon, but I needed to see an inmate to let him know when he would go before a judge on bond. Some work around the office pushed that visit into the afternoon. And when I finally arrived at the jail, the entire facility was on lockdown. Lockdowns are not unusual. And when they happen, visitation suspends. I made a joke about the receptionist “going back there and taking care of business” so I could get my visit done and I left to work on some other things. For an hour or so I worked on some paperwork and set some things in place for next week.

I returned to the jail at around 4:00 p.m. Visitation was re-opened. However, the facility only has one attorney booth. And detectives were using it to interview somebody. And quite a few new inmates were being booked in. So, my client and I had to meet on the benches in the visitation area. About 8 feet away were two inmates sleeping on pallets underneath gray jail-issued blankets. There is a good bit of sleeping in the jail.

When they finally brought my client out, he looked a bit dazed. I told him the good news: we have a hearing set. And I told him the bad news: we will not have it for a couple of weeks, and he will remain where he is at least until then. I reiterated my standard advice to incarcerated clients. (1) Don’t discuss your case with anybody; (2) Don’t learn the details of anybody else’s case; (3) Don’t talk about your case, your lawyer, the State’s lawyer, the detective, the jail staff, or anything criminal justice related on the telephone; and (3) Don’t discuss your case with anybody.

I expected more disappointment at the timeline. But he took it in stride. As I was leaving, he thanked me. “The hardest part of jail is not knowing what is about to happen,” he said. Even bad news is news. And bad news is better than not knowing anything at all.

America Should Adopt the British Solicitor/Barrister Model

October 13, 2017/by J. Scott Key

Let me tell you about my latest obsession: the British legal system. I came upon this topic by accident. Two weeks ago, I had a two-day hearing in Barrow County, Georgia, with some colleagues. For those of you who do not know much about Georgia geography, Winder is not near my office. And to get there from here requires a Hobson’s choice of routes. Either (A) I go through Atlanta traffic on the interstate to work my way there, or (B) I avoid all of that in exchange for a set of two-lane roads where I will inevitably travel behind buses, garbage trucks, or the elderly. A smarter version of me would have stayed in Winder for two nights. But I opted to commute both days. And so I do what I do when I have a bunch of driving, I cash in an audible credit. And when I truly need the stress relief, I seek out a legal thriller. Mind you, I do not really care if the legal thriller I choose is completely mindless. Indeed, I may ever prefer the mindless variety. I also did not research my choice very well. I searched for my book from the driveway before I left. And I have a very short window of time for such things in the driveway before my wife comes out and throws up her hands in disbelief that I am in the driveway with the car running for a long period of time.

And so it was that I bought Nick Stone’s The Verdict. I realized after it was too late that I had downloaded a British legal thriller. But I couldn’t fiddle with the phone too much as I had opted for the two-lane route to Barrow County. And the narrator had a pleasing accent. And all this was fine because I was quickly enthralled in the story. And as much as I was enthralled with the story, I was intrigued by how a client with a criminal matter hires legal representation in England. I just finished up the book this week. And I’ve now watched a documentary on barristers. And I also have a law student this semester who grew up in England who has endured my OCD questions to her about all of this (may God have mercy upon her).

So, I am about to launch into some fairly sweeping opinions with my research on this subject consisting of (1) nearly two decades of experience as an American criminal defense attorney; (2) having listened to a British legal thriller; (3) having read some John Mortimer Rumpole stories a long time ago; (4) having watched a short documentary; and (5) having quizzed a British law student of mine about all of this. Feel free to correct me if you know more than I do on these subjects. I am very aware of the flaws in our system, and I may be blind to the flaws in the alternative.

