Thoughts on Working On The Go and the Fluidity of The Office

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I listened to a recent podcast where a ultrarunner Dean Karnazes talked (among other things) about how he writes books while he is running using the voice memos app that I am working on right now. He records notes and comes back and transcribes them when he is done with his run. This lets him be out and about and get work done at the same time.

I want to give this a shot. I think it’s important not to see work as modal but as something that can be done from virtually anyplace. I don’t know about writing briefs while running because the reference materials won’t be there (running while accessing LexisNexis may be a bridge too far). But a good bit of writing work could be done while on the go. I think one thing that keeps me from getting more done and which puts me in a place where I fill “dead time” by scrolling mindlessly through various feeds on my phone is that I wait for ideal circumstances before I try to get work done.

I cannot always be in an office nor do I want to be there; but, sometimes I won’t sit down and crank out work because I’m waiting to be in an office. And I think this was a very important podcast. Karnazes is interviewed by Rich Roll. He cannot imagine writing in any other form than at a desk in a traditional way. But he uses a standup desk and takes frequent breaks for HIIT workouts.

I’m new to the podcast interviewer and guest. But I want to check out books by both. I’m hopeful that the books are good (both authors have written bestsellers). If so, I will have more faith in the notion of working by dictation to oneself during a walk or run.

One of the better components of using the voice memos application on iOS (voice memos is a stock application that is built into the ipad and iphone. I’m sure Android must have something similar) is that you can now stop a recording, come back, and resume where you left off. Voice memos never had that before. When you pressed stop, there was no way to add to the project.

In a pinch, you could probably even record a podcast using the voice memos app. The sound quality would not be the best. But it has the advantage of letting you do a project that might otherwise be left undone. The voice memos app is a fine way to get a good bit of work done.

At first blush, I wondered “how can I outsource the transcription?” But I was asking the wrong question. The point is that you’re writing your first draft while hiking, running, running errands, or being stuck in a waiting room or long court calendar. The transcription is the second draft. It also seems to me that this form of getting work done also cuts down on the excuses in reverse. Just as you can write and run, you cannot use work as an excuse to sit around at your desk while you neglect your physical fitness.

My takeaway is that “work” and “the office” need not be a modal concept. “The office” is a mindset. “Work” is something that you do; it is only as place specific as you make it. The office is not merely a place that you go. I’m not saying that you must be on duty 24/7 or that you can never be in the office. But perhaps these things could be more fluid than we often see them. Maybe the office is the place you go because because you can only get few sets of specific things done there. Maybe it’s the place where the second draft gets written. The office is likely in your briefcase.

The Iliad and the Odyssey existed for generations as a completely oral work. Paradise Lost was dictated to a secretary. And Jimmy Carter’s presidential memoirs were largely dictated while he was in office. He wrote, in 2015, “One decision I made before leaving Washington was to write a memoir of my presidential years. I examined the voluminous diary notes I had dictated in the Oval Office and found that they comprised twenty-one volumes and more than a million words. I spent my first year reading them and writing about the most significant events. The resulting book, Keeping Faith, was a best seller.” While in The White House, Carter ran five to seven miles a day on weekdays and ten miles a day on Saturdays and Sundays. He ran with a military aid “who provided constant communication access between ma and agencies of the government and the outside world.”

Not only can you write some pleadings, letters, and emails while running, you can run a nation while you do so. I am going to give the non-modal approach a try.

Change Form for Better Proofing

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The best way to find the typos in a document is to file it or turn it in. When you take a look at it a few minutes later, they will stand out in a way that they had not previously — no matter how much time you spent reviewing your work before. I have a few theories on what is going on here. For one, your brain is anxious to get this all over with. Also, as your eyes scan the page your brain hears the words that you intended to write. Your brain takes the words on the page and filters out the typos. Your brain does not generally do this for the work of other people. Keep in mind perfect writing does not exist; rather, writing reaches a point that it is ready to file, publish, or post. There are some things you can do that make sure your writing is ready for prime time.

