Briefs, Bots, and Balance: A Lawyer’s Honest Take on AI

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Let me start with a confession: I don’t know exactly what artificial intelligence is. And I definitely don’t know what it will be a month—or a year—from now. That kind of humility feels important to say at the outset. Because this post isn’t about predictions. It’s about how our firm is using AI today, and how that usage is evolving organically with practice, curiosity, and caution.

🚫 What AI Is Not Doing—for Now

For starters, AI isn’t writing our briefs.

Could it someday? Possibly. But right now, that’s not optimal for a few key reasons:

  • Fictional citations are a real risk. Lawyers have gotten into trouble when AI-generated briefs included cases that don’t exist. A recent Georgia Court of Appeals case made that painfully clear.
  • The source material is often subpar. AI draws from existing legal writing, and much of it isn’t great. So the output tends to reflect that mediocrity.

That’s why I still write the briefs myself. The act of writing builds strategic insight, sharpens my thinking, and prepares me for court in a way that AI simply can’t replicate. It’s not just about the final product—it’s about the cognitive lift.

✅ Where AI Is Pulling Its Weight

AI is far from idle. It’s become a powerful tool in several areas of my practice:

  • Digesting the record. AI helps me achieve mastery over large volumes of case material.
  • Decoding bad writing. When opposing counsel submits confusing or poorly written documents, tools like NotebookLM help me cut through the clutter and surface meaning.
  • Big-picture comprehension. AI gives me a strategic overview of complex litigation records.
  • Tone-tuning emails. While it’s not great at composing emails, it helps soften abrupt language and improve clarity.
  • Strategic thinking. It’s a sounding board for brainstorming and bouncing ideas.
  • Warmth and readability. It helps make my communication more human, without losing precision.

🛶 Small Firms, Big Advantage

One of the most exciting aspects of AI is how it empowers smaller firms to compete with larger ones. Nimble firms that embrace AI can steer around obstacles like a kayak in rapids, while rigid firms may struggle to pivot—like aircraft carriers trying to change course.

If you’re constantly learning how to use AI, you’ve got a bit of a superpower. And that superpower is only growing.

🔍 Key Takeaways

  • AI isn’t writing my briefs—and that’s intentional. The cognitive work builds strategic insight and courtroom readiness.
  • Legal writing quality matters. AI reflects the quality of its source material, which is often mediocre.
  • AI shines in record digestion and comprehension. Especially when dealing with voluminous or confusing writing.
  • Tone matters in communication. AI helps soften emails and improve clarity.
  • Small firms have a strategic edge. Nimbleness and curiosity around AI can be a superpower.
  • This is a snapshot, not a forecast. My approach to AI will evolve—and that’s part of the process.

🔗 Recommended Reading

To deepen the conversation, here are a few curated links that support the themes in this post:

Scrappy By Design: How a Small Firm Tackled Georgia’s Longest Trial Transcript—And What it Means Today

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A few years ago, my firm—a small one at the time—was hired to take on the biggest appeal we’d ever seen. It was the longest criminal trial in Georgia history. The transcript? Somewhere around 50,000 pages.

There was no big-team bravado. Just me and an associate, acting as exclusive appellate counsel in consultation with trial counsel, who had spent a year in the trenches. We walked into court with our amended motion for new trial in hand.

Here’s how we got there.

We recruited three law school interns for the summer. Each one tackled a third of the transcript, preparing detailed digests of their sections. My associate then digested the digest. Together, we sculpted a comprehensive brief—built on raw record analysis, meticulous collaboration, and an obsessive attention to structure.

When we filed it, the lead counsel from the Fulton County DA’s office asked the court for an additional six months to respond. Their reason?

“We do not have the staff that defense counsel has.”

We laughed. Because “staff” meant three interns, an associate, and two tired brains running on caffeine and principle. What we did have was creativity, technology, and the kind of scrappy energy that doesn’t rely on headcount.

That same energy now fuels our civil practice.

Even before the world pivoted to remote work, our team was logging hours from coffee shops, home offices, and courthouses across the state. With smart use of PDF readers, messaging apps like Slack or Signal, and cloud-based case management software, we learned how to produce clean, effective work—without the bloat.

In criminal defense, thrift is a survival skill. Most cases are handled on a flat fee, which means there’s no incentive to bill endlessly. You learn to strip tasks down to what’s essential and make every moment count. That discipline stuck with us.

Today, even as we bill by the hour in civil litigation, we carry the same mindset: Keep things simple. Stay nimble. Leverage technology. Prioritize outcomes. Our bottom line is our clients’ bottom line.

