Episode Synopsis: Originalist textualism is a way of interpreting the law that can often feel a bit like stepping into a time machine. In this episode, former Justice of the Georgia Supreme Court, Keith Blackwell, guides us through originalist methodology and gives important context to the legal debates happening today and in the future. Blackwell breaks down the fundamentals of the practice in a way that can make you a more effective advocate.

Podcast Transcript: The following is a transcript of Episode 20 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.

Justice Blackwell: The first thing I do is pull out the code book, and it says right there at the bottom of the code section, it tells you the source of that code section. You know, it’s going to list when the law was originally enacted and then any acts after that amended that code section. And so you, kind of, just trace your way back through history and see how that code section changed over time. And you can do that in most law libraries, and all librarians are always very happy to help with this, sort of, research. And then it really can cast some of the case law in that space in a very different light.

Scott: A word of warning. This podcast gets dense and technical, but don’t let that deter you. There’s a payoff here that is well worth it. If you want to be an effective advocate in the Supreme Court of Georgia, particularly with an issue of statutory interpretation or interpretation of a constitutional provision, in Georgia or in any appellate court where there is an originalist or a textualist bit in how cases are approached, you would do well to understand the methodology. And if you listen to this podcast, you will reach a better understanding of that methodology.

And secondly, if you really want to grasp what is going on in the news lately, particularly with respect to the fate of Roe v. Wade…of course, whenever this podcast is listened to, the news may have changed. But if you want to understand the debate, the discourse regarding what is going on with the status of Roe v. Wade, you would do very well to understand textualism and to understand how textualists and originalists go about doing their job. Agree or disagree, it’s important to understand it.

Also, and I will add this, Justice Blackwell is a brilliant guy. And now that he is in private practice, he is one of the leading appellate lawyers in the state, if not, the country. And so it is worth getting to know him a little bit better and to understand his story and how he approaches cases. And if you don’t know him, you’ll come to know him as part of listening to this podcast.

In the snippet you just heard, which you’ll hear in greater context when we get into the podcast, he’s talking about the first step in approaching a statute from a textualist or originalist [inaudible 00:02:43] or approach. And I had probably my first experience of approaching the case this way after hearing Justice Blackwell present on a similar topic at a CLE I attended in the fall. It took me into the law library, it took me into the dusty books, pulling up old code books and, kind of, going on a deep dive. And it feels a little bit like time traveling combined with the scavenger hunt combined with being something of a textualist detective. So, agree or disagree with the approach, it’s here to stay. It’s here to stay for the foreseeable future. And if you’re an advocate practicing in the court, and there’s a textualist approach that you can take that’ll help your client win, understanding it will help you develop a set of advocacy tools.

So, I think, this is an important podcast. Is it tense and technical? Yes, it is. I think the payoff is well worth it. I think it’s a very fun podcast. And I appreciated Justice Blackwell for taking the time to be on the podcast with me. So without further delay, I give you Keith Blackwell. Justice Blackwell, and I’m still going to call you Justice Blackwell because I can’t get out of the habit, it’s really great to have you on the podcast.

Justice Blackwell: It’s great to be here, Scott.

Scott: I’ve been looking forward to this. I mean, just in general, I’m happy to have you on the podcast. And I heard you speak at a CLE that I attended back in the fall, and I took literally…probably the best notes I’ve ever taken in a CLE and used the things you taught in a brief. And I’ve always thought of the topic we’re going to talk about, which is textualism and originalism. I’d always thought about it as something that judges do and not something that practitioners do. So I’m going to be very excited about, kind of, getting into this topic.

Justice Blackwell: Well, you know, it’s a topic that I did a great deal of work on when I had the privilege of serving on the court, and it’s an interesting topic. And it’s one that still interests me, and it is one that, I think, practitioners would benefit from having a better understanding.

Scott: Well, let’s start off a little bit, and this is something I ask every podcast guest. Who is Keith Blackwell?

Justice Blackwell: Well, I grew up in Ball Ground, Georgia, which is a very small town in the far North end of Cherokee County. My dad was an aircraft mechanic in the Georgia Air National Guard. He did that for 30-plus years and was stationed most of that time at Dobbins Air Force Base in Marietta. And so I was in a sense an air force brat who stayed in one place and didn’t move around a whole lot. My mom was a school teacher who then stayed home with me when I came along and was a stay-at-home mom and then went back to work as a public librarian when I got a little older. But I grew up in Ball Ground, a very small town, kind of, Mayberry-like, when I was growing up there in the ’70s and ’80s. I went to the University of Georgia where I did my undergraduate work, went to law school at the University of Georgia, and then went into practicing law.

Scott: What got you interested in law school? Was that something that you grew up wanting to do or something that emerged when you were in college?

Justice Blackwell: Well, it didn’t emerge. It emerged before college, but I wouldn’t say I had grown up always wanting to do that. I actually didn’t know any lawyers when I was growing up, but I did have a lot of military and law enforcement in my family. And so, actually, around the time I was in, I guess, probably, you know, 8th or 9th grade, what I really wanted to do was to go be a GBI agent. The problem was, once I got into high school and started looking into the qualifications, at least at that point in time, you had to have a minimum uncorrected vision to get into the agent program. And I didn’t meet that. But they had a waiver process where if you had certain credentials, you could qualify for a waiver of, for instance, the eyesight requirement. And one of those credentials was law degree. That’s frankly what first got me thinking about going to law school.

Scott: You wanted to get around the vision waiver, and a law degree would get you there to be a GBI agent?

Justice Blackwell: That’s right. Now, by the time I actually got to law school, I had, kind of, shifted my ambitions a little bit and intended to actually practice law and didn’t have a desire anymore to go be a law enforcement officer. But that’s what first got me thinking about law school.

Scott: I got you. Once you got to law school, what, kind of, happened there to lead you down a different path?

Justice Blackwell: It may have even been before that. Because I was interested in potentially going to law school, the summer after I graduated high school, I actually had my first law job. And that was as an intern in the Cherokee County District Attorney’s Office. Garry Moss was the district attorney then. And, you know, I worked with some good folks there, including Rachelle Carnesale, who’s on the bench now, Meg Daly, who was the district attorney later down in Chatham County. They were assistant DAs in that office. And so I was in that office the summer between high school and college and, I think, a couple of other summers during my undergraduate time working in the DA’s office.

You know, in the beginning, it was just, kind of, going to court and watching what was going on and filing paperwork for them. But by the end, I was helping work on briefs, and I was, kind of, learning how to do a little legal research even before I went off to law school. So, during that time, I think, I still had an interest in law enforcement, but that, kind of, led me to think that I might be able to do more good in law enforcement as a prosecutor than as an officer on the street or an agent.

Scott: And did you work for various DA’s offices when you were in law school?

Justice Blackwell: Yeah, I continued to do work for Garry Moss’s office. I also worked for Lydia Sartain’s office in the Northeastern Circuit, Hall County and Dawson County during that time. And worked a lot with…Jason Diehl [SP] was an assistant DA at that time, and so was Lee Darragh, and I worked with two of them a lot.

Scott: Yeah. I still do a good bit of work with or before them. So, those names are still very familiar in that area. And so coming right out of law school, you went to a DA’s office.

Justice Blackwell: I did at some point. Actually, when I was in law school, I was encouraged by some professors who, kind of, pulled me aside and said this to me, they said, you know, “We understand that you have come to law school, and you are still intent on going back to your hometown and being a prosecutor. And that is an honorable thing to do. That is a noble thing to do. That would be a great thing for you to do. But before you commit yourself to that, we think you ought to understand what all your options are.” And, I think, they appreciated that coming from a small-town background, not knowing any lawyers growing up. Really, all I knew about the law practice was what I’d seen on television. And so really didn’t have a full appreciation for the range of things that you can do in law practice. And so they encouraged me to pursue some other opportunities, and in particular, they encouraged me to apply for a judicial clerkship.

So, when I was in law school, I applied for a clerkship on the Eleventh Circuit with Judge Edmondson. I was fortunate enough to clerk there. When I left the clerkship, I got what proved to be some sound advice, which was, “Go work at a law firm for a few years, and then if you still want to go prosecute, go prosecute. But go work at a law firm for a few years starting out among other things. It pays a little better than prosecuting and can help you get your student debt behind you.” So, after I clerked for Judge Edmondson at the Eleventh Circuit, my first stop was here at Alston & Bird as a first-year associate. I stayed here for probably about three years. And then I went to the Cobb County DA’s office because I still had the prosecution bug at that point in time.

Scott: Right. What kind of work were you doing in your initial stand at Alston?

Justice Blackwell: I was doing a couple of types of work. I was in what they called at that time their government and investigations practice group. And so I was doing or I’m sorry, antitrust and investigations practice group. I was not doing any antitrust law. I was doing white-collar criminal investigations, internal investigations, things of that nature. And I was also doing a fair amount of class action defense, mostly consumer fraud class actions in the telecommunications industry.

Scott: Okay. So, yeah, prosecuting in a county DA’s office is a far cry from that.

Justice Blackwell: It is. You know, I’ve had…and, I think, it’s been a benefit to me. But I’ve had a lot of different kinds of law practices that have been very different over the years. I’ve enjoyed the diversity of that. I think I’ve learned a lot along the way. But it’s also just made life more interesting, or as Justice Peterson used to say, it could reflect that. It could also reflect that I just can’t hold down a job [crosstalk 00:12:31].

Scott: Right. When you got to Cobb, were you assigned to a judge? And were you just, kind of, out on the line doing prosecutorial work that was in a particular courtroom?

Justice Blackwell: Yeah. I was just a line prosecutor in Judge Ken Nix’s courtroom. There were two of us assigned to that courtroom, and we just split the cases that came into that courtroom. We had other prosecutors in other units who would come in to prosecute crimes against women and children. But other than those, we, kind of, handled the full run of felony prosecutions from, you know, felony drug possession and felony shoplifting, all the way up through kidnapping, armed robbery, and murder cases.

Scott: I’m gonna think probably you did more litigating in a courtroom in your first month there than you probably did in three years at Alston.

Justice Blackwell: Yeah. That’s exactly right. I was certainly in the courtroom a lot more. I was on my feet a lot more, you know, from trying cases to the more routine stuff that prosecutors do every day, probation revocations and pleas and motions hearings.

Scott: And did you stay there assigned to that particular judge? Did you go to a different unit? I’m trying to remember what…I know roughly when you were in Cobb, but I’m trying to remember how that office was organized then.

Justice Blackwell: Yeah. I was there for about three years, and that’s when Pat Head was the district attorney. I stayed in Judge Nix’s courtroom the entire time that I was there.

Scott: And did you go straight from there to the Supreme Court?

Justice Blackwell: No. I went straight from there to the Parker, Hudson, Rainer & Dobbs Law Firm in Atlanta. When I was at Parker Hudson, I joined the firm as an associate-made partner shortly thereafter. There I was doing general commercial litigation, although with an emphasis on banking law and representation of banks and other financial institutions, which is really, kind of, ironic because…I’ll tell you a quick side story about the bar exam. I worked the summer that I took the bar exam at a law firm. And I didn’t have the opportunity to take a bar review course. So, I set aside two weeks to study for the bar on my own before the exam, and I, fortunately, found a classmate of mine…

Scott: Two weeks.

Justice Blackwell: Two weeks. I figured that I could cover a subject in, you know, about eight hours, and I could cover two subjects a day. And so I found a classmate of mine who had taken the bar review course and who did have some of those outlines and things to study with me. We were not seeing each other at the time, but today, she is my wife. But Angela and I started studying. The first day we started studying together, she asked me, she said, “Okay, what subject do you want to start with?” And so I looked over the list of subjects, and I said, “Why don’t we start with commercial paper?” And she said, “Great.” And so she starts pulling out her outline and her notes and all this stuff on commercial paper.

And once she gets organized, she says, “Okay, where do you want to start?” I said, “Well, first, quick question. What is commercial paper?” Because I’d gone all the way through law school intending to just go prosecute. Most of my elective course work in law school had been on the criminal side or constitutional law issues or evidence law, things of that nature. I’d never taken any of the corporate law classes, had no clue what commercial paper was. It was, kind of, ironic. I later ended up with a practice where I was representing banks on a lot of commercial paper litigation.

Scott: Oh, my gosh. Well, I want to go back to studying for the bar in two weeks. It scares me to…I mean, I passed it a long time ago, but that scares me to even think about. What else did you have going on that summer?

Justice Blackwell: I was going to clerk in the fall for Judge Edmondson, and at that point in time, I had only worked for DA’s offices interning for them. And so he encouraged me to go work for a law firm that summer just to, kind of, see the other side of the law before I started clerking for him. So, in addition to those professors who had pulled me aside in law school, he was also a big part of the reason that I was exposed to other types of law practice. And so I was actually working as a summer associate at the Paul Hastings Firm that summer. And so that’s what was consuming most of my time. That’s why I didn’t do the bar review course. But I did have a clerkship for a year. You don’t have to be admitted to the bar to be a federal law clerk. And so I figured, you know, even if this goes badly, I’ll have a couple of opportunities to make it up before I actually need a license.

Scott: Yeah. Still, that’s pressure. That’s really good. You were just doing a subject a day or two subjects a day?

Justice Blackwell: Two subjects a day.

Scott: Yeah. That did it. That’s one way to do it.

Justice Blackwell: You know, it’s pass, fail. I may have gotten a C, I may have gotten an A, but it’s pass, fail. And I got the pass, and that’s all that counts.

Scott: Yeah, that’s all that matters. So, sort of, making a transition, you go from doing the banking law job to, I think… Were you on the Court of Appeals for a little bit? My memory is just going away on me now.

Justice Blackwell: Yeah. So in 2010, Governor Perdue appointed me to the Court of Appeals. I served there for about a year and a half, and then Governor Deal appointed me to the Supreme Court.

Scott: Okay. And then you were there until very recently?

Justice Blackwell: Yeah, I was there for eight and a half years. I stepped down from the court in November of 2020 and then resumed…took a couple of months off from Thanksgiving through MLK Day to spend some time with my kids when they would have time off for the holidays. And then in January of ’21, I went back into practice.

Scott: Okay. I know I’ve seen you. The class I teach with Judge Dillard, we watched an oral argument of yours. Are you doing primarily appellate law at Alston now?

Justice Blackwell: I am focused primarily on appellate issues. It includes but is not limited to representing clients in appeals. I found, frankly, one of the more rewarding aspects of an appellate practice is in larger cases getting pulled onto a trial team as, kind of, an appellate adviser or consultant, if you will, to be the lawyer on the team who’s thinking about not just presenting these issues in a way that might get your client a win from the trial judge or from the jury, but also presenting them in a way that would allow you to get a win or preserve a win if the case winds up at some later point in front of an appellate court.

Scott: So, kind of, the embedded council role as I’ve heard it called.

Justice Blackwell: Yeah. Clients can’t afford to do that in a lot of litigation. There are some cases where the stakes are high enough to warrant that. And I’ve really enjoyed that. I mean, I prefer appellate practice to trial practice. I tried cases, you know, regularly when I was in the district attorney’s office. And I never liked the unpredictability aspect of it.

I always like having a closed record, which is what you have when you go up on appeal. I never liked putting witnesses up on the stand, and you never know what’s going to come out of their mouth. And sometimes no matter how much time you spent prepping them, something’s going to come out of their mouth that you haven’t heard before. And so I find that anxiety-inducing, and so I’ve always just preferred, kind of, the closed record where we’re arguing more about the law than the facts in the appellate courts.

But I’m glad I had that experience trying cases. I think it’s important for appellate practitioners who have done some time in the trenches to understand what trial lawyers go through. And it makes me, I think, better able to work with trial lawyers as, kind of, a team player and a collaborator when I get pulled onto their team to start thinking in advance about potential appellate issues.

Scott: It certainly is a great luxury to say something on Microsoft Word in a sentence that you shouldn’t have said and hitting the Delete key versus being in a courtroom and saying something you should have said, and there’s no Delete key. So, that part is the part I like most about appellate, I think.

Justice Blackwell: I agree. I do like all the opportunities for deliberation, both on the part of the lawyers and the court.

Scott: Right. I do want to ask you this and watch you do an argument. What is it like to argue a case to the court where you used to sit?

Justice Blackwell: You know, a lot of people have asked me if it was a strange experience, and I wondered before I went in there if it would be strange before I went in there for the first time. But it really wasn’t that strange. It’s a courtroom that I’m comfortable with, and, you know, I had good counsel on the other side, which always helped make for a good lively argument. I know the judges. And I don’t know. It was fun.

I mean, people asked, you know, why I would leave the court when that meant that I might have to go argue in front of, you know, Justice Nahmias or Justice Peterson or some of these other folks that are known to be very aggressive questioners of lawyers who are at the bar. And I tell them, “Well, you don’t understand. When I was on the court, in the bank room, I would argue with Justice Peterson and Justice Nahmias every week.” So…

Scott: It’s not any different.

Justice Blackwell: …I’m just trying to get paid a little better for it.

Scott: Right. So I was going to ask you…and this is, kind of, the main thing I wanted to talk to you about and just had an enormous benefit from having you…listening to you present at a CLE that I attended. I want this to be, kind of, a textualism or originalism 101 for practitioners. But I wanted to, kind of, start, where did you get your interest in that? I don’t know if it’s a philosophy but that way of deciding cases or approaching cases.

Justice Blackwell: I don’t know. I can’t point you to a moment in time, you know, that, kind of, piqued my interest in that. I think it probably developed over time and probably even started developing before I got to law school when I was working in the DA’s office and doing some research. I will tell you, I was working in the DA’s office before I got to law school on a motion to suppress issue, and this would have been in the mid-90s. I graduated high school in ’93 and finished college and went to law school in ’96. It would have been sometime in that range.

I was doing some research on a motion to suppress issue, and I got really excited because I, kind of, developed a theory that the state might be able to prevail under the Leon good faith exception. But then I started looking around at Georgia Law, and I ran across this case called Gary v. State that said Georgia doesn’t acknowledge the Leon good faith exception. And so I really started, kind of, digging into Gary and looked at it and thought, “Some of these things just don’t make sense to me. Some of the way that Gary court’s going about interpreting the statute just doesn’t make sense to me.”

I later would go on to…once I got to law school, that was actually the subject of my law review note was the Gary decision. That case in particular, kind of, stuck with me for a while. I just thought the statutory interpretation in that case struck me, even before law school, is not right and not the way courts ought to be construing statutes. And so that, kind of, stuck with me for a long time.

Scott: Because what you learn is when you dug through the precedent. Of course, I’m a criminal defense lawyer. I may, you know, get communicated. If you look into the precedent and you follow it all the way back, what you found was there’s not much of a statutory basis. The reason why we didn’t have the Leon good faith exception was Georgia has its own statute, and that was being interpreted in such a way that there wasn’t a good faith exception. Is that pretty accurate?

Justice Blackwell: That’s right. But when you actually dug back through the historical sources, it became pretty apparent, if you actually look back to the moment in time when the statute was enacted, that that wasn’t what the statute meant, at least originally speaking. So, anyway, there were a lot of aspects of the interpretation in that case that, kind of, bothered me. Maybe that’s what, kind of, ultimately set me off on the textualist and originalist path.

Scott: Okay. And, of course, when we’re recording it, you know, if I open my Twitter feed, there’s quite a…not a very nuanced debate, but there’s a debate going on in Twitter based upon some headlines this week. You know, textualism and originalism is very much, I guess, in the news and the subject of discussion among lawyers on Twitter. But for someone who doesn’t know or maybe someone who isn’t even a lawyer, what is textualism?

Justice Blackwell: Yeah. And I’m glad you asked it that way, Scott, because I do think it’s important to separate out textualism from originalism. You know, the approach that I had on the Supreme Court as a judge was what I would describe as an originalist textualism, but they’re really two different components. So, let’s talk about textualism for a second.

The idea behind textualism is that any positive law, whether it is a constitution, whether it is a statute, an ordinance, a regulation, any positive law, draws its meaning from its text. I mean, because legislators, the promulgators of constitutions, the promulgators of statutes, the people who promulgate regulations, they do so by putting words to paper. And those words carry some meaning, and whatever the meaning of those words are is the meaning of the constitution or the statute or the regulation. That is the idea behind textualism.

Scott: Okay. So how would you distinguish textualism from originalism then?

Justice Blackwell: Well, then the question becomes, how do you ascertain the meaning of the words? Once you have committed to an idea of textualism that it draws its meaning from its words, the question then becomes, well, what do those words mean? And do we look at what those words mean today, or do we look at what the words would have meant at the time the law was adopted? And that doesn’t matter much for a law that was adopted in the last 10 years, usually. It can matter a great deal though if you’re talking about a law that was adopted a couple of hundred years ago because words can drift in meaning over time.

And so originalism is based on the idea that a law means now what it meant at the moment it was enacted. It is known as fixed meaning. It has a fixed meaning that a law means now what it meant at the moment of enactment. If the law is to change, then it should change through the democratic process of, in the case of a constitution, the people changing it, or in the case of a statute, the legislature changing it.

And so the result is, for courts, if you adopt this originalist approach to ascertaining the meaning of text, then it’s important to…then you have to go through the endeavor of almost going back in a time machine and trying to figure out what these words most reasonably would have been understood to mean at the time the law was enacted.

Scott: And what are some tools? I mean, what are some tools that we look to to do that?

Justice Blackwell: I mean, it’s a full range of tools for figuring out what words mean. The first clue is the words themselves, and there, you know, you can resort…when we’re talking about the meaning of a law, you can resort to case law discussing the use of those words and what they may mean in other contexts and extrapolate from that meaning that you may be able to use in construing the law at hand.

