My First Georgia Appeals Brief Since Buying Typography for Lawyers

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I just finished my second draft of a Brief of Appellant for a case I will soon be filing in the Supreme Court of Georgia. It is the first brief I have filed since I purchased and read Matthew Butterick’s fantastic book, Typography for Lawyers. I’ve written about this book already, and I don’t want to do a full review of it. The real review will come over time as I integrate the valuable tips in this book. However, I am changing the way I prepare briefs and pleadings as I work with this book. So, I think it might be helpful to check in from time to time as I learn more. I want to explain a couple of things about some key lessons I have learned so far.

  • Don’t try to do it all at once. I’m taking a buffet approach to the advice offered in this book. It is a little overwhelming to try to do a wholesale change. There are many rules to learn and track. I’m trying to bring something new into every brief I do. The fantastic thing is that, from the appearance of my opponent’s brief, it appears that he isn’t reading this book. And, comparing the layout of my brief to the layout of his, I have another edge on the competition (note, I am working on about three briefs right now. If you are the competition on one of them, I’m not necessarily talking about you. In fact, keep doing the same stuff. Your brief looks great).
  • White space is important. If I’ve learned one key thing so far, it is to look at your pages. How does your brief look? Is it a brief you would want to read? Mr. Butterick advises that you should have more than one-inch margins. Unfortunately, the Georgia Supreme Court is pretty serious about their double space rule. I got a little frightened about playing around with the spacing. Ideally, I would go to two inch margins. But they looked funny with double spacing. So, I went to inch and a half, and it made a tremendous difference in the look. This brings me to my next point.
  • You can still do some amazing things to your layout within the constraints of court rules. Alas, I stuck with Times New Roman 14, mainly because I am working with another lawyer on this case, and I didn’t want to shell out money to buy a new font set (Mr. Butterick says much about purchasing non-system fonts in his book) for this brief only to encounter issues as I collaborate with co-counsel. But, the margin adjustments really made a night and day sort of difference. I’m off to a good start
  • I’m using italics where I was underlining. It makes the brief look better. My opponent went crazy with the whole underlining thing. It’s like his brief is a “before” picture of my current brief.
  • I’m using a real ellipsis ( … ) instead of typing out three periods ( … ). It looks better, and life is much easier when it ends up on the end of the line. Those three dudes stick together now.
  • I’m using a real en dash now ( – ) where I was just typing two hyphens ( — ) before. Oh, and I now know what an en dash is. I also know what an em dash is ( — ).
  • I stopped putting bad parenthesis art in the case caption and started doing my caption using tables.

These are a few simple changes that I have made in the layout of the brief. It has made a world of difference. In addition, I am about a week ahead of deadline on this brief. So, I have the luxury of tending to the substance in addition to picking up more hands-on knowledge of layout. Which is my final lesson. Thinking about layout makes the whole process more fun than it already was

Georgia Appeals Court Rules “Mandate Ugliness”

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In his blog yesterday, Kendall Gray referenced the Rules of the Georgia Court of Appeals, citing it as “a jurisdiction with rule-mandated ugliness.” Kendall’s blog post comes at a time when I am reading Typography for Lawyers by William Butterick. I’ve learned a great deal about fonts and layout and was all excited about using my new-found knowledge on a future appellate brief when I re-read the Georgia Court of Appeals Rules and found, well, “rule-mandated ugliness.” But it’s not quite as bad as it sounds. Here’e the language from Rule 1(c) of the Rules of the Georgia Court of Appeals:

All documents filed with the Court shall have no less than double spacing between the lines including quotations and footnotes. Letter spacing and type or font size shall be no smaller than ten characters per inch. Notwithstanding the 10 characters per inch requirement, the Court shall accept in lieu thereof Times New Roman Regular 14pt.

Also, there’s a little more good news. Now, to the issue of margin. According to Rule 24(c), there must be a “margin of not less than two inches at the top and a margin of at least one inch on the sides and bottom of each page.”

