Uniform Rule on Electronic Court Filing: A Step in the Right Direction For Georgia

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Yesterday, I noticed that there is a proposed rule from the State Bar of Georgia to provide for electronic filing in Georgia courts. Of course, it’s just a proposed rule (PDF). And what comes of it may be simply a model rule for trial courts to follow if they choose to allow electronic filing. But it also might be light at the end of the tunnel for lawyers like me who are way sick of paper. In fact, the way trial courts work right now in the handling of documents is enough to make me want to poke my eyeballs out with a spoon. It’s not exactly fun to figure out a way to get a physical document to some distant land by 5:00 tomorrow to meet a deadline on a motion for new trial or habeas matter, and e filing would fix it. It’s also not fun to file a document in the courthouse basement and wonder how or when the judge on the case might learn of it.

In the late 1980s, when I was in high school, I worked for a law firm as their courier. My job was to go to various courthouses and file documents with various clerks, get the file stamp, and take physical copies to opposing counsel. The process seemed almost quaint then.

This year, I am approaching my 20-year high school reunion. And we’re still handling documents the exact same way in trial courts. Assembling the record for appeal, with a few exceptions, is still exactly the same process that it was the year the Titanic sank. I’m not sure what the issue is. Part of it is that lawyers can be un-innovative. For instance, what other profession is still using fax machines?

A uniform rule for e filing is, I hope, a step toward mandatory e filing in the future. Perhaps, then, I can retire the postage meter, and getting a leave of absence for a trip to Disney World or the filing of a conflict letter won’t burn a whole day every week for an assistant. It’ll have to be mandatory though. There are over 150 counties and Georgia and a blue million lawyers. Most will have to be sent kicking and screaming into the e filing era.

At the State Bar’s annual meeting, Chief Justice Hunstein announced that the Supreme Court of Georgia will require e filing there by the end of the summer and will soon move to the second phase of their e filing initiative to provide for the transmission of electronic records from trial courts.

My operation is paperless. I take notes on my iPad, my phone, or my laptop, and I maintain electronic files with a system for dealing with text notes and pdfs. It works great except for a few sets of occasions in my practice. One is when I visit an inmate in the prison system at a facility that won’t let my iPad or laptop in. You’ll see me often in distant lands buying convenience store paper and pen. The second is when I am in court and need to use paper with a witness or to fill out paperwork (you’ll see me borrowing pens a lot). The third is when I have any case in Butts County, Monroe County, or Lamar County where they equate electronic devices on par with weapons and refuse to allow anything but paper files in. The other is when I am working with co-counsel or opposing counsel that fetishizes paper (which is most of the bar, unfortunately).

The proposed rule will hopefully move us toward a system of file management throughout Georgia that is, if not in the 21st century, will at least be circa 1999.

What to do When You Get to Write the Order

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This week’s theme has been orders. Every now and them, you are lucky enough to win. And when you’re even luckier, you get to prepare the winning order. Sometimes, though, you get asked to draft an order, and your opponent does, too. Drafting an order in that situation is a little tricky, because you have to wear your advocate hat underneath your coat (although, if you’re writing good briefs, you are probably making your brief sound like the perfect order already). Sometimes, you get asked to write a brief because the judge is humoring you and wants to show the appearance of neutrality even though she has already made up her mind. Sometimes, you and opposing counsel have cut a deal, and you get to draft the order. Drafting the order is an awkward opportunity, and if you get it, want to share a few tips with you about how to do it well.

Make the Judge Look Good

The order, when filed, is a reflection of the judge, even if some lawyer opens the file in the Clerk’s office a century from now. Make the legacy a good one. If your order is going to compete with opposing counsel’s, make your look better than the one he presents. Think about the layout, font, spacing, and other things. Matthew Butterick’s Typography Lawyers is just as helpful here as it is for preparing the brief. So is the Bluebook. Make the order look like something the judge will be proud to sign before she reads the first word of it. When you cite cases, don’t forget to provide pinpoints. Make sure that the cases you reference really stand for your argument. All the things that you do for your credibility in a brief are even more important when you prepare the Order. If you betray the judge’s trust in this task, you will never get the opportunity again.