You also can look to dictionaries, although, you know, it is significant if you’re talking about a really old law that you look to a dictionary that was roughly contemporaneous with the enactment of the law if you’re doing an originalist textualism. You know, those are some sources.

There’s, kind of, a newfangled approach called corpus linguistics that, I think, has some potential to be useful in a range of cases. I don’t know that it will supplant the other tools. But it’s basically a tool for using a database that compiles a lot of literature and journalism from a period in time so that you then can search that database for words that appear in a constitutional provision or a statute to see how those words were actually used in literature and journalism during that period of time.

Scott: So you’re looking beyond legal text at this point, and you’re just looking at a newspaper article reporting some event. And it could have been 200 years ago. When people used that word, this is how that word was situated or this is what that word meant.

Justice Blackwell: Yeah. I mean, it is just a tool, Scott. And one thing that’s important to remember is when you’re a lawyer, when you’re a judge, your goal is to figure out what these words most reasonably would have been understood to mean when used in a legal context, because, you know, sometimes words have special meaning when they’re used in a legal context, and sometimes it’s different than how it’s used in a colloquial context. So you have to be careful in relying on tools like that, but it can give you some indications as to how people of the time customarily use certain words. But again, it’s just a tool.

You can’t rely too much on any one of these tools. They’re all just tools in the toolbox. And that’s just the first step. Those are just the tools for looking at what particular words mean. Then you go broader than that. You look at context. You look at semantic context. You look at, you know, the whole statute. You don’t just look at one sentence of a statute, even though that may be what the parties are arguing about in a particular case. You look at the whole statute. You don’t just look at that whole statute alone. You also look at any other statutes that are, we used to say, in pari materia with that statute. I just think of that as you look at all the statutes in this area of the law.

So I frequently, if I am concerned with the meaning of a particular code section, I will actually pull out the code book, and I will peruse that entire article or title of the code to see what else is in there and how this particular section interacts with other provisions, how it fits with other provisions, how it’s supposed to work with those other provisions, because that context gives me clues as to what these words might mean. But you don’t just look at other statutes. You also look at all the background law that was out there at the time of enactment. You look at what the constitution said at that point in time. You look at what the case law said at that point in time. You may look at…if it’s on an issue that was also at some point in time covered by the common law, you also look at what the baseline common law rule was. And that is all context for understanding the statute.

Scott: Now, I’m going to go back just a second. So, you said that originalism is a form of textualism or it’s a branch of textualism. Is that right?

Justice Blackwell: It is. I think you could have a non-textualist originalism, although I’ve never subscribed to that approach, where you wouldn’t be grounded to the text, instead, you’d be looking to purpose more than text, but you’d be looking to original purpose.

Scott: Gotcha. Can you give me an example of that?

Justice Blackwell: I can’t offend. I mean, I think, certainly, the form of originalism that is most discussed today is an originalist textualism.

Scott: And I know that you were the author of Mobley. And in a moment ago, we were talking about, you know, the law review, you know, you did and about the Leon good faith exception. Mobley was the vehicular homicide case where the Leon good faith exception was found to have applied, and that’s a fairly recent case. What is the role of stare decisis when it comes to…?

So, I know that what you did was you looked at the case law and you said, “This case law doesn’t have a firm basis because the statute doesn’t really say what these original cases said that it said.” So, to do that, you do have to dispense with sometimes one or a line of cases. What is the role of or the value of stare decisis when you are applying this approach to the law?

Justice Blackwell: Scott, I don’t know that your view of stare decisis depends much on your view of the proper methodology for interpreting a constitution or a statute. I mean, even if you had a non-originalist methodology for figuring out what a constitution means or what a statute means, you still could attach more or less significance to prior precedence in the area. So, really, I view it as, kind of, a separate question and one that arises more from…and this would probably be a topic for another program, one that really depends a great deal on what you view as a holding of a case, how broadly you view the holding of a case.

I will say I do think the general rule is that courts stand by what questions…stand by their resolution of questions they have answered before and that that is proper that courts do that, that they should do that for a variety of reasons. One is just the inefficiency of starting over again every time you get a new case. Another reason is for the benefit of predictability and consistency in the law. And another is just, kind of, the fundamental fairness idea that like cases ought to have like outcomes, even when they’re decided by different courts or when they’re decided at different points in time.

Scott: Yeah. And the interesting thing is, is that what a holding in a case is, is not set and it’s often up for debate. And, you know, my motions hearings would be a lot shorter if everyone could agree on what the holding of a case is. You know, advocates go into court, and we push the holding or we challenge what the holding is. You know, sometimes we want to look very carefully at the facts and say that the holding is set to a very, very particular set of facts. And then sometimes it’s in our interest as lawyers to say that the holding is more general. So, I do get what a holding is for stare decisis purposes is very…it can be fluid, I think.

Justice Blackwell: Yeah. I think that’s right. And, I think, there is a difference. And I certainly when I was on the court viewed there as being a difference between the court disapproving language in a prior case and the court overruling a prior case. And to me, overruling a prior case was warranted. That required, kind of, a full stare decisis analysis because you are saying that this case, not only we disapprove of it today, but it was wrong the day it was decided, and we are completely discarding it holding in all.

There are other cases where I don’t think it’s necessary to go…for a court to go through the full stare decisis analysis because you’re not suggesting that the prior case was wrongly…that the outcome of the prior case was wrong. You’re just saying that something the court said in the course of its opinion may not have been quite right.

Scott: And you can disapprove of that language, but nevertheless, the holding remains the same.

Justice Blackwell: That’s exactly right.

Scott: And, you know, again, this is just, sort of, in the air this week. Opponents of textualism will…and tell me if you think this is, kind of, what you commonly hear, and I may not be articulating the best critique of it. But, I think, opponents of textualism often say, “Well, you know, the constitution’s a very old document.” And, you know, they’ll point to technologies that exist now that didn’t exist then and say you can’t possibly apply it in a modern context, you know, when you’re applying the Fourth Amendment. I’m not saying this is necessarily my view, but this is what I hear. “How can you even apply the Fourth Amendment to automobiles when…or to the contents of a jump drive on a computer or a computer hard drive when those things didn’t exist when the Fourth Amendment came to be?” Is that the common critique of textualism that you hear that you just…? You can’t possibly apply it because we live in such a different world than we were…than we lived in when the constitution came about or when older statutes were enacted.

Justice Blackwell: Yeah. That is the gist of one of the very common criticisms. It actually plays into a couple of different types of criticism. One takes, kind of, a fundamental issue with this idea that the meaning of a law becomes fixed at the moment of enactment. There are some people who, kind of, take issue with that very principle and take the view that when a law is enacted, it is meant to permit judges to change its meaning over time consistent with some overarching principle, whatever that may be, you know, justice and fairness and equity or whatever.

There are others who take the view that they don’t disagree so much with the idea of fixed meaning based on principle, but they just disagree with practicality of it and the difficulties that are inherent in applying rules that were developed a long time ago to modern technologies in modern society in modern context.

And I will readily concede that textualism and originalism do not always readily supply easy answers. Sometimes even if you are in a very principled way applying a textualist or originalist approach to methodology, it doesn’t always lead you to a single answer. It doesn’t always lead to an easy answer. And oftentimes it still allows for a range of answers about which reasonable people can reasonably disagree.

Scott: Is that the best critique? When you hear those who criticize the approaches, what else do people say?

Justice Blackwell: You know, they sometimes also say that lawyers and judges are not trained as historians, and so how can they go back and do proper originalist analysis? But originalist analysis is a very specialized, sort of, history. It is a historical analysis, but it’s not, kind of, pure academic history. It is legal history for a very particular purpose, and that is figuring out what a particular law means. And I actually think judges and lawyers are quite well equipped. At least judges and lawyers who were trained in, kind of, the classic legal education are very well equipped to do that sort of thing. And I don’t know that trained academic historians…they’re very good at academic history. I don’t know that they have a monopoly on being able to do this different, kind of, legal analysis.

Scott: You know, Georgia State puts out the peat sheet, and it’ll summarize the new statutes that come out and that they may interview the drafter, you know, the legislator that dropped the bill on the hopper or who co-sponsored it. And they may interview the chair of the committee. Why is statutory history so problematic in trying to interpret the meaning of statutes?

Justice Blackwell: Let’s differentiate first, and maybe my terminology is a little mixed up. But I always differentiate it in my mind between legislative history and statutory. And so, I think, statutory history is perfectly permissible, and, in fact, I regularly used it. And so, statutory history, to me, is the evolution over time of a statute that is enforced today. A version of it may have been enacted 50 years ago, and then it has been amended six different times. And so we’ve seen seven iterations of that statute. And viewing the evolution of the statute itself over time, I think, is perfectly permissible.

Scott: You could look at a statute that was around in some form or fashion from, say, 1880 and see maybe a period in time where some word or some phrase changes, or you get additional language that goes in. And you can, sort of, look at that, and you can ask yourself, “Well, why did that language get added, or why did that term change?”

Justice Blackwell: No, that’s exactly right, and that’s also important in making sense of old case law considering the statute because it may have been construing…

Scott: Different statute.

Justice Blackwell: …a different version of the statute. And the differences between that version and the version you have today may or may not be material depending on, you know, what you’re arguing about today. But they might well be material. And so, before you start relying on really old case law, you need to be sure that that case law is interpreting a version of the statute that is at least substantially or materially the same as the one you’re arguing about today.

Scott: And if there was a change, you know, you could look to the case law from…maybe before the change to see maybe why it came about. I was going to ask you in, sort of, doing that type of work, what value do you find in preambles to statutes? Because, you know, you don’t always see those in the OCGA code book. But if you go back to Georgia Law, the Georgia Law Code, and you look through there, you’ll often find preambles to the bill. What value do you find in preambles to bills?

Justice Blackwell: There is value. I think they properly can be used to help you figure out what the operative terms of a statute meant. Here’s why. Here’s the difference, Scott, in relying on a preamble and relying on a committee report or what some chairperson or bill sponsor said at the time. A lot of textualism is about respecting the democratic process, and so it is about respecting the prerogative of the legislature to make laws. And, of course, the way they make laws has a couple of constitutional components. The way something…the legislature or some legislator, the way what some legislator wants to do becomes law requires a few steps. It has to be presented and voted on by both chambers of the legislature, and then it has to go over and be presented to the governor. And the governor will either sign the law or will veto the law, in which case, the legislature may try to override the veto. But it has to go through those procedural steps to actually become law.

The operative terms of a statute are themselves voted on by both chambers of the legislature, and they are presented to the governor, and the governor signs off on them. The same is true of the preamble. The preamble is part and parcel of the statute. And so while itself is not the operative language of the statute, it’s just prefatory language of the statute, and so lawyers are focused on what the operative terms mean. If the operative terms are clear, you don’t need to look to anything else. But if there’s some doubt about what they mean, you certainly can look to the preamble because the preamble, just like the operative terms, went through the democratic process, was approved by the House, was approved by the Senate, was approved by the Governor. That is not true of just what some committee chairman said. It’s not true of some committee report. Those didn’t get voted on by both houses of the legislature, and they didn’t get signed off on by the governor.

Scott: And it’s something of a moving target too. The person that drafted the bill and put it in the hopper might have meant the law to be one thing, but it would be very hard to enforce what was in that particular person’s mind when he drafted it when it was voted on by…you know, through various processes and as the legislation makes its way to the governor’s desk and then is signed.

Justice Blackwell: That’s exactly right. I mean, what one legislator says doesn’t tell you what their colleagues, you know, in the same House thought the legislation meant. Even a committee report that purports to represent maybe the views of the House of Representatives doesn’t tell you what the Senate thought about it, and it also doesn’t tell you about what the governor thought about it when the governor signed off on it. And so it’s almost impossible to, kind of, come up with a unified statement of legislative intent beyond the actual words of the statute they voted.

Scott: Well, okay, I’m gonna, kind of, change gears a little bit. Before I heard your CLE talk… I’ll admit, I’ve been practicing law for a long time, and I had always thought of the things we’re talking about as something that judges do. And I had not considered that this is something for practitioners to think about. If I’m a lawyer in a small-town law firm or I’m a public defender, why should I care about this?

Justice Blackwell: Well, you should care about it because that’s probably how, if your case winds up in the appellate courts, your case is going to be resolved based on principles like this. And so, you know, you can sit back and not make all the textualist and originalist arguments, but if it winds up in front of the Supreme Court, if it winds up in front of the court of appeals… I shouldn’t say that, I think, all the judges of both of those courts regularly employ a strictly originalist methodology, but I will say textualism, I think, broadly prevails among all the appellate judges in Georgia and probably nationally for the most part. I mean, as Elena Kagan said, we’re all textualists now, not all original textualist, but pretty much all textualists. So, you can sit back and not develop those, sorts of, arguments, but then you’re just, kind of, taking your chances with how this is going to turn out if it winds up in front of the appellate courts because, if you don’t try to do the work, the judges are going to do it on their own.

Scott: Even if neither side briefs it, it’s going to be approached at the court that way.

Justice Blackwell: I mean, that’s typically the case. Yes, that is how… Certainly, in Georgia, with our appellate courts over the last 10 years, they have regularly employed that even in cases where it’s not briefed. That’s just how they go about figuring out what laws mean. So, you know, you can take your chances that they’ll do it on their own and come up with hopefully an answer that benefits your client. But as a lawyer, I always want to try to help the court get to the result that would benefit my client.

Scott: In other words, this is just a great example of, “Know your audience.”

Justice Blackwell: That’s exactly right.

Scott: So now the young lawyer in the small town law firm who has an issue that may be going up on appeal is interested, and let’s just say this lawyer has…the firm has just a very basic Westlaw or Lexis plan. How would you recommend someone get started? Where would they turn…? What are some things they could do or places they could go or resources they could have?

Justice Blackwell: Yeah. If we’re talking about the constitutional…if we’re talking about the state constitution, for instance, I always recommend that lawyers try to have a couple of books on their shelf in Georgia. One is Walter McElreath’s “Treatise on the Georgia Constitution,” and the other is Albert Saye’s “Constitutional History of Georgia.” I think just having those two books on the shelf give you an awful lot of constitutional history that really takes you up through the constitution of 1945. I think McElreath’s goes through about 1912 or so, and Saye’s history goes up through 1945. But those will, kind of, get you through the constitution of 1945, and then all you have beyond that’s the modern constitutions in ’76 and ’83.

So on constitutional history, I would very much recommend, you know, having those two books on the shelf that if you have an issue about what the state constitution means, you can pull those down, and you can see what McElreath and Saye have to say about the origins of a particular constitutional provision.

When it comes to, you know, textualism more broadly, you know, for a long time, we had a dearth of, you know, readily accessible scholarship on how to do textualism. You had Sutherland’s like 20 volume set on statutory interpretation. But a very accessible one is a treatise that Justice Scalia and Bryan Garner put out, I guess…what was that? Maybe 10 years ago called “Reading Law.” And they go through probably about 30 what are called canons of construction or interpretive principles. They explain how those work generally in American Law. And, I think, it is an incredibly useful resource, and it’s in one volume. And, you know, I think, any lawyer who is regularly arguing about what statutes mean, they need to have “Reading Law” on their bookshelf.

Scott: Yeah. I’ll tell you what I did in a case recently, and this is the first time. But it was a pure statutory construction issue, and it was a cert petition that…it’s still up being considered, and I won’t go into the facts or anything. But, you know, I took the statute, and there’s a word in it that was interpreted in a particular way by the court of appeals. I looked at the statute, and then I looked at the Georgia Law Volume…you know, just the reference to the Georgia Law like the Georgia Code that was in the statute. And then I went to a university law library. And by the way, law librarians love to help you with things like this. So, it was, kind of, fun. I spent a day away from the electronic stuff, you know, with the law library and pulling code books off the shelf that probably hadn’t been pulled off the shelf in a very long time. And it was a very elegant way of approaching an issue of statutory construction. And then I went back having done that and traced the statute back to 1898. I then looked at the cases very closely that were cited in the court of appeals’ opinion and in the briefs. And I didn’t get the case until it was on search. So I looked at the cases in both briefs. The cases that everybody was talking about already in the case, they took on a different meaning when I did that.

Justice Blackwell: Yeah. I think that’s what I always tried to do as a judge, and it’s what I still try to do as a lawyer. I mean, if we’re talking about a Georgia Statute [inaudible 00:55:23], the first thing I do is pull out the code book, and it says right there at the bottom of the code section, it tells you the source of that code section. And so it lists out…you know, it’s going to list when the law was originally enacted and then any acts after that that amended that code section. And so you, kind of, just trace your way back through history and see how that code section changed over time. And you can do that in most law libraries. And as you said, that’s been my experience too. Law librarians are always very happy to help with this, sort of, research. And then it really can cast some of the case law in that space in a very different light.

Scott: Absolutely. Yeah. It was oddly fun. I mean, but I’m a bit of a nerd. I don’t know that everyone would think that was fun, but it was… And then when the brief came together, there was an elegance to it. That was my takeaway from your talk is that really this isn’t just something judges do, that if we want to approach the judges, that…you know, no matter how you feel about this school of thought, your audience…particularly if you’re in Georgia at the Supreme Court, and, I think, to some extent, the Court of Appeals, this is how your audience thinks. And so giving them, you know… And if they’re going to be doing this work anyway, why not make it easier?

Justice Blackwell: Yeah. That’s right. I mean, look, you used all the tools that you have available to you to try to help your client. That’s what we all do as lawyers. And so if you’ve got legislative history that helps you… I’m not saying leave it out of the brief altogether, but just understand…know your audience and know that if you’re in front of the Georgia Supreme Court, that, sort of, legislative history is probably not going to carry much weight. And so you might want to focus your arguments on something else and just stick that in a footnote.

Scott: Right. Yeah. It’ll make for not a very fun world argument if you’re going to start talking about legislative history in the Georgia Supreme Court. You might have a rough go of it for sure. So I would recommend anyone to read your opinion in Mobley. Mobley v. the State of Georgia is just a great example of this methodology being put to use in a case.

I think the Cook case that dealt with out-of-time appeals in Georgia is a case where that methodology is employed. If you wanted to expose people to or new to all this to opinions that are steeped in this, sort of, statutory interpretation, what are some opinions that you would recommend?

Justice Blackwell: Well, I think, you’re right about Cook and Mobley. I might also point folks in Georgia to the Supreme Court’s opinion in Deal v. Coleman. I would certainly look at Justice Peterson’s opinion in Elliott v. State.

Scott: The DUI case.

Justice Blackwell: The DUI case about the privilege against self-incrimination and your right to refuse a breath test in the DUI context. I mean, look, there are a whole bunch of opinions, and I don’t know sitting here today that I can recall them all offhand, but those are certainly some I would start with.

Scott: And if you were going to recommend lawyers or briefs or arguments to potentially watch to see practitioners using this methodology as an advocate, do you generally…? I mean, you may not know really specifically but maybe what direction to point people to.

Justice Blackwell: Yeah. I mean, I think, if you went back and read some of the briefs and watched some of the arguments in some of these cases. I seem to recall, and this is before my time on the court, but the Nestlehutt decision, which struck down the cap on non-economic damages under the Tort Reform Act in Georgia. Nestlehutt predated me on the court.

I was not there when Nestlehutt was decided, but my recollection is that there may have been some fairly good briefing in that case on the original understanding of the right to trial by jury in the civil context in Georgia under the state constitution. There may have been some very good brief…very good, kind of, originalist style briefing on that issue in that particular case.

But I would look for cases that end up being decided by the court on, kind of, originalist and textualist grounds and then go back and look at some of the briefing. Like I said, in some of these cases, that, sort of, analysis was very well briefed by the practitioners. In other instances, it wasn’t so well briefed by the lawyers in the case, and it was work the court did on its own.

Scott: Or work that an amicus…maybe amicus did or something like that. And, I think, we, sort of, touched on this, but if someone doesn’t have a big budget for research, in other words, the client just can’t afford to pay, you know, me to go and dig around in a law library, would your general recommendation be to have those texts at hand that you talked about earlier? Is there something else that we can, kind of, do on less than a great budget to do this, sort of, analysis?

Justice Blackwell: Yeah. I mean, I think, having some, kind of, fundamental texts around and available to you. I mean, if you don’t have time, for instance, if it’s very important what the common-law understanding of a particular rule was because this is the meaning of a statute that may or may not change the common law, if you don’t have the resources to go do a full-blown exploration of the English in Early American Case Law, just having Blackstone’s commentaries on the shelf that you can refer to. I think Restatements of Law can be very helpful in getting a sense of what, kind of, background American Law was. So, if you practice a lot in the area of torts, being able to refer to, you know, the Second Restatement of Torts can give you a very good understanding of, kind of, what the general understanding of the background law was in American Law, generally.

You know, Bryan Garner, in addition to the “Reading Law” treatise that he did with Justice Scalia, has also done a couple of outstanding dictionaries that are more attuned to legal usage. So, a lot of lawyers have “Black’s Law Dictionary,” which, I think, is very helpful, but Bryan Garner’s “Dictionary of Modern Legal Usage” and his “Dictionary of Modern American Usage,” I think, are very helpful.

Scott: Ah. Well, very good. Well, listen, I really appreciate you giving me the time, and for those who listen, I know this will be very helpful. It was certainly helpful to me, and it, kind of, changed my approach to brief writing. So I really appreciate you coming on and, kind of, walking us through this stuff.

Justice Blackwell: Happy to do it. It’s a really interesting area, and it’s always a privilege and a lot of fun talking to you, Scott.

Scott: I appreciate it so much. Take care.

Justice Blackwell: You too.

Scott: Thanks for listening to “The Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com. And please rate, review, and follow this show wherever you get your audio content.