We’re growing as a firm, but our philosophy remains. The lessons from criminal defense—the humility, the hustle, the lean architecture of smart lawyering—still guide how we operate every day.

At Our Core

We’re still the same lean, deliberate team that dissected 50,000 pages with a few interns and a shared sense of purpose. Whether we’re building out a defense in land development litigation or navigating the demands of civil trial work, we carry forward a truth learned early: Smart lawyering doesn’t require a big footprint—just a sharp focus and the will to move fast without breaking things.

And while the scope of our work has evolved, the spirit hasn’t. Efficiency isn’t just a cost-saving strategy—it’s our creative signature.

We’re not just building cases. We’re building a practice that stays lean, moves nimbly, and adapts boldly.

🔍 Key Takeaways

  • Lean teams can outpace large ones when strategy, tech, and focused execution are the drivers.
  • Internship programs, when thoughtfully managed, can meaningfully contribute to complex litigation.
  • Tech tools—from cloud-based platforms to collaborative apps—aren’t just convenient; they’re transformative.
  • Flat fee experience teaches discipline that translates into billable hour efficiency.
  • Growth doesn’t require bloat. Nimble lawyering is your firm’s competitive edge.

☕ The Coffee Note That Shaped My Trial Philosophy

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Negotiation Lessons from Criminal Defense That Elevate Civil Practice

I couldn’t believe I’d made such a boneheaded move.

There I was—wedged into a slow-moving Starbucks line, about to be late for a meeting with a prosecutor. The mission? Negotiate a favorable outcome before my client’s case hit the grand jury.

So I improvised:
“Grabbing coffee. What’s your order?”

He responded. I showed up late—but with both drinks in hand.

While his contact was open on my phone, I typed his coffee preference into the notes. That tiny act became a bigger strategy: I started cataloging the details that make people feel seen—birthdays, kids’ names, anniversaries, favorite orders.

Turns out, the art of negotiation starts long before anyone mentions a statute.

1. Relationships Build Leverage—in Every Arena

In criminal defense, you quickly learn you’ll face the same adversaries repeatedly. That’s true in civil litigation too—especially in niche practices like land development.

Short-term victories lose value if they cost long-term trust. Whether you’re opposing counsel in a rezoning fight or working with local officials on a contested variance, relationships are your leverage.

I strive to be the kind of lawyer people respect and enjoy working with. Empathy isn’t fluff—it’s strategy.

2. Cases Are Made of People, Not Just Paper

Criminal work taught me to showcase the whole human behind the charges. Those life portfolios I compiled—white binders full of personal context—weren’t just courtroom props; they were bridges to understanding.

And I use the same storytelling in civil trial work.

In land use disputes, for instance, the story isn’t just zoning codes—it’s the livelihood of families, the impact on communities, the evolution of neighborhoods. Humanizing your client builds credibility—and influence.

3. Timing Is Tactic

The earlier you engage, the more control you have. Criminal cases taught me the importance of pre-indictment leverage—and that concept absolutely translates to civil litigation.

Before discovery kicks in, before tempers flare—early clarity can drive resolution. Whether I’m asserting qualified immunity under 42 USC § 1983 or drafting a Rule 37 letter, I aim to be the calm voice in the room… early and often.

4. Ego Is Expensive

In my early years, I fell into unnecessary rivalries with other young attorneys. And while some of those courtroom battles ended in my favor, I realized something better: a quiet dismissal beats a loud acquittal.

In civil practice, that lesson translates perfectly.

Firing off aggressive letters may impress the client copy list—but it rarely moves the needle in negotiations. Ego-driven posturing wastes time. I prefer clarity, courtesy, and precision. A smart lawyer knows when to speak softly and carry airtight documentation.

5. Negotiation Is a Long Game—So Play It Well

Sometimes you can settle. Sometimes you can’t. But civil or criminal, process matters.

You want opposing counsel to know you’re methodical, fair, and prepared to fight when needed. That kind of reputation isn’t built overnight—it’s earned through consistency, transparency, and respect.

And yes, sometimes, through a well-timed espresso.

📚 Sidebar: Resources to Deepen Your Trial Strategy

Curated tools for building relationships, refining negotiation, and winning cases with integrity

Final Thought: Civility Wins Cases

Law isn’t just argument—it’s relationship management. I’ve found more success through kindness and quiet force than through theatrics.

As Twain put it:
“Never wrestle with a pig. You both get dirty, and the pig enjoys it.”