You should render it into an audio form to hear the words in some voice other than the one inside your brain. The least perfect version of this is your external voice. Take the time to read your words out loud and slowly. It is much easier for the typos and strange little grammatical quirks to stand out in audio form. By going slowly your brain is less likely to filter out the problems. The second best way to render your words into audio form is to use voice reading. Apple’s pages has a feature that will read the words aloud. Also, for Apple folks there is an app called voice dream that will let you input words and read them to you aloud. You can then read along and make edits as you go. The best possible way to render your work to audio form is to give your writing to another person to read aloud do you as you follow along with your eyes. In this sense, you have two proofreaders. And you are hearing your words read in a voice completely distinct from your internal one. 

Another potential proofreading step is to take the document save it in its most final form. Block and copy your text into a new document. Then change the font to something radically different than the one you wrote in. Then proof that version. The new font will make the work look less like your own. And the problems will be easier to see. 

Finally, if publishing, posting, filing, or turning in your writing is the step that makes the typos easier to spot, then you can create a fake publication step. This may take the form of turning the document into a pdf or html and putting it before a person or group of people whose opinion matters to you After you’ve “published” the work, take about a day and go back to it. This step will simulate publication. It will be the equivalent of a dress rehearsal for the moment of publication. 

Rendering your writing into a foreign form — from written to audio; from one font to another; from your work to a “published” work — will help you spot the typos before it goes out and will ensure that your writing does go prime time until it is ready for prime time. 

Good Stories are Better than Great Arguments

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This post is part of a series on legal writing. I suspect that what follows in the next few days will be contrarian and controversial.

People aren’t logical. The ones of us who think we are logical are most susceptible to an emotional appeal. If we were swayed by logic, then political and theological opinions would change over the course of Thanksgiving dinner around America, home shopping networks would not be a thing, and Facebook would be the home of polite discourse. 

I practice appellate law with a small dose of trial law. What that means is that I craft arguments aimed for judges. When I do trials, I craft arguments for juries. I think in terms of arguments for the reader’s eye versus the reader’s ear. We appellate lawyers can be full of ourselves. Ours is highbrow work. We think we appeal to the mind. The trial lawyers are the ones who make the emotional pitch. Judges don’t help matters much. They go around speaking to continuing legal education seminars and civic clubs. They say in their speeches that they are like umpires. They call balls and strikes. They are impartial. Justice is blind. 

And yet the better story wins all of the time. The lawyer who crafts the better story from the facts wins the case. Here’s the other little secret. Legal briefs are a collection of stories. When we cite a case, we are telling the court a story about how their court or a higher court dealt with a person who was just like our client or just like our opponent. We even tell a story about that story. The concept of legal precedent is basically this: a person came before this court who had something happen to him. And you cut him a break. Today, the same thing happened to us. The fair thing to do would be to cut us that same break. The opposite can also be the pitch. There was this one other time where you guys refused to cut someone a break. But our story is different. And because of that difference, please cut us a break. 

It all boils down to a set of stories. And we ignore this state of events at our peril. I know it all works like this, and it all surprises me. When I receive an opinion I’m often shocked — sometimes I’m shocked that I won. When I’m surprised by a win, 100% of the time I wrote a brief that told a compelling story. And when I am shocked by a loss it’s because I thought the law was completely on my side. But the other side had a better story. 

Stories fill a basic need. There is food, air, and water. And there are stories. Your favorite ride at Disney tells a story. The safety briefing on the plane you take to Disney tells you a story. There’s even moral to it — secure your breathing mask before Gish try to help others with theirs. When we are little, we want to be told stories before we go to bed. We buy stories at theaters, from bookstores, and from stream services. 

Your writing, no matter what it is, involves a story. Your term paper tells a story. So does the sign on the break room’s refrigerator at the office that implores people to take their old Tupperware containers out by Friday or they will be thrown away. It is a story of mold. And smells. And limited space. And basic courtesy. It may also be a story of condescension and control.  But there is a story behind all such signs. 

No matter what you are writing, your reader is not logical. And your reader is not logical because your reader is human. 

