Oral Argument - Scott Key & Associates

Excellent Oral Argument on Lawyer Disqualification

April 27, 2011/by J. Scott Key

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

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

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

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

How Much Longer Before The Georgia Appellate Court Rules?

April 14, 2011/by J. Scott Key

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

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

The Two-Term Rule

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

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

When Does the Countdown Start?

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

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

But What are the Terms of Court?

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

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

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

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

Using Visuals at Oral Argument is Not an Appealing Proposition

March 21, 2011/by J. Scott Key

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

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

A Key to Success on Georgia Appeals is to Really Know Your Audience

July 23, 2010/by J. Scott Key

When I succeed in my brief writing or at oral argument (I measure success by writing a good brief and by fluid conversational delivery at argument — not necessarily by result), it is because I stop to think about my audience. More particularly, I remember that my audience includes a set of staff attorneys and judges or justices with a stack of briefs to read that hopefully don’t look exactly like mine.

An article in today’s legalnewsline.com reminded me of the fact that the people who hear my argument and who read the briefs that I write are people with interests beyond my particular cases. They even have interests beyond the law.

According to the article, Justice Robert Benham of the Georgia Supreme Court “has his own woodworking shop, [where he makes] objects like toys and music boxes with his two sons.” He also “builds birdhouses for Habitat for Humanity.”

Those facts humanize him and tell me more than his official biography does. Official biographies, like resumes, start looking the same after a while. But to know that someone makes toys, music boxes, and birdhouses for Habitat tells me that one member of the audience is compassionate. It also tells me that workmanship and craft are important to him. I should be very precise and concise in the future.

Justice Antonin Scalia and Bryan Garner make it a point to tell lawyer how important it is to know about your judge before you present your brief, try your case or show up for oral argument. In their book, Making Your Case: The Art of Persuading Judges. Scalia and Garner advise:

“learn as much as you readily can about the judge’s background. Say you’re appearing before Judge Florence Kubitzky. With a little computer research and asking around, you discover that fly-fishing is her passion; that her father died when she was only seven; that her paternal grandparents, who were both professors at a local college, took charge of her upbringing; that she once chaired the state Democratic party; that she enjoys bridge … and so on. … you might well find some unpredictable use for this knowledge over the course of a lengthy trial.”

Most importantly, they add, “at the very least, these details will humanize the judge for you, so you will be arguing to a human being instead of a chair.”

Keeping in mind that your audience consists of people and not a judicial machine will help you write better briefs that help them decide the case. If yours is the 53rd brief in a stack of 100 that looks exactly like the others, then your judge might get bored, might skim your text, or might just affirm the conviction because that is a nice safe default.

Of course, not all judicial hobbies are good. I suppose that when you find bad hobbies, you have a nice new enumeration of error to raise for your client and and the opportunity for a new judge with a healthy life and more wholesome hobbies.