Episode Synopsis: As a legal malpractice attorney, David Lefkowitz knows all the common pitfalls and administrative errors that lawyers need to avoid. In this episode, Lefkowitz breaks down how a casual conversation with a friend to a failure to meet a deadline could potentially place an attorney in hot water. He’ll also explain how communication and documentation can be your antidote to legal missteps.

Podcast Transcript: The following is a transcript of Episode 18 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.

David: We talk about a problem in our law school class, where somebody goes and consults with a lawyer about a potential claim, and it’s totally outside the lawyer’s practice area, and the lawyer says, “You don’t have a claim. The defendant has immunity, and you can’t win that claim.” And the clients go home, forget about it, and then a year later, they read that how other people similarly situated recovered a lot of money for the same exact claim that they consulted that lawyer about. You know, the question that the students have to evaluate is, is there a claim against the lawyer? And the answer is yeah because the lawyer provided certain legal services even though he didn’t see himself as being in an attorney-client relationship.

Scott: David Lefkowitz is one of the nicest people you’ll ever meet, and I sat down with him in the podcast, not because of that, but because I wanted to learn ways not to meet David Lefkowitz in a professional capacity. And in this golden moment… Let me back up for a second and tell you that David Lefkowitz specializes in malpractice, plaintiff’s work against attorneys. And in this clip that you just heard, David talks about the ways that we can sort of let our vanity get in the way, or how we can sometimes have a tendency to stray outside of our lane in the proverbial cocktail party or family reunion situation where we end up advising on things we don’t completely know about, and we give incorrect advice in how…in spite of money not having changed hands, how in the span of a phone call or a conversation we can enter into an attorney-client relationship with disastrous consequences.

That’s a monumental moment in the podcast that you just heard, and you’ll also hear in here the six words that are most important to attorney-client relationships and malpractice avoidance and ethics complaint avoidance, the six words that are most important. So, listen in and I hope you learn from David Lefkowitz as I have. David Lefkowitz, thanks so much for joining me on the podcast. I really appreciate it.

David: It’s a pleasure, Scott. Thanks for having me.

Scott: Well, thanks for coming on. One of the things I always do with guests is I have them introduce themselves and I ask a question that could be very factual or it could be deeply philosophical depending on how you take it. But who is David Lefkowitz?

David: That’s a good question, who am I? I am my wife’s husband, I am my two boys’ dad, I am my mom and dad’s son, they’re both alive, which is great, and I’m a lawyer with offices in Athens and Atlanta. I am an adjunct professor at UGA Law School, and I am recently in my seventh decade. I turned 60 on December 18th.

Scott: Oh, my gosh, you know, you look a lot younger than that.

David: I would like to say I feel younger, and usually, I do. Thank you.

Scott: So tell me a little bit… I always ask people, what made you decide to become a lawyer, and was that something you always wanted to do as a kid, was that something that developed in college, or tell me a little bit about your decision to be a lawyer?

David: I don’t really have a clear answer to that. I mean, I’ve always known I wanted to be a lawyer, at least I think I have always known. My grandfather was a lawyer, although he was not a litigator. A funny anecdote, many years ago when I was a little kid, I was at the city pool with my family, and I said something that I shouldn’t have said. I had a bit of a salty mouth back then. And my father grabbed me by the wrist and dragged me, what probably was 100 yards to the men’s restroom where he said he was gonna wash my mouth out with soap. And I don’t remember the incident, but apparently, they talked him out of it while we were walking there, and he said from that point on he knew I was gonna be a lawyer or a salesperson.

Scott: They need to avoid having your mouth washed out with soap. So, where did you go to undergrad, and where did you end up going to law school?

David: I did my first two years of undergrad at the State University of New York, the Oneonta Branch, and then I transferred to Columbia University in Manhattan. And then when I graduated from Columbia, I came down to Atlanta to go to Emory Law School. My expectation was that I would return to New York because, when you live in Manhattan, you don’t think there’s any place else worthy of living. But after I spent a couple years in Atlanta, I realized I’d rather live in Atlanta and rather practice law in Atlanta.

Scott: Did you start off as a litigator?

David: I did. I started out doing your typical insurance defense work at a firm that doesn’t exist anymore, but it was named Carter & Ansley. And we did third-party defense work, car crashes, slip and falls, and then some first-party coverage work as well.

Scott: Were you doing professional malpractice defense back in your defense days?

David: No, not at all. I fell into that when I switched to the plaintiff’s side after a couple of years of being at my first firm.

Scott: And what was it about litigation? Why did you become a litigator versus transactional versus something else?

David: I think it just goes back to the story about the pool. I’m an advocate and I like being persuasive, and I think litigation is the perfect arena for that.

Scott: And I think you mentioned, did you go and practice in New York for a little while before you came back to Atlanta, or did I read that wrong?

David: No, I stayed in Atlanta.

Scott: Okay. And then, when did you make the jump to private practice?

David: So I was in private practice doing defense work for my first two years, and then I switched. I was recruited to join a plaintiff’s firm after a couple of years, and I was with that firm for eight years and then started my own firm. And I’ve been on my own since then.

Scott: What was the switch like? You know, I know a lot of lawyers who switch from…in the criminal arena who switched from being DAs to defense counsel in criminal cases, and I’ve known quite a few people that have, you know, hung out their shingle and done that for a while, and they’ve become district attorneys. What was it like to switch from the defense side to the plaintiff’s side?

David: I always knew I wanted to do plaintiff’s work. I would prefer to do plaintiff’s work. That’s just where my heart is. I’d rather represent victims rather than insurers. So, it was really just…I just fell into it. I was working at the firm, it was Carter & Ansley. There was a lawyer there. His name was Michael. He was married to a woman at the time named Rebecca, and Rebecca worked at this plaintiff’s firm that at the time was Jones Brown & Brennan. And we were out drinking one night or having dinner one night and she said, hey, somebody at her firm’s leaving. Would you be interested in doing plaintiff’s work? And she said, “By the way, don’t tell Michael I’m asking you.” I said, “Actually, I’ve always wanted to do plaintiff’s work. So I’ll come in and talk to you and, you know, see if I like it.” And I did, I interviewed, and I thought everybody was nice. And part of their practice was legal malpractice, not a lot of it at the time, but a part of it was legal malpractice. And then once I joined, I kind of fell into doing more and more legal malpractice, and then after several years, I was like, you know, “I could do this on my own.” So, that’s really the way it played out.

In terms of what was it like switching, you know, we still kept track of our hours, generally speaking. However, we weren’t getting paid by the hour, we were on a contingency fee, so the money was coming in haphazardly and his lawyer will understand. But it was fine. I liked it. My heart was right that I belong on the plaintiff’s side of the ledger.

Scott: Now, is that unusual for plaintiff’s attorneys to track their hours? You know, I know a lot of… So, you know, obviously, for those that don’t know, most plaintiff’s lawyers and I suppose just about all plaintiff’s lawyers are getting paid on a contingency, meaning, you get a percentage of whatever you recover, whether that be through a settlement, or a verdict, or something like that. And then, you know, criminal defense attorneys tend to charge a flat fee and don’t bill by the hour. Though I know some criminal defense attorneys who track their time as if they bill by the hour. I don’t think I’ve spoken to a plaintiff’s lawyer who’s…I mean, there may be more than I know, but that track their hours that way as if they’re billing by the hour. Say a little bit why that’s a good practice and why it was that your firm did that.

David: We did it for first…for two reasons, the first one being to just make sure we were being efficient with our time and that we could account for the time that we were at the office, you know, whether it was 8 hours or 10 hours. And secondly, there are cases where you make a demand for attorney’s fees. And back when I first started practicing on the plaintiff’s side, if you wanted to recover for attorney’s fees, you almost always had to show your hours, your actual hours that you had in the case.

Now, there’s some recent case law that allows you to present to the jury or the judge that you’re on a contingency fee and ask to be awarded your contingency fee. So it’s less significant, but I still keep track of my hours to make sure I’m being efficient to kind of get an idea of how much time these cases take.

And also there’s a provision under Georgia common law that says that if a client discharges you, you can have a contractual provision either by the hour for the time you have in it or your contingency fee, whatever that amount is. So let’s just say you’ve been offered 100 grand and your contingency fee is a third, and you’re discharged by the client after the $100,000 offer has been made, you’re entitled to your 30 contingency fee, a lien on the case for that amount or your hourly fee, you know, whichever is greater, assuming you put that in your fee contract.

Scott: Just generally, in your experience, how do the two-track this? And I’m just speaking the abstract. I’m not trying to get into your personal stuff. But generally, are you ever surprised that the hourly actually tracks us more time than the potential contingency fee in those situations?

David: You know, you never know when going into the case. So if a case resolves relatively quickly, definitely, the contingency fee is going to be larger than what the hourly fee would have been had you been charging or had I’ve been charging on an hourly basis. If a case goes on for a really long time and then the recovery is less than you expected before, then it may turn out that your contingency fee is less or considerably less than what the hourly fee would have been had you been charging that way. But that’s just the nature of a contingency fee and that’s why it’s widely accepted, even it would be perceived as a windfall because of the understanding that you may have 10 cases that aren’t windfalls and then one case where you do have a windfall, meaning you settle and get a nice fee…a large fee that’s not necessarily commensurate with the amount of time you put into the case.

Scott: This is a more of a technical or technological question. What are you using or how do you track your time on a daily basis?

David: So I don’t have that many files like I did when I was doing insurance defense, and if I have a phone call or if I spend time researching documents, reviewing documents, researching cases, I just jot it down on a piece of notepaper and put it in a folder within the file so that I always have it.

Scott: So paper files. This is just a ledger, just an inside of the paper file.

David: Yeah. I mean, if I know… I do have some files that I bill by the hour, ethics defending bar complaints or I think expert witness issues where I do keep up with the billing on a daily basis on my computer.

Scott: Okay. So I think what I heard you saying just now is that you…it’s generally paper-based and you’re not tracking it with software.

David: I’m never tracking it with software. It’s generally paper-based, and every now and then, I just right into a Word document. I just literally would type in what I’ve done and the amount of time, so if I know I’m sending a formal invoice rather than just keeping track of the time for my interest.

Scott: Right. And let me ask you this. Are you almost exclusively? Are you exclusively professional on malpractice now?

David: On the plaintiff’s side, yes. For probably 10 or 15 years, I was handling medical malpractice as well, but I don’t do that anymore. On the plaintiff’s side, yes, I’m only handling legal malpractice cases. I’m also handling some other matters, ethics issues, law firm [inaudible 00:12:46], fee disputes, occasionally, I take on engagement as an expert witness so that that would not be formally plaintiff’s legal malpractice work.

Scott: It sounds like most of what you’re doing though involves lawyers and the practice of law.

David: Most everything, yes.

Scott: Okay. And how did you develop that interest?

David: So that takes me back to the second firm that I was with. It was called Jones, Brown, & Brennan, and then by the time I left, it was Jones, Copeland, Lefkowitz, & Greer. But that firm handled an assortment of complex plaintiff’s litigation, legal malpractice, medical malpractice, business litigation, some personal injury but only if it was catastrophic in nature. And Taylor Jones was really one of the very first lawyers to handle legal malpractice on a regular basis. If you look in the Georgia Reporter and look him up, he was involved in a lot of the seminal cases involving legal malpractice law. So we had a fair amount of those cases and I did not mind them. In fact, I tended to enjoy them where some people don’t wanna touch those types of claims. So, I just started handling more and more of them, and as I had success with that type of claim more and more, the claims were sent to me within the firm, and then more and more of those claims [inaudible 00:14:00] to me while I was still at the firm.

Scott: You know, you mentioned a minute ago or just a second ago in your answer that, you know, a lot of people don’t wanna touch those. What’s it like with your brethren in the legal profession when you go to bar functions and things like that and they find out what it is that you do?

David: Have any issues? I would say that…and most people would agree, I think that doctors tend to circle the wagon around other doctors who have committed malpractice, and that’s less true with lawyers. I haven’t really had any significant issues where lawyers are saying, you know, “Screw you, I don’t wanna talk to you or have a drink with you because you sue lawyers.” As long as I’m not suing them, I think they’re fine with it.

Scott: And how many years have you been doing on the plaintiff’s side legal malpractice work?

David: Since 1990, so 31 years plus a little, so a very long time.

Scott: A very long time. And in the time that you’ve done that, you know, for listeners and I’m gonna assume that most of my listeners are attorneys, are there common things that you see or lessons that you’ve learned or things that…? If you could speak to, let’s just say new lawyers or lawyers that are just building their practice or lawyers who maybe are leaving a DA’s office and hanging out their shingle or maybe leaving a firm and kind of going out on their own or maybe even just people who’ve just passed the bar, what are some of the lessons that you’ve learned or things that you’ve seen that are just common trends in the malpractice cases that you brought over the years?

David: So I will say that…and this may be a little counterintuitive or perhaps people will recognize it as obvious, I’m not quite sure, but most legal malpractice claims arise out of administrative type errors, not docketing a file correctly, not recognizing when applications started, and therefore not knowing when it runs, not taking note of ante litem notice requirements, not conducting title searches properly, not getting service on a defendant in a timely fashion, you know, most people realize or know that in a personal injury case, your statutory limitations is two years, and most people think that means get the suit filed within two years, and it does mean that. You also need to get the defendant or defendants served promptly. And if you file the suit right at the very end of the statute, you get a little bit of wiggle room in terms of how much more time you get to serve the defendants. Regardless of when you file suit, you have to promptly get the defendant served, and if you were to read all of the cases that come out of the appeals courts here in Georgia dealing with statute of limitations, I’d say that half of them deal with the failure to get the defendant served on time because, technically, if you file suit on time but you don’t get service on time, that is still a statute of limitations defense that’s filed by the defendant. So, the technical aspect of getting the defendant served, filing in the correct court, naming the correct defendants, not waiting until the last minute.

Procrastination is a really big problem, and if you get a case with a two-year status and you get it two months after the incident that gives rise to the claim and you sit on the case for 16 months or 20 months or wait until…otherwise wait until the last minute, you’re putting yourself in great danger because, what if you named the wrong defendant? Sometimes it’s John Smith Sr., who caused a crash, but you just named John Smith, then you get the son served by mistake. You don’t realize that you have to [inaudible 00:17:55] and the dad’s not around, and you could have had the dad served without any problem whatsoever. If I served him, he’s served with a process. For those of you who don’t handle personal injury law, you could have had the dad served very easily had you had the time. But when you filed the last minute, you don’t give yourself the luxury of time, and it’s very easy for mistakes to happen.

So I would say most of the cases that I have arise out of those types of administrative. And then you’ve got claims that arise out of conflicts of interest. I resolved one recently that’s…I can’t get into it but I’ll just tell you someone who’s representing both sides in a matter. You can’t do that. You can’t represent the husband and the wife…

Scott: You’re not talking about co-defendants, you’re talking about adverse parties.

David: I’m talking about…yes, parties that became adverse, and they became adverse because the lawyer helped one person with the client that the lawyer already had attorney-client relationship with. So, you know, knowing your conflicts, knowing who you represent, knowing who you can’t represent, keeping things confidential, all those can give rise to claims. But I would still stand by my original response, which is that administrative-type mistakes, deadlines, filing, title searches, things of that nature are more likely or most likely to give rise to claims.

Scott: And this may sound like a really obvious question. Do you think it’s just…it’s human to procrastinate? It’s just that lawyers tend to do that or do you think there’s some administrative problem in the way offices are organized?

David: I would say 90% of it is procrastination. You know, most lawyers are very busy, and the things that have tight deadlines are put in the front burner and things that have deadlines that are far out tend to be put on the back burner unless the client is pushing you to move on it, and as a result, when you might have eight months to get something done, and suddenly, you have four, and then suddenly, you have one, and one month puts you in a pretty significant rush situation. That can certainly be an issue, just general procrastination. I don’t know if lawyers procrastinate more than your typical [inaudible 00:20:12] but lawyers definitely procrastinate, no doubt.

Scott: Is some of that from, you know, in the personal injury case, in the personal injury arena that clients…I mean, that lawyers are letting the client get treated by physicians and they’re letting the medical bills run, and that’s what’s causing people to get to the two-year mark or whatever the year mark is. Is that kind of what’s going on, or do you think it’s just pure procrastination?

David: No. There’s very good reasons not to file suit immediately when the claim comes in. You certainly want to see, you know, what the resolution is of a client’s injuries, you don’t wanna settle too soon because, if it turns out their injuries are permanent, then you’re depriving them of the opportunity to be fully compensated. But there comes a time where waiting and waiting and waiting and waiting is not providing any benefit to your client and is causing, you know, your client to suffer harm, not only the risk that the claim isn’t handled properly, but the delay in receiving the funds that they’re entitled to and need to live.

Scott: And speak a little bit about the ante litem notices because, you know, that…having done a little bit, that part strikes fear in my heart, and very often you can look at these ante litem statutes and the cases that go with them and walk away from those statutes and still not feel a level of certainty that you’re completely grasping it.

David: Look, the law with regard to ante litem notices can be challenging and they’re changing…they change from time to time. An ante litem notices is a formal notice that you must provide to governmental entities to put them on notice of the claim, give them an opportunity to resolve it. And whereas let’s say a cop [inaudible 00:22:09] somebody on the street, the personal injury claim will have a two-year statute of limitations, but the ante litem notice, the deadline to put the cop or the administrative agency on notice will be shorter, either six months or a year depending on whether it’s a city, a municipality, or the state. And then what you must put into the ante litem notice is important because many cases are being dismissed right now…many personal injury suits are being dismissed right now because lawyers failed to put the information in the ante litem notice that’s required, including what the injuries are, what the claims…what the value of the claim is or how much you seek to recover. And you may not know but you still have to put a number in there. So, I’m seeing lots of cases dismissed and unsuccessfully appealed for botching ante litem notices is definitely an issue. But as administrative, it’s not just purely an understanding of the law, it’s knowing the date by which it has to be filed and knowing what needs to go in it. It can be a form letter. Somebody who’s been with the firm for a month can handle it as long as they know what needs to be in it.

Scott: You know, in terms of the ante litem notice, sometimes it…you know, you can have your forms and maybe the statute changes more frequently in your office and your form does, and it can be important to periodically go back before you file ante litem notice or send ante litem notice to double check to make sure that the law hasn’t changed on you.

David: Well, technically, the statute may not change, but the interpretation of the statute may change. If the Supreme Court issues an opinion dealing with a deadline or to whom the ante litem notice must be sent or who must receive it or what must be in the ante litem notice itself, you need to be aware of it, right, because, if you’re not aware of it, you use the same form that you’ve been using all along [inaudible 00:24:00] in peril of making a catastrophic mistake.

Scott: So say a little bit. I know that you teach at Georgia, and what subjects do you teach as an adjunct in Georgia?

David: I teach in the spring semester only. My wife says I can’t teach in this fall semester because football takes priority. I teach legal malpractice law, that’s what it’s called. And basically, we cover the fundamentals of legal matter law, risk management, ethics, how to avoid getting in trouble. If you want to become a plaintiff’s legal malpractice lawyer or defense lawyer, you’ll be well prepared after taking my class, and you certainly get an overview of the critical ethical rules that affect your risk and your client’s well-being.

Scott: What are some things that you tell students? I mean, so it sounds like there’s a big focus on how to practice legal malpractice law, but is there a component within the class of things to do to organize your practice to avoid being a legal malpractice defendant?

David: Well, one thing I tell my students and I’ll tell any lawyer who will listen is pick your cases carefully, do the due diligence necessary to determine if [inaudible 00:25:20] that you wanna handle, if it’s a case that you can win. If this is really an individual or a company that you wanna work with for months or years, are you gonna get angry every time the phone rings and you see their name and their caller ID?

You know, most lawyers can decide what cases to take. There are some lawyers that have cases appointed to them. Public defenders, DAs, insurance defense lawyers ensure they don’t have the luxury of picking and choosing their clients or in [inaudible 00:25:50] their cases. But one thing I learned early on that I think is really important is don’t take a case if you think there’s an issue. You don’t wanna be trapped in a case a year or two later, wishing you just decided not to take it. And no matter how much you need the attorney’s fees, don’t take it. Spend the time cleaning up your office, spend the time writing a paper that can be published and help you professionally join an organization. And one of the really important things is being very careful about what cases you take.

Scott: And you say be careful about what cases you take. But it sounds like really you’re saying two things, be careful what cases you take and be careful which clients that you take.

David: Well, first of all, right, you don’t wanna take a case that doesn’t have merit. You don’t wanna terribly close call on a contingency fee unless you really understand the risk and you’re willing to take it. And then as it pertains to the client, you wanna make sure, “Can the client pay my bill? Does the client have a felony conviction in his or her background that could be used against him in a case?” I mean, there’s a multitude of issues that any lawyer would probably recognize if they did some soul searching about what are the risks [inaudible 00:27:07]. Do they want revenge? Do they want a result that you realistically know you cannot get for them? Do they come in with expectations that you should know that you cannot meet?

Scott: Why do you think that lawyers…or do you think is that the issue is that lawyers don’t see the red flags, or do you think it’s that lawyers ignore the red flags?

David: I think sometimes they don’t see them, but I think the other is also true is that the lawyer sees a fee, right? “This client’s gonna hire me. This lawyer is gonna pay me. I really need to bring in some money so I’ll take the matter on.” I think both of them play a role, and they’re both legit… You know, you’re in business to make money, I totally get that. I don’t want you to say…I don’t want to imply that you shouldn’t get paid. I’m very careful. Is this particular engagement worth it given what could happen down the road?

Scott: For the lawyer that, you know, maybe just starting out in practice or when you’re talking to students who, you know, are very idealistic… I teach at Georgia Appellate Practice with a mutual friend, Judge Dillard, and, you know, the law students that we see at Mercer seem to be very idealistic. And I don’t think that’s gone away for law students. When you’re talking to law students who have not dealt with actual clients, and you’re trying to get this concept across and you’re trying to explain what the red flags are or how to spot them and then what to do maybe if you don’t see them until you’ve already taken the engagement, what are some of the red flags? What are some of the things? And you’ve mentioned revenge a minute ago or maybe bad motives. What are the things that we should be on the lookout for as lawyers?