And yet there is a place for logic and reason. Reason follows emotion. Reason is the second punch in a one-two combination. Your story, if it is compelling gives the reader a desire to do what you are asking (Free the client. Fasten the seatbelt. Buy the deodorant. Take your smelly old lunch home from the breakroom). Logic gives the reader the tools to do the thing you’ve made them desire. Stories trump, but do not replace, logic. If nothing else, logic gives the reader cover that they aren’t being impulsive. 

But make no mistake, the walls of the house are built of logic. But the foundation is built of story. If you want to write well, get good at stories. 

People Aren’t Logical. Write Accordingly.

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This post is part of a series on legal writing. I suspect that what follows in the next few days will be contrarian and controversial.

People are not logical. And there is an inverse relationship between how emotion-driven you are and how logical you perceive yourself to be. Trust me on this one. Or close this essay right now, go out and find yourself a copy of anything by Robert Cialdini, or Amos Tversky and Daniel Kahneman. Then come back. Your audience, whether that audience is your uncle at the Thanksgiving dinner table, a judge reading a brief, or a jury of your client’s peers. I’ll illustrate what I mean with a little story about the best continuing legal education seminar I ever heard. 

The Friday before I was to begin a horrific child abuse case, I had the good fortune to hear a CLE talk on persuasion. My client was accused, along with his girlfriend, of breaking the ribs, fingers, and fingers of a young baby. The case seemed virtually unwinnable. And the client had turned down multiple offers that seemed reasonable to me. I almost didn’t attend the lecture because the venue was far away, and I had the trial coming up.

Using techniques developed by James McComus, the speaker said that winning at trial comes down to understanding the “outcome levers.” An outcome lever is a fact or theme in the case that is so compelling that the case may turn on it. Outcome levers are seldom logical. And even if they are, they likely are bundled with a strong emotional component. At some point, a person asked him how you prepare for trial when you have multiple counts in the indictment that are paired with their own essential elements. Brett’s response was “nobody gives a damn about counts and elements. And, if you’re using this language, you’re playing a losing game.” The good news is that there are only a limited number of themes for outcome levels. And they are generally as follows. 

* Violence. The State generally seizes upon these themes, particularly if the case involves a violent crime. It’s why medical examiners testify. While they may talk in terms of science and anatomy, they function merely as narrators to gruesome pictures. The savvy criminal defense attorneys can use the theme of violence as well. Perhaps they describe the violence that their client suffered at the hands of the victim, bullies from school, or another an abusive parent. Crime shows are popular. Crime documentaries and news shows are all the rage. And that’s because violence is an emotional hook. If you can find it, use it in your writing.

* Sex. Sex is not even a close second to violence as an emotional trigger. The two are co-champion. It’s why the State almost always has a winning hand if they can bring up something sexual about the defense — particularly if the accusation surrounds matters that are sexual in nature. the savvy defense attorney turns sex on the State — perhaps in the form of the sexual motivation of the accuser. Perhaps the main witness was jilted in some way or there is some sexual theme to employ against a co-Defendant, witness, or another villain in the case. 

* Race. Race may sometimes not be an issue. However, if a jury or judge is a different race from the defendant, the accuser, the arresting officer, or one of the lawyers, then race is in your case. Only if literally every participant in a matter is the same race is race not an issue. Ignore this reality at your peril. Grasp this issue and come up with a way to turn it. If you do so, then you will be in possession of a valuable persuasive tool. The 2016 election turned on race. And the 2020 election is being waged on race. The 2024 presidential election will likely turn on race as well. 

* Food. If you want to make your point memorable, try to think of a way to describe food. If you are writing in about travel, make it a point to describe food. If you are writing a work of fiction, try to find a way to go on and on about what your characters are eating. If you are working on a criminal matter, and some of the witnesses, the police officers, or the defendants met up for dinner, even if at a McDonalds, make it a point to be as descriptive as you can about the food. your story will be memorable. 