Flaws in the American System

Here are some of the differences. In America, you get in trouble, and you retain a lawyer. The lawyer is your one stop shop for your representation. You might go to a big firm, but most American criminal defense attorneys are in solo practice or a very small firm (2-3 lawyers tops). If you’re in some deep trouble as a CEO in a large company, you might end up in the white collar division of a large law firm. But generally you are going to hire somebody in a small shop. If you cannot afford a lawyer, you may get a public defender of some sort, either from a government office or by appointment. And if you get your lawyer by appointment, it will be a lawyer who takes appointments and who does some retained work — somebody in a small shop as discussed at the beginning of this paragraph. Your lawyer will not prosecute and defend cases at the same time. He may have been a prosecutor in a past life. Or he may one day close up his shop and be a prosecutor. But we do criminal defense the way we do marriage in America. Just as we have multiple spouses here serially (one at a time), so we can either be wedded to the State or to the defense serially. Your lawyer will not have prosecution and defense clients (there might be some exceptions. But this is the general rule).

You will have found your lawyer any number of ways, ranging from the sensible to the absolute lunatic method. The sensible and more educated client will have sought out a referral from a trusted lawyer, friend, or family member who has some insider knowledge of who the good lawyers are. That is one side of the spectrum. On the other side of the spectrum (may God have mercy on your soul), you will have googled “DUI Hahira Georgia” and have come to find your lawyer that way. In which case, you may have found a great lawyer or you may have found the lawyer who is great at search engine optimization and is not much of a lawyer at all. Or you may hire the guy who wrote Aunt Jeana’s will. Or the lawyer may have found you after purchasing the police blotter from the day you were arrested and directly soliciting you (I cannot invoke God’s blessings if you go with this lawyer, as God has clearly long since abandoned your soul and taken your IQ away). By the way, the appellate clients have been burned and become the savviest shoppers for legal services at this point in the case (if they haven’t become sovereign citizens).

The lawyer you find may be great, or he may show up to your hearing two hours late, wearing a stained shirt and wrinkled suit, with a fresh buzz from the oxycodone he just freebased out in the parking lot. You are sort of playing the lottery. More likely than not, the judge will pretend that your lawyer’s shirt is clean, his suit is pressed, and that he is not falling asleep as he selects the jury who will decide your fate. From the judge’s perspective, it’s hard to move the docket if you remove lawyers or take other remedial action (Every docket has lawyers like this. Seriously, every docket.). And under the Strickland standard, the appellate courts will likely find that buzzed lawyering was “appropriate trial tactics” and that there wasn’t much of a likelihood of a different result with a sober lawyer who smelled good.

The lawyer you hire will do it all. He will run the office, take your fee, investigate your case (perhaps with the assistance of a paid investigator), serve the subpoenas, find experts, take your calls and emails, negotiate a resolution, and represent you in court.

If your lawyer wears a coat and tie when he meets with you, it is as dressed up as he will be. When he is in court, he will be wearing a coat and tie there, too. And in court, you will sit at the table with him during court. As the proceedings unfold, you will pester him mercilessly and break his focus as you lean over to whisper in his ear, “he’s lying” while witnesses testify.

Enter the English System

In England, you hire a solicitor. This solicitor runs an office and acts like something of a coordinator for legal services. The solicitor takes your retainer. She develops a strategy at the 10,000 foot level, including the hiring of an investigator and the selection of expert witnesses. The solicitor then hires the barrister, who will be sort of the professional athlete in the courtroom. The barrister does nothing but court work. If the barrister develops a nasty opioid habit solicitors will stop turning to him. The solicitor does a job. The barrister does a job. And if you are a barrister, you can eventually get a promotion to QC, which is a higher level barrister. Your barrister may be defending you but prosecuting others. There is no prosecutor’s office. The barrister has a mixed workload. When you are in court your barrister will sit in a different place in the courtroom. And your actual barrister will be wearing a robe and (here’s what I love the most) a wig. You will mainly deal with the solicitor, and the solicitor will coordinate with the barrister. So, when you find interesting things 5 times a day on the internet you want to run by your representative — the solicitor screens all of that. The barrister prepares for and executes in the courtroom.