Matthew Butterick recommends two-inch margins, which you could do under the Rules of the Georgia Court of Appeals. He also recommends moving away from system fonts, which you can do as long as you meet the 10 characters per inch requirement. Of course, you still have “rule mandated ugliness” because you must double space. Butterick recommends spacing in the neighborhood of 1.2 to 1.3. inches. Which sounds odd if you’ve never written a brief like that. But it’s really not so odd. Are you reading a novel right now or a new non-fiction book? Take a look at it. I bet your margins are at least two inches, and I can pretty much guarantee that the lines aren’t double spaced. Why? Well, for one, because the publisher wanted to keep you reading. Two, it’s a book and not a term paper. In fact, pull random books off your shelf. See any Times Roman 14? See any double spacing?

Why, you might ask, would the rules mandate ugliness. First, I believe Kendall is correct. The rules were likely originally crafted in the typewriter era. However, I suspect that there’s a little more to the story. I think the rules were likely amended at the beginning of the personal computing era. I’d be willing to bet that the courts got worried that there would be an attempt to manipulate how many words could fit on a page with those new-fangled computers.

Of course, there was a better solution. The Court could have provided a word count limit instead of a page count limit. But that was a little too easy, I suppose.

And I wonder if any lawyer really gamed the system or if there was fear back in 1982 that somebody might potentially try to game the system. You know how appellate lawyers are. We’re a bunch of James Dean types and that’s been the case for a long long time. It ain’t ever gonna change. When I decided to become an appellate lawyer, it was hard to focus. Women with a penchant for the bad boy heard that there was an appeals lawyer in town.

Scott Greenfield’s review is what actually led me to buy the book. He wrote this about briefs with a pleasing layout:

No, they won’t make a loser appeal into a winner, but like wearing a decent suit to court, or polishing your shoes, it’s one less detriment and one more benefit. Butterick’s point, and mine, is that there’s no good reason not to do it as well as it can be done.

If good typography is like a good suit, then a brief typed in conformity with the Rules of the Georgia Court of Appeals is a powder blue polyester leisure suit, with bell-bottomed pants, huge lapels, and a wide flannel tie. It was a great suit for the day it was written and great for a 70s party now. I’m just not sure I’d wear it to court.

Now, over at the Supreme Court, the look is a little more modern. You might not look out of place on the show 21 Jump Street. Supreme Court Rule 18 reads:

 All filings shall be printed or typed with not less than double-spacing between the lines, except in block quotations or footnotes. Margins shall be no less than one inch at the top, bottom and sides. The type size shall not be smaller than 12-point courier font or 14-point Times New Roman.

The good news is that you can single-space block quotations and footnotes. The bad news is that they reference the courier font — literally the ugliest font ever made if you don’t count comic sans (which I don’t).

With all that said, you have some room to think about design and to make your brief stands out. Lawyers are a careful lot, particularly when sober. So, most will use the “example fonts” to play it safe. You may choose another that is the same size and be okay. Also, you can go for bigger margins to provide more white space.

And, if you think this is just kooky Mac user talk, check out the Rules of the United States Supreme Court (PDF), that hotbed of flashy design. In particular, check out Rule 33. Actually, check out the layout of the rules themselves. Mr. Butterick would approve. And there’s a word count limit, not a page limit. The things is, if your brief looked like the United State Supreme Court Rules, you would likely not be able to file it in the Georgia Court of Appeals. Though it was be the most readable brief in the stack.

If the United States Supreme Court Rules were a suit, it would look nice in court today.

But, in Georgia, it’s Ron Burgundy time. So, here’s hoping that the rules are modernized. Until then, stay classy Atlanta.

How Your Brief Looks is Nearly as Important as What You Say

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Design is an important part of brief writing. And the font and layout you choose will have an impact on how the Court receives your brief. It certainly shapes how I feel about writing the brief and submitting it. I cannot see the Courier New Font without thinking of the research, writing, and advocacy in my first year of law school. The font feels scary and oppressive and conjures up images of red ink and biting comments written in the margins.

The people who read your briefs at the courts where you submit them are likely reading a stack of briefs that look pretty much like yours. “Oh look,” the staff attorney might be saying, “another brief in Times New Roman 14. Awesome.”

I’m guilty of going with the good old default font a good bit of the time, but I am learning to do things differently.