*Senses. People are way more sensory than logical. Write about what people heated, the way the air smelled, the way it felt to hold objects, the way the food tasted, and the colors of things. A former district attorney in a metropolitan-Atlanta county used to ask witnesses a great question when he was direct examining them. He would say, “paint a picture with words.” To the officer responding to the scene, he would ask some background questions, such as “where were do you work? Who called you? Etc.” But those were all just set-ups to the real question. He would gesture to the jury and he would say “Paint a picture for us with words.” When you are writing, no matter what you are writing, pretend that you are that witness. Paint a picture with words

So, here is what I did to prepare for trial. I took out a single piece of paper. I drew a vertical line down the center of the page (a single page forced me to identify the critical few outcome levers for the case) I wrote down the State’s outcome levers on the left and mine on the right. And I literally shaped everything I planned — jury selection questions, opening statements, questions for cross-examination, questions for my witnesses, motions, and selection of wardrobe for the client — to neutralize their outcome levers and emphasize my own. I de-emphasized pretty much everything else, even the law, to maximize impact on the emotional levers.

I knew that the state would come strong with violence and would try to play upon the natural parenting instinct of jurors. Which was fine because my client — the child’s father — was in his late teens when the child was born. And the mother — my child’s girlfriend — was in her forties when the child was born. I could deflect the violence theme onto her by playing on another outcome lever. And that outcome lever was sex. As far as the parenting theme went, I could talk about my client’s mother’s abandonment of him and now his girlfriend had played upon that for her own prurient purposes. I countered violence with sex. And I did so at every turn. Literally, I let the law take care of itself. I focused on the critical few outcome levers. 

And it worked. The jury convicted my co-Defendant on all counts and acquitted mine on all counts. He is now free and building a better life for himself.

Your term paper, work memo, a legal brief, speech to the city council about the need for a red light at a dangerous intersection, or a love letter is not a criminal jury trial. But if you pull out a sheet of paper you won’t have to look far to find some outcome levers — those things that, by themselves, will help you achieve whatever goal you are hoping to achieve with your writing. 

Let the logic take care of itself. Lead with emotion. Follow with logic. People, including me and you, are not logical. If you know this fact, your writing — particularly your persuasive writing — will be infused with a sort of superpower. 

Don’t Write Above a Sixth-Grade Level (But Don’t Tell the Reader About This Decision)

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This post is the first in a series on legal writing. I suspect that what follows in the next few days will be contrarian and controversial.

When I started law school, I thought I was hot stuff. I majored in English in college. I knew a bunch of fancy literary terms as well as the names of French deconstructionist critics. I completed an honors project in English and graduated at the top of my class. To make things worse, I completed a masters program. And I finished up that experience with yet another honors program. I was at the top of my game — or so I thought.

Then I went to law school and attended my legal research and writing class. The teacher had written on the marker board “Bored and Busy.” She explained that these words described the average reader of legal writing. Judges are bored and busy, she said. She advised that we write with this audience in mind. I shrugged my shoulders. My view of judges was from the movies. I thought they were all scholars with robes. I had not yet met any of them.

My first assignment was a memo, written to a fictitious supervising partner in a law firm. The subject was whether a person could recover a judgment for damages in North Carolina for a dog bite while on the job (I’m thinking the plaintiff was a delivery man) for big money in a traditional lawsuit or were damages limited only to what was available in worker’s compensation. How simple was this? I’d written about whether true friendship was better than romantic love. I had even written about the epistemology of writing itself. Dog bites? Worker’s compensation? Please! I turned in the same sort of academic prose that had won acclaim among faculty for years

Then my teacher returned my graded paper. There were more words in red ink on the page than typed words from me. And the words in the margin were kind of mean. The phrase I remember was “pseudo-lawyer mumbo jumbo.” Those words on the board were still there “Bored and Busy.” It took a semester for me to catch on. The reader, just about any reader, is busy. And the reader is bored. When lawyers write to other lawyers, they are looking for an answer to a question. And when lawyers write to judges, they are trying to figure out what do to with some problem.

