Writing - Scott Key & Associates

Here’s How I Started My Appellate Practice

March 25, 2018/by J. Scott Key

I frequently receive calls from law students or lawyers looking to become appellate lawyers. And I find myself having lunch with people and discussing how I started out. What I am writing here is what I typically say on those calls or at those lunches.

I have a background that suited me for appellate practice. Though, at the time, I had no idea that I was preparing myself for appellate practice. I came to college wanting to be a lawyer. Only, as I excelled in college classes, I wanted to become a professor instead. I chose as my major the typical cookie cutter pre-law route of political science. But political science ultimately became a minor. And I double-majored in English and Religion. So, I changed my mind about law school and decided to attend a seminary (my aim was to go from the M.Div. to a Ph.D. program and ultimately become a religion professor). And as seminary neared its completion, I decided to go to law school, which is what I wanted to do when I started college in the first place.

I entered law school three years older than most 1Ls and with a depth of research and writing experience. It never occurred to me that I would do appellate law after law school. In fact, I never even did moot court. I was a mock trial guy. And I was fairly convinced that I would go on to be a criminal trial attorney. And why was that? I wanted to be in the courtroom, and I knew that criminal practice would place me there early and often.

During my 3L year, I came to work for a criminal defense attorney. And on the days I was with him, we’d go from court to court together. His paralegal would lay out his day’s agenda in a little printout atop some gray files. And off we’d go in his little Porsche. As we went from place to place, he’d smoke tiny cigars. Eventually, all of my clothes, papers, and even my apartment came to smell like those tiny cigars. After court, we’d end up at a bar where he and his investigator would down Gin and Tonics. It was like living in a Michael Connelly novel.

After I had been with him a few months, I took a file on a rape case he was defending and prepared it for trial. I spent an entire weekend calling every witness on the State’s witness list, conducting interviews and preparing summaries what their testimony would. I printed these out, and I put them in individual files. Along the way, I found out that the victim had not actually made an outcry to the person the State would call as its outcry witness. They called the victim at trial and she doubled down on her claim that she’s outcried to the person. And the lawyer I worked for spent about 25 minutes of cross-examination really committing her to that story. The outcry witness was then called and she said on the stand what she’d said in my interview. The victim had never made an outcry to her. The jury acquitted in about 15 minutes. What I learned from this was that criminal cases are often won by calling witnesses, listening to them, and preparing detailed reports more so than big television moments. Yes, I was a big part of a trial win, but my contribution to the case felt like a graduate school research project more so than it felt like something from an episode of Law and Order. It was pretty clear that the DA hadn’t interviewed any of the witnesses. She tried the case just from the discovery file. If you outwork your opponent, you will likely beat your opponent. And lawyers don’t really have the time to do what I did in the case. I learned that it is pretty easy to gain the edge in law.

Then something else happened. I learned that the lawyer was doing appellate cases. But he was farming out the appellate work to a former associate of his who had retired to the mountains. The lawyer was handwriting the appellate briefs and mailing them to my boss’s paralegal. And she was typing up the briefs. The writing was pretty terrible, and the lawyer I was working for wasn’t doing very well when it cases to appeals. Shortly afterward, while we were on a tour of Atlanta and as I was buzzed from cigarillo smoke yet again, I asked my boss if I could try my hand at an appellate brief before he sent it out to the mountain man. My boss agreed.

The brief I wrote was on behalf of a guy named Thomas Graham. As I read through the transcript, I noticed something missing. The prosecutor had failed to establish venue in the county where the case was being tried. Back in the early 2000s, there was an absolute loophole in the law. The prosecutor had to ask a witness, “In what county did these events take place?” Only, in this case, the State had failed to check that box. And Mr. Graham had been convicted of murder. I worked hard on that case and ultimately my brief won the day in the Supreme Court of Georgia. And I went on a little streak of wins. I would write these briefs, my boss would review and sign them, and they’d go off to the Court. And we’d win. The law office bought me a laptop of my own. And when I was hanging out in the courtroom with the lawyer, I’d work on cases off in some corner. This was the era just before WiFi was a thing. And I remember having all of the Georgia cases on a set of DVDs. But things got done. When I became tired of working in the office, I’d take the laptop and go someplace else to work. Appellate practice, I was learning, was portable. I do not know ultimately what became of the mountain man. But I know that he was out of the appellate business with this one firm. And I, as a 3L was this little firm’s emerging appellate division. And as our days of touring Atlanta-area courtrooms would wind down, I’d be stuck at some bar. And off to a booth I’d go to work on appellate briefs as I listened to late afternoon bar banter in the background. I was having the most fun of my life. And I soon learned the value of not being stuck off somewhere without your own wheels and without a way to get work done.