Two of my favorite legal blogs have featured posts on this very topic. Over at Simple Justice, Scott Greenfield features a review of Matthew Buttrick’s Typography for Lawyers. I haven’t ordered it yet, but I likely will. One great tip that I read elsewhere is to eliminate the double space at the end of sentences. I’ve been doing that since my tenth-grade typing teacher told me to do it. I stopped after reading somewhere else that I should. That extra space is not necessary, it turns out. In fact, as I review Mr. Butterick’s book for this post, I think I’m about to order it. You probably will too if you check out the sample chapters (PDF) from his website.

My other favorite blogger, Kendall Gray, has been writing about layout and typography at his blog, the Appellate Record.  He has written a three-part series about page layout. Part one introduces his general idea of how a brief should look. Part two focuses on the concept of proximity. His third post deals with justification (no, I have not lapsed into theological discourse. I’m talking about how the text should be aligned).

By no means do I suggest that the document’s appearance is a substitute for its substantive content. Rather, designing the brief into a document that the reader wants to read, a document that does not appear just like the other briefs the clerk is reading in that big stack, and that looks better than the one the DA is submitting, is important.

I’ve just scratched the surface on the design element. And I look forward to learning more about it. All they taught me in law school was the importance of the ugly Courier font and something mechanical about a rule proof. It does’t mean that you won’t lose to bad writing sometimes (that’s what representing the appellant in criminal cases is like sometimes). It just means that the close case might just go your way more often than it does right now.

The Importance of Managing Anger in the Practice of Law

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Anger is not a good mix with the practice of law. Yet, law is a profession that puts the practitioner in a position where things could make him angry all the time. Litigation, even appellate litigation, is a business of fighting and arguing. Ideally, it’s done in a very scholarly collegial way. Arguing in real life often involves anger. And unfortunatley it is not always so easy to take off the normal person hat when we put on the lawyer hat. Boundaries can break down if you’re not careful.

And that’s just half the job of a lawyer. You must also manage client expectations and be the lightining rod because you’re the closest representative of the judicial system around when bad news comes, when matters are delayed, and when you are taking a course of action that the client either doesn’t understand or doesn’t quite agree with. Miscommunications sometimes happen. So, there are about a million things that can happen in attorney client relationships that lend themselves to anger.

Then comes the judge. You can’t get angry at the judge. Or, at least you can’t show anger toward the judge. But sometimes it’s tough being told by a person in a robe or panels of judges in robe telling you how wrong you are. Generally, it’s all in a day’s work. But in the real world being told you’re wrong can be an anger-invoking moment. We try to be professional. Most of the time we are. But that sort of things could lend itself to anger in the real world.

Read more

4 Great Non-Law Blogs that Help My Appellate Practice

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There are some great law blogs out there, and I read many of them daily. But there are also some important blogs that are not intended for lawyers that help to make me a better lawyer. I think that these blogs will help you, too, no matter what your legal specialty is.

 

Presentation Zen

I have been reading Garr Reynolds’s excellent blog, Presentation Zen, for several years now. Mr. Reynolds is a professional speaker and designer. He’s the author of several books on making excellent presentations and slide design. I am a very different presenter now than I was before I started reading this blog. My slides were once filled with bullet points and, I’m embarrassed to say, virtually paragraphs of text. I have a long way to go, but this blog has helped to make be a better presenter. And many of his principles of design have also helped my writing and the layout of my briefs as well.

 

Steven Pressfield’s Blog

Appellate lawyers share many of the challenges of other professional writers. While writing it difficult to do, it is often nearly impossible to start writing. Mr. Pressfield’s blog deals with writer’s block and the deeper issues behind it, namely a force he refers to as The Resistance. Mr. Pressfield’s ideas have found their way into the work of other writers, namely Elizabeth Gilbert and Seth Godin. Mr. Pressfield is the author of several novels with military themes as well as the novel that inspired The Legend of Baggar Vance. His blog is very helpful when I find myself doing things other than writing the brief I need to write.

 

Seth Godin’s Blog

He blogs every day. Like clockwork. And he always has something significant to say. I get his blog via email, and it is the first thing I read in the morning. His books aren’t half bad either.

 

The Blog of Tim Ferriss

I really like this blog. It’s updated sometimes once or twice a week, seldom everyday. But the posts are meaningful and infinitely practical. Ferriss is all about lifestyle design. And while I have not been able to reduce my workweek to anywhere near four hours, I have learned some good counter-intuitive lessons from his blog over the last few years. He writes about everything form Stoic philosophy to bench pressing.