Just the Facts Ma’am

Think long and hard about the standard of review. Divide the order into findings of fact and conclusions of law. Put as much of the important stuff as you can think of into the findings of fact. If your order on the judge’s behalf is appealed, the facts are going to have a more favorable standard of review than legal conclusions. But don’t stop there. When you get to the legal conclusions section, place findings of fact there, too. Many legal conclusions are mixed with factual findings. And factual landmines are just the thing to sprinkle into a law section of an order.

Have the Order Written (or, at least in mind) Before the Hearing

There are 3 reasons to pre-write it. First, when you think about how you’ll win, you already have victory in mind. Secondly, you will enter the field of battle with the ability to perceive the matter from the judge’s vantage point (you’re already considering it from your opponent’s, right?). And, from a practical standpoint, you can get a signature, get it filed, and get your client that much closer to the relief you are seeking. And you can hand over the “spoils of victory” before you leave the courthouse. Plus, things you can finish up at the courthouse don’t go to your inbox. Also, if the judge knows that he won’t have some item to take to his inbox after court, you get another edge over your opponent who didn’t bring a fill-in-the blank-and-move-to-the-next-case option for the judge.

I’ve written 3 orders this week. One was probably never read. One is under advisement. And one will likely be signed before the week is up. They’re deceptively difficult to draft. But there are worse things that could have happened to me this week than writing the orders for my client.

Bryan Garner’s SCOTUS Interviews Now Available in Print

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It is now the talk of the appellate bar nationwide. Bryan Garner has recently released transcripts of his interviews with 8 United States Supreme Court Justices. If you plan on doing any legal writing (whether it’s before the SCOTUS, another appellate court, or any where else), you need to download the interviews, available at The Scribes Journal of Legal Writing (PDF), and start reading them. It may be the best free resource for appellate advocacy available anywhere. There is so much to like in these interviews. The advice is spot-on. The justices are a tremendous resource. And, best of all, the interview are incredibly engaging.

If you have time to only read one, take a look at the interview with Chief Justice John Roberts. And if you have time for two more, read Justice Scalia’s and Thomas’s. Most of the bloggers who have covered this publication also recommend these interviews. Jay O’Keeffe’s De Novo features a post titled, I am John Roberts and So Can You. The Wall Street Journal’s blog, discusses Justice Scalia’s tip to avoid legalese in briefs: “If you used the word at a cocktail party, wyou people look at you funny? You talk about ‘the instant case’ or ‘the instant problem.’ That’s ridiculous.”

Justice Scalia also agreed with Mr. Garner’s suggestion that we should complete a well-crafted brief long before it’s due and spend the rest of the time refining it.

Writing advice in these interviews is not monolithic. Chief Justice Roberts discussed how he spent much of his time writing the statement of facts and noted that “every lawsuit is a story.” Justice Thomas, on the other hand, almost never reads the statement of facts, choosing, instead, to read the recitation of facts from the appellate court. Chief Justice Roberts highlights the importance of a summary at the beginning. Justice Scalia thinks a summery is superfluous.

Bryan Garner is the co-star in every interview. His questions and comment would be worth reading, even if he weren’t interviewing SCOTUS Justices. It makes for a fantastic introduction to him if you are not already reading his work. He’s also on twitter, and he’s as engaging 140 characters at a time as he is in his booklength prose.

Read Steven Pressfield’s New Book if You Want to Write Better Briefs

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Appellate writers face some of the same challenges that novelists and other artists face. Those things include procrastination, anxiety, self-defeating thoughts, and even alcoholism and other types of drug abuse. A brief is a peculiar type of artistic endeavor, and such things are tough. To make things worse, if you represent the appellant, the finder of fact (whether that was a jury or a judge) has largely taken your story away from you. All the facts are considered in the light most favorable to your opponent. And if you’re doing a criminal appeal, the appellee’s story is the story of a crime (Jay O’Keeffe warned in a blog post back in December that the appellant should never argue the facts presented because he is stuck with the facts found). How do appellate lawyers procrastinate? We check our email. We find six more cases on Westlaw or Lexis. We avoid the difficult work of finding a story we can tell – the alternative to the story about a crime. And when we lose a close case, it’s often because we never found or failed to tell the story.

