The iPad and Appellate Practice in Georgia

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I’ve been working hard ever since I left a firm to go out on my own a few years ago to make my practice as paperless as possible. I really don’t want to spend a bunch of money storing old files in a mini warehouse somewhere. And one of the problems with appellate law is that the files get monster huge on even the smallest case. Every file consists of at least a transcript and trial counsel’s original file with a bunch of pleadings and discovery. So, to the extent that I have been able, I have tried to get etranscripts or have tried to scan everything to pdf and immediately send originals back to my client.

I was trying to set up everything to be paperless before the iPad. So, instead of carrying big boxes home and back, I have lived essentially from my laptop with all of my documents uploaded to RocketMatter, which is my practice management choice. Before that, I used TimeMatters, an application that is bloated and geared toward the law office of 1996. They don’t allow you to do anything in the cloud, and the application is prone to crash if you access it via gotomypc. They don’t make a mac version of TM either.

In April I bought the iPad, and I have been working over the last few months to figure out how to integrate it into my practice. I still haven’t figured out exactly how to work it in seamlessly, but I have observed some pluses and minuses with it.

Pluses

  1. You don’t have to carry as much stuff around. I am gradually managing my files through Dropbox, a cloud-based service that allows you to sync files across multiple computers with a version uploaded to their server. Whenever you make a change in one place, in syncs to the others. If you put your files onto Dropbox, you can access them (for viewing only) on the iPad dropbox application. Meaning, that you can read transcripts on the iPad the way you might an ebook
  2. You can now mark up pdfs on the iPad. Out of the gate, the ability to mark up pdfs was a huge problem with the iPad. Things have gotten better. I have been using iAnnotate PDF, which allows me to write marginal notes, highlight, and underline similarly to what I might do on paper. I haven’t mastered the app yet, but I think it will make transcripts on the iPad much more manageable and “paperlike”
  3. It is a great note-taking device. I love Simplenote. It is a simple text editor that syncs with NotationalVelocity on my Macbook. It’s the perfect thing for taking notes during client interviews or during hearings. I think it might be good for storing notes for oral argument, but there is something about me that still needs paper for those things.
  4. The battery life and dispaly are way better than a laptop or a phone

The pluses are huge, and I have found that my laptop gets nowhere near the use it got before I bought the iPad. I find that the iPad is the device that I grab if I’m headed to the jail to do an interview or to a quick hearing. It is also my go-to device for notetaking or for bringing home a transcript.That said, it isn’t perfect, and it creates some problems, too.

 

Minuses

  1. Paperless is great until you find yourself in court where paper trumps data. If you want to show a judge the great case that supports your point, there’s no substitute for a highlighted hard copy. There’s no substitute for witness impeachment than a hard copy of the trial transcript or a prior statement. Sometimes, a good old fashion notebook is better than anything else.
  2. Sometimes, you need the physical objects around. At the end of the day, taking a big ole trancript, a highlighter, some sticky notes, and a good pen, and getting down to work with them is just somehow better than flipping through screens and making virtual annotations. Also, looking at a big banker’s box and knowing that the job isn’t finished until you plow through it and move it someplace else makes it easier to get things done than when that same information is contained in a little icon that looks like a file folder.
  3. The iPad is very modal. With my laptop plugged up to an external monitor, I can have a writing screen and a second screen with the transcript or with a case pulled up. The iPad is not a great content creation device, and I couldn’t imagine actually writing a brief on it. I think that this part will get better. iA Writer is a pretty good writing app that I just added, but something seems lacking even here.
  4. Distraction. Put your phone on do not disturb mode, close your door, and open a transcript, and you will not get interrupted. You can’t stream a Netflix movie through a transcript. A transcript doesn’t beep to alert you that you have an email. You can’t read rss feeds on a transcript. So, if you are going to be doing a lot of transcript reading on the iPad, you should seriously consider turning the wifi off or setting email to not notify you of incoming messages. Also, if you are going to work at a calendar call or in the hallway at the courthouse, you have to factor in the iPad curiosity factor as a detriment to getting things done (“yes, I do like the iPad, thanks.” “umm, no it’s really not a big iPod Touch.” “Really, no, it’s not the same thing as a laptop.”)

I find that I like the iPad a great deal, except when I don’t. It’s helpful to keep a pen and paper nearby when you are reading on it because it’s much easier to write down notes that it is to switch out of transcript reading mode to pull up a writing application. It’s also helpful to turn some of the connectedness off when you want to get down to business. I have also found that a bluetooth keyboard is a handy thing to have. From a fashion standpoint, I use a small netbook bag, which looks way to much like a purse. But otherwise, it’s helped me for the good even if it requires its own level of discipline not to get distracted.

Dating Do’s and Don’ts for the Georgia Appellate Lawyer

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Since I’ve started this whole blogging thing, I’ve made it a point to put fantastic bloggers who are great at it into my RSS Reader. Kendall Gray’s Blog, the Appellate Record, is a great resource even though he does his craft over in Texas. He always has something to teach me about writing, appellate strategy. He even has fascinating stuff to say about bow ties.

In his latest blog post, Write As I Say, Not As I do, Mr. Gray writes about dating. Before he gets there, he pins bad lawyer writing on judges who wrote the old judicial opinions that we read in law school. He also thinks that many of the writing tips judges dispense at seminars and in bar journals aren’t actually followed in judicial writing. And bad judicial writing just leads to more bad writing from lawyers.

Getting Convicted in a Sunday Morning Sort of Way

Then he moves to his example of bad writing. And if it were a sermon, this Baptist lawyer would say that he “feels convicted.”

Lawyers and judges really suck at writing about when things happened. Or, as Mr. Gray puts it, “More than once I have wanted to hurl myself from the office window upon reading work product whose only reason for being was to regurgitate a chronology from the trial lawyer’s three ring binder.”

Do you know what he’s talking about? Have you ever read or have you ever written a statement of facts that starts out like this: “On or about October 13, 2006, Officer Smith pulled over John Davis’s car. He ultimately searched the car and found suspected cocaine. On December 20, 2007, the crime lab tested the substance.” Then you start talking about the trial, and you start saying stuff like, “The trial commenced on May 3, 2009, and the jury reached its verdict on May 17, 2009.”

I’ll tell it all (back to Baptist speak). I’