 

Take Control of the Record with a Transcript Summary

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In the past two days, I had two Briefs due at the Supreme Court of Georgia. Both were murder cases. Yet, I was able to complete them both with very little stress.When it came time to apply the law to the facts. I was able to find the exact facts that I needed. It would not have come together so well without a transcript summary.

Why do a transcript summary? Think about your last appellate record. About 80 percent of it consisted of useless forms. Even the transcript is made up of a bunch of meaningless dialogue with pages of riveting stuff like the judge giving the jurors a bathroom break and and telling them when to return. Witnesses weren’t called in any particular order that makes sense. Witnesses were sometimes called at a time most convenient to them and not in the best narrative arrangement (That’s what openings and closings were all about) It’s hard to craft a compelling narrative from raw trial transcripts. And you can always tell the briefs that were written by lawyers who did not prepare a transcript summary and those who probably did.

You’ve read those briefs right? You know them by the way the statement of facts is drafted. Have you ever read this brief:

The State’s first witness was Officer Smith. Officer Smith testified that he pulled Joe Defendant over because he was weaving within a single lane of traffic. He pulled Joe Defendant over. As he approached Mr. Defendant, he smelled marijuana in the car. The State’s next witness was Bob Doghandler. Officer Doghandler was a certified canine officer. He took his dog, Cujo, and had him conduct a free-air sniff around the car. Cujo alerted on the rear quarter panel. The officer testified that he opened the trunk and found a suspected controlled substance inside. The next witness the State called was Dr. DrugTest. Dr. DrugTest is a forensic biologist. He works at the crime lab. He tested the item and it was positive for cocaine.

If you’re writing statements of fact like this, it’s because you either don’t know any better, or it’s because you didn’t have time to learn the record, and you’re going through the paces regurgitating things from the record in a summary fashion and the brief is due in a few hours.

 

Transcript summaries allow you to distill the record down to its purest form.

By writing a transcript summary, you digest the record down to what is essential. In so doing, you can leave those ten volumes behind and carry around a thirty page transcript summary. When it comes time to write the brief, you aren’t shifting from volume to volume to find the most important parts of the record. You’re flipping through the transcript summary. When you’re in court, if asked a question, you can find the answer more quickly. The lawyers who cart in crates full of the file to oral argument always make me smile, particularly if they are opposing counsel.

 

It’s a learning experience.

Appellate lawyers are late to the game. The client has been thinking about her case. Trial counsel and the prosecutor have lived with the case longer than you have. The act of reading the transcript and summarizing it will get you up to speed. And you’ll be the master of the record. Your opposing counsel will likely not draw up a transcript summary. So, you’ll quickly have the advantage over her.

In fact, knowing the record is different from remembering what was in the discovery or what some witness said in an interview. On appeal, mastery of the record trumps knowledge of the case, its players, and what the witnesses were like. The reason: none of that stuff matters anymore. And it’s often difficult to distinguish in your memory between a fact you know to be the case and a fact that actually got into your record.

 

It makes a difference

I haven’t always done transcript summaries. The cases where I didn’t do them are growing into the distant past. Unfortunately, much time often passes between critical stage in the proceedings. Months and sometimes longer pass between when I worked heavily in a file at the motion for new trial stage and when I work heavily on it again at to write the brief of appellant. I literally high five the people around me when I pick up a file with a transcript summary in it. The difference between doing a transcript summary in a case and not doing one is as big as the difference between not reading the transcript at all and reading the transcript.

 

So, how do you write a transcript summary?

Transcript summaries are taylor made for dictation. You simply get your transcript or load up the pdf version or e transcript into you Kindle, iPad or computer. Then you can begin to read through and dictate the material things from the transcript. What you do can vary by style.

Of course you can type it up, too. But it can be nice to sit outside in your back yard with a little coffee, a digital recorder and your transcript and dictate a transcript summary

 

What do they look like?

It depends on your style. I like to put a column on the left side for page numbers and a column on the right side for content. I put chapter headings for each witness and subheadings for cross-examination, redirect. I generally bold face type out objections and rulings, or exhibit numbers. I also put in chapter headings for voir dire or things in jury instructions that stand out. Your goal is to create a free-standing reference that you can use in place of the transcript to discuss your case at argument, use as a reference for client meetings, or use as a reference during oral argument or during examination of witnesses at the motion for new trial hearing.