There is another story by the way. It’s usually the story of a trial or the story of a defense investigation. All the procedural things that went south won’t matter if you don’t make them into a story. And you won’t find the story if you don’t do the work.

Steven Pressfield’s new book, Do the Work, offers a simple technique to find your story and your theme. It also offers a needed kick in the pants advice on how to get the work done. For a little more time, the Kindle edition of the book is available for free. But you can get the really important stuff from his blog. To go really in depth, you should check out his better known book The War of Art. To boil it all down to the bare essentials, take a few minutes to read about The Foolscap Method and The Three Act Structure.

Mr. Pressfield advises that you take a legal pad (the old school legal pad with the long pages) and divide the story (in our case, the brief) into three acts. You’ll soon find that you can’t write act three if you don’t know what your theme is. And your theme is nothing more than a one-sentence description of what your case is about. Your theme is what you’d tell a non-lawyer at a barbecue in your back yard if he asked you about the caes you’re working on right now.

Trust me when I say that taking the time to work out your case on a sheet of foolscap will make you feel immediately better about your case and give you some direction. A side benefit from reading about the three-act structure is that you’ll suddenly see the backbone behind every movie you watch, particulalry if you’re watching or listening to lots of Disney movies.

Let me give you an example of what I’m talking about from a recent United States Supreme Court decision. In Cullen v. Pinholster, Justice Thomas wrote the majority opinion for a very divided court in an appeal of a federal habeas decision of a death penalty case. You’ll see the three-act structure as you read the opinion. And, yes, it’s the story of a crime. He dispenses with Act One in two sentence.

Scott Lynn Pinholster and two accomplices broke into a house in the middle of the night and brutally beat and stabbed to death two men who happened to interrupt the burglary. A jury convicted Pinholster of first-degree murder, and he was sentenced to death.

Act One ends with the California Supreme Court twice denying habeas relief. But the “villain” enters the scene at the beginning of Act Two when a Federal District Court grants Federal habeas relief and the Ninth Circuit affirms. By the end of Act Three, the United States Supreme Court reverses, and Mr. Pinholster will once again be under a sentence of death.

There was another story, and it was compelling. From Mr. Pinholster’s brief:

Scott Pinholster’s trial attorneys were unaware that a death penalty phase would follow a guilty verdict at his murder trial; they had neglected to look in the file and read the state’s notice that it was seeking death. Six hours of preparation later, they presented one witness, Pinholster’s mother.

Later in act one, critical mitigating evidence isn’t found, such as the abuse he suffered as a child as well as head injuries in his early life. In Act II, the Federal district court and appellate court grant habeas relief. And the Third Act Mr. Pinholster wanted to see was a victory in the Supreme Court.

For every story of a crime told by the Appellee, there’s a story of a trial or of a pre-trial investigation that you can find and develop (most of the time). From Mr. Pressfield, there is a good beginning technique to find and develop that story and to find the central theme of your case. But, above all, it’s a technique to use to get to it and write the thing. Which is often the biggest hurdle.

The Changing Craft of the Appellate Brief

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Ben Kerschberg, wrote yesterday about his experience as a paralegal in the mid-90s in the appellate litigation section of Sidley Austin. More particularly, he wrote about the process of getting briefs ready to file in the United States Supreme Court in the pre-pdf era. True, the technology has now developed to the extent that it is possible to produce professional qualify printed documents from a desktop computer and printer. Indeed, a book like Typography for Lawyers wouldn’t have even been relevant to the appellate bar a decade ago. Many of the concepts in a book such as that would have been lost on almost everyone except graphic artists and printers.