Nobody cares how big your vocabulary is. Nobody cares what your grades were in school. Also, unless you are auditioning for somebody’s team for trivia night, nobody cares how much you know. I started writing at the sixth-grade level, even if I knew that my audience was learned. Why not write to impress? Because your reader doesn’t have time to be impressed or to parse out what you are saying. The reader is busy. And why not write more to really drive your point home? Because the reader is bored.

Fast forward two years. I went to work as a third-year law student in a busy criminal defense firm. The lawyer I worked for was farming out the legal writing to a former associate of his who had moved to the North Georgia mountains. My boss was quite the trial attorney, but his appellate practice wasn’t doing so well. I read some of the briefs that were getting filed. Those briefs were heavy on Latin phrases and legal inactions, “comes now,” “This Most Honorable Court” and such things were all over the place.

I asked to take a shot at a brief. I wrote at the sixth-grade level. My brief was about half as long as the average that this firm was putting out. My brief led to the reversal of murder conviction. All of that was likely beginner’s luck. But it didn’t hurt that I got to the point and took it easy on the busy and bored reader. This isn’t just a law thing. Anybody you write to — the person reading your article, text, tweet, or post — is bored. And anybody you write to is busy; if they aren’t busy, they perceive themselves as such. When is the last time you asked someone if they are “staying busy” and heard in response, “nah, I’m just hanging around?”

Just to give you some perspective, the Opinion Section of the New York Times is written on the tenth-grade level. ESPN writer Rick Reilly, who is considered a great columnist, consistently writes on the fifth-grade level. Compare that to Tucker Wyatt, a seventh-grader who once wrote for Sports Illustrated for kids. His writing was on the seventh-grade level. Let’s talk authors. Ernest Hemingway — fourth grade. David Foster Wallace — eight. Stephen King — sixth. And Thomas Pynchon — seventh.

When I say grade level, this isn’t about dumbing things down. Don’t condescend to do your reader. Rather, it’s about making your writing readable and relatable, particularly to an audience that is busy and bored. Just don’t tell judges that your briefs are at the sixth-grade level. And if your opponents are writing to impress, be sure to encourage them

Neil Gaiman and the Joys of Drafting with Pen and Paper

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It may be that putting pen to paper is the perfect way to compose first drafts. Tim Ferriss’s interview with Neil Gaiman has made me rethink my approach to drafting briefs and motions. Neil Gaiman is my favorite fiction author. And I loved much of his approach to writing, from the habits he uses to stay focused to his craft of putting pen to paper. Not until I listened to the podcast did I know about the notebooks and fountain pens.

Gaiman composes his first drafts in a nice notebook using fountain pens.. In an earlier interview, he described how the switch to notebooks changed everything for him. “I was sparser, I would think my way through a sentence further, I would write less, in a good way. And when I typed it up, it became a very real second draft – things would vanish or change. I discovered that I enjoyed messing about with fountain pens, I even liked the scritchy noise the pen nib made on the paper.”

There is much here for legal writers to emulate. When I was in my first year of seminary, I enrolled in a seminar course on religion and literature. The professor started off the class with a writing exercise. We wrote by hand for a few minutes (laptops were rare then), crumpled up our page, and threw them to the middle of the table. Then we started again. His rationale was that the warm up phase of writing was not likely to produce much in the way of quality. The secondary lesson was that nobody ever needs to see a first draft. In legal writing, the court will absolutely never see your first draft because only pro se people and sovereign citizens turn in handwritten stuff.

I’ve experimented with handwritten motions, pleadings, letters, and this blog post. And there is something relaxing — almost luxurious about it. Also, the typing draft bears little resemblance to its handwritten ancestor. It is difficult to type an exact duplicate without implementing changes.

I’m reminded of other writers who draft with pen and paper. Civil War historian Shelby Foote took it to another level, with an elaborate process that involved a dip pen. At one point in time, he is said to have purchased up all remaining dip pens in the country. He said in an interview:

I use a dip pen. Everybody on earth used to have one. They were in every post office in the land. I like the feel that a pen or pencil gives you, being in close touch with the paper and with nothing mechanical between you and it. The very notion of a word processor horrifies me. When I’ve finished a draft, I make changes in the margin. Then I make a fair copy. I also edit the fair copy somewhat when I type it on big yellow sheets so I can see it in print for the first time. I correct those outsized yellow sheets, then retype them on regular eight and a half by eleven pages for the printer. I’ve had poet friends tell me they never type a poem until they are really satisfied with it. Once they see it in print it is very different from what it was in longhand. It freezes the poem for them.