After I passed the bar, I stayed on as an associate in the firm. And my first solo break came. A man named Billy Collier hired me to be his appellate lawyer. He was an older man who had gotten into a bar fight in Columbus, Georgia, in a small juke joint called the Pop-A-Top Bar. My client came out of the fight better than his opponent. And he was convicted of aggravated assault and given a lengthy sentence to serve in prison. I recall meeting him at the Jackson, Georgia, Diagnostic Center. He was an elderly gentleman in big heavy cuffs and ankle shackles. And I vowed to myself that I would win his case. And I ultimately did — on prosecutorial misconduct.

It took a while, years even, to consider myself an appellate lawyer. But I think I backed myself into a career for which I was uniquely suited. Had I stayed on the political science track and gone straight to law school, I probably would not have been as ready. But what I found was a way to practice law that was sort of like being a graduate student or college professor. Had I gone on with my Ph.D. Plans, I might be in some cold climate teaching in a community college right now. And my work would be great, but I wouldn’t have overturned criminal convictions, which became sort of a guilty pleasure.

I also became active in GACDL (I’m now the President of it). One night, after a GACDL function, I gave a circuit public defender a lift home. And, over the course of that car ride, I was asked if I’d be interested in taking on their conflict appeals. This conversation led to a steady stream of appointed criminal appellate work. And through this, I started getting more active in the appellate courts. From there, things took off even more.

I still try cases. And when I do, it’s always fun. But appellate law is where it’s at for me. I think these are the lessons from my story.

Before you can do appellate law, you should be suited for it. I think years of research and writing helped. Also, I chose majors where I read text after text. If you want to do appellate law, a deep background in reading and writing helps a great deal.
There is some level of serendipity involved in getting started. I landed in a little practice that had a heavy caseload of appellate cases and a need for someone to step up.
I had to be willing to do it all fairly cheap. There was no substitute for doing a bunch of appellate cases. And I took all of those cases and worked them hard.
If you’re a good writer, a fast reader, and thorough, you will certainly have an unfair advantage over other lawyers. I hate to say this, but good writers are rare in law school and just as rare in the practice of law. Also, most lawyers would rather do anything but write a brief. If you’re willing to work, there are opportunities.
You don’t have to be awkward, quirky, or anti-social to be a great appellate lawyer. I am very comfortable in a courtroom, at a party, or in a plea negotiation. But I happen to love appellate law. Emotional/social intelligence is just as important in appellate law as it is in other kinds of litigation. And most appellate lawyers are not at all the stereotype.

And remember that part of my story where I wanted to be a professor?It turns out that I’m doing that now. I teach regularly at a law school in an indigent habeas clinic. And I also teach Georgia Appellate Practice and Procedure. So, I’m now practicing appellate law and teaching!

So, there is my story. I hope that there are some lessons in there that will help an aspiring lawyer who is interested in doing appellate law. Also, if you want to ask me to lunch or call to ask for advice, please fire away! I happen to like lunch and talking about all of these topics.

Storytelling: The Why and the How

November 13, 2017/by J. Scott Key

One of my favorite bloggers on trial advocacy is Mark Bennett. Mark has written a series of great posts at Simple Justice, Scott Greenfield’s blog on the topic of opening statements.

Mark offers 11 rules for better opening statements. One tip is to limit your opening statement to fifteen minutes. From experience, this is a solid tip. The rest of his rules could be summarized in a single sentence. Your opening should tell a story. Stories are all the rage in trial advocacy these days. If you have been to a CLE on trials. You have heard about story and why openings should be more like a story and less like a lawyerly presentation. The reason is simple. Jurors and judges love stories. Stories are more persuasive than speeches. Stories draw is in.