But, in Mr. Kerschberg’s account of going to a professional printer and preparing appellate briefs for filing (granted, a US Supreme Court appellate practice is unlike any other appellate practice), I can’t help but wonder if the improvements in technology haven’t taken some of the craft out of being an appellate lawyer. We’re now wearing the hat of professional printer and lawyer. And we weren’t necessarily trained to be printers.

Take a look at his blog post and see if you don’t start feeling nostalgic for a time in history that really wasn’t all that long ago (during the Clinton administration, to give you a sense of how recent it was). My takeaway from it is that every brief, even and perhaps especially today, should be crafted and not merely written.

Choosing Fonts for E-filing to Cater to Screen or Page

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Some weeks back I wrote about whether lawyers should write for the screen or for the page in the era of e-filing (you can e-file in the Georgia Supreme Court and Court of Appeals now). It turns out that there is a way to hedge your bets, at least in terms of font selection. Kendall Gray, over at The Appellate Record, has teamed up with Matthew Butterick (I wrote about his excellent book earlier) to figure out the best fonts to choose when your appellate panel may either print your brief out or read it on the screen. Part 1 gives you the short answer. Part 2 gives you the even nerdier explanation (and nerd is not a perjorative term spoken from this law-nerd).

The answer is that, as long as you are submitting your brief as a pdf, you don’t have to use a screen-optimized font. Now, as to what font is best for a brief, take a look at Typography for Lawyers. It’s even reviewed over at MacSparky, my very favorite law-nerd sight (David Sparks doesn’t focus on the fact that he’s a lawyer, but it comes out a lot in his writing and in his Mac Power Users Podcast).

Interview with Ross Guberman, Author of Point Made: How to Write Like the Nation’s Top Advocates

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There’s a new book on my shelf. I’ve placed it right next to McFadden’s book on Georgia Appellate Practice, Aldisert’s Winning on Appeal, and Butterick’s Typography for Lawyers. That book is Ross Guberman’s Point Made: How to Write Like the Nation’s Top Advocates. Unlike many books on the subject, this one takes legal writing from the top appellate advocates and breaks their work down into techniques you can immediately begin applying to your legal writing.

I also found that many of the basic techniques also work well for oral presentations in court. Even better, this book is more affordable than most legal publications. You don’t have to go through West or Lexis. You can buy this one at Amazon for an affordable price. Ross Guberman was kind enough to let me interview him about his new book, which you will find below in a Q&A format.

And you will find below a basic overview of his book along with a couple of workflow tips for how to write excellent briefs even if you are a busy solo practitioner or a busy public defender. Even if you already have his book, you’ll find in this interview even more tips, including how to write excellent brief even if you have a huge caseload.

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Lessons I Learned About Doing Appeals from the Georgia Appellate Practice Seminar

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Every now and again, I attend a CLE that does more than satisfy the hours requirement. Occasionally, there is a seminar where I walk out of the room with a new set of tools to become a better lawyer. Such was the case with the Georgia Appellate Practice Seminar sponsored by the Appellate Practice Section of the State Bar of Georgia. I moderated a panel titled, “The Winning Brief: How to Capture the Judge’s Attention (And How to Lose it).”

When I introduced the panel, I confessed up front that I was shamelessly taking advantage of the situation. In essence, the panel was made up of people I would like to corner at a cocktail party and ask questions about how to write a brief until they run away or leap from a window to stop taking questions from me. Friday, they were a captive audience for well over an hour, and I had a big outline of questions prepared to ask them. I asked all the stuff I wanted to know about the most. I hope that the audience (and it was a big audience) didn’t notice that I was taking notes to try to remember as much as I could of what the panelists were saying. I’m going to share some of it with you here. Later this week, I will share with you the great lessons I learned from the panel that spoke on oral argument (most of the lessons they taught were things that I have learned over the years by making the mistakes and learning from them).