David: Well, really those are them. I mean, make sure that the client can pay you. You know, the problem is, especially in litigation is once you’re in and once you file suit, it can be very difficult to get out of the case. If the client is willing to let you withdraw or wants to hire a new lawyer, that’s one thing, but if the client is knee-deep in attorney’s fees, and they paid you some, they owe you a lot more, you wanna get out of the case because of whatever reason they can’t afford to pay you, their claim is no longer legitimate, whatever it may be. If the client won’t let you out, you have to file a motion to withdraw. And some judges are very reticent to grant those. Some are fine with it because they see that the case has been going on for two years, it’s getting ready for trial, their docket is exceptionally crowded, and they don’t want cases to be on the docket for another year or two, which can happen if new council gets involved. So, you wanna avoid the situation of needing to withdraw or desperately wanting to withdraw but not being able to.

So, how do you avoid that? You avoid it by making good decisions upfront. A lot of times the lawyer can choose the client. Now, if you’re very well established and you’re successful and you’re getting tons of referrals, you have more of that luxury, you have more ability to pick and choose which clients and which cases you get involved in. If you’re newer and younger, you may not, but you still do some analysis. Even if you know there’s other lawyers that might get the case if you don’t take it immediately, do the analysis, “Is it a case I wanna be involved in?” Another option is to sign the client up but have a very clear paragraph within your engagement agreement that you have the right to withdraw if you don’t think the case has merit or if there’s a legitimate basis to withdraw. You just need to do that way in advance. You can’t sign the client up under that provision in months after a crash and then decide to withdraw in month 20 because you’ve done your client a terrible disservice, not only in the delay, but another lawyer may not wanna get involved that late in the game. So, just do it in a proper fashion without delay.

I always say, when you’re [inaudible 00:31:28] and how they feel about matters, and they’re annoying you, they’re not the type of person you really wanna deal with, I always imagine somebody who goes to a doctor’s office or a dermatologist’s office or surgeon’s office and has something removed from their skin, a growth, and the doctor says call me tomorrow, and I’ll let you know what the lab report is. And the next day, the client calls the lawyer’s office…I mean, the doctor’s office, and the doctor doesn’t get on the phone, they say the doctor will call back, right? And how long should you wait? How long should that doctor wait to return the call of the patient?

And everybody agrees, if you’re in a big room talking to students or CLE, everybody agrees that that return phone call should be prompt. And what I tell folks is just remember your client thinks that their legal matter is just as important, every bit is important as that patient thinks their medical issue is. So, don’t blow off the client. Treat them with respect. Treat the claim with respect. And that circles back. Don’t take the claim, don’t take the client if you can’t treat them that way. If you don’t trust them, if you don’t like them, if they’re not gonna pay you, if they’re a convicted felon… Now, again, if you do criminal defense work, that’s your pool of clients, and that may be your best pool of clients. But for those of us who do other civil litigation, we need to consider the fact that a conviction for a felony moral turpitude can have a very negative effect on the litigation. So, consider that before you decide to take the case. Then you won’t be upset that you took the case and you won’t be stuck in it.

Scott: So what does proper vetting look like? I mean, it sounds like… I mean, so there’s the level of the clients in front of you and you’re talking to the client and, you know, there’s just something you don’t like or they seem unrealistic, but in terms of proper vetting of a case, what does that process look like? When you have a client that reaches out to you about a potential matter, what does your due diligence process look like?

David: You know, we’ve been talking about the due diligence with regard to the client him or herself which is important but really, typically more important is the evaluation of the claim. So, I never accept a case or a client based on a phone call or an email. I will always do a lot of due diligence to determine whether or not there’s a valid winnable claim under Georgia law. In the legal malpractice arena, I’ve gotta prove a lot. I have to prove that the lawyer made a mistake. I need to prove…and not just a mistake but a mistake that no other reasonable lawyer would have made. I have to prove that the mistake caused damages that otherwise would not have occurred, what the measure of those damages are. I should say I have to be able to prove that.

And I’m not going to take a plaintiff’s legal malpractice claim on a contingency fee without having a pretty good comfort level that I can prove that. Plus, I’m not going to sue a lawyer if I don’t think that it’s a valid claim. I try to handle my practice honorably. I’m not about getting publicity. I’m not about talking to the press. I’m about trying to resolve a claim as fairly and honorably as possible. And part of that is not calling a lawyer up and saying, “Hey, I’ve been retained to bring a claim against you without first confirming that there’s a darn good claim there.”

Now, there are times where the client will give me some information and it is not complete information and I call the lawyer, and I always give a lawyer an opportunity to give me their side of the story. On several occasions, I have received information from a lawyer that has made me change my mind and not handle a case that I otherwise would have handled.

Scott: So, on the front end, it’s… So, for instance, like if someone blew a statute of limitations, you have to not only prove that, you know, the statute of limitations that there was a mistake. That seems like a fairly inexcusable act by the lawyer. So, that seems like, you know, you have the mistake, you have the breach of the duty, but then, do you also have to prove that had the complaint been filed in a timely manner that the litigation would have been successful?

David: Yes, absolutely. And that is almost always the hardest part of the case. I mean, a little unknown truth about my area of practice, generally speaking, the breach is the easy part of the case, the breach of the standard of care, the missed deadline, the bad title search, things of that nature, not always, but usually. The hard part of the case is proving that the result would have been, not might have been or could have been, but would have been different but for the mistake.

So, I always used to like to use personal injury or car crash cases as examples because everybody gets them, even, you know, a sixth-grader who’s…has no idea how the law works, they understand the concept of a car crash. So, if a lawyer agrees to represent a plaintiff and the plaintiff was in a car crash and plaintiff was T-boned at an intersection and the plaintiff claims or the client, whatever you wanna call her, claims that they had the green light. And then the lawyer misses the statute of limitations, and then the client calls me and says, “Hey, my case is permanently lost. I wanna sue my lawyer for malpractice.” I will investigate that car crash just like the personal injury lawyer should have because, in fact, that plaintiff, that client had the red light and the car crash was her fault, then it doesn’t matter that the deadline to file was missed. It didn’t cause any damage because the claim would have been lost, there would have been no recovery. So, proving causation is always the challenging part of the case and where most of my work comes into play.

Scott: In the legal malpractice arena, do you end up, you know, with those that go to trial or, you know, those that get litigated, you know, pretty well into discovery, or do you end up having a mini-trial within the trial on the case itself…on the initial matter that the lawyer, you know, messed up on potentially?

David: Exactly. It’s called a trial within a trial, and you literally bring the eyewitnesses, the underlying defendant, the doctor or doctors who treated the defendant, and everybody else that would have been called at the underlying trial had it gone forward to persuade the jury that there would have been a recovery but for the missed deadline. So, yeah, you just have to explain it to the jury so they know what’s coming.

Scott: And then with your students, if you’re kind of telling them sort of the basics of legal malpractice, what are some of the important lessons that you teach over the course, you know, of the semester of that class?

David: Well, we start with a thorough analysis of a legal malpractice claim, which is simply duty, breach, causation, damages, and then we move on to fiduciary duties and other issues. We do spend a class… I teach once a week for a couple of hours. We spend a class dealing with claims that could be brought by non-clients.

So, just to take you through it, first, we talk about duty. What is the duty? To whom do you owe a duty? Once you determine that there is a duty, which generally but not always arises from the attorney-client relationship, then you have to define the duty. The duty is to provide legal services within the standard of care. What’s the standard of care? That level of skill normally exercised and possessed by lawyers representing clients under the same or similar circumstances, skill care and diligence, actually. Once you can establish causation but for that breach where the damages have occurred, if you can get past that threshold, then you have to determine what the measure of damages are. So literally, in a car crash case, what would a jury have awarded in the underlying case? Then once we’ve established those…once we figured out, you know, make sure everybody’s clear that we’ve got a breach of fiduciary duty, which I think every lawyer gets. I mean, it’s loyalty, confidentiality, candor, your interest beneath those of your client, not equal to, but beneath.

We talk about how to stay out of trouble by avoiding letting somebody think you’re their lawyer when you’re not. You know, somebody may ask you a question at a cocktail party and then think, “Oh, they’re gonna take my case.” We talk about engagement letters and just as importantly, non-engagement letters or disengagement letters. A non-engagement letter is when somebody consults with you briefly but not to represent them. You wanna put in writing, “I am not your lawyer. I will not be representing you.” Similarly, if you have been representing them and you can withdraw without going through the court process, you disengage, you send a disengagement letter. It’s the same concept. Send a letter, “I’m no longer your lawyer.” If there’s any impending deadlines, you let them know what those deadlines are. You don’t wanna have a situation where a client consults with you about a claim, but they think you are handling it. They don’t hire anybody else. Then the deadline to file suit expires, and they sue you. And you say, “Hell, no, I was not your lawyer. You couldn’t possibly have thought that I was your lawyer.” And the client says, “Well, you never told me that you weren’t representing me, and I never consulted with anybody else because I was relying on you.”

Scott: Well, let’s talk a little bit more about that because a lot of people…you know, I mean, particularly non-lawyers but maybe some lawyers even. What are the sorts of casual or what we may see as casual things that can result in an attorney-client relationship that’s maybe not necessarily intuitive that an attorney-client relationship would have arisen?

David: You know, there’s really not… I mean, I think that’s an overblown issue. I mean, it is something that you need to be careful about, giving advice at a cocktail party, and then it was bad advice. It’s not common but you can inadvertently create an attorney-client relationship, but it’s usually in the context that I just described where you don’t want to represent the client, but you have not adequately told the client that. And on the other hand, the client has a reasonable basis to believe that you are protecting their interests. That’s how it comes into play.

You know, the basic rule is that you are all of the duties that every lawyer they owe to a client, and you owe fewer duties to a prospective client, but you still owe certain duties. If anybody consults with you or asks you questions, you have a choice, don’t answer, and just say, “I don’t provide off-the-cuff answers” or have them come into your office for a formal meeting. But if you provide legal services, the general rule is with a prospective client, if you do provide legal services, give a deadline [inaudible 00:42:38]. If someone says, “Hey, do I have a case?” And you say no when it turns out they did and they rely on that, then you have that inadvertent attorney-client relationship that we’re chatting about, and that can put you at risk of being sued.

We talk about a problem in our law school class where somebody goes and consults with a lawyer about a potential claim and it’s totally outside the lawyer’s practice area and the lawyer says, “You don’t have a claim. The defendant has immunity and you can’t win that claim.” And the clients go home and forget about it. And then a year later, they read that how other people similarly situated recovered a lot of money for the same exact claim that they consulted that lawyer about. And, you know, the question that the students have to evaluate is, is there a claim against the lawyer? And the answer is yeah because the lawyer provided certain legal services even though he didn’t see himself as being in an attorney-client relationship. But to the extent, you provide legal services, even to a prospective client, then be held liable if you make a mistake.

Scott: That can be really tough because, you know, we don’t… I think all lawyers have the experience of they’re at the family reunion or they’re at the picnic or, you know, somebody from little…like another parent in little league has something come up and, you know, people don’t understand that lawyers have specialties. And a lot of times, I think where we tend to get in trouble is we don’t wanna come off like we’re a jerk. We don’t wanna act like we’re not willing to help. And so sometimes it’s just not wanting to appear rude that maybe puts us in these situations where we’re maybe potentially at risk.

David: Well, I would say it’s twofold, not wanting to appear rude, and not wanting to appear unknowledgeable, right? I mean, no matter…

Scott: Vanity.

David: Yeah. Whether you’re a lawyer or a doctor or an accountant or whatever, you wanna act like you know things, you know what you’re talking about. So there is an inclination to answer questions. Maybe it’s because I’ve been doing it for a while. Maybe it’s because I have a super narrow niche practice, but I have absolutely no problem whatsoever with telling somebody, “That is outside my practice area. I sue lawyers for malpractice, and the last thing I wanna do is give you bad advice.” And you know that I offer to put them in touch with someone who can help them, but I will not be tempted to give advice on something that I have absolutely [inaudible 00:45:01] or even enough knowledge to get me in trouble. I’m just going to avoid it. And I would definitely recommend every lawyer avoid that, whether they’re doing it to appear smart or they’re doing it because they wanna be helpful and not rude, whatever the reason is, avoid that because, like I said, if you give the wrong answer, you can be on the hook.

Scott: And if I heard you… just kind of changing gears a little bit. And it sounds like you said you do a little bit of ethics, so, people that have a bar complaint. You represent lawyers in defending bar complaints. Did I hear you? Did I say that right?

David: I do that extremely rarely. I will do it for friends who ask me to do it. It’s not something I hope myself out as doing. It’s not something that I’m an expert in by any means. There are other lawyers who have a focus on that. Generally speaking, I’m not defending lawyers. I’m bringing claims against lawyers.

Scott: In the times that you have done it, are there trends there? I mean, so you’ve said that a lot of the issues with malpractice is administrative. Like you didn’t calendar something correctly, or you didn’t send a form out in time, or you missed something in a title search. In the bar discipline cases that you’ve…and I know that they’re rare. Do you see trends in…? I guess there’s gradations of this. So, if you do any criminal defense, you know, if you do any significant criminal defense, you’re going to get bar complaints just because of the customer base you’re dealing with and because a lot of times, it’s easier to blame the lawyer than it is to blame other factors for the way things are going. But you know, the bar complaints that have teeth where they kind of go deep into the process, do you see trends in the way lawyers are living or the way they’re managing their practice?

David: Well, there’s two different answers to that. Most bar complaints come out of a failure to communicate, just blowing off clients, not having what I would consider to be a good bedside manner. Whatever the equivalent is for lawyers of a good bedside manner, the easiest way to get a bar complaint filed against you is to be that guy or that lady. It goes back to the how would you wanna be treated if you had a medical issue or how would you want your family member to be treated if they were waiting to hear back from the pathology lab. It’s important to them. And similarly, you need to treat the matter as important with your client. And if you don’t return phone calls, if you blow them off, if you’re really nice to them when they’re signing up with you as opposed to signing up with someone else, right, you being the salesperson, and then you put it on the back burner and you don’t return the phone calls, you’re not diligent, you may get a great result for them, but they may think that you just weren’t emotionally intellectually invested in their case, they weren’t important to you. And so they’re more likely to file a bar complaint.

Conflicts of interest give rise to bar complaints, even if they’re not genuinely conflicts but somebody has a perception that the lawyer’s allegiance is misaligned, that could give rise to bar complaints. Lawyers make decisions on behalf of clients that they don’t have authority to make is a big basis for bar complaints. Settling claims without permission is a big beef rightfully. So, you’ve got a duty as a lawyer to communicate with your client and get informed consent for any decisions that they make, so that means communicating, explaining the risks, explaining the rewards, and then letting the client decide. Not just calling the client up and saying, “Hey, we can follow your path B. I think A is better. Are you okay with that?” That’s not getting informed consent. It may be consent, it may be authorization, but it’s not gonna get you off the hook if the decision was a bad one and they truly didn’t give you informed consent.

Stealing from a client. I think that’s pretty self-evident, but there are issues with trust funds. People bounce checks from the trust funds more than you’d like sometimes because they accidentally wrote a check, and I do mean that genuinely. Some people are totally misusing their trust account but other people just write a check on one account when they meant to write it on another and they may have a deficient balance. Things can happen by mistake, and the bar will listen to you. But you are going to be in trouble obviously if you misappropriate clients’ funds.

Scott: You know, kind of going back to your…at the beginning of that answer, that the level of communication and client management and bedside manner as you put it may be as important as your skills as a practitioner.

David: Well, there’s no doubt. With regard to avoiding legal malpractice claims or avoiding bar complaints, that’s critically important. I say jokingly that the six most important words in keeping clients happy, avoiding [inaudible 00:50:14] complaints and avoiding lawsuits are these, document, document, document, communicate, communicate, communicate. Communicate with your client, not only because rule 1.4 requires it, but because they’re entitled to it.

Document the file means keep them informed, and when they make important decisions in the case, to document that in an email. And that seems self-evident, but I’ll tell you something interesting about legal malpractice cases. The statute of limitations for legal malpractice cases four years from the date of the error. So let’s just say you make a decision in a case to, I don’t know, path A instead of path B, it doesn’t matter what the decision is, and you talk to your client about it but not the way that I just said you should. So instead you just say, “I’ve been thinking about it, and we can follow pathway A or pathway B. Let’s follow path A.” And the client says okay. Let’s say that happened January 1st of 2020. And then let’s just say that decision turns out to be terribly wrong. Well, the client can sue you within four years, so January of 2024.

In January of 2025 or ’26, your deposition is being taken, and you’re saying, “I had already [inaudible 00:51:29] to do this.” And the client [inaudible 00:51:32] 2027 or 2028, eight years later, and your client says, “Here’s how the conversation happened.” And you say, “No, that’s not how it happened. Here’s how it happened. We have your classic case as she said.” Who’s gonna win at trial? If it’s a classic case as she said, the client’s gonna win that. But if you’ve documented the file, if you’ve communicated well and documented the file, you’d not be sued in the first place.

Scott: So there’s document, document, document, communicate, communicate, communicate. It sounds like if there’s a question of fact, in other words, the lawyer says A, the client says B, and you end up at trial, it sounds like what you’re saying is that juries tend to go with the client.

David: Yeah. I mean, I think that’s unquestionable. You might hear some defense lawyers deny that when you, meaning I am arguing with them that they’re gonna lose that credibility question. But think about it. I saw a poll recently where it was ranking different jobs, not professions, but jobs, and lawyers were second to the bottom. The only job that was below lawyers was used car salesmen. New car salesmen were above. So, we’re not held in high regard, unfortunately.

I’ll tell you this, if you had the same exact scenario in a medical malpractice case where the doctor’s accused of misprescribing a medicine and the patient says, “You told me to take the medicine like this,” and the doctor says, “No, I told you to take the medicine like that,” the doctor is going to get the benefit of the doubt and that he said she said. Medical malpractice lawyers will tell you that that’s true. So, doctor get the benefit of the doubt, lawyers don’t. So how do you protect yourself from that inequity? You document the file. You be prepared to show the proof that the communication did, in fact, take place, and you’re doing that, number one, because the client deserves it. The client deserves good communication. But you’re doing it also because it’s the best way to protect yourself, document the file.

Scott: Maybe it’s the spirit in which you do it, but it sounds like that if you really… I mean, if someone were to take this advice and misconstrue it, it seems like you would start doing things that would maybe be…would erode the trust, the client would begin to look at the lawyer, “Well, you’re just protecting yourself.” Does the documentation if done incorrectly or done in the wrong spirit erode the attorney-client relationship? So, in other words, what’s the best way to do this in a way that seems like we’re doing it in good faith and with goodwill?

David: Well, I don’t care if a client has some inkling that I’m sending a communication to them that’s a CYA as long as I really…am doing it in good faith. So, for instance, I had a case recently where there was a lawyer at a firm that had committed a pretty bad error, and an associate at the firm had [inaudible 00:54:35] And I was going to sue the lawyer and the firm and the associate. And the lawyer for the firms asked me just as a matter of professionalism, whatever, not to name the associate. They said, “This is gonna really harm her career, harm her reputation. She was just taking instruction. Can you not name her as a defendant?” And it didn’t really change the case, but of course, I would never unilaterally make that decision.So I called the client, we talked about it. I advised the client that I did think that it was fine. And then I sent a confirmation email just kind of discussing the substance of the conversation and confirming it.

Now, did the client maybe think that Lefkowitz was covering his ass by sending that email? Maybe but I didn’t send it with that as the number one goal. I certainly was cognizant in, you know, my area of malpractice and risk management. I was certainly cognitive that could be a very important email a few years down the line if things don’t turn out well or if the client gets angry at me down the line. But it was more a matter of confirming that conversation, ensuring that the client understood the risks and the benefits of making that decision, and then confirming the decision. So, I see what you’re saying is you can come across as really sending a communication for your benefit instead of the client’s, but I think that’s okay as long as you are fulfilling your legal and fiduciary obligations.

Scott: Now, I wanna go back to the medical analogy. We all know what it’s like to be…well, most of us, if it’s not us, it’s a loved one to be waiting for a pathology result to come back and…or, you know, we get that pathology result and…because now you have like my chart, and you a lot of times, you get those results back before your medical provider does. We all want doctors to have a good bedside manner. I’m assuming doctor’s offices must have these patients that are neurotic, high maintenance, you know, they’re just gonna call constantly, and if the doctor dealt with them, they really wouldn’t have the time that they needed to devote to patients. I think I see this a lot in the criminal defense arena where you have…you know, maybe not necessarily the client. This may be good to those are the question of who is your client. Sometimes it’s the brother or the spouse or, you know, the son or the boyfriend or the girlfriend. When you have clients that want too much communication or, you know, you can…sometimes lawyers, we find ourselves spending more time talking about files than dealing with the files. And maybe your answer to this is you should have screened them better to begin with. But how do you deal with, you know, the need for communication where the client is maybe over-communicating or has unrealistic expectations?

David: Well, I’ll say first, that if you’re handling the matter by the hour, it’s less painful. If you’re handling it on a contingency fee or a flat fee, then you’re wondering where the efficiency is being affected, your law practice efficiency. If you knew that the client was gonna be like that coming in and you didn’t budget for it, then I would say you have yourself to blame and you have to hope that you have one or two clients in the future that take up less of your time than you expected. If the client surprises you, you can have a firm…there’s nothing wrong with having a conversation with the client just saying, “Look, I get that you want information. I’m good about sending you or providing you information when we get it. We do speak whenever something’s going on. If you need an update more frequently than I’m giving it to you, please let me know, but it’s not fair to my other clients for me to give you 20% of my time when you’re 1 out of 50 clients.” I think you can honestly have that conversation as long as you do it in a polite manner.