Seriously, making a transcript summary on my cases has made the biggest difference of anything that I do on my appellate practice. It will transform yours too.

Being OCD and Doing Criminal Appeals in Georgia

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Today I found myself in a meeting with a prospective client’s family discussing handling a direct appeal in the Supreme Court of Georgia. The family is very organized and proactive and already had the trial transcript ready to go. To make things even better, trial counsel was present in the meeting to discuss things with me.

I caught myself doing what I always do when I have a meeting and the client brings in the transcript. I started flipping through the pages while people were talking. A trial transcript is akin to a big wrapped present with a bow on it. And it’s hard not to read one when it is in front of me.

I think success in the law, particularly in criminal appellate law requires a bit of compulsion. As I thought about how tempting it was to read that transcript, I was reminded of a blog post I read yesterday by David Benowitz on his DC Criminal Lawyer Blog. In the post, Mr. Benowitz compared being a criminal defense lawyer to being avid about his fantasy football team. The same level of compulsion, call it nerdiness, that drives him to obsess about the stats of player in meaningless games is kind of like what it takes to be great at being a lawyer. Bottom line, it is about care for the process and for the client. Mr. Benowitz writes:

So how does loving fantasy football equate to criminal defense work? Fantasy football is about the love of the game, but it is also about being a bit compulsive. I say that as I sit screaming at my 52″ screen for Austin Collie, who I started over Steve Smith, to please score the next touchdown in a meaningless Week 3 Colts/Broncos late game. Unless you’re waking up at 3:00 am to write down the idea you had about your possession of marijuana case, unless you’re idea of a fun Saturday night is to see clients at the jail, unless you bring new Court of Appeals opinions to read at the beach on vacation, you need more passion.

And so I found myself so interested in what may lie within a transcript on a case where I have not yet been hired because, in my nerdy way, it’s hard not to try to figure out what issues lie within a transcript.

Hopefully, the family thought I was eager and not rude.

Stop Treating Motions for New Trial Like a Rubber Stamp (Even if They Are)

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Judges seldom grant motions for new trial. I have various theories about why. And they range from being sympathetic to the judge to utter cynicism. Sometimes, there just wasn’t any harmful error. Sometimes, the judge couldn’t fathom that he made a mistake. Sometimes, it’s just too dang expensive to try the thing twice. And some judges take a Roy Moore sort of pride in being battered by them judges in Atlanta. That said, I think you should load up and give motions for new trial everything you have. There are a few good reasons to do so.

  1. Issue spotting and Issue experimentation. I view the motion for new trial as the ultimate issue spotting exercise. I like to sit down with the trial transcript and summarize it. I then work from the summary to spot as many errors as I can and put them into the amended motion for new trial. Many will be jettisoned when it comes time to draft the appeal. But I like to build the amended motion for new trial as a menu of possible appellate issues. This process serves several purposes. You learn the record. You figure out what works and what doesn’t. You force your opponent to research everything you list out and see where he is weak. Finally, if you find yourself on the habeas witness stand, the amended motion for new trial is tangible proof that you considered all of the possible viable issues during the preliminary stages of the appeal. I suggest that you place a memo to the file setting forth why you have chosen to abandon issues when you draft the brief of appellant.
  2. It is an opportunity to put things in the record. In Georgia, you must raise ineffective assistance of counsel at your earliest possible opportunity. You can try to bootstrap issues not raised at trial through an ineffective assistance claim and call witnesses to proffer what a better trial would have looked like.
  3. If you were the client, you wouldn’t want your lawyer to coast through any stage. You should manage your client’s expectations of the hearing, but you should still give it everything you have. I went to a high school that moved up a division when I attended. We were outmatched in every game we ever played. Everybody knew that they were going to lose when they went into those games. But everybody gave it their all. Your client deserves your all, too. If you don’t like battling long odds, the probably the whole criminal appellate process isn’t for you.
  4. You just might win. It is possible that your performance at the motion for new trial hearing will scare the judge so much about a reversal or the prosecutor so much about the prospect of a new trial, that you might get a good offer or even win a new trial.