I have become frustrated with all of this talk of story. I was convinced, years ago, that storytelling is important for opening statements, for briefs, and even for simple motions. But CLE programming is light on nuts and bolts instruction on how to tell a good story. And that was why I was excited to learn about Pixar’s online class on storytelling offered through Kahn Academy. The class is excellently done, with great videos (each one tells a story) and activities to work on to get better at story telling. The video series is not aimed at lawyers, but it is exactly the storytelling 101 I’ve been looking for. I cannot give a comprehensive recommendation here because I am at the beginning of the lesson.

And, in case you aren’t aware of Pixar— Pixar is the company that perfected computer animation in the 1990s with Toy Story and with other great films. I have long been a fan of their work. They have not just made some of the best animated films of the past century, but some of the best films, period. Their success lies not just in technological achievement — though they have done some remarkable stuff — but in the craft of storytelling. Here are some screenshots of the table of contents for the series.

If you have been told that you need to embrace storytelling but you aren’t sure what to do, I hope that this will be a good resource for you. And how cool is Kahn Academy? It has been a go-to place for my children to supplement their school instruction for quite some time. But I had no idea that there was such great stuff on there for adults.

Older Lawyers Have an Edge in the Age of the Smartphone

June 13, 2017/by J. Scott Key

Chad Burton has given up his laptop and his iPad and now works exclusively from his iPhone. He manages software and consulting firm for lawyers with it. On a recent podcast, two lawyers discussed whether they could travel with just a phone and still get their work done. The debate for them came down to whether they needed a tablet and phone or just a phone. I noticed that the computer was not really a part of the discussion.

The interesting insight is that I took away from both pieces is that older lawyers may have an edge when it comes to working with minimal technology. Older lawyers developed the skills to compose by voice. And now, between Siri and Dragon Anywhere, lawyers with dictation skills can get work done without much infrastructure.

Long ago, when I was a high school student working at a law firm (1988), I can remember that the paralegals had computers but lawyers didn’t. The lawyers composed into a dictaphone or a microcassette recorder. And the paralegals typed it all up. When I was in law school and working in various law offices, the lawyers and paralegals both had computers. And I had my choice. I could type everything myself, and I could dictate. I had a foot in both worlds. It is a rare office now where lawyers dictate for others to transcribe. Though dictation is alive and well in medicine.

Now, things have both advanced and come full circle. It is possible to compose by dictating but without the need for staff. The software on a smartphone does the work of the 1988-era paralegal. But for a generation of lawyers trained to compose on the keyboard, dictation is a skill not yet learned.

The irony is that you could likely cut out a great deal of overhead in your office if you embraced some old-school legal skills that once required a large staff to support. And it may be dependence on desks and desktop computers that is driving up your costs.

Skillful Speech and the Law

February 22, 2017/by J. Scott Key

I recently heard a new term. It is a term of art from a certain religious discipline. That term is “skillful speech.” The person who said it was Joseph Goldstein. He was a guest on on a podcast. He explained that speech often serves no useful purpose other than to announce your presence to another person. Or it can be speaking something other than the truth. And even when we tell the truth, it can be truth spoken in a way that advances no good cause, such as gossip. Or it can be truth delivered with an ill intent. A few mornings ago, I read up on the concept of skillful speech. In a review of one of Goldstein’s books, for instance, the concept is summarized as follows:

“Right speech”—speaking honestly and eschewing lies and gossip, divisive speech and idle chatter—is a crucial part of Buddhist ethics. Joseph invented a practice for himself in order to cultivate greater mindfulness about speech: for several months he refrained from speaking to anyone about a third person. This not only taught him that a large percentage of his conversation involved other people, but helped him notice that much of what he said included comments and judgments about other people. Stopping such speech for a while made his mind less critical toward others, but interestingly also less critical toward himself. Years later that practice continues to alert him when he begins to speak mindlessly about other people.

I decided to give it a try. A few hours later, I fell short of it in a disagreement I had with someone. And this all happened outside of the work context. And I began to wonder, if it is so difficult to speak skillfully in the personal context, how much more difficult is it to use speech skillfully in the litigation context.