Scott: So beyond document and communicate, what other things do you see lawyers getting in trouble for both in the ethics realm or in the malpractice realm? And then I think we’ve spoken up, of course, on the administrative side. But in terms of what you tell your students, what are some other things that you try to impart to them?

David: Set forth the scope of the representation very carefully. Make sure that the client understands what you are doing and what you’re not doing. The classic example, again, is in the car crash case where a lawyer has a contingency fee contract that’s usually a form contract that says, “I’ll represent you for all claims arising out of the crash that took place on January 7, 2022.” Well, what does that mean?

To you the lawyer, it may mean that you’re handling the personal injury claim and that’s it, but what if the client also has a workers’ compensation claim? What if the client also is disabled and has a Social Security claim? What if there’s just a property damage claim? What are these criminal charges filed in association with the car crash? If you’re not handling those matters, you better document that in the attorney-client agreement. Otherwise, the expectation is going to be that you are handling it, particularly if you use some vague language like, “I’m representing you in all claims arising out of the crash,” which is common language, unfortunately, because it’s setting the lawyer up for risk.

So I would say, number one is define the duty, define the scope that’s distinctly within your power is to make sure the client understands what the engagement is and what the scope of the engagement is, right? You can’t get sued for something that you contractually have not agreed to do, but if you’ve left it vague and the client’s reasonable and thinking you’re going to do it, then you’re gonna be on the hook for not doing it. I would say that’s really important.

Scott: Defining the scope of the agreement in a written fee agreement. You spoke about it just when we were talking about your practice. Something that you said early in this discussion was that your caseload is a little lower than it was when you were doing insurance defense. And I’m gonna assume that that’s by design. Say a little bit more about caseload and how your caseload can enter into all of this.

David: Well, there are times when I’m working on a case, and I will not take a new case on. And there’s times where I have a big case that I think may resolve that will open up some significant time. Then I’ll tell a prospective client that, you know, “I told you I had a mediation last week in a claim that did resolve and I had told somebody else the week before. I’ll represent you if this claim settles, but if it doesn’t, I’m gonna be extraordinarily busy over the next few months, and to be fair, I’m not going to have the time to help you out on your case. It’s a very document-intensive complex case that I knew that I would not be able to invest my time in because I wouldn’t have it.” That’s really important for practice management.

And like I said, you can turn cases down. Right now I’m spending most of the day every Tuesday teaching, so I have less time. I’m not gonna overwhelm myself. If you are a younger practitioner, or even if you’re an experienced practitioner, set aside some time to write, to research, spend time with your kids, whatever, make sure that you’re living a full life. And, of course, they’re gonna be times where you’re slammed where there’s deadlines, you’re being overwhelmed by three defendants in one case, they’re all filing motions at the same time, and it almost seems like they’re working together to overwhelm you, that’s gonna happen. And you’re going to have nights and weekends where you have to work.

In fact, my wife already knows that I’m gonna be working late tonight because I’ve got something I’ve gotta get taken care of. So, yeah, handle what you have to handle. Don’t get in trouble. But don’t fill your plate up with more than you could eat. Don’t take on matters that you know or reasonably should know you cannot handle. Practice management and you do learn more about that as you go on as you have more experience. You start to realize what you can do, what you can’t do. When you have a vacation plan, which means not just five days away, but probably nine if you include the weekends on both ends of a week, are you gonna come back to a total mess and not be able to handle other matters? It becomes easier and easier to budget your time as you have more experience.

Scott: Well, David, I really appreciate you coming onto the podcast and talking to me. Is there any other, you know, big thing you’d like to tell the listeners?

David: No, not really. Just be careful and always put your client’s interest first, and the odds of you getting in trouble are very slim.

Scott: And where can people find you that are interested in your practice or, you know, if they were to have something in the legal malpractice arena? I know you have a pretty active Twitter account, although I think it sounds like you’re talking about cryptocurrency a lot, and I don’t really understand a lot of your tweets. Where can people find you?

David: So my main office is in Athens, Georgia, on South Milledge Avenue. I have a website, lefkowitzfirm.com. If you literally google David Lefkowitz, you’ll find me. I do have the site, legalmow.com [SP]. So if you don’t wanna type in my name, just go to legalmow.com. I do have a Twitter feed, DavidNLefkowitz. I never talk about crypto. That’s not my thing. I do occasionally talk about SPAC, which is an investment vehicle that some people have heard of and are getting involved in. I should talk more about legal ethics and less about SPACs and stocks on there, but stocks are kind of my thing when I’m not practicing law.

Scott: If I see symbols in your Twitter account with a dollar sign in the middle, I just know that I’m not gonna understand what you’re tweeting.

David: So any stocks on Twitter, any stock symbol gets a dollar sign in front of it, and that’s how people search out posts regarding Apple or Amazon or whatever the case may be.

Scott: Gotcha. Well, see, that’s an important lesson I learned right there.

David: Excellent.

Scott: Okay. Well, thanks so much, and take it easy. I really appreciate it.

David: Thank you very much for inviting me to be on here. I really enjoyed it.

Scott: Thanks for listening to “The Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com. And please rate, review, and follow this show wherever you get your audio content.

Episode Synopsis: Every lawyer prepares for trial in their own way, but what matters to Savannah-based attorney Tom Withers is the level of organization that he can bring to a case. Withers explains how he outlines his case from start to finish by creating a road map for everything from deposition to demonstratives. He also shares how he manages high profile cases, client expectations, and what to do with unexpected surprises.

Podcast Transcript: The following is a transcript of Episode 16 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.

Tom: Those attorney client interactions are the bread and butter of what we do. They establish the foundation of how we’re gonna proceed with respect to whether we’re gonna be retained and if we’re retained, how the case is gonna proceed. My view is that I always want to be truthful, candid and plainspoken with my clients.

Scott: The law is often about difficult conversations and those difficult conversations call for us to tell the truth, to tell the client sometimes that their position is difficult, sometimes that their position is untenable. But in being truthful and plainspoken, and in giving sometimes difficult but candid advice, we are at our best as lawyers. I enjoyed speaking with Tom Withers, a true giant in the legal profession, and one of my favorite Georgia trial lawyers. And I hope you enjoy listening in on our conversation about many things, including lawyers in the media, how he began his career and developed a practice in complex criminal and civil litigation. And so, without further ado, I give you Tom Withers.

Scott: Well, Tom Withers, how are you? It’s so good to have you on the podcast.

Tom: I’m fine, Scott. Thank you very much for having me. I’m privileged to be chatting with you.

Scott: Yeah, it’s so good to talk to you here. I know that we’ve done some cases together and I visited with you when I’ve been in Savannah, but it’s really good to have you on here. Something that we’ve sort of talked about, we’ve kind of been around the edges it, but what’s it like to practice law in Savannah, Georgia?

Tom: I think Savannah is a good jurisdiction in terms of both the civil and criminal trial practice. From a civil perspective, I do a lot of stuff in the federal courts, historically the federal courts have been difficult places, particularly in the southern district of Georgia that practice, and so I get a lot of referrals for the civil matters. And we have what I want to call, good crime in southern district of Georgia and in the state system as well. And so, we’ve been blessed to have a number of substantial matters, both in the federal and state systems.

Scott: So how much of your practice is civil? I always think of you in the criminal context, as those are the kind of cases we work on together. But how does your practice break down in terms of civil and criminal?

Tom: It depends kind of on the year or years, but probably 30% to 35% civil and the balance, criminal. But, you know, it comes and goes. I guess you get your name in the paper more, or in the media more in criminal matters than civil matters. But, the majority would be consistently federal criminal matters and then civil trial practice as well.

Scott: And the civil, is that plaintiff’s work? What kind of civil work are you doing in federal court?

Tom: A little bit of everything. I would say more on the defense side, but I have over the years, had some good friends out of the western district of Pennsylvania that I’ve partnered with on some civil class cases, class action matters, and we’ve had some pretty good success, including locally. I’m just the guy in those cases though, that plows a straight line. They’re the brains and brawn behind the cases.

Scott: What does it mean to plow a straight line? Are you just kind of doing the yeoman’s work out there?

Tom: Yep. Generally, I would be what’s called a liasion counsel, which is kind of like the local counsel and they’re doing the yeoman share of the litigation.

Scott: And what kind of class actions are these? Are these mortgage cases, I think?

Tom: So back in, you know, ’08, ’09, we were on the other side of the wave of the subprime mortgage cases. And we had a couple of those. More recently within the last four or five years, we’ve done several data breach cases up in the northern district of Georgia, including Home Depot, which is just on appeal to the 11th circuit and a couple of other of those data breach type matters.

Scott: So data breach, this is like a big retailer or creditor whose database gets hacked and personal information’s released?

Tom: That’s exactly right.

Scott: And then, you represent as a class, the people who are victims of that?

Tom: True.

Scott: Okay. So, let me back up and I’m gonna go way back here. I know that you were raised in Atlanta. How did you go about…and I know that you went to University of Georgia, I think as an undergrad and in law school, tell me little bit about the process or how it is that you sort of became a lawyer, and what made you become interested in becoming a lawyer?

Tom: You know, funny thing, I mean, my mother used to always say that I was good at arguing with people. And my first love in terms of profession would have been NBA basketball, but it turns out my talent would not take me that far, so I had to fall back on, you know, some other manner of making a living. I did play one year of basketball at the University of Georgia in 1975, ’76, but that was as far as my talent would take me. Went to law school and had the really, the blessing to come to Savannah, my happenstance and go to work with a firm that was then called Oliver Maner and Gray and really was fortunate to practice with two guys that were exceptional lawyers, Bill Franklin and Greg Hodges. Greg still practices, Bill is retired, who tried a lot of cases. And they were really good trial lawyers. And so, I was kind of thrown into the mix, you know, and tried my first case a couple of years out of law school doing med mal defense and other insurance defense, but mostly med mal defense.

Scott: So I think you came out of law school, was it in ’84, and you were there at Oliver Maner, what, six years or so?

Tom: Yep, that’s exactly right. And you know, another, kind of looking through the respective scope, another one of the blessings in my life was I had the good fortunate of practice at Oliver Maner and Gray with Willie Moore, who in 1992, I think, got appointed by President Clinton to the United States District Court. But Willie had been a former U.S. attorney, and so he got me involved in a federal criminal matter in 1988 [inaudible 00:08:15] trial. And it was an insurance fraud case, prosecuted both by Maine justice and the local U.S. attorney’s office, and we were fortunate enough to have prevailed in that case and got not guilty verdicts at trial, the result of which led to an offer from the United States Attorney’s Office to go to work for them.

Scott: So after you beat them in ’88, they asked you to come onboard?

Tom: That’s true.

Scott: What was federal, I mean, was this pre-guidelines 1988? I’m trying to…

Tom: Guidelines, I guess, went into affect, I think, in November of ’87. So, that would have been right at the cusp of the sentencing guidelines.

Scott: What was your practice? I know you mentioned that you did medical malpractice defense, and I guess your first trial was in med mal defense? Is that right?

Tom: True. Yeah, yeah.

Scott: What was litigation like? You mentioned that you had three people you sort of credit with being mentors to you. I don’t think you used that exact word, but you said essentially that.

Tom: Really true.

Scott: What are some of the big lessons you learned from them, practicing with them when you first started out of law school?

Tom: One was to have the courage to try your case and two was to prepare, you know, demonstrated to me how to put your case together. At that point in time, it was from a civil defense perspective. But in med mal cases, those cases are well funded by the insurance companies and they’re well defended. You have very good experts, you know. Back then it was on the other side of tort reform, and so you had a few more cases that were not so substantial. But the, you know thing that I came away from practicing with Bill Franklin and Greg Hodges, in terms of watching them appear was how diligent they were in preparation and their willingness to go into court and try the cases.

Scott: And that was the first thing, I know you said that first, courage to try the case before preparation, and I know they’re very important. What do you think is distinctive? First for a non-lawyer who might hear this, you would think everybody has the courage to try the case. And so, people that don’t really know lawyers except for the news or I guess TV shows or whatever, would just assume that all we do is try cases. Why does the courage to try the case, I mean, to me, that strikes me as a very distinctive thing both in criminal and civil, but what do you mean by that and do you think that’s something that has been lacking in litigation?

Tom: Well, I mean, so I could compare, I would watch my then partners at Oliver Maner and Gray, I was made a partner in 1988, but I could watch my partners be willing to go into court and try their case and see in comparison some of the folks in the civil defense of those very cases who were not willing to try their case. And so, it was a stark contrast where I could see certain lawyers who, you know, didn’t have the wherewithal, for whatever reason, to go in and try cases and could match that with what I was actually seeing with respect to Greg and Bill and going into try their cases. And so, I was expected, you know, being raised up by them, I was expected to go into court and try my cases. And I think, you know, two years out of law school, I tried four cases in that first year, which would have been 1986. And so, that’s you know, that’s a great benefit to have learned that, you know, you gotta be willing to try the case. And of course, the client has to be informed about the various risk and benefits. Those were civil cases, that trial, my first criminal case, that federal criminal matter 1998, but I think it was a case of actual innocence. And fortunately, the jury saw the same.

Scott: I would imagine one of the benefits to the willingness to try the case is, you get experience. I mean, I’m moving into more civil, you know, later in my career, where I find myself, but having started out in doing nothing but criminal defense practice, I find that a lot of civil practitioners don’t, I mean, I think probably my first year out of law school, I did more trial work than a lot of civil lawyers have done so far in their career who’ve been practicing as much as I do. Were you requiring skill from getting into the courtroom? I mean, did it give you a negotiating edge? What do you think the advantage of being able to, having the courage to try the case gave you as a civil practitioner?

Tom: Great question. You know, so one of the things that I was able to learn at an early age is if you are willing to try your case, and you’re preparing your defense, that was civil defense again, insurance defense, you’re preparing defense like you’re going to try your case, then it gives you a better outlook in terms of alternately disposing of your case. And so, that’s one of the things that I’ve brought forth over the years, you know. Be well prepared and you know, it’s something that Ronald Reagan in the Cold War used to talk about peace through strength in terms of the old Soviet Union. And I think that attains to the practice of law. You are gonna get your best result in terms of negotiation, when you’re the most well prepared to try your case. And so, that’s a lesson that I brought forward over the years and I think I learned at a very young age legally.

Scott: What were some of the things that, I mean you mentioned Franklin and Hodges were diligent in the preparation of their trials. What do you think set them apart and I think everybody thinks that we’re diligent, but what, you know, looking at what they would do, what are some things they would do that you sort of learned from? When you say diligence, sort or take me through if you’re Franklin or Hodges preparing for a trial, what are some things they would do? What did their preparation look like?

Tom: Great question. I mean, from a practical perspective, how do you put your willingness to work hard into actual practice? Couple of things that right off the bat. One is, prepare your client and, you know, then your experts in the civil arena, for deposition testimony first. And so, you know, we would meet with our clients, our physician clients, and spend hours and hours and hours preparing them for their testimony first at deposition, and then at trial. What does that mean? That means going over the records so that you, as a lawyer, have a good idea of what those records say. And then, the testimony of the physician breaths life into those records.

That same willingness to review records and prepare your client then translates over into first in my career, criminal prosecution, criminal defense in that one case, and then criminal prosecution as a federal prosecutor. You know, I would be completely happy as a AUSA with a box of documents, reviewing those with the FBI agent and, you know, distilling down the hot documents that we thought we needed to have organized and learn from those documents, the essence of your case is. And so, you know, as a practical aspect, it would be knowing your documents and then preparing your witnesses to testify. And when we would go take posing depositions, being really well prepared in terms of attacking, you know, getting your opposing expert to express his or her opinions, and then attacking those opinions.

Scott: Mm-hmm. So, it sounds like, I mean, so when I hear preparation, I think about the lawyer sitting in the office and really kinda going over the documents. But there’s a real component for you in preparation in getting your witnesses prepared.

Tom: Yep. No doubt about it. And Scott, I know you have had Denise de La Rue on.

Scott: Yes, I have.

Tom: Denise and I have worked very closely for the last 15 years or so, and her helping me with theories of defense in cases and working with my clients in terms of preparation of that client. And so, you know, she has made me a better lawyer in terms of understanding, kind of distilling theories down and helping prepare my clients now in my current practice for trial testimony, what have you.

Scott: And in terms of what it takes to prepare, what are some other things you saw from the lawyers when you first started practicing that you still incorporate in your trial preparation? Because I know you talked a moment about kind of going over the record and preparing their testimony, but in terms of what you do, what are some things that you still do that you learned from them?

Tom: One of the things that I think Greg used to do was prepare a deposition outline. And so, I had brought that forward so that when I am examining a posing witness or conducting direct examination, I have kind of went over the years, I have come to call, chapters of examination. And that really rises out of what I learned from them. So, you know, it would go from something as simple as, you know, background information to then getting into education conduct of the, offense conduct etc., so that I actually organized both my cross and direct in terms of chapters of examination. In cross-examination, Scott, what I do is I organize each of those chapters that are contained in a separate binder so that I move from one folder to the next as I’m conducting that cross-examination, if that makes sense.

Scott: No, tell me, I think I understand but tell me a little bit more about that. So, if I were to walk into a trial that you’re doing and let’s just say you are defense counsel, and let’s just say that the lead agent is on the stand or is about to be on the stand, and I’m gonna be sitting at the table with you, tell me what you materials look like, how they’re organized and if I were to kind of have a camera on your lapel, what would I see?

Tom: So, I’m gonna have, you know, let’s say it’s gonna be the lead case agent in an IRS case. So, I’ll have six separate folders that are sitting in front of me. And each of those folders addresses a particular topic that I’m gonna be cross-examining that witness on. And I will, this sounds bad that I still do this after almost 40 years of practice, but I will write out my questions in a very careful manner, that I want to ask and I will have underneath that question in a separate ink, so I’ll write the question in blue and then I’ll write in red the answer that I want to get out of that question, right. And if that agent has testified in front of the grand jury here in the southern district of Georgia, you get that grand jury testimony as [inaudible 00:22:48] well in advance of trial. And if that question has already been answered, I’ll have the page and line designation that I will go to if I get an answer other than what I’m looking for. So, I’ll go through each of those folders and when I finish one chapter, you know, close that folder and put it back on my desk and then move to the next area that I’m gonna cross-examine the witness on.

Scott: And you say six folders. Is there anything, is that just a…

Tom: That’s just an example. So I mean, however many different chapters I’m gonna be cross-examining that witness on.

Scott: Okay. So you come in having written, and you’re actually writing the question out. You’re not doing an outline, but you’ve actually gone to the point of writing the question out that you’re going to ask. And I guess in separate or different colored ink, the answer that you anticipate. And then, you also have cross reference where to find, I guess, impeachment material or something like that.

Tom: That’s right. Exactly right.

Scott: Okay. So, that’s how you come in preparing. Now, obviously we are often surprised by what witnesses say on direct. What are you also doing as you’re sitting at the table listening to the direct testimony to deal with things that are unanticipated that arise?

Tom: Obviously, things do come up. So while the witness is testifying, there are two things I do at trial. I take my trial notes in blue except for the cross-examination that I’m gonna ask that witness that comes up while the witness is testifying. I’ll write that in red. And any issues that I think will merit motion for a new trial, I write in red also. So, you know, I’ll just write out kind of topics and then questions as the witnesses testify.

Now, I do have to say that every lawyer does things in a different fashion. This is just what works for me. My partner, Greg Gillen, we have tried a couple of cases together, and Craig’s cross-examinational notes are much more cryptic. And he has the ability to stand up and conduct a cross-examination where he’s not looking at his notes, you know. He’s smart enough, intelligent enough to just, you know, go with what the witness is saying and then be able to walk that witness down a line that ultimately the witness ends up agreeing with a lot of what Craig says. So, this is the kind of chapter method has worked for me for decades and I find it an effective way to conduct cross-examination.

And by the way, one other thing I have started doing the last 10 years is when I get a answer that’s not consistent with what prior testimony or a FBI 302 or IRS report or whatever, you know, again I’ll have that handy. So I can either display it immediately for the jury or, you know, in state court you don’t have to lay the foundation for cross-examination for prior inconsistent statement like you used to in superior court. And so, you know, you’ll bash that witness with the prior inconsistent statement, just right off the bat when they veer from what their earlier testimony was.

Scott: Are your trial files, and you’ve mentioned different colored ink, so obviously it sounds like this folders, when you open them up, they’re handwritten, you know, you have handwritten materials. How have you, over the years, changed the way you, or have you, changed the way you do your…do you have a trial notebook? To what extent are you maintaining things in an electronic format when you go into court?

Tom: One of the things that I learned at Oliver Maner and Gray was the use of a trial notebook and I still do that. But now, my file, you know, sits in container directly in back of me, my trial file, instead of having a trial notebook, the trial notebook will mostly consist of the pleadings that are at issue and motions in limine and whatnot, you know, jury charges and whatnot. You know, and I maintain the course of trial in folders in a container or a box immediately in back of me, is where proceeding through trial.

Scott: When you say you’re ready to display something, do you have an assistant that’s helping you with that or tell me how you’re doing your exhibits and your demonstratives and things like that.