And as Proverbs says:
“A gentle answer turns away wrath.”

Whether defending a criminal case or challenging a land development petition, my aim is the same: prepare deeply, communicate respectfully, and negotiate like the long game matters—because it always does.

Discovery: From Manila Envelopes to Motion Practice

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In my years as a criminal defense trial lawyer, “discovery” wasn’t a process—it was an event.

It usually arrived inside a creased manila envelope, thick with paper and stapled together like a grade school art project. Surveillance footage came in strange formats. Witnesses didn’t always give statements. If something crucial was missing, I had to hike over to the DA’s office or hunt down that one dusty machine that could read the footage or play the video.

So criminal discovery became a series of fleeting, high-stakes moments. Preliminary hearings, collateral proceedings like forfeiture actions or license suspension hearings, even open records requests—I treated them all like mining expeditions. Interviews were vital. Strategy was survival. I tried multi-week felony cases with nothing but a basic police report and carefully banked inconsistencies. And I learned to do much with little.

If you’re unfamiliar with exactly what I’m talking about, this article from FindLaw gives a brief and helpful explanation of the difference between discovery in criminal and civil proceedings. It lays out how criminal discovery is narrower, often asymmetric, and tightly constrained by constitutional protections—especially compared to its civil counterpart.

Fast forward to today, and the shift into civil litigation feels like stepping onto a different battlefield. The procedural landscape is expansive. Depositions, interrogatories, requests for admission, Rule 26 conferences. The toolbox is real, and it’s stocked. And yet all those days spent being scrappy serve me well here!

But coming from a background where discovery was improvisational, I now approach civil discovery like a surgeon, not a tourist.

I walk into depositions knowing exactly what I want to lock down. Written discovery isn’t a fishing expedition—it’s a scalpel. And without a magistrate judge glancing over their glasses to try to limit my scope (they knew what I was up to), I rely on discipline rather than mere deadlines to get it done.

And let’s talk about summary judgment. The idea that I can strike a case before trial using Rule 56 still thrills me. I said just yesterday, as I was prepping my summary judgment packet, “I think it’s the coolest thing that summary judgment even exists.” In the criminal world, your closest equivalent might’ve been a demurrer or a motion for a bill of particulars—procedural nibbles that rarely carried any real bite.

So yes, civil litigation offers luxury. But it demands maturity. Coming up the hard way made me strategic. It taught me thrift. It trained me to see clarity amid chaos, and that instinct transfers beautifully into this new terrain.

Looking back, criminal defense was like the proverbial walking uphill in the snow both ways. But the cold made me tough. And now, with tools I used to dream of, I don’t take a single one for granted.

⚖️ Key Lessons from the Transition

  • Criminal discovery taught me discipline
    When every minute mattered, clarity wasn’t optional—it was essential.
  • Civil discovery rewards focus over volume
    With so many tools available, knowing which tool to use is more powerful than having them all.
  • Strategic instincts transfer across domains
    Tight timelines, limited access, and trial-first thinking in criminal law sharpened my edge for civil practice.
  • The luxury of summary judgment is real—but so is the responsibility
    Knowing its value makes me fight smarter, not longer.

📚 This post is part of my ongoing series: What Being a Criminal Defense Attorney Taught Me About Being a Civil Defense Attorney.
Stay tuned for the next installment, where I’ll dive into how cross-examination principles from criminal trials elevate witness prep in civil litigation.

From Horns of a Dilemma to Running the Table: Lessons from the Trial Trenches

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This story begins with me squarely on the horns of a dilemma.

My then-boss and mentor taught me a great deal—but also carried a drinking problem that manifested in his reluctance to work afternoons. As a result, I was frequently placed in an awkward and precarious position.

The routine would unfold like this: the partner’s paralegal would tell me I was covering court that afternoon. What that actually meant was showing up, opening a file whose discovery packet was still bound by the original staple it arrived in—and picking a jury for a criminal trial.

Suddenly, I’d be standing in front of a judge, expected to select jurors and begin trial. The dilemma was clear: I couldn’t possibly deliver constitutionally effective representation under those circumstances. But telling my boss and mentor “I refuse to go forward” was far easier said than done.

Most days, either a settlement was reached or the judge would understand how untenable the situation was. But I knew I was on borrowed time. Sooner or later, I’d be ordered to proceed—unprepared—or risk losing the job I mostly liked.

So I took a systematic approach.