In the work context, as a criminal defense attorney, I have begun wondering about the relevance of skillful speech. A good portion of my work is on the page. So, I have the benefit of taking my speech through multiple drafts. And, in the oral argument context, there is opportunity to anticipate questions that might arise. More difficult is the person who, as my children would say, “started it first.” When a person is aggressively unskillful in her speech to me, it can be a challenge to remain skillful in my response. Or when a judge or an opposing counsel speaks in an unkind manner to me, even when I don’t respond in kind in the moment, the real challenge comes in how I describe the event within my office. We often speak of it in terms of “venting” or having a sense of humor. Or we may relish the fact that we are good at it. Much of your social media feeds may consist of unskillful speech.

As I have reflected on it, skillful speech is perhaps most relevant in the work arena. After all, in this arena, I am paid professional in my speech. And as much as I work at what I say in a brief or a motion, I should work just as hard in how I speak to clients, the folks who work the courthouse door, opposing counsel, and the judge. In this area, I should strive to make all speech skillful speech.

Friday Review: A Place I Haven’t Been in a While

February 17, 2017/by J. Scott Key

On my way home from the office yesterday, I darkened the doors of a place I haven’t been in a while: the public library. When I was throwing some things out recently, I stumbled upon my old library card. The card sat in my car for a while. And today I used it. Anticipating upcoming travels, I thought I would allow amazon.com or Apple’s iBooks service to flounder without me for a few weeks and get a couple of library books.

How long had it been since I last visited a library? I’m not sure. But the librarian laughed when I presented my card and said that it had expired in 2009. 2009 was the year that I purchased my Kindle and began helping Amazon and Audible pay their mortgage. When I noted this to the librarian, she laughed at me again and said that I can check out ebooks and audio books through the library and put them on my Kindle. Yesterday, I picked up Sam Harris’ Waking Up.

This morning, I logged onto Georgia’s Library System. Within minutes, I was logged on to their ebook/audiobook borrowing section. And minutes after that, I was redirected to the Amazon site, where I clicked a couple of things and a library book was on my Kindle. I downloaded the biography of Elon Musk where I will hope to feel optimistic about the future of technology in America and The Garden of Beasts, where I anticipate I will find parallels to the modern American political climate.

I may be the last person to this party. If I am, don’t roll your eyes. Just take pity. If you still aren’t at the party, go and visit a public library. It turns out they’ve changed with the times.

How I Handle Email (Right Now)

February 15, 2017/by J. Scott Key

If I allowed it to happen, I would do nothing but read and write emails all day. I have had days where this has happened. And I have had vacations days or family events where I spent all of my time reading and writing email. And, while I have improved at it, I am pretty sure that I am still fairly bad at email. I’ve tried more email apps for the phone that you could imagine. And I’ve tried every system you can think of to try to tackle email.

I took the best general idea for what to do with email in a talk by Merlin Mann in 2007 on the topic of Inbox Zero. His general idea is that your email inbox is a terrible to do list. It is a poor texting service. And if you aren’t careful, you’ll just collect emails that number in the thousands. It’s true because I have been there. If you reply to emails, then you are just going to generate more email particularly if the email exchange is with more than two people and you are trying to make arrangements for some sort of meeting or event. For Mann, the goal every day should be to reduce emails down to zero.

Opinions differ on whether you should try to respond to every email. With that said, here is an overview of my system for dealing with email. Again, I suspect I’m not good at email. But I’m trying to build a better system to handle it.