Tom: So, I’ve used a company for the last five or six, seven, eight years out of Atlanta called Bob Poston’s, is the principal, PO-S-T-O-N. I think it’s Legal Technology Consultants. And I’ll tell Bob we have…and I’ll talk to the jury about this in opening statement, “You’re gonna hear me talking to Bob. Bob’s going to be displaying exhibits and I’ll be asking him to call up exhibits.” And so, you know, if we’re gonna impeach somebody on, you know, page 62 of the grand jury testimony lines 12 through 14, we’ll have that marked as 1C. He comes up with the numerical designations. And so, I’ll just tell Bob, you know, “Pull up 1C” and that’ll be on my notes for cross-examination. That takes a lot of work and effort, but it’s very, very effective to be able to either play a snippet or display a snippet while you’re in trial. Now, if it’s a less well funded case, I use a fellow who used to be an IRS agent, who does that for me. But I think it’s important to be able to use those documents for cross-examination and, you know, hit the witness with their prior testimony or prior statement immediately during your cross-examination.

Scott: So, it sounds like you put a lot into making sure the demonstrative works in a way that’s not distracting. I’d like to talk a little bit more about that because I find reading a lot of trial transcripts as I do, it seems like, I mean, when I say more often than not, I mean, invariably more often than not, almost overwhelmingly more often than not, whether it’s a prosecutor or a civil plaintiffs lawyer or a defense attorney, it seems like it’s, in both civil and criminal, it seems like more often than not when it comes time to play a video, display something on a courtroom presentation system, there’s a problem. And, you know, the jury gets dismissed or the judge gets frustrated. It seems like lawyers aren’t doing enough or they just don’t understand the technology or they don’t bring someone in to help, and it seems like there’s just about always a hiccup when it comes to that. And people just kinda laugh about it. But, what do you think’s going on with the jury or what do you think the effect is, because I know it seems like you put a lot into making sure that stuff works when it’s supposed to work.

Tom: Yeah, it’s got to. And you know, so I would say two things or maybe three things with respect to that, Scott. One of the things that I see in depositions still is lawyers not making a sufficient record as to what the witness is reviewing. So like, civil depositions, you’ll be sitting there and the depositions will just be a mess in terms of making an appropriate record. Oftentimes, our cases are, I guess most civil cases now are document intensive. And I’ll just see some cases where it’s just a mess. So one, you have to be careful as a lawyer, both in civil and in criminal matters, to make certain that you’re articulating for the record what the witness is reviewing. And that’s true for both civil and criminal cases.

Scott: Because it’s easy to lose sight of the fact that even if it’s a video deposition, I mean, you know what the witness is looking at the witness knows what the witness is looking at, but you’re doing this for someone else who doesn’t know what both of you know. Or it’s easy just to lose sight of the fact that you’re doing this for an audience.

Tom: More importantly in my view, you’re doing this, you’re conducting your examination in a civil deposition with an eye towards that witness’ testimony at a trial, right. And so, if you don’t have your witness’ testimony cabined to an exhibit or tied to an exhibit, then when you get to a trial and you’re trying to tie that document to this witness, it’s a mess. So, you’ve gotta be careful when you’re conducting your depositions that it’s apparent what the witness is referring to. And again, that’s because what’s the ultimate goal? The ultimate goal is the purpose of an effective use of that deposition, either a trial or mediation.

I will say a couple of other things with respect to use of audio visual or other demonstrative aids. You’re always going to run into a technical issue, right? Even when I’m well prepared and Bob Poston, the AV guy, is well prepared, you’ll still run into an issue. And so, you’ve got to instead of, you know, looking disgusted and sitting there waiting for something to go on, you gotta be willing to just move easily to the next topic or next [inaudible 00:34:34], you know. And sometimes you might even lose that ability to effectively cross-examine a witness on that particular page or item. You just gotta be able to move on so that the jury doesn’t see you getting upset. Or you know, as you describe, the trial going off the rails. You just can’t do that. You gotta be able to move on and do that effectively.

And in order to, you know, conduct that examination in an effective manner, you and your AV person have to be on the same page. And so, you know, what does that mean for me? That means that Bob and I have been over everything that I’m gonna talk about, and he knows the exact page and line or the, you know, timestamp if it’s a prior video or audio statement, he knows exactly what it is. Again, he’s the one who will have labeled what that exhibit number is, but you know, he’ll have labeled on page 3 of my examination, fourth question down. I’m gonna ask Nancy about her statement at, you know, page 9, lines 12 through 14 and he’ll label that, you know, exhibit 1C or whatever. But you know, again I’ll tell the jury at the start of the trial, “You’ll hear Bob and I talking about these.” And that’s just the manner, I’ll tell the jury, that’s just the manner in which we’ve organized our exhibit and our demonstrative aids so that they know what’s going on when I’m talking to him.

Scott: And one of the things that, I don’t know if this is just something that maybe less techy lawyers do or lawyers who aren’t comfortable do, but how do you balance the use of technology in court against potentially the accusation and maybe on the defense side, we don’t get this as much, but this notion that we’re being too slick or we’re being too fancy. Is that something that you worry about or is that something that you just think really isn’t a thing? How do you manage that or is it something you don’t think we have to worry about if we’re doing it right?

Tom: Yeah. I mean, I don’t worry about that. I want the jury to believe that we are well organized and well prepared. And I think it brings another level to your ability to effectively present your case if you properly use audio visual or demonstrative aids during the conduct of your trial.

Scott: And how much do you use, and it may vary depending on the case obviously, but on average, how much use of demonstratives are you using in your opening and closings?

Tom: So, not much in openings, and in closings, I will either have Bob or someone else, either inside or outside of the office, prepare or help me prepare the presentation for closing argument. So, really not much in opening statement, but a pretty good bit in closing arguments.

Scott: And I know you’ve mentioned Denise a moment ago and her assistance in shaping themes and theories of the case. You know, to me, if you’re gonna try a case, the use of a jury consultant and at least doing some sort of a focus group, even if it’s you’re kind of on a shoestring budget, is so important, how much are you using Denise or someone like Denise? And I guess another question would be, how much do you…I found Denise sometimes can be helpful not only in preparing for trial, but in showing the client that a trial is a bad idea.

Tom: That’s true. I’d have to say in every trial I’ve had over the last 15 years, I have employed Denise for the purpose of trial preparation in some fashion. So, I have convinced the client to help us out, to let her help us out in that respect, and I think it is effective. And so, I’d have to say consistently over the last years I’ve used Denise, both for preparation of a client and for jury selection. Now, you know, in some cases, she has, you know, reminded me that, you know, I’m nuts if I think I can try a case. I went up to her office a couple of years ago in Atlanta on a weekend and after, you know, listening to me talk about the defensibility of this case, you know, she very candidly asked me if I was serious that I could try this case or not. And she’s not quite that delicate.

Scott: Right, she’s not. Well, so we were talking about the things you do in trial, the way you prepare for cross-examination, the use of demonstratives in getting help with that and everything. And so, in terms of, I mean, and that’s in terms of just preparing, sometimes preparing for trial and executing in trial was the easy part. There are all kinds of things that sort of surround a trial, particularly in a high profile case. Talk to me a little bit about cases you’ve done that are high profile and some of the things you see…well, that you see lawyers not doing so well when it comes to high profile cases in the media.

Tom: So, I think a good and important issue for the legal community generally, Scott, I’m glad you asked. My belief is that as lawyers, we should try our cases in the courtroom. And so, as a general matter, the only statement that I will make prior to a verdict or prior to disposition of a case, will be that we believe in and trust in the system of justice, particularly our jury system, and we are not going to try the case in the court of public opinion, but will do so in the courtroom. And that’s it until the case is concluded, in my view. And so, that’s kind of a line we try to keep in mind in our cases.

Scott: Now, what do you do though that’s not unusual in bigger cases, particularly if there is a big cash of drugs that are found or something like that, it’s not unusual to see law enforcement, you know, that sort of, it’s almost cliched that law enforcement with the big table of guns and drugs and money behind them or to see prosecutors announce their indictment with a press conference or by inviting the media. Do you feel at all a need to respond to that in terms of your potential jury pool?

Tom: I do. So, a couple things in that respect. Recently, I have moved to dismiss an indictment based upon the press conference that the then United States Attorney held. It was probably a couple of years ago now. And so, you know, I think there are things we can do and that’s one of them. And the other one is to send a letter to the prosecutive authority, whether it be a district attorney or the United States Attorney, and inform them they need to hew to the local rules in federal court and to the Georgia bar rules, which are very, very similar, and that we expect them to do so. And if they continue to fail in their duties, that we’re gonna take appropriate steps.

Scott: So, you take that, whatever it is that you think is inappropriate or maybe inflammatory to your potential jurors, and you just even deal with that within the courtroom.

Tom: I’m not sure what you mean by that, but so, you know, recent case in southern district of Georgia, and I don’t want to get too much into the specifics because it’s still pending, but the U.S. attorney goes wildly off the rails in terms of what’s permissible. And so, I filed a motion to sanction the government for failing to comply with not only the local rules, but it’s codified in the CFR, how DOJ employees and assistant U.S. attorneys and U.S. attorneys are supposed to act and how their conduct is supposed to be conducted. [inaudible 00:45:02] way to phrase it. But, those local rules and the CFR really is largely reflected on the state bar rules. And so, you know, we have pretty, I think, tough but fair in informing the courts and the prosecuting authorities that we expect them to abide by the state bar rules, local rules, what have you.

Scott: Yeah. I think what I meant by my question a minute ago is, you don’t feel the need to respond in kind. If there’s a press conference, if the government or if the state is doing too much or using the media inappropriately, you don’t feel the need so much to respond in kind with a press conference of your own. You trust in the system itself. You’ll file a motion to trial to deal with it and let the court address it. So even the step of your opponent going to the media in an inappropriate way, you feel like the best response is to deal with it through the legal system itself, through a motion or through writing a letter or something like that within the system.

Tom: That’s exactly right, you know, and we have done that. And I think that’s the way. Now, the rules do allow you for a kind of tit for tat, the state bar rules and the local rules. So, I have never done that and I can think of only one occasion where my partner in Atlanta did that and he did it successfully, by the way. But, I think, you know, improperly using the press by prosecutive authorities is something that I take really very seriously. And I don’t think that the system or our clients are served by getting out in front of the press and trying to, you know, sculpt things, as it were.

Scott: Well, I share your view on that. I take a dim view. I mean, I think the press, they’re after a story and generally, my experience is guilt sells better than innocence. And…

Tom: Really true.

Scott: And I think that only marginally so, I think the print media does a little bit of a getter job than the broadcast media does, but I would say only marginally. So knowing, or if we assume that trying to sculpt, you know, the case in the media doesn’t work, why do you think so many of our colleagues are so anxious to try that or to try to get on TV and related to their cases?

Tom: Great question, Scott. I mean, I see it as the attorney’s pursuit of 15 minutes of fame to the detriment of the client. And I feel really strongly about that. I can’t recall a case as I sit here right now, where an attorney has gotten in front of the cameras pretrial and has made hay for his client in a positive manner. I just can’t think of one. Maybe there’s some out there. But I think that stuff has an ability to boomerang and it’s very difficult to control a narrative in a criminal case, particularly when you’re at the beginning of the case and you don’t know what the evidence is going to be. And so, I see that as lawyers disserving their clients’ best interest.

Scott: In the interest of promoting their own, I suppose their brand or their practice, or just because it’s, I guess, fun for some people to be on TV. Though I can’t imagine what’s fun about that.

Tom: I think that’s right. I think it’s selfish pursuit by an attorney of 15 minutes of fame, and you see it all the time and see it fail all the time. And in my view, the client is roundly disserved by the attorney’s pursuit of his or her 15 minutes or fame.

Scott: Well, on a related note, what are your thoughts, and I see you on Twitter, you’re not talking about your cases, but I see you talk about a number of things from, you know, you may retweet something that someone took a great photograph or something like that, what do you think the lawyers, what do you think about lawyers in social media and how we’re doing it wrong and how you think we might be doing it right? And I say “we” very generally, not you and I necessarily.

Tom: That’s a complex question, but I think that for us related to our law practice, we have to be very careful. And absent getting your client’s consent, I don’t think you can talk about your client’s case, except in the most abstract terms. I can’t think of an instance where I’ve ever done it. There are state bar rules that govern your ability to talk about your client’s case. And unless you’ve got your client’s consent, you’re treading on thin ice in that respect. Now, I know you’re friends, acquaintances with Judge Dillard, I follow him on Twitter, he tries to use that platform for educational purposes for, and transparency purposes for the courts, which I think is fantastic. I’m just really uncomfortable talking about a client’s case on social media. I wouldn’t do it unless the client gave me express permission and I would do it very carefully under those circumstances.

Scott: I think it’s just a good place for lawyers to, I mean, it’s almost like a, if you do it right, it’s a good way to, you know, interact and be friendly with other lawyers, just generally. But yes, I think when you come to the level of talking about…I think even you have to even be careful just generally, if you were frustrated by something that happened and you speak in the most generic terms, I don’t think it takes a lot of work for someone to figure out what it is you’re talking about sometimes too.

Tom: Yeah, yeah. There are specific rules that govern how we’re supposed to conduct ourselves that apply to social media as well. And you know, I see attorneys on occasion talking about their cases and I have…when they’re friends of mine, I’ve send them communications and said, “Hey, you need to be careful.” But I’ve often observed that and find it problematic really.

Scott: So one other thing I would like to talk about, because we’ve talked generally about trial preparation and cross-examination. Now we’ve talked a little bit about the use of media. And this is another topic outside of the courtroom and it’s one of the things that I’ve struggled with, so maybe I’m asking you this question for my own selfish purposes to try to learn from you. We all have the experience, whether it’s in the civil or criminal realm, where we realize sometimes it’s after getting the discovery and sometimes it’s after doing some witness interviews, that the case that we have is not the case that we thought we were going to have when we opened the file. It’s not as was represented to us by the folks we talked to. And I jokingly talked about Denise, how sometimes Denise’s contribution can be to tell us, you know not necessarily a theme for the trial but maybe you should reconsider trying this case at all. And I find myself often in this situation where the client and I don’t see the case the same way. The client’s expectation…or maybe it’s because of me. Maybe it’s my past successes or it’s because, you know, they have a lot of confidence in me, but the greatest lawyer can’t undo the worst facts, you know, no matter what. We’re limited in the law and the facts that we have. How do you manage client expectations and what are some things that you do to sort of, I suppose, help the client sometimes see reality of the case?

Tom: I think that’s a great question, Scott. I really do, because those attorney client interactions are the bread and butter of what we do. They establish the foundation of how we’re gonna proceed with respect to whether we’re going to be retained, and if we’re retained, how the case is going to proceed. My view is that I always want to be truthful, candid and plainspoken with my clients. So, and I mean that from the outset too. Certainly, we’ve had cases that have turned as we’ve gotten into discovering, you know, oftentimes as a lawyer, you’re kind of wondering where this case is going, you know until you get the discovery. But, even at the outset of a case, I will tell a client there are no guarantees other than I know what I’m doing and I work hard. But no guarantees in law or life. So, I just try to be very plainspoken and very candid with the clients, Scott. That, with some clients, I know I’ve lost clients because of my unwillingness to kind of jump on the bandwagon at the beginning of a case, but in my view, that ability to communicate with a client plainly and truthfully, is really a foundation of what we do. And so, if I’m gonna lose a client who doesn’t like me to talk in frank fashion about the jeopardy that they’re facing, then I think that’s just the way it’s gonna be.

In civil cases, I often ask if I’m on the plaintiff side, you know, “What is your expectation with respect to this case is going to do? Where are we going to be with this case?” And I don’t do a ton of civil plaintiff stuff anymore. But, it is always instructive to me to find out from the outset what the plaintiff’s expectations are in a civil case, because if the plaintiff has a $10,000 case and they think it’s a million dollar case, then they’re never going to be happy. And you’re best served, in my view, to send that client on down the line. But in the criminal realm, one of the things that I do at the outset is write a letter to the client explaining to them what the charges are and what the potential penalties are, and that’s in writing so that the client has it there, can look at it and digest what their jeopardy is in that particular case.

Scott: So in terms of it’s just being frank and plainspoken and truthful, so that is in terms of managing the client’s expectations and that’s in terms of potential results. Now, we do also know that there’s a lot of hurry up and wait in the law. So, if it’s [inaudible 00:58:28] appeal, we may be waiting for the court reporter, and if it’s pretrial motions, we sometimes find ourselves in the place where we’ve argued the case to the court and it may be a difficult decision or it could be that the judges are just slammed and they have a lot to do. There’s a lot of waiting and I find with some clients that sometimes there’s no news to report, but clients want there to be news and they call wanting news when there is none. How do you deal with the client’s expectations regarding just the way a case is unfolding or impatience about, you know, where things are going?

Tom: So, you know, we’re in a different world with COVID, right, and what I like to do, I can’t say I do it in every case, but what I like to do is set out for the client a roadmap of how the case is going to progress. And the reason I do that, Scott, is because 25 years ago, my mother was very ill and we were running around to this doctor and that doctor, and doctor would blow into the room, talk to you in three minutes, then out and you’d have no other manner to communicate with them. Well, I try and make myself available phone, in person, email, but I also want to have the client have something in his or her hands that they can look at for the purpose of, this is how this case is gonna go, you know. This is how the case is gonna progress. Now with COVID, it’s a little more difficult to predict because, you know, a client could get arrested in January of 2022, but you know, who knows when the case will be indicted. Who knows when the case will potentially go to trial, you know. And so, we’re in an unknown in that respect, in terms of timing and continuity of the case. And you know, I just try and tell the clients today, literally, I mean, in today’s world, we don’t have the ability to use our experience to forecast when a case might come to trial or when a case might be decided.

Scott: Because we just don’t know. I mean, literally I had a calendar call set for Monday that I just got an email that it’s now been moved virtual, and the jury trials for the term are off in this one particular circuit.

Tom: Yeah. I mean, I’ve got, you know, several cases where they were indicted a couple of years ago, I would be surprised that they get reached this year, 2022, and they’re a couple of years old already. And just because it’s a different world and it’s an unknown. Clients seem to be reasonably understanding with respect to that.

Scott: If they’re out on bond, in particular. Those not out on bond, it’s a whole different thing.

Tom: Oh, gosh. I’ll tell you what. I mean, you know, people that are incarcerated during, you know, surges of COVID, they’ll get locked down 23 hours a day and it’s just awful. And I’ve actually used that to argue at sentencing that, you know, if you’ve done 180 days in lockdown, then that’s like serving three years. I don’t know what the equivalency is, I really don’t. But there’s a pretty good bit of science out there about the deleterious effects of those types of lockdown.

Scott: Because it’s essentially solitary confinement for everybody and…

Tom: It really is. It’s awful, awful, you know. I don’t think that the courts have wrapped their minds around how difficult that has been and will be for the individual clients, individual offenders.

Scott: So how’s your practice changed over the course of COVID? Have there been some things that have improved for you or?

Tom: Well, one of the benefits is doing types virtual arraignments and at least here in southeast Georgia, we have a lot of calendar calls where you’ll go over and the judge is just trying to get a sense…I mean, I had one yesterday here in Chatham County, the judge is just trying to get a sense of what’s on her docket and, you know, how things are going to be progressing. I mean, it’s 30 something cases and what’s the potential trial coming up. It’s wonderful to be able to do those virtually because, you know, you can put yourself on mute and continue to work, and then when your case gets called, you know, turn on the video and unmute and spend five minutes chatting with the judge about the case. Whereas in the past, you might have to drive to Statesboro, a couple of hours in the car, a couple of hours in court, and now you just are able to sit there and in your office. I think that’s wonderful and I hope that we adapt that going forward. I really do. I have not had a jury trial since COVID started. So, I’m scheduled to have one next month, assuming that this most recent omicron surge continues to decline as it has in the last few days. I think that case will go forward. So, I can’t give you the benefit of my experience in terms of trying cases during COVID, but you know, it’s just been a pause both in federal and the state system in terms of the ability to get cases to trial. As you say, if your client’s out on bond, that’s okay. Although, you know, if you’ve got a case and I’ve got several that where I think they will end in trials, then you know, for the client, it’s like having [inaudible 01:05:29] sword over your head, but you know, better to be out on bond and that’s manageable.

Scott: Habeas corpus and appeals have never moved faster. I mean, and I bet you state habeas corpus will never go back to the way it was because there’s no more trying to coordinate getting the lawyer who representing the habeas petitioner and the attorney general and trial and appellate counsel in one room. All of that’s been taken away, so I found that habeas corpus has moved pretty fast.

Tom: That’s fantastic.

Scott: And motions for new trial in the state system have moved very fast. But I suppose one day, there’s gonna be a gap because the fact that we haven’t had so many trials is probably gonna catch up with us at some point, which maybe that’s a nice problem to have on the post conviction end.

Tom: Yeah. You know, Scott, a year and a half ago, say summer of 2020, I was worried that there was going to be a tsunami of trials. COVID was going to end September 1 of 2020, and then everything was going to be back going full boar. And it’s obvious to, I think, all now that we have to be much more resilient in our scheduling and that this is a problem that’s gonna plague the courts and DAs and defense counsel for years. I will say one thing that I have not seen from district attorney’s office. Maybe it’s happening, Scott, I don’t see it, but that is the triage of cases and just throwing some cases overboard that don’t need to be prosecuted, even on the best day. But there’s still proceeding a pace like we were pre-COVID. I’ve got at least two cases under indictment right now that never needed to be indicted, even on their best day. And I’m disappointed that the district attorney’s offices are not taking a closer look at cases and understanding that triage needs to occur.

Scott: Well, I really appreciate having you on the podcast and, you know, if there’s anything else you want to say to the listeners, please fire away.

Tom: I don’t. I’m grateful, Scott, and privileged for the ability to chat with you. If anybody wants to ask any questions, I’m happy to answer ’em and you can call me at the office and that number is 912-447-8400. Or shoot me an email and that’s available on my website.

Scott: Okay, Tom. Well, thanks so much.