I approached the prosecutors and judges in the court where this was happening the most and proposed a deal: identify five aging cases they truly wanted resolved. They gave me five for the next month’s calendar, and I spent that month preparing thoroughly using everything I knew—and quite a bit I learned on the fly. This step-by-step guide to criminal defense preparation covers much of the practical process I had to internalize quickly.

Then trial week arrived.

  • Monday: Picked a jury in a DUI case—won an acquittal.
  • Tuesday: Picked another DUI jury—by Thursday morning, scored a second acquittal.
  • Later Thursday: Picked a jury for a family violence battery case. A witness was unavailable, and the case was dismissed.
  • Friday: The final two cases were disposed of—one dismissed, the other resolved with an exceptional plea offer.

In about four days, I’d run the table.

That week taught me a masterclass in big-picture thinking, creative problem-solving, rapid trial preparation, and the art of thinking on your feet. (For a broader view of the full arc of trial readiness—from evidence review to courtroom strategy—this complete guide to trial prep mirrors much of what I had to master under pressure.)

My boss, never short on hubris, was quietly pleased. Judges were thrilled at the cleared docket. Prosecutors were…less thrilled. Let’s just say they weren’t expecting to get steamrolled.

After that, I was thrown into chaotic trial situations far less frequently. Instead, I began to be tapped as second chair in higher-stakes cases. And despite the dysfunction that led me there, I’ll never discount my boss’s raw trial talent.

Fast forward to the present: I’m transitioning into civil trial defense, where trials are far rarer. But my love of the courtroom endures. After decades of litigation—countless trials, motions, and hearings—I still find the lectern of a courtroom to be one of the most peaceful places on earth.

This post marks the beginning of a blog series: What Criminal Defense Taught Me About Being an Effective Civil Litigator. For those curious about how strategic thinking translates into civil litigation, this overview of civil trial strategies serves as a solid starting point.

🧠 Lessons Learned

  • Systematic preparation can rescue you from chaos.
    Turning disarray into a defined trial calendar transformed my circumstances.
  • Relationships with judges and prosecutors matter.
    Building goodwill gave me the space to propose and execute my plan.
  • Trial practice teaches strategy under pressure.
    Thinking fast and adapting on the fly are skills you only sharpen in the trenches.
  • Even dysfunction can offer growth.
    The flawed situation catalyzed significant development in my courtroom skills.
  • Winning cases builds momentum—and credibility.
    That week shifted perceptions and elevated my role within the firm.
  • Peace lives in mastery.
    Amid personal and professional chaos, the courtroom lectern remains my place of focus and calm.

5 Lessons on Being a Better Advocate from The Rainmaker

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The Rainmaker is available on Netflix. In my earlier snobbier days I scoffed at lawyer movies and written legal thrillers. I’m either not as picky as I once was, or I’ve learned to find actual value in this kind of entertainment in spite of the inaccuracies. I’ll start with a no-spoilers overview of the plot and proceed to tell you my five big takeaways from the film.

Rudy Baylor (Matt Damon) plays a recent law school graduate who goes to work for shady personal injury lawyer, Bruiser Stone (Mickey Rourke). Assisted by Bruiser’s long-time law clerk, Deck Shifflet (Danny DeVito), a guy who can’t pass the bar, Rudy ends up taking on a huge personal injury case against an insurance company where he is pitted against Leo F. Drummond (John Voigt) and his team of defense attorneys. He also falls in love with Kelly Riker (Claire Danes. Remember her?), a domestic violence victim he meets while studying for the bar/trolling for clients in a local hospital.

An earlier snobbier version of myself would have been obsessed with the inaccuracies, such as how is it that cases go to trial so fast in legal thrillers, particularly one like this which likely would have been in the discovery phase forever. But I’ll move to the lessons.

  • Rudy Builds a Practice by Connecting the Everyone He Meets and Looking for Ways to Be Helpful. Rudy builds his practice essentially from two people he meets in a law school clinic. The first, Miss Birdie, is a wills/estates client. From his work with her, he finds an inexpensive place to live and a safe place for his girlfriend to hide from her estranged abusive husband. And his other client becomes his big break. The girl he meets at the hospital becomes his first criminal client, a murder case he successfully negotiates to a dismissal without formal charges. When his boss flees the FBI, he and Deck go off to start their own firm. Rudy’s marketing comes from being helpful to those around him and his willingness to ask for help. He’d have killed it in the modern era of social media marketing.
  • Rudy is Adept at Technology, Even with a Limited Budget. Rudy goes to battle with a big firm. But he used essentially a video camera and tripod to interview his client for later use in his closing. He also took a critical document and presented it effectively in court. While taking his client through the document, he puts the document up on screen with a pull quote. Nothing fancy here. It’s just one document being put to great effect. And he leaves it up so that his opponent has to demand that it be taken down. And note that Rudy is using his own tech. He’s not relying on the defendant’s stuff as many of us do when against the government or a techier opponent. He’d have killed it in he iPad era.