So if you have a motion for new trial coming up, come to it dressed to play. While you will likely lose, don’t treat it like the rubber stamp that it is and it might just not be a rubber stamp all the time.

The Lost Art of Dictation: Getting Legal Work Done Old School

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A few weeks ago, I met with a respected colleague about a case we are doing together. The lawyer is one of the best criminal defense lawyers in Georgia. As I entered his office, I noticed something conspicuously absent from his desktop — computer monitors. Where a monitor might go, there was a dictaphone with, get this, micro-casette tapes. I know from working with the lawyer before that he is a prolific writer. He engages opposing counsel, witnesses, and his client frequently with written correspondence. He files creative motions on his cases, and he is always prepared.

The experience got me thinking about dictation. I’ve never mastered it as many lawyers my age and younger have not. I’ve dabbled in it and always found that I was very productive whenever I have. I pulled out my digital recorder and dictated a few letters. Suddenly, my productivity spiked.

Even if you don’t have the support staff in place to transcribe dictations, it has probably never been easier to dictated documents. I use an Olympus Digital Voice Recorder WS-400S that I bought from an office supply store about a year ago. At under $100, it takes clear recordings, and it has a built in retractible USB connector. From there, I upload files to Speakwrite, where the dictations are outsourced, transcribed, and returned to me as a Word file. The service is fairly inexpensive.

If you don’t want to use a service like Speakwrite, there are other options. I use MacSpeech Dictate for voice recognition on my Mac. For Windows users, there is Dragon Naturally Speaking. There is also a free Dragon app for the iPad.

A few weeks ago, the Mac Power Users Podcast devoted an entire episode to dictation with the Mac.

Right now, I am doing motions and letters via dictation. Eventually, it would be nice to do briefs and trial trasncript summaries that way also.

iAnnotate PDF as a Transcript Reader

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A couple of days ago I posted about using the iPad in my appellate practice. In that post, I mentioned that one solution for reading transcripts on the iPad is the iAnnotate PDF reader as an application. There are several applications out for iPad that allow you to read pdfs, including Goodreader and the iBook app itself. None of those apps worked very well for me in my appellate practice. None allow you to annote a pdf, view it, move in and out through email or dropbox, or display the document on to a projector.

iAnnotate pdf does all of those things. Even better, there are several ways to learn to use the application. Writing the iPad post a few days ago made me want to dig into the app a little more to see what it could do. YouTube abounds with videos to show you the basics and teach you the ins and outs. Let me highlight a couple:

  • For a good basic introduction of the tools in the app as well as the use of iAnnotate with a projector or other vga output (I didn’t know it had that feature) is available from Tuescher lab. He demonstrates it as a way to view pdfs as slides and demonstrates annotation tools. A few weeks ago, a prosecutor who is using the iPad in court wanted to know what is available to post up photographs in court. I think that iAnnotate PDF might be the app for him.
  • Note taking on PDFs on iPad versus paper. There’s a video from Stanford Medical School comparing note-taking on PDFs on the iPad versus pen and paper. The results of this mini-smackdown are pretty interesting.
  • The developer’s introduction is also available on YouTube as well. In a couple of minutes, you can be up and running with the app.

The app is not perfect though. I found that it is currently impossible to annotate to scanned pdfs unless you run it through OCR, which I have found to be a pain. So, if you can get your transcripts emailed to you from the court reporter as a pdf or in an electronic format that you can convert to pdf, then you are in good shape. If a client has brought you an older transcript in hard copy form to review for habeas, you are going to be able to view the pdf but will have difficulty annotating.

It is stil a bit awkward to move documents into and out of the iPad. There is dropbox integration, but it is not ideal. I found it difficult to pull documents out of folders on Dropbox and into the application.

Still, it is a good tool for transcript annotation. Even without transcript annotation, I think it is a way to pack light and read PDFs. I could see myself dictating a transcript summary while reading from a transcript on the iPad.

So, far iAnnotate is the best PDF app I’ve come across. But there may be better solutions out there that I have not found yet. And there may be better ways to work this app than I’ve found already. I think that this area of iPad use will get better over time. I think the medical community is likely going to push for improvement to the iPad as a means to consume journals. The academic community is likely going to push for improvement as well as a means for students to read texts.

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