Tom: Thanks, Scott. Take care.

Scott: Thanks for listening to “The Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com and please rate, review and subscribe to this show wherever you get your audio content.

Episode Synopsis: When you begin your own practice, you need to learn how to market yourself. After years of handing out business cards and writing out hand-written letters, Steve Murrin, the “Biker Lawyer,” has adapted his civil practice to reach people across social media and through word of mouth. Murrin shares how he uses his passion for Harleys to connect with potential clients and the need-to-knows for building your client base.

Podcast Transcript: The following is a transcript of Episode 14 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.

Steve: The lawyers I was battling with would ultimately be my peers, people that were in the trenches seeking justice for a defendant. That’s who I would be aligned with, ultimately. So, I never made an enemy. We fought hard. We were respectful. There was no trickery. There was no buried speedy trial demands. There was no withholding evidence. It was all open and honest, and ultimately, that paid off.

Scott: That was my good friend and colleague, Steve Murrin. I can’t tell you enough how much I love talking to Steve in this episode. Steve’s a good guy, a fantastic lawyer, a brilliant marketer, a good friend. And here, in what you just heard, is the epitome of Steve Murrin’s career. And Steve Murrin is a guy. When he was a prosecutor, he did his very best for the state of Georgia. Being an absolute champion for his client. But along the way, he did things right. He was honest, he was open. He didn’t engage in any trickery. He fought hard, but he was respectful to his opponents. And that paid off for him immensely when he went into private practice.

Steve is a savvy marketer that includes everything from an embrace of all things social media, including TikTok. But at the same time, Steve sits down with the pen and writes a thank you note to somebody or a note of encouragement to somebody every single day. I hope you take at least a portion of the enjoyment of listening to this podcast as I did in making it. And so, without further ado, I give you Steve Murrin. Well, Steve Murrin, how are you?

Steve: I’m well. I’m well. It’s good to hear from you. I haven’t seen you in a few months. You’ve been well?

Scott: I’ve been good. I see you on, I live vicariously on Facebook through all the cool things that you’re doing. I know you live in the Atlanta area, but it looks like you live in some cabin in Montana like somebody’s cabin in Montana and you’re taking bike trips a lot and you’re hunting and fishing and you have, looks like a lot of cool cars and stuff.

Steve: Yes. I am a travel junkie. And I have to be in metro Atlanta, although it is the rural part of the suburbs. I enjoy an outdoor life, a strenuous life as Teddy Roosevelt would say.

Scott: Right.

Steve: And we have a little farm, a little gentleman’s farm, 40 chickens screaming and yelling, and a couple of beef cows. It’s a fun life, yeah. A gentleman lawyer, a gentleman farmer.

Scott: So, that’s old school. I mean, that’s like… Those are the people that founded the country, basically.

Steve: Right. Bill Daniel gave me the inspiration. And I live a couple of miles from his old farm.

Scott: Yeah. The Bill Daniel that wrote all the treatises and all the practice guides and stuff?

Steve: Yes.

Scott: Did you ever practice in front of Bill Daniel?

Steve: Many times. I used to walk with him in the mornings at 5:36 when he would drive his Oldsmobile Delta 88 into the Martin Luther King parking deck crossing the courthouse. My wife and I worked out in the gym across from 136 Pryor, where the DA’s office was. And he would go down and he’d do 10 laps around the courthouse before he went inside. It took him an hour.

Scott: And so, for those who don’t know who Bill Daniel is, I mean, he’s an inspiration for, basically, a program that trains new criminal defense lawyers how to practice trial law. And he wrote, like, basically the book on criminal defense practice in Georgia. And I never had the opportunity to practice in front of him, but I understand that he was quite a character.

Steve: He was. He was a gentleman farmer who was an intellect. He was one of the founding members of the Georgia Association of Criminal Defense Lawyers. He was a bee farmer. And he lived in the very northern reaches of Fulton County. He’s passed now. But he started a practice treatise that is still written to this day. It’s the Bible.

Scott: How have things been during the pandemic? Has your practice changed? Are you doing things differently than you were?

Steve: It is. If your practice hasn’t changed, something’s wrong and it should have changed permanently. We are…many of our employees are remote and probably permanently so. I came in every day with an admin and a paralegal, everyone else stayed at home. And we quickly learned how to Zoom and Teams. We FaceTimed constantly. And, you know, it turned into instead hitting the intercom mostly to scream down the hall to a partner for status or find a file, we just, you know, hit the Zoom button. And hopefully it’s changed the way we practice law in America.

Scott: And why do you say that? What do you think is better as a result of… I mean, I think I know the answer to the question, but what do you think is better as a result of what we’ve learned from this pandemic that we’ve been in?

Steve: Well, it’s the fact that, you know, the courts can dispense justice remotely, sans jury trials, the calendar calls, the motion practice, the first appearances, the arraignments, the drudgery of all that leads up to a trial can be done in the comfort, you know, suit and tie on top, underwear on the bottom, right? Sitting at your desk, a cup of coffee in hand. There’s really no difference. And hopefully, we’re not gonna go back to the 300 lawyers in a room waiting for a late judge to spend the day on a 400 case calendar. Those are things of the past, I hope.

Scott: Getting up early in the morning so that you can reach, like, Valdosta to say, “Hey, we’ve got a couple of outstanding discovery issues. We’d like to pass this over to another term.” Yeah. Hopefully those days are over.

Steve: Correct. We’ll see. I find that the rural courts have done a pretty good job of managing the Zooming and the Teaming. And we did squeeze a couple of trials in when we were around a lull this summer. And of course, now with the Delta variant, we’re back up again. Bib just closed its doors, Whitfield closed. A lot of the counties are closing again for the outbreaks. But I found that the courts did a great job.

Scott: Overall, the courts did a great job and I hope they continue to do a great job. I hope that they’re not gonna start summoning people back in in an effort to move cases by inconveniencing people enough so they just give up. I mean, I hope that’s not… I hope we’re not heading back to that reality again.

Steve: Yeah. Those sort of problems. I mean, my prosecutor friends tell me they’re absolutely overwhelmed, they’re drowning. My criminal defense friends tell me they are shooting ducks in a barrel on plea bargains. My judge friends tell me that they’re working till 10:00 at night and they’re getting, you know, nasty emails from administration and chief judges on moving cases. There’s all kinds of logistical problems, speedy trial demand problems, and cursory of defendants that are just rotting. And so there are some problems that we’re gonna have to work through, but so far, so good. We’ll see.

Scott: Well, I’m gonna back up to usually how I start the podcast off. And I don’t ever introduce guests. I ask them to introduce themselves. And I asked a question of everybody that could literally be just a factual question, but it could also be a deeply philosophical question or somewhere in between. Who is Steve Murrin?

Steve: Interesting. I got a call recently from a stranger who was on my Facebook profile. And I’ve got kind of a popular Facebook presence. And they said, “Your Facebook identity is biker, lawyer, Christian, and proud Irish-American. What does that mean?” I said, “Well, I thought that up in a glimpse,” but in turn, that’s really who I am. I find myself to identify as a biker probably before I identify as a lawyer. Lawyer is just how I put food on the table, not who I am. I don’t have lawyer tattoos but I certainly have some biker tattoos.

But I enjoy the practice of law. It’s the greatest profession on the planet. I wasn’t born into it. I was born to be a plumber, I always say that. I’m a plumber in lawyer’s clothing. I have a very blue-collar Queens, New York background. Grandparents all from Ireland. So, a scrappy neighborhood with, frankly, low expectations. Nobody really goes to college. You become a cop, a fireman, a postal worker, as my cousins all did. And I stumbled into college on an athletic scholarship. And then I didn’t have a plan mapped and I kind of stumbled into law school. My dad took me to a couple of lawyers’ houses as a kid. That made big impressions on me, and I think it was by design, ultimately. And I think back to those times and that had a lot to do with me leaning towards the law, not so much to dispense justice because, you know, it really was, you know, this dude had a Maserati in the garage. When you’re eight years old, you want one of those.

So, I was a prosecutor, thought I’d be a career prosecutor. Started in New York in the Greene County DA’s office and worked very hard up to chief assistant. And yeah, my wife at the time just got sick of the winters and we moved. We saw Atlanta, the Olympics were coming. We moved here. No friends, no jobs, no nothing. You can’t do that in reverse. You can’t move from Atlanta to New York and build a successful practice and a life without much struggle or at least much help from, you know, wealthy relatives. We came here with nothing. Black lab and some used furniture in a U-Haul. Paul Howard was gracious enough to give me a job the first month I was here. I met him in an elevator. I had the job by the time we got to the fourth floor.

Scott: The original elevator pitch as they call it.

Steve: That’s exactly right. I just looked at this big, tall, good-looking black man and said, “What do you do?” He said, “I’m a lawyer, of course.” He said, “What do you do?” I said, “I’m a lawyer.” And he said to me, “You ever tried a murder case?” And I lied and I said, “Hundreds of them.” I think I had tried six or seven at the time. And he said, “Follow me.” And he walked past the security and walked past some secretary and he clicked both himself into an office. It had like these cameras. I didn’t know if he was the court clerk or if he was the head of the janitors. I had no idea. And then it turns out he was the DA. He talked to me for five minutes. He said, “Great. You start tomorrow. And you’re gonna have to follow this woman around who’ll teach you civil procedure, I mean, criminal procedure and where the bathrooms are.” And that woman I followed her for six months, and that was Gwen Keyes.

Scott: Who eventually became the solicitor, right?

Steve: She did. And then she became the first black female District Attorney in the state. Made history. Was the DeKalb County District Attorney for many years. And went to Washington to head the legal department at the EPA, I believe.

Scott: So, how long were you with the…and of course, Paul Howard was the DA of Fulton County forever until…

Steve: He was. We were the biggest and most well-funded DA’s office in the state, over 100 lawyers and 300 staffers. And Paul was successful in increasing the budgets and parceling the office into specialty units. And we modeled ourselves after the LA DA’s office. And we sent the team there to study them. And they did a good job.

Scott: Other than fibbing a little bit about how many murder cases you tried, what exactly did you do in that elevator ride to get the job?

Steve: It’s funny. I sensed that he was desperate for good lawyers. He disclosed to me that he had 20 or 30 lawyers walk out, retire. Nancy Grace of Court TV or whatever her show she is on, that show. She had just left the office. And a lot of people had left to go on to greener pastures, I suppose. Under the Lewis Slate administration, they thought…who knows? Maybe they thought they’d be fired or they didn’t like Paul’s style. But I just knew that he needed lawyers.

And we had been to Savannah, we had been to Raleigh Durham. We were looking to move somewhere and Atlanta was our pick because it’s just bigger and it’s more urban and had more opportunity for us. But it really was a New York bravado, I think. And he very much liked to stand up and say, “Well, this is Steve Murrin. He’s chief assistant just returning from Greene County, New York. A New York lawyer, he’s very…” He was very proud that he had a New York lawyer on the staff. And he looked for talented people that had trial experience. And he hired a lot of great people. My three years there, gosh, so many judges and so many successful lawyers came through there kind of as a boot camp that I’m friends with now. And I look back, it was the golden years of my career. We tried cases. We wait for juries and be picking juries in the next courtroom. It was by fire if it was anything.

Scott: And what did you do in your three years there? Did you start off… I mean, I know that you were following Gwendolyn Keyes around. But were you assigned to a particular judge the way that’s done now or was there like a major felonies divi…? What…

Steve: There was.

Scott: What was your day-to-day?

Steve: Gwen was very smart. Gwen said, “All right. Go down and sit in the city court for a day. And there’s a dude down there named Andy Mikkel. Don’t drink vodka with him, but sit in there and watch.” And I did. And then she’d say, “There’s a judge, his name is Bill Daniel. He’s over in the annex. There’s a murder trial, go watch him try that one.” So I spent about a month just watching. All right? The different courts, the juvenile court, the municipal courts, and, ultimately, the grand jury and the superior courts. And when I cut my teeth, I was slung into the Honorable Constance Russell’s court.

Scott: You’re right. That’s a trial by fire.

Steve: Oh, my God. She was the toughest judge I ever met. She made me a better lawyer. I said, “Good morning.” She said, “Are you ready to try cases?” I said, “I’m ready.” She said, “I don’t wanna hear none of that New York stuff. And I’m new here. And I don’t know. And I gotta ask Mr. Howard, we’re picking a jury, you know, Monday morning.” God, I picked about 30 or 40 juries in front of her. And she was very fair. My adversary was, God rest his soul, Calvin Lamar. He’s since passed. We fought tooth and nail and bumped chests, just about got into fistfights in that courtroom, and we’d go drink beers afterwards. He was a wonderful… He was a young scrapper from, I think he was from College Park. Grew up tough and it was a real wonderful time back then. Different now, but it was trial by fire, like you say, Connie Russell. She retired now. I thought she’d go up to the Supreme Court. She was a Harvard wit, a real great grasp of the law. She retired and off she went, faded into the woodwork.

Scott: I did a couple of cases in front of her before…I mean, over the years, I did quite a few, but I did…for whatever reason, I got a couple in front of her in her last six or eight months there. And she was just as tough at the end as she was at the beginning, for sure.

Steve: Yeah. I think she’s at a big firm now. I’d love to see her again. But I thought, for sure, because of her, like, staunch interpretation of the law and she didn’t really waver much or put her personal position or opinion into anything. And really, she was a Harvard graduate, UVA undergrad, Harvard Law School. I thought for sure she’d go far, Court of Appeals, Supreme Court. She’s just the type, you know, the tough.

But it was great. I went there. It was two, three years there. And then Paul asked me to go up to the major case division and work on some gang cases, some murder cases. And that’s when the pressure really got turned up, and not from the office, but from the wife. The thought of having kids and funding college funds, and all that stuff. And ultimately, I decided to start a practice.

Scott: Well, what are the big lessons you took with you? So you were there for about three years and you just tried case after case? What were some of the big lessons you took with you when you went into private practice?

Steve: Well, honestly, I could see that the lawyers I was battling with would ultimately be my peers. David Wolfe, Bruce Harvey, Don, Jodi Dick, and Calvin, and guys like you, people that were in the trenches seeking justice for a defendant. That’s who I would be aligned with, ultimately. So, I never made an enemy. We fought hard. We were respectful. There was no trickery. There was no buried speedy trial demands. There was no withholding evidence. It was all open and honest. And ultimately, that paid off.

Not a year goes by that I don’t bump into somebody I never recognize and they say, “God, we tried a case, remember?” And I pretend I do. And I say, “You are a nice guy. I remember you were fair. And you didn’t really jerk around. I didn’t get that from a lot of prosecutors. I appreciate that.” “Oh, very great. Wonderful. Wonderful. Nice to see you again.” So, I guess it works because that’s, frankly, who fed me cases when I hung my shingle were the criminal defense peers. I took scraps. I had bills to pay. You start your practice like anyone else. Have a marketing plan and you try and execute the marketing plan to raise capital. And it was a fairly scientific process, but it’s trial and error. I took a $50,000 Yellow Page ad. Can you imagine, with Yellow Pages?

Scott: Yeah.

Steve: And I thought, “Oh, my God, I’m never gonna be able to afford these payments.” And I did. I credit carded them and sweated every month and hoping the case would come in. I had a lot of good friends that gave me good advice on starting a practice.

Scott: Yeah. And what was that? What’s some advice about starting a practice did you remember?

Steve: Well, I remember I was told that, first of all, pay attention to your taxes, right? I most immediately saved three and a half cents for every dime I made into a savings account that I identified as tax account. I don’t wanna get caught with my pants down at the end of the year. It was paid quarterlies off the bat. Invested in technology. I leased a nice copier and I bought a telephone system. I made the office…I bought some oriental rugs and couches. And frankly, I’ve always collected motorcycles. I had a couple of Harley’s in my office. And I budgeted a percentage of my income towards advertising. I used something called a Client Development Fund, which was to be out and about meeting people.

My thought was, and it wasn’t very internet savvy back then. It didn’t exist. I read a lot of self-help books and, you know, practice manuals, press in the flesh, right? Hand out business cards. I said, “I’m gonna give out 30 business cards a day.” And it’s really easy to do that for a week. Now, this is in 1999, 2000. So, the first day you give it when you pick up dry cleaning, you get some bagels in the morning and give two girls by the counter your card. Get your car wash, give those guys a card. You go to the grocery store, the clerk. The first day is easy.

Scott: Right.

Steve: The second day, you already hit your dry cleaners. You gotta change grocery stores. You gotta go to different places to meet different people. And ultimately, after a couple of months of doing it, it becomes impossible to give out 30 business cards. People say, “Yeah, yeah. I got your card already.”

Scott: Twice.

Steve: Exactly. And they’re gracious. They take it anyway. Some don’t say anything. But that was like the pay-per-click of the day, right? It was business cards.

Scott: So, it sounds like part of the value of that was, okay, yes, you’re giving the business card out and that person now has your number and if they or somebody they know has something where they might need you, your card is out there in the environment. But it sounds like also part of that, the value of that is that step where it kind of forces you to go to different places to meet different people.

Steve: To expand your new word now, but it didn’t exist then, your social network, to expand those individuals you’ve come in contact with. That six degrees of separation back then was beating feet, right? It was walking around, talking to people, the waiter, right? The parking meter guy, the police officer directing traffic, the third-grade teacher. Those people were your potential clients and their family and friends, right? And I had literally had a chart. I had a corkboard in my living room. And on the corkboard, it had a flowchart of where I had been, who I had given cards to. I devoted about a half-hour every night to trace my marketing. I did Yellow Pages, I joined a bunch of clubs, homeowners association, chamber of commerce, all that stuff. And you could very quickly, as the revenue stream begins, see what pays off and what does not. And it’s not IBM, but it’s a fairly scientific cost-benefit analysis on revenue.

Scott: So, obviously…I mean, you theoretically could…I mean, you could theoretically pass out business cards just like that today. I mean, that would probably work. No one’s handed me a business card in forever and I find myself in courtrooms with a court reporter asking me for a business card and I never have one with me. And it seems like I didn’t….I was always with a business card at some…and I don’t know when I…I don’t know if I’ve fallen into bad habits or things have changed. But if you were leaving the Fulton DA’s office today and you were going to set that exact system up or this year’s version of that system, do you think it’s the same system or how do you execute that today, you think?

Steve: You execute it on the 11 social media platforms that have come of age over the course 15 years. I’m speaking to the motorcycle industry council at the Marriott tomorrow. And part of my talk is how they reach new buyers.

Scott: Well, I knew you first. I mean, my earliest memories of running into you in court were, first of all, I thought you were great at what you did. I watched you do a bond hearing one day in Henry County. And I don’t know if you remember the name of your client or what the case was about. But I remember the way you did the bond hearing and you had a really effective argument. I think it was a… In fact, it wasn’t a bond hearing. The DA was trying to revoke your client’s bond. And I remember you standing up, and I think we were in front of Judge Howe Craig.

And I remember you saying something along the lines of, “Look, he’s not a choirboy. I’m not saying that he’s gonna be the president of Rotary. He definitely messed up.” And you said, “Here’s what I’m asking you to do instead of revoke his bond. I want you to take the bond that he has and not only double it, but I want you to triple it.” And I remember the way you made that argument and the DA at the time was Blair Mahaffey, and I can tell that you guys got along maybe from prior cases you’ve done. But I remember the way you made that argument, it made Blair Mahaffey laugh. Because I know if you’re saying triple the bond, you knew that your client probably had five times the bond amount if, you know, five times of that had been increased.

But you made him laugh. And then when the judge asked Mr. Mahaffey what he thought about your proposal, he said he didn’t have a problem with it. So, you had a presence. I mean, I remember that. And for whatever reason, we talked and we ended up going to lunch after that. And I remember you had a convertible and you handed me some ridiculous-looking Tibetan hat to wear on the way to lunch. And that’s my earliest memory of meeting you. But then, you know, after that, I kind of knew you as the biker lawyer and I knew that you were big into that sort of thing.

And I remember that back at the time you were issuing…you were doing constitutional challenges to helmet laws. And so you would show up to court with, like…I think you were trying to make the point that the helmet law was overbroad and so you would come in with a box of various helmets. You had like a Viking helmet and you just had ridiculous helmets to talk about the overbreadth of… So, I remember that first time seeing you in court, the ridiculous hat I wore in the convertible on the way to lunch somewhere in McDonough, Georgia, and you showing up to court with various helmets.

Steve: Yeah. The helmet thing was really a loss leader. I handled helmet ticket cases for free. And that was known throughout the state that I would do that if you got a ticket for wearing an unapproved helmet or no helmet. There was a lawyer in Atlanta that would drive to Waycross and defend you. And it was a pain in the ass, Scott, let me tell you. I did dozens and dozens of these trials. We appealed many of them, some to the Court of Appeals. Never winning. But if you got in a wreck and a biker, if he’s a biker, he’s been in a wreck or will be in a wreck, and if he hasn’t, it’s a matter of time. The lawyer that handled your helmet case for free, a couple of hours, you’re his lawyer.

Scott: Forever.

Steve: Forever.

Scott: Right.

Steve: And probably his kids and his grandkids’ lawyer too.

Scott: And because you’re not just the lawyer that handled this thing. You’re not just, “Okay. He’s the lawyer.” You’re also, like, part of his tribe too.

Steve: Yeah. The funny thing is, I have very few sport bike riders, Honda, Yamaha, Kawasaki. I mean, I get those clients. But for the most part in the Harley Davidson world, there’s a social element to that purchase, to that lifestyle that transcends all the other aspects of that individual’s life. They put a deck on the house, the carpenter is gonna be a biker. They need their rugs cleaned, that company is owned by a biker. And it’s just part of the culture of the Harley Davidson machismo, the Harley Davidson history, all of the brand loyalty that they very successfully has built into that motorcycle. I mean, they make clothes, they make coffee, they make beer, for God’s sake. People are very loyal. And Harley has about 40% of the motorcycle market in the United States despite them being a pretty small company. So, we tap into that. We align ourselves with that very closely.