Rudy Courts the Judge by Being Honest and Humble. When judicial sentiment is against your opponent, it’s best to stay quiet. And if you feel outgunned, it’s okay to say so. But even better if the judge makes a truthful observation about your position, it’s good to be candid. Later in the movie, the judge assists Rudy every every way he can.

As Important as Niceness is, You Have to Stand Your Ground at Times. Leo Drummond tries to act as a condescending patronizing version of a mentor figure. Rudy takes is well for the most part. However, during depositions, Leo tries to dictate the order of deponents. He also does some shady stuff to hide witnesses. At which point, Rudy is firm, threatens to involve the judge, and refuses to be pushed around. There are limits to the nice approach. And Rudy stands up when the moment requires it.

 

 

A Paperless Office is a Good Idea But a Good Staff is Even Better. Rudy is not a one-man show. His paralegal is constantly out there taking care of him, gathering information, and helping with points of evidence. Every office needs at least one Deck Shiflett. Rudy would do well to get a case management system in place though.

There you have it, five lessons from The Rainmaker to be a better trial lawyer. (1) Build a Practice by Connecting with everyone you meet; (2) Being adept at technology will put you on par with even the biggest opponent; (3) honesty and humility will carry you far with the Court; (4) be nice but don’t back down when the fight is on; and (5) You can’t go it alone. Build a good reliable team.

Dean Strang and Social Media

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At yesterday’s GACDL Winter Seminar, Dean Strang spoke, not so much on Making a Murderer but on systemic failures of the criminal justice system that are on display in the documentary series. Those issues include poverty, the fact that the treatment of juveniles has not caught up with the research on brain development, and issue with the media.

However, my takeaway was when Dean spoke about social media. When asked about media attention, he revealed that he has no social media presence. A shy person, he pointed out that he doesn’t always feel particularly social and that he sees no real need to “mediate” some sort of online social presence.

Without social media, he cannot be harassed on it. And he reports having perhaps ten uncomfortable moments since Netflix premiered the documentary (versus many death threats while the trial was going on). But there’s an even bigger lesson.

Cal Newport may well be right when he says that social media is not at all crucial to career success. It turns out that the lack of Facebook, Twitter, or Instagram isn’t a hindrance from becoming well known and respected all over the world.

Thoughts on a Day in Court

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Yesterday, I spoke on my aversion for offices and love for working pretty much anywhere. Here are a few more details. This morning, I had calendar in Gwinnett County, Georgia, which is pretty far away from where I live. Since I was taking over for another lawyer, I had to file a document known as a substitution of counsel. It’s a document that lets the court know that a new lawyer is taking over the case. After the substitution is filed, previous counsel no longer receives court notices, orders, etc., and all of that starts coming to me. Halfway to court I realized that I hadn’t printed out this document. And the court doesn’t have e-filing in criminal cases, which meant a brief detour to an Office Depot print center before arriving at the courthouse.

Speaking of courthouses, there are 159 of them in Georgia. Depending on where the case is, you can either walk into a historic architectural wonder or something thoroughly modern. I don’t know what the word is for the Gwinnett County Courthouse. I call it the Mall of Justice.

You might also call it Spaceship Court. Once inside, it feels more like an airport than a mall. Each floor is kind of a long corridor with skylights and big windows on each end. The courtrooms themselves are completely windowless, which is a feature I’ve noticed in modern courthouses. Older courthouses (I was in one yesterday) tend to have darker more windowless hallways with big windows in the courtroom. But back to the airport motif, all the courtrooms in Gwinnett County are even numbered like gates in a terminal. Today, I was in courtroom 3C. Of course, in a criminal calendar the flights go no place good.

The waiting area has a nice shiny hallway, which is likely a perk of inmate labor. Just before court started, the deputies unlocked the courtroom. A great perk of being a lawyer is that we get good comfy seats in the courtroom most of the time. We are allowed to cross the bar and hang out in the jury box. You’d be surprised to know that jurors sit in jury boxes a small percentage of the time. The rest of the time, at routine calendars and motions days, the lawyers occupy the jury box. Seats for the general public are generally wooden pews. This jury box had a cool little metal bar at the bottom as a little foot prop. The seats also swivel and rock back and forth. I’ve had great stealthy cat naps in jury seats in my career while waiting out a civil calendar.