I batch my email with an aim to only process it at selected point of time during the day. Email is at its most evil when you see them while you are standing in line, while you are in a conversation with someone, while you are hanging out with your family, or when you are stopped at a red light. The worst is the angry email from someone that is hard to let go of. It’s best to get all emails in a batch at pre-set times per day. Right now, my service for handling all of that is Batched Inbox. Batched inbox holds your emails and delivers them all at once at times you select. If I open up any of my mail apps, I don’t see incoming emails until they all push through at once.
The Scheduling Can Be The Hard Part. I’ve tried every combination imaginable. I’ve tried three times a week, once an hour, twice a day and three times a day. Before I made a recent change, I had them all come in at 11 and at 4. It turns out that this these times did not work so well. 4 is when I’m thinking about winding down the day and getting some ready for when I get home. At 11, I might be engaged in a meeting or court. Then I end up trying to process to zero as quickly as possible. Also, the emails I responded to managed to yield a response or 5 before I leave the office. There’s also a flaw in Batched Inbox. All of the emails go to a folder called “BatchedInbox” that you can actually open. And when you go there and start looking, then Batched Inbox just becomes another inbox. When I respond to something twice during the work day, I sometimes get curious about what the replies might be. Then I’m sucked in.
The Other Trick is To Schedule Delivery. Another part of the system is to batch the outgoing emails so that they go at a time that I schedule. Boomerang does several things. But the best thing is that it allows you to schedule when you want the email to go out. Instead of pressing send, you press another button that schedules the email to go out.
If Something in the Email is an Action Item, Then Take it out of Email. Email is a bad inbox. It’s a poor substitute for memory. If you need to make some issue in an email into an action item, then write it down elsewhere and archive the email. If something needs to be scheduled, then put it on the calendar. Email is a terrible calendar.

With all of that said, here is what I am now doing. All emails are scheduled to come in at 3:00 a.m. Most emails that I send in response go out at 10:00 p.m. With this system, none of my outgoing emails are reaching a recipient during the work day. Which means that they cannot reply during the work day. And all of the incoming emails come in while I am asleep. There is some conventional wisdom against checking email in the morning. But I think that this wisdom can be defied if you know that this is the one time that you will process email and what you send out will not return until this time tomorrow. Also, I am not looking at it when the rest of the world is awake. Then I leave my house knowing that I don’t have to think about email until tomorrow and knowing that I have a bunch of emails cued up to launch after I’ve gone to bed tonight.

You may read this thinking that this system is rude or that I’m not being responsive. I find that quite the opposite is true. When I do process through email, I am focused on it. I am not swatting it away or playing missle command with it. And when I answer an email, I am calm. I am not being short with people because I just read an email from an angry person.

Again, I don’t think I’m good at email because I am not so sure that it’s possible to be good at it. It’s kind of a messed up thing. But I am always trying to systematize it and make that system better.

Criminal Sentencing and the Problem of Free Will

February 14, 2017/by J. Scott Key

Criminal calendars may be handled slightly differently in every jurisdiction. But they have one thing in common. At some point in every case, the lawyers will argue about why a person did that he did. And a judge or jury will evaluate this question and make a decision about what to do in light of that decision. In some instances, this evaluation will literally amount to life or death. In most, this decision will determine whether a person goes a away to a prison, is able to continue a course of education, or has her career choices forever limited by a label. But in each of those moments, not only the choice a person made but that person himself is judged. For that reason, how we think about free will is an important subject.

For those who are represented by thorough defense counsel, this judgment is made early and in the charging stage. The sooner you can bring a person’s full humanity to the attention of “the system” the more hope you can bring to that person. From the defense attorney’s perspective, the more complex that decision is, the better. It’s easy to pass judgment on a file and difficult to pass judgment on a person. So, you do everything you can to show to the system your client’s full humanity. Ken White wrote about this very thing:

If judges confronted the defendants’ individual humanity as they caged them one after another, they’d go quite mad. It’s impossible and inadvisable.

The trick is to light a spark that catches the judge’s eye, that transforms your client even momentarily from an abstraction or a statistic or a stereotype into a human being with whom the judge feels a connection. Judges are people, and people connect with each other through commonalities – family, hobbies, sports, music, and so forth. At sentencing, a good advocate helps the judge to see the defendant as someone fundamentally like the judge, with whom the judge can relate. It’s harder to send a man into a merciless hole when you relate to him.

Ken White was writing about the Stanford swimmer whose sentence struck many around the country as exceedingly light given his conduct.

What the system is asking itself when it passes judgment is not just how we judge the person’s action or the person himself. The best among our profession challenge the moral framework that the system uses to even pass those judgments. And that moral framework inevitably turns to free will.