My favorite presidential historian, Robert Caro, uses a hybrid process of outlines and handwritten prose for his first drafts. “First you fill it in in handwriting, and then you sit there for weeks going through the files, putting in the best anecdotes,” he says.

I like my experiment so far. It is relaxing to write by hand with a fountain pen. My tool of choice is a Dryden Design fountain pen I received as a gift. And I have some notebooks ready for briefs and other large-scale writing projects. For everything else, I love the feel of Docket Gold legal pads. The paper is heavy, and the cardboard backing has heft. You can take notes without much need to press the legal pad onto anything else. Also, paper does not receive texts or twitter notifications. And there is no newsfeed to pull you away from writing. My favorite writers may be on to something. I write this after spending about a decade moving to a paperless process.

Enough with the Allen Charges — Readable and Entertaining 11th Cir. Opinion

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I enjoy reading opinions by Eleventh Circuit Judge, Ed Carnes. And Brewster v. Hetzel may be my new favorite. It’s a rare habeas case out of Alabama (or anywhere) where the habeas petitioner wins. And the subject matter is a deadlocked jury and the lengths a trial court went to flip the holdouts for acquittal. Judge Carnes begins with a history lesson. At one time juries could be deprived of food and water until the holdouts caved. And when that didn’t work, judge had other tricks up their sleeves.

And if jurors did not unanimously agree on one before the judges left town, Blackstone recounted, “the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart.” Id. at *376. They were hauled around in the cart “until a judgment ‘bounced out.’” Renico v. Lett, 559 U.S. 766, 780, 130 S. Ct. 1855, 1866 (2010) (Stevens, J., dissenting). Which is to say until the resolve bounced out of the holdout jurors.

The opinion gives a few other examples of judicial coercion of hung juries of the past before shifting to the facts at hand. “We no longer try to coerce holdout jurors to reach a verdict they cannot abide. Or at least most times we don’t. The jury that convicted our appellant, Sumnar Brewster, might feel some affinity with the juries of yesteryear.” After giving the jury four separate Allen charges, the jury heard that the lone holdout for acquittal was doing a crossword puzzle rather than continue being browbeat by the other eleven. At which point, the judge ordered all pens and reading materials removed. from the room. “Just 18 minutes after all reading materials were removed, Brewster’s jury dutifully — and we do mean dutifully — returned a guilty verdict.” (Court’s emphasis).

The opinion is informative, readable, and fun. Judge Carnes stands out as one of the best legal writers around. And the opinion in Brewster v. Hetzel is a good model for legal writers to emulate.

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.

One-Liner of the Seminar Regarding the Goals of a Cert. Petition.

/by

Last weekend, I chaired a two-day seminar on appellate and habeas practice. GACDL hosted the seminar at my alma mater, the Georgia State University College of Law. I’m jealous of their new building. We didn’t exactly have it tough at the old Urban Life Building, but the new kids are lucky to be in such a cool space. As for the seminar, I took good notes and plan to steal from our speakers for the next several posts.

The theft starts right now with this incredible one-liner from Justice Nels Peterson from the Supreme Court of Georgia. Here’s what he said about the difference between an appeal and a cert petition:

“The appeal is for your client. The cert. petition is for the public.” To quote Rule 40, “a petition for the writ will be granted only in cases of great concern, gravity, or importance to the public.”

This pithy statement has been the subject of many a discussion with lawyers who have reached out for advice on how to do a cert. petition. It is not much of a stretch to say to lawyers that the Court doesn’t particularly care about their client. When it comes to cert, the law is all that matters. The pitch on cert. is to the potential precedent not the client’s sense of injustice.

 

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