When I was in Brooks County, Georgia, a few weeks ago, the jury box was made up of wicker chairs that swiveled and rocked and made me crave a mint julep. Most counties what have modern courthouses also retain the old courthouse on the town square as a place for wedding receptions or pottery classes and the like. Gwinnett is a perfect example. After court, I needed to run to an Apple Store to get something fixed. On my way out of town and out toward the mall, I passed the historic Gwinnett County Courhouse.

Most of the courthouses I work in are exactly like this building. And the older buildings are way more fun. Before they renovated the Pike County Courthouse, a big chunk of the ceiling once fell on me while I was arguing. In a novel, such an event would be symbolic of something ominous. And here’s fun fact, it was on this courthouse square that Larry Flynt, the founder of Hustler, was shot on the way back from lunch during a hearing on an obscenity case. And while I waited for an opening at the Apple store to have a person look at my tech, I took out the mobile office and knocked out some work on a case for next week.

I’m trying to cut back on my coffee intake. So, I opted for an overpriced mineral water while I waited. And this is what a day of working on the go is like. Many days will often go by where I don’t even see my office. But there’s always adventure to be had in some courthouse, old or new or in the pdf pages I read on a tablet or with the person on the other end of a call I’m returning.

A Few Thoughts on Motions for Reconsideration

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This week, I became involved in an appeal much later than I typically do. The Court of Appeals had already made its decision, and I drafted a motion for reconsideration for my new co-counsel. Typically, when I draft a motion for reconsiderayion, I am getting my ducks in a row for a petition for certiorari or I am trying to throw a hail mary pass for a devestated client. My typical motion for new reconsideration is a couple of pages in length and written in the style of a trial motion, with numbered paragraphs. Never before have I been asked to enter a case at the MFR stage. Since this was my sole mission, I wanted to add even more value to the process. And so I went to the first place we should all go if we want to up our game in a particular court — the rules of that court as they relate to the subject at hand. It turns out that the MFR stage offers us quite a few options.

In the Georgia Court of Appeals, you go to Rule 37 to learn all about how to prepare an MFR. In short, there are opportunities and ways to get in trouble. Let’s start with the ways you can get in trouble

Ways to get in trouble

  • You must file your MFR within 10 days of the decision by 4:30 p.m. Ordinarily, you can e-file things with the COA until 11:59 and you get credit for the day of filing, even if the clerk doesn’t docket your brief until they open the next day. If you file your MFR at 4:31 p.m. on day 10, the Clerk of Court will docket your MFR as if filed on day 11. And if you file your MFR on day 11, bad things may happen to it.
  • The clerk of court can shorten your 10 days. I’ve never seen it happen. But it potentially could at the end of a term.

Opportunities

  • Let’s talk about the standard for granting a MFR. According to Rule 37(e), “a reconsideration shall be granted on motion only when it appears that the Court overlooked a material fact in the record, a statute, or a decision which is controlling as authority and which would require a different judgment from that rendered, or has erroneoulsy construed or misapplied a provision of law or controlling authority.” I read 37(e) as a fairly liberal standard. With that said, a MFR should be narrow, short, and targeted. You are telling three COA judges that they made a bad mistake. So, tread lightly.
  • Blame yourself. Typically, when I write an MFR I blame myself for the adverse decision in the way I briefed the matter — essentially “I was likely unclear in the way I wrote. So, this is all my fault. Better advocacy would have taken you to the right result.”
  • You have some space to write. Rule 37(a) refers us over to Rule 24, which is the section that deals with the physical preparation of briefs. So, your MFR can literally be a brief. The only limitation imposed is that your MFR is limited to 4,200 words, or about 7–8 pages of text using a 14-point font and double spacing.
  • If you draft an MFR in the form of a brief at 4,200 words and cover the topic, you will probably file the best brief you have ever written. You may even wish that your original brief had looked like this brief. Had the brief been this clear and succinct, your opponent might be writing an MFR right now.

I make no comment about whether the strategy here is a winning one. You are likely still throwing a hail mary pass in any event. I offer these comments as a lawyer who entered the game just to throw the pass. The ball is in the air as I write these words.

Taking a Witness’s Testimony by Skype

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

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

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

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

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

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

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

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

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

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

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

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

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

ADDRESS

199 W Jefferson St.
Madison, GA 30650

PHONE

678-610-6624

EMAIL

tori@scottkeylaw.com