The panel was made up of Presiding Judge Herbert Phipps, from the Georgia Court of Appeals. Also on the panel was Judge Stephen Dillard and Judge Christopher McFadden. The practitioner on the panel was Gerard Kleinrock, who is the appellate division for the DeKalb County Public Defenders Office. I was trying to moderate the panel and take notes at the same time. So, there may be some wisdom that doesn’t make it here. I also may be giving the wrong panelist credit or not attributing some of it to anyone because I don’t remember who said what. So, here are things I learned moderating the panel on Oral Argument.

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Should Appeals Lawyers Write for the Screen or the Page?

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With the Georgia Supreme Court, Georgia Court of Appeals, and other courts moving to e-filing, an important question arises. Should appellate lawyers write for the page or for the screen? Much would turn, it seems, on whether workflow within the courts matches the way work flows to the courts. Are the judges and justices reading briefs on their computer screens, or are they printing out the briefs and reading them the way they always have? We can probably assume that there is a mixture of workflow within the court, so you should probably write for both – unless, of course, you know your panel very well and can taylor the layout of your brief accordingly.

The ABA Journal recently posted a blog, written by Debra Cassens Weiss, that probes some of these questions. The ABA Journal’s article links to a couple of other blogs who have considered this question. Martin Siegel, in an article written at Texas Lawyer, discusses the necessity of structuring briefs for the screen rather than the page as more appellate courts require lawyers to e-file. Also, James Levy at the Legal Skills Prof Blog, questions whether much change is necessary if the “audience” is really printing out the briefs.

To throw another curveball at lawyers, some appellate judges are putting briefs into e-book platforms, which may be more like reading on paper than reading on a screen.

What Are Judges Doing With Your E-filed Briefs?

As far as the Georgia appellate bench goes, I am not sure. Generally, it would be safe to assume that the bench is more likely to read your brief in an electronic format now than a year ago. Judge Dillard, recently appointed to the bench, was a prolific blogger while in private practice. And the recent election for seats on the Court of Appeals and Supreme Court featured blogs, Twitter, Facebook and other social media. If we assume that computer savvy translates to a higher likelihood of a paperless workflow, then the judges deciding your case may not read your brief on paper.

It is interesting to see how some judges and justices nationwide are reading briefs. Justice Kagan reads briefs on her Kindle. Justice Scalia reads briefs on his iPad.

Why are jurists switching to a paperless format? Likely, for the same reason I am. I like being able to work anywhere, and it’s not fun to be home only to realize that the file is at the office. Lugging the record and briefs around is not particularly fun either.

Of course, reliance on the iPad or Kindle may mean that you shouldn’t change a thing because the reading experience is much like reading on paper.

 

What Should You Do Differently?

Now, assuming that at least some of your court may never see your brief on paper, what should you do differently.

First, be mindful of the fact that readers generally tend to read on a screen differently than they read on paper. Mr. Siegel writes that online readers:

jump around, skimming and seizing on bits of text. …Eye-tracking studies show they seek content in an F-shaped pattern, looking down the left side for structural cues and then focusing on headings and first sentences of paragraphs. Heaven help the content provider with important text consigned to the bottom right of the screen.

If your audience is going to read on the screen, then it is important to do a couple of things differently. The ABA article cites to research that suggest that lawyers do a few key things:

Put your most important points in headings and the first sentences of paragraph

* Use bullet points

* Quickly get to the point

* Use short paragraphs

* Divide chunks of information into smaller pieces. A great blogger says that “chunks are good”

I would add a few other suggestions. Some fonts work better on the screen than they do on paper. The screen renders them differently, even in the form of a pdf.

The last suggestion is that it may be important to keep online reading patterns in mind even if your audience will read your brief on paper. I have zero research to back this up, but I wonder if the amount of online reading we now do is hard-wiring us to read everything differently. If that is the case, then it may be time to make some changes.

The list of things above actually sounds like good writing advice in general, considering the sheer volume of material that the court must consume and respond to.