Scott: So, going back to my original question before I sidetracked this, what would you…what’s the equivalent of 30 business cards a day? I mean, I know you said it’s the 11 social media outlets, but what would you do today?

Steve: I’ll tell you, I’ll give you the 10 right now.

Scott: Okay.

Steve: Now I stick here on my desk. Facebook, YouTube, Whatsapp, Instagram, TikTok, Snapchat, Reddit, Pinterest, Twitter, and LinkedIn. Now, here’s a stat. We track our cases very closely with an exit survey. When you walk out of my office with your check, you’ve sat down for 15 minutes with a lawyer. We’ve talked about, you know, client contact, and satisfaction with overall results, and electronic communications, and lawyer calling you back. We also track, from the very beginning, how you got us, how you hired us, and why, because we have had horribly failure marketing campaigns where we spent tens of thousands of dollars and it doesn’t garner a client. You learn from that, right? You just paid $10,000 for a lesson.

But in 2018, we tracked basically six social media platforms and how we use those platforms, and how the client interacts with us. Facebook, Instagram, Twitter, LinkedIn, Snapchat, and Pinterest were basically it three years ago. And they had a little over 600 million monthly users, right? And if you think of the planet, there’s eight billion people on the planet. Now, the 10 I clicked off to you, when you track their monthly users, that number exceeds 12 billion. There’s more users than people on the planet. How does that work? Well, that’s cross-use. People use three different platforms. So, there’s some snaggle in the statistics, but it goes to show you, not only are we relying on a more varied social media platform, but we use it more universally, and per capita, more people use it. More people use social media in this country than don’t use social media.

My children say, I remember when they were in grammar school, they’d come up and say, “Dad. Guess what? You’re an immigrant.” “No, no, no, son. Granny and Pawpaw were immigrants. They came from Donegal, Ireland.” “No, dad. No, that’s not what we’re saying. You’re an internet immigrant.” “Well, what does that mean? Sit down, kid. We gotta talk.” Well, we think in bits and bytes, right? The kids zeroes and Xs, theoretically. You don’t. You convert that in your brain. Like a bilingual person that speaks English primarily, they think of a house as a house and they convert that word to la casa when they wanna speak Spanish. Same thing with a lawyer. A lawyer that’s older is an immigrant to the internet data age and we think in business cards. A lawyer who’s younger thinks in TikTok.

So, I have to convert my brain, 57 years old, into an electronic data medium. It doesn’t come automatically to me. I wasn’t taught that. But kids today and young lawyers now, the associates that work for me, we ask a question, and the phones come right out of their pockets, right? They jump right on the ThinkPad, the iPad, the laptop, you know, as I’m trying to grind my brain to what chapter of Title 16 we’re talking about, they’ve got it on their fingertips, on their watch, for God’s sakes. Did you ever think that would come about? Right? The Buck Rogers style? So, the lesson is, not business cards anymore, it’s social media platforms. That’s what I would do differently.

Scott: So, what’s the equivalent of the new grocery store, or the new dry cleaner or, you know, the place that you didn’t go yesterday? And in a related question. These are two very different questions, but they’re kind of related in my mind. It seems like it’s a lot easier in this age to accidentally annoy the person, in other words, like, if you see the clerk at the grocery store and you’re now offering them your business card for the third time in X number of weeks and you can see that look on their face, like, “God, this guy is like kind of being cheesy with the business card.” How do you not do… It seems like it’s easier to make that mistake in the digital age.

Steve: Absolutely. As I look to the groups, right? The clerks in the grocery store, the produce manager, the 35 people that keep us fed, the same thing is in my, I call it Facebook groups. I belong to about 150 groups. I’ll look at one right now. Okay. So, there’s a group, Hot Rods from Hell. It’s a hot rod guy. Social media platform specifically geared to muscle cars. They got 2300 members in Georgia. And I’m not into the market directly, but when you scratch my identity, you see quickly that I’m a lawyer and I represent people who were injured in car wrecks.

So, you post too much on that or if you push your business too hard, you’ll get a note from the administrator, like, “Hey, this is not a business platform. This is Hot Rod guy stuff.” You wanna talk about, you know, your Kreger rims, or your new supercharger, that’s great. So, there’s a line you can’t cross on a lot of these social media platforms. And I’m careful not to cross the line. But the obvious implication is that I’m a lawyer. I have two identities, me, Steven Murrin, an American Biker Lawyer. Those are two separate entities on Facebook and on Twitter, on Instagram.

So, I manage those. I have a little help from a younger person to manage those. And I’m careful not to overstep boundaries in any particular medium. We don’t ever discuss politics. We don’t ever get into issues that are… I’ll give you an example. When the COVID broke out, my partner and I dedicated $20,000 of our marketing budget to produce and disseminate masks. We found a supplier. We printed masks. They obviously had my logo on the mask. They were high quality. They cost me about $3.80 apiece, another $1.20 to mail. And if you sent us any message on any social media platform, we will put two masks in an envelope and ship it to you, no questions asked, in a period when they were hard to get. And we got a heck of a lot of thank yous and a heck of a lot of, “We really appreciate it.” People that couldn’t afford masks, couldn’t find masks, people who were afraid to know what to think, people who just want some shit in the mail for free, right? Who knows?

Scott: Which is me.

Steve: And we did get negative feedback. We did get, “You F’in lawyers are a bunch of sheep. You lawyers are promulgating a big lie in this country. You lawyers are…”

Scott: Because it hadn’t been politicized at the point that you started sending them out yet?

Steve: No, it hadn’t, but it was starting. And we got flack over it. And we considered a second round of masks, another budgetary vote here. And we decided not to do it. It was giving us, as much as we thought we had helped people, there were some very few numbers, but very loud mouth social media keyboard warriors that were giving us negative feedback. So, you got to kind of adjust to those markets, and you gotta find your place and not overstep boundaries. I have competitors that’ll, you know, bitch about politics, and “Screw Biden,” and “Trump’s a big liar,” those kinds of things. And that’s a giant mistake.

Scott: Because you’re gonna alienate really good people that would potentially wanna hire you.

Steve: Absolutely. Absolutely. And you get caught in the trap of, “Hey, American Biker Lawyer, what do you think?” And you got to kind of avoid that. You got to ignore it a little bit to keep the business because your business is not political. All you’re gonna do is alienate a potential client. And my business is one client away from retiring. You know what I mean? You hit that mass torts that, you know, that giant catastrophic. There’s not that in criminal law. You can get a big lick here and there, big six-digit fee, occasionally, wealthy client, you’re the perfect fit, but you’re never gonna get the million-dollar fee every couple of years or the retirement case. There isn’t the retirement case, it’s not a thing in criminal defense.

Scott: Not at all.

Steve: That’s the thing. I could name a dozen lawyers that hit a case and you never heard from them again. They just faded into the sunset, took their, whatever, $30 million, and that was it.

Scott: Well, how long did you do criminal before you started taking on, you know, civil plaintiffs cases? Was that from the get-go or? Was that a gradual thing?

Steve: Well, I took a lesson from a guy I knew from my church. I’m Catholic. And I had this guy that kind of reminded me of me, same upbringing and same kind of business model. His name was Daniel Kane. They’re still practicing. And Daniel took me under his wing in the first months of private practice. He leased me space up above his office off the park downtown of Nassau Street, Centennial Olympic Park. And me and Joshua Laufer split the office together. Crazy Joe, God, we had fun. And…

Scott: And Josh is out in like…

Steve: In Savannah.

Scott: …Charleston or somewhere now, isn’t he?

Steve: Well, he’s a Savannah guy, but he has recently taken residence up in Davie Wolf’s space in the Victory Building.

Scott: Okay.

Steve: He’s exclusively doing federal criminal defense now, and we talk. I was in his wedding 20 years ago. But we had a great time. And the annual status over tea taught us lessons. One of the lessons that he taught us was, “Don’t ever say I am a divorce lawyer, I am a criminal defense lawyer, I am a personal injury lawyer.” Say, “I’m a lawyer and whatever you need, call me.” And when you have that person call you, make sure you’ve got a guy. “What do you mean you got a guy?” Well, you got a guy or a woman, right? That does divorce. Like Cathy Altman, she was my guy. You need a divorce? Call Cathy.

And that was back when you had to, for a referral fee, work for a percentage of the fee. So, I have to do some intake and some background work and help Cathy out. And she would cut me a piece of the fee. And those rules have since changed and I constantly am reminding older lawyers that referral fees do not need to be earned commensurate with the work performed on the file. The Bar Association has approved the straight percentage referral fee lawyer to lawyer as long it’s disclosed in the fee agreement. And I do that every day. About 15% of our gross income comes from referral fees. Where we did no work on a file, passive income, dished a divorce to my guy, and he collects a fee and sends me a third.

Scott: This is probably too tackle a question, but what did you do when someone says, “What kind of law do you practice?” I mean, almost no one asks you that question. But occasionally you’ll run into like a stockbroker or somebody who’s kind of sophisticated and they’ll go, “What kind of law do you practice?”

Steve: Well, when somebody asks you that question, they almost always have an ulterior motive because their nephew got arrested or their wife was in a wreck and you already know why they’re asking you that question, so you meld your answer to the query, to the conversation, to the contact. I received a call this morning from a guy in my Harley owner group. Cobb County PD raided his house this morning and dragged his teenage son out by the scruff of the neck. Internet crimes. And he called me up, he said, “Steve, I’ve known you…” He’s been on my vacation home on motorcycles. He’s broken bread with me on my back patio. And he said to me, “I’m not sure what you do, but maybe you can help me because I’m in a panic. My son was just arrested.” And I said, “Blankety blank? That’s exactly what I do.” So, you keep it very generic because, you know, we get referral fees all the time.

And listen, we got a call, we laughed about this. This past summer we settled a pretty large case. I sent a young Laura Waycross about $120,000 fee. A secretary called and said, “Oh, we’re calling for Mr. So and So. We’re sorry, but you sent this check to us in mistake and we’re gonna return it to you.” And I said, “Well, perhaps you can read the cover letter.” And there’s silence and then I get put on hold. And then the lawyer picks up and he says, “Who is this?” I explain it to him. And he had referred me a motorcycle injury case three years before, and we record that very clearly in the intake sheet. We just closed him in a retainer agreement. He totally forgot about it. He had never received a referral fee in his life. And I could tell, in the course of our conversation, that guy, he was a 30-year-old lawyer, he was crying. He was so struck by this money that fell out of the sky, he started to weep. It was very touching.

But the lesson is, you know, the network of lawyers that you align yourself with is the fun thing. The gackle seminars are great, the cocktail hour, we have a wonderful time. Visiting Steve Salter down in the Gulf of Mexico, it’s awesome. But the reality is, it’s a cash cow. The more lawyers you know, the more referral sources you have. The more friends you have in the legal community, the more opportunity for cases you have for cross-referencing cases. You should have five divorce lawyers, a couple of closing lawyers. You should join LinkedIn and make contact with a corporate guy or two. And make sure they know what you do so that when their neighbor breaks their leg, you’re the sole.

Listen, we have changed our business model. I hid my cell phone from clients and lawyers for years. That was for my assistant coach to call me and tell me he was swapped in the lineup in my son’s little league game, that’s all the cell phone was for. But we’ve learned and adapted. I give out my cell phone number all day. It’s on my email. And you have to be, you have to have connectivity. Clients, they will ring your office phone, they’ll get a girl, it’ll go to a voicemail and they go right to the next lawyer they know. And you’ve lost the retirement case. At the very least, in criminal work, probably less so in… I mean, very least in civil work PI, a little less so in criminal work because they’re calling you because they know you or want you or got a good right recommendation. But people are impatient. They go to the next lawyer very quickly. And putting your cellphone out into the world. Well, you gotta do it, in my opinion.

Scott: Well, how do you enjoy your long bike rides and your hunting trips and that if you’re constantly inundated?

Steve: Well, you have rules. I get up at 5:00 in the morning and I go to bed at 10:00 at night. And I put that out there. Somebody’s… The neighbor said the cops are at your house and they’re calling me, or the neighbor’s daughter was in a wreck in college out in UGA. I say, “All right. Listen, have them call my cell. After 5:00 I’ll be home, but at 10:00, I’m in bed, back up at 5:00, I’m not picking up the phone.” And I’ve learned how to use the iPhone, the mute, the silent, the shut-off. And it’s automatically set at 10:00, it doesn’t make a noise.

Scott: Are you finding that your business is coming mainly from your lawyer network or mainly from your other groups where you have a common interest like bikes or hot rods or…? In terms of tracking, what do you think is more important? I mean, maybe you’re probably gonna tell me it’s all important. But where do you think it’s mainly coming from? Do you think it’s mainly other lawyers or do you think it’s mainly these other groups that are maybe not lawyer-affiliated, but they know you are a lawyer?

Steve: Well, let me tell you. If a lawyer is listening to this podcast and he has not already and he doesn’t tonight, write this down, he’s a fool, she’s a fool. You have to understand where your cases are coming from. You have to have a general marketing plan that is in writing, it could be on a scrap piece of paper, and it could be in a computer algorithm, it doesn’t make any difference. But you need to decipher what works and what does not work. We track where our cases come from. And frankly, over 50% of our cases, and this increases every year, the number goes up and we track it every year, over 50% of our cases come from word of mouth.

Now, that’s not to say the person who slid our card, or gave our contact, or told the injured party to call us didn’t find us on the internet, or meet us at a bike show, or get a piece of merchandising from me at some motorcycle event, right? But the lesson is, the older I get and the more mature my practice becomes, the more word of mouth becomes important, because exponentially our tentacles are out in the community wider and wider and wider, which is why practicing law really is a second-generation endeavor. Building is tough. Inheriting one from your dad is awesome.

I used to kid my law school peers, I said, “I’m gonna go and work at my dad’s firm in Boston. I’m gonna inherit my dad’s practice in Manchester.” I went to law school in Massachusetts. I said, “Yeah, yeah. I’m gonna hunker on down, take over my dad’s practice. The problem is I know shit about plumbing.” And might take a little laugh. But it really is a second-generation business to be on Easy Street, at least. If you’re gonna start off from scratch, man, it’s tough. It’s a 20-year grind.

Scott: Yeah.

Steve: And it’s not a bad thing. You meet a lot of great people and it is a lot of fun, depending on how you choose to do it. But the point is, you gotta write it down, you gotta know where they’re coming from, and you gotta track what makes your business and where you’re failing.

Scott: So, I’ll kind of rounden the corner a little bit because this is definitely a topic I wanted to cover with you. I know that you’re…I think you’re active in the bar, you’re one of the lawyers’ assistants, I believe, with the state bar. And so in terms of just practice and, you know, I suppose this is a universal for all lawyers, but maybe particularly in criminal defense and in personal injury. Where do you see people making bad choices that kind of…where is it that you think we go off the rails?

Steve: It almost always starts with money. Greed. It starts with personal indulgence. And people have their weaknesses, to be unkind about it. People have frailties. And they turn to bad habits. It could be cocaine, it could be prostitution, it could be alcohol, it could be gambling. How many lawyers do you know have just flushed themselves down the toilet with one or a combination of those things?

Scott: A lot. I mean, more than non-lawyers could imagine, honestly.

Steve: It’s unbelievable. It’s a high-pressure job. We have disposable income. Lawyers make great money if you do it right. And to use that money effectively for your family, for charity, to give back, for retirement. Those are important lessons that typically are not taught in law schools. You learn that from your mom and dad, I think. But nonetheless, you know, these lawyers make a few bucks and they think they can take an indulgence, or they’re taking why they shouldn’t be taking. I’m also on the Young Lawyers Committee where I basically adopt two young lawyers a year. And they come to me in my office, they don’t know jack shit. They need my retainer agreement. They borrow my old books from last year. They want computer programs or advice on how to start their practice. And some of those lawyers take my advice, some of them don’t.

But for the most part, the lesson on the money is save for taxes, pay them quarterly. Don’t take the fee until you earn it. Pretend they’re gonna fire you tomorrow. And in your retainer agreement, and, God, have a retainer agreement for every client, have a schedule upon which you take the money and earn the money. And earned upon receipt may pass muster with the bar, but I don’t think it should pass muster with lawyers. Somebody gives you 10 grand, they have buyer’s remorse, their cousin is a lawyer, they’re gonna do it for free. You didn’t earn the fee policy, give them their 10 grand back.

So, a lot of lawyers, criminal lawyers especially, take big fees and they’re underneath, you know, a Cadillac payment, they’re underneath the big house and Morningside mortgage, they’re underneath marketing budget, they get desperate. And I see lawyers doing a lot of unethical things. One of my favorite morbid things to do is to read the disbarments in “The Daily Report.” It’s a terrible habit, but I can’t help myself. I almost always reach out to the lawyers that are disbarred. I have a habit from childhood. I write one, sometimes more, handwritten Catholic school script letter a day. I have a little personal placard cards, it has my logo on it, it has my cell phone, my Twitter handle, my Instagram feed, my Facebook identity.

And I take a ballpoint pen and I write, “Dear, Scott. I saw you on the cover of ‘The Daily Report’ today. Great verdict. Really happy for you. Heard good things about your practice. God bless. Steven.” I do that. I do it to judges that I no longer have a case in front of. I do it to executives. I do it to lawyers that are disbarred. “All is not lost. There’s life after law. Stick with your program. Get to your therapist. Best of luck to you. If you ever need anything, call me.” You’d be shocked how many people call me. And I had a lawyer once called me tell me he was dying of cancer. He had 60 open active files he wanted me to come and take them all. He was in Hapeville. And we did. We went down there. We boxed up every file he had. Mostly it was dogshit. A couple of gems. Went to his funeral. And it was just because I wrote him a letter. I didn’t know him and he didn’t know me. But he had had a little trouble with the bar because he was old and I saw he was reprimanded and I wrote him a note telling him I was thinking of him and if he ever needed anything.

Scott: And so tell me a little bit more about this one letter a day. I didn’t know you did this. And tell me when…

Steve: You’ve never gotten a letter from me?

Scott: No, I haven’t.

Steve: I’ve done this…

Scott: Which may be good.

Steve: My mother was a letter writer. I am a fan of proper English and I love formal script. And I think it is a lost art. The email is easy. The text message you got, I could get my kids on the phone if I were dying in a ditch. But they’ll text me. So, the letter-writing. When you get a postmarked letter…

Scott: Oh, it’s right here. It is wonderful.

Steve: It’s wonderful. I just had a case in South Fulton city. The judge was unbelievable. It was a stupid little case I took for a friend. We appeared by Zoom. We resolved our issues. I’ll never have another case there again. I’m not a speeding ticket guy, or DUI. But I thought the judge did just such a fabulous job. The management of the Zoom hearing, the disclaimers at the beginning, the sharing of documents. It was the best job I’d ever seen. I pulled out my notecard. I wrote to judge a thank you note. I commended her for her efforts. I knew it takes a lot of work to get that good habit. I knew I… And I said, “I’ll probably never see you again. I don’t do these kinds of cases. A family friend deal. Kudos to you. God bless. Steve Murrin.” So, who knows? Will I bump into her at the lawyer’s club meeting? Will I get a speeding ticket going to the beach? I don’t know.

But nonetheless, you gotta think it’s gonna brighten that judge’s day. And those 10:00 nights, setting it all up, the audio, the video, you know, the training, the staff managing it. You gotta think it made her feel a little better about what she had gone through to get there. So, it’s just a good habit. It literally takes me less than 30 seconds. I do not feed the letters through the postal machine in our mailroom. I lick a stamp, because I think that gives it authenticity. My DNA is now on 4000 people’s desks for good or for bad. And I have gotten letters back that are touching. People will sit down and they’ll write you a thank you. It’s just a habit of childhood that I’ve carried through to adulthood. That’s how I met Robin MacDonald. Robin MacDonald is…

Scott: From “The Daily Report.”

Steve: …the greatest journalist I’ve known in the law. I saw an article she read on the tow car trial. I drove my motorcycle up to Walker County, Georgia every day and I watched the trial. And John Bloom befriended me and took me to lunch. And Tom Cheran and I became pals. And he introduced me to his brother. It was a crazy, wonderful time despite the tragedy of that case. And then I read Robin’s book that she wrote about it, and I wrote her a note. And I thought it was a fabulous book. And then she said, “I’d love…” She called me. She said, “I’d love to do an article on you.” I said, “On me? I’m one of the most boring guys on the planet.” But she came and she did a little article on me that appeared in “The Daily Report,” “The Harley Lawyer.” And my phone exploded. My phone blew up. People read the article. Just from that little probably 35 cent stamp at the time, 30-second afterthought to thank her for the book I enjoyed, turned into probably $100,000 marketing campaign for free.

Scott: Plus even if it had produced none of that, it’s still a good thing to do.

Steve: It’s the right thing to do.

Scott: Yeah. And that may be one of the things where our children should be immigrants in the letter-writing world, you know, to try to translate it back to this direction.

Steve: It’s impossible. I’ve tried it with my children to write to their aunt, to give Grandma a note, to send a birthday card to the cousin out in Wisconsin. Forget it. They’re not immigrants, right? They are bits and bytes and Xs and Os. There’s no going backwards. Maybe that’s a good thing.

Scott: Well, Steve, it’s been great. I really appreciate you taking the time to be on the podcast and talk to me. I learned a lot about you that I didn’t know, and some great lessons in here. I really appreciate it.

Steve: Thank you, Scott. It was wonderful talking with you.

Scott: Thanks for listening to “The Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com. And please rate, review, and subscribe to this show wherever you get your audio content.