Free will is a touchy subject. It is perhaps the third rail of jurisprudence, politics, and religion. For those who are interested in exploring this moral framework and the role free will has to play in it, I commend to you Sam Harris on this topic.

Harris posits that free will is an illusion and that it matters that we develop a more sophisticated understanding of it. And Harris argues that (1) we are not free to make choices independently; and (2) that our choices are not even the product of our conscious mind.

And where he goes with this argument is not where you might expect.

We live in a world of cause and effect. Even within our body, we are doing things well beyond our conscious control. We are making red blood cells, but we are not in control of whether we make them. And we did not choose who our parents or where we were born. And, for Harris, our choices emerge from “a wilderness of cause and effect” that we neither see nor fully appreciate. We carry genetic information from ancestors and a lifetime of experiences with us. And that material may well be dispositive of every decision, including whether to buy coffee or cocoa on our way to work. In short, Sam Harris argues that free will is an illusion.

The Consequence for Us and For How We View the World

For one, if our free will is an illusion, then we should chill out about a couple of things. We should be more humble about our good choices. To a certain extent, we should be no more prideful about our good choices than we are about our height. At the same time, if we have managed to choose well, we should feel fortunate about this fact in the way we feel fortunate about good health. And if we have chosen badly in the past, we should perhaps go a little easier on ourselves.

More importantly, Harris’s view of free will is important for how we view others. If other people’s choices are a manifestation of their genetics and life experience, then we should feel more compassionate and less of a sense of hatred toward those who have made exceptionally bad choices.

Let me Anticipate Your Argument

If free will is an illusion, then why have a criminal justice system? Why send any defendant to jail since there is not free will. This takes us to our next point.

Free will is an illusion, but choice still matters. Says Harris,

The fact that our choices depend on prior cause does not mean that choice doesn’t matter. To sit back and see what happens is also a choice that has its own consequences. So, the choices we make in life are as important as people think, but the next choice you make will come out of a wilderness of prior causes that you cannot see and did not bring into being.

And an understanding of free will can guide future choices in a more systematic and perhaps grander way. We can shift the the ground from which our choices arise. And I hope you will pardon me for putting in another block quote:

A creative change of inputs to the system — learning new skills, forming new relationships, adopting new habits of attention — may radically transform one’s life. Becoming sensitive to the background causes of one’s thoughts and feelings can, paradoxically, allow for greater creative control over one’s life.

This understanding reveals you to be a biochemical puppet, of course, but it also allows you to grab hold of one of your strings.

A very wise friend of mine who counseled some of my clients and testified on behalf of some of theme at sentencing, would tell them that the way to recover from an addiction had less to do with the choice to “use” in the moment and more to do with avoiding the moment. She drilled clients on what she called the “PPTs” or “persons, places, and things.” Change your landscape and eventually your “free will” acts differently.

Harris provides a helpful view of the world and a paradoxically liberating escape from free will.

If We Eliminated Social Media, We Could Read 200 Books Per Year

February 13, 2017/by J. Scott Key

I just e-filed an appellate brief. Current time is 9:38 p.m. Yes, it was one of those days. Yes, I need a shower. And, yes, it will take a while to come down from this coffee. But I want to keep a commitment I made to myself to blog every weekday. And here is what I have.

During breaks for lunch and dinner today, I listened to a little bit of the podcast, This Week in Tech. At about minute 33:00, Mike Elgan claims that if you quit social media, you would for yourself enough time to read approximately 200 books per year. I wondered where he was getting this claim, and I found the reference. The opening of the piece struck me:

Somebody once asked Warren Buffett about his secret to success. Buffett pointed to a stack of books and said,

Read 500 pages like this every day. That’s how knowledge works. It builds up, like compound interest. All of you can do it, but I guarantee not many of you will…

The average American spends 608 hours on social media and 1642 hours on television. It would take about 417 hours to knock out 200 50,000-word books. The 417 hours of book reading would likely be more valuable than spending those 417 hours on social media.

How does Mike Elgan get his news? He subscribes to a right-leaning publication and a left-leaning publication. Then he takes what he learns from reading long-form journalism and shares it to others on social media. He is a producer and not a consumer on social media. He is not at risk to get taken in by fake news.