Here is why I think the American legal system needs to embrace the British model:

No “True Believer” Syndrome. I am going to get myself in trouble with many of my colleagues when I say this, but if I could take a 50/50 split in defense cases and prosecution cases, I would absolutely do that. I love trying cases and being a criminal lawyer first and foremost, and it would make absolutely no difference which side of the “v.” I am on. I’m agnostic about it all. I’m a defense attorney because I do not want to work in a government office and I like being selective about what cases I take. I do not prosecute out of any sort of choice. I can’t. In criminal work, I meet my share of “true believers.” They come in two varieties. They are equally terrible and annoying to be around. On the one side are prosecutorial true believers. See, e.g. Nancy Grace. They view all alleged victims as noble and truthful who are to be avenged. They view all police officers as ethical and intelligent. And they seek maximum punishment for all, in spite of whatever mitigating circumstances may exist. On the other side are true believer defense attorneys. They think that all victims are lying, all police officers are corrupt at their core, that the criminal code should be merely aspirational, and that an arrest or conviction for a serious felony is a prerequisite to sainthood. They live to find the beautiful pure heart that is just beneath the surface of the triple axe murderer whom everybody else just misunderstands. They would like to amend the rules of the appellate courts so that they could file their pleadings on tye dyed paper. True believers of both stripes lose perspective and cause much damage. If we had a mixture of prosecution and defense cases, we would probably be better defenders and prosecutors. Barristers have this benefit.
Barristers have a Buffer and a Focus. The barrister is focused on performing in court and doesn’t have an office to run. The barrister isn’t being a salesman to the client (“oh my gosh, that is a fascinating piece you’ve printed off for me from Findlaw. Of course, I’ll talk about this in court,[ because I want you to hire me and keep me on as your lawyer.]”). The barrister is focused on a winning court strategy. The solicitor gets to discuss the fascinating winning legal theory that the client’s brother-in-law, who took a class in college on business litigation once, has developed. The barrister is getting ready for court.
Quality Control. If you are bad at trial law or you are going through some “personal stuff,” the solicitors will likely know. And you won’t be inflicting your mental distress or lack of chops on an unsuspecting clientele. The solicitors, who are in the know, will just go elsewhere. The barrister’s target audience are professionals and not folks who can be easily manipulated. Hence, there will be less incentive to employ slimy internet marketing tactics to get clients directly.

It is entirely possible that I am just an Anglophile. But I don’t think this is the case. My modest proposal is that we, as a legal institution, switch to a British system, at least in the criminal realm. We should do this pretty much right away. I will go wig shopping first thing this morning.

Is Court Canceled or Not? There is no System to Know

September 12, 2017/by J. Scott Key

Irma has been an adventure. It was an adventure that started last Friday when I drove down to Mitchell County, Georgia (about as far Southwest as you can go in the state and not be in Florida or Alabama). I drove down to see a habeas client for final preparations for what would have been a habeas corpus hearing in that county this morning. On the way south on the interstate were drivers headed out of Florida about driving about about 10 miles per hour. So, I saw my client and headed back north via backroads. I received an email about the time I arrived back that there would be no court in Mitchell County on Tuesday due to the hurricane. Mitchell was my only court appearance this week.

Other colleagues were not so lucky. Eventually most of the courts were canceled for Monday and Tuesday. But what I noticed was a lack of any kind of uniform coherent way to know. In one court, some of the judges canceled but others were holding out. And when the announcements went out, there was no system. In some instances, the president of the local bar broke the news. In others, there was an announcement on the Court’s website. Some courts, though, either have no website or a very bare bones one. And my colleagues who had administrative hearings were struggling even more. I saw no end of email, group texts, tweets, Facebook posts, and instagram posts from lawyers trying to figure out what to do. And for every lawyer wondering what to do, there were witnesses, experts, court reporters, and staff trying to figure out what they should do with their time.

Georgia has almost 200 counties, each function in their own little world. And in many of those counties there are individual judges who function in their own sub-kingdom.

As we clean up tree limbs and wait for utilities to come back on, we should take stock at how poorly organized out courts are in announcing cancelations for inclement weather. And perhaps now would be a good time to develop a system or centralized place to turn for information so that we are not trying to tune in to the grapevine to figure out. Why would we worry on Sunday night as Irma was inching its way toward us? Because every lawyer has appropriate anxiety regarding that one mercurial judge we know who might Order us to appear on penalty of contempt even if the route to court were paved through three funnel clouds. With a uniform system, we wouldn’t need to guess.

Irma Update