And if you are representing the appellant in a criminal case, there is even more reason to rejoice. Prosecutors are way behind the curve in Georgia in moving to e-filing and will take even longer to think about how they should repackage their briefs with the screen in mind. While this may sound way optimistic, it is cool to think that maybe a judge or justice working from home and logging in to the Court’s server might only have access to your brief while the prosecutor, who filed hers on paper, has her brief sitting in a filing cabinet somewhere at the courthouse.

 

How I Use Evernote in my Appellate Practice

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Being an appellate lawyer is pretty much the same thing as being a professional writer – with a few notable exceptions. Writer’s block and procrastination are not really an option in the kind of writing I do. The penalty for incurable writer’s block isn’t mere artistic angst. Consequences for writer’s block include a client’s anger, the court’s anger, contempt, fine money, and possibly even jail. When writer’s block is not an option, I like using a great tool to stay on track. Over the past year, I have been using Evernote. Not only does it help my appellate practice. It’s like it was made for an appellate lawyer.

What is Evernote

In short, it’s a place to put stuff, organize stuff, and easily find stuff later. The more you use it, the more it becomes something of an external brain. The CEO of Evernote,Phil Libin, defines it in his quick Evernote elevator pitch.

I’m not the first lawyer who’s written about how awesome it is. Ben Stevens wrote about it on his blog a year ago. The Evernote Blog profiled Andrew Flusche, a Virginia lawyer who uses it in his criminal law practice. Eric Mazzone wrote a few years ago about how he uses Evernote for contact resource management.

I don’t think I have thought up all the ways to optimize it yet. But below are some examples of how I use it for my Georgia criminal appellate practice.

 

First Client Meeting

I have terrible handwriting. And stuff I write on paper tends to find its way far away from where it can be useful to me.  The process of getting retained for appeal is often more involved than getting retained in a trial case. It often takes several phone calls, interviews, and tracking down records just to get a handle on a case’s procedural posture. So, I may gather several documents and take a bunch of notes in a case where I have not technically opened a file. Where to put all of the stuff you accumulate in the getting retained/exploratory phase? There are also other issues that arise after I am retained.

I don’t like paper files for several reasons. One is that I don’t just work at my office. I work at home, in restaurants, in prison attorney booths waiting for guards to locate my client, courthouse conference rooms, jury boxes and holding rooms (not while juries are in them), in various Starbucks locations, and various other places the glamorous life of a sole practitioner/father of three might take me. Appellate files are huge, too.

Evernote is perfect for all of the above. I use it as a simple text editor to take notes during initial interviews, as I call clerks’s offices around Georgia, and as I research where a potential client is being held.

After I am Retained

I use RocketMatter to manage my ongoing cases. Even still, I find Evernote helpful. I type up transcript digests there. I send case law there. I even record interviews and put them in Evernote with interview notes. I also use Evernote as a place to track tasks.

There is an app on my Android phone that can be used to convert documents into pdfs through the use of the phone on the camera. So, if I find myself in a clerk’s office with a couple of pages to copy, Evernote is a great place to track all of that.

 

Using with Many Platforms

I have Evernote on my laptop, office computer, Android phone, and iPad. So, whenever I need to capture information via typing, a photograph, or audio recording, I can easily get things into it. I can then extract it later into RocketMatter or into a brief I am writing, or an argument I am preparing.

 

Sharing

With a recent update for Mac, you can also share notebooks. Which I suppose could be used to share information with un-incarcerated clients who also use Evernote. I haven’t tried that yet. But the sharing function is good for working with co-counsel in another office or with an administrative assistant.

 

Getting Some Writing Done

Evernote is also a great place to draft briefs, articles, pleadings, memos and letters. You can then block and copy the text into Word, Pages, or other word processors.

I’ve been using it to with Scrivener on larger projects by extracting my Evernote materials into the research section or into the draft of a writing project.

And I think I’ve just scratched the surface in all that I could be doing.

And finally, I can take a picture of my parking place at oral argument and upload it to Evernote. One less thing to worry about for someone like me who can remember the name of an obscure case from 1907 but not what floor of the parking deck where I left my car.

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