For today, I was in my basement home office finishing up an appellate brief. So I neither watched television, consumed social media, nor read any books. I read statutes, caselaw, transcripts, and my own writing until my eyes went all blurry. Tomorrow, I have a good book waiting.

Friday Review — Michael Lewis’s The Undoing Project

February 10, 2017/by J. Scott Key

Happy Friday. I’m making a point to review a book or some other work on Fridays. Alas, I don’t have anything new that I’m ready to review today. But I wanted to mention a book that I’m listening to in audio form. That book is the latest by Michael Lewis, The Undoing Project. Lewis discusses the collaboration between Amos Tversky and Daniel Kahneman. The two researched the irrationality of the human mind. Lewis’s book is practically a prequel to Moneyball. From the New York Times review:

Their work revealed previously undiscovered patterns of human irrationality: the ways that our minds consistently fool us and the steps we can take, at least some of the time, to avoid being fooled. Kahneman and Tversky used the word “heuristics” to describe the rules of thumb that often lead people astray. One such rule is the “halo effect,” in which thinking about one positive attribute of a person or thing causes observers to perceive other strengths that aren’t really there. Another is “representativeness,” which leads people to see cause and effect — to see a “narrative” — where they should instead accept uncertainty or randomness.

I’m not very far into the Audible version of the book. And so far I like what I am reading. It appears to pair nicely with Robert Chialdini’s Pre-Suasion.

I’ll keep you posted. If anyone else is reading it and wants to discuss, please drop me a line.

Book Review: Typography for Lawyers, Second Edition

February 3, 2017/by J. Scott Key

I’m feeling a bit guilty. Well over a year ago, the publisher of Typography for Lawyers sent me a review copy. I have been using my free copy for quite some time, and I never wrote a review. It sits on the shelf next to the first edition, which I purchased. And this shelf is fairly sacred space that includes Aldisert’s Winning on Appeal, my collection of Bryan Garner’s greatest hits, and Ross Guberman’s Point Taken.

My original review of the first edition is worth a read. And I won’t repeat what I have already written. The second edition has about twenty additional pages. Among the things covered in the new edition, you will find a section on email, updates on the newest version of word processing programs, and an updated list of fonts. If you write and file pleadings in court, you should purchase the book. And if you already have the first edition, you may not necessarily need the second edition. But I would encourage you to buy it just to support what Matthew does for the legal community. He wrote an excellent article for Georgia’s appellate practice newsletter a few years ago when I was the section chair. And his work is helping us to help clients with more professional-looking briefs. Whatever profit he has made, I think it should be doubled.

For several years now, I have been aware of this book and have used it to produce better briefs. I’ll admit that I could do much better. And if you are new to his work, here is what I would suggest. The next time you are preparing a motion or a brief, open his book (or go to his website) and apply just one principle to your writing. Perhaps, eliminate the extra space after a period or figure out how to prepare case caption using a table rather than with colons and tabs. Next time, add another technique. I made the mistake of trying to incorporate the entire book into my writing at once. I do the same thing with Garner’s books. And I even do the same thing with materials I read on running. Take Typography for Lawyers, and aim to make your next legal writing 1% better from a typography perspective.

I found another helpful byproduct from these books. If you are going to care about the typography of the brief, you must start early on your writing. Typography is important, but there isn’t time to devote to it unless you get the content done first. But if you give yourself the time for the typography, it can make a significant impact on what you write. The goal of good typography is not to make your writing prettier or different from the competition (though both of those things will happen). The goal of good typography is to make your writing easier to read. The goal is to make yours a work that the judge wants to read. And you cannot attend to this important piece until the content is where you want it to be.

Typography for Lawyers is a deceptively short book. It is a short book of typography in the same way that Kibran’s The Prophet is a short book of philosophy. I made the mistake of thinking that I could “install” all of the principles from the book at once. I have since learned that, just as the law is a “practice,” so is “typography.” With the release of a second edition, Matthew has shown a commitment to updating his work to keep pace with emerging technology. I hope you order ourself a copy of the book and enjoy the journey that is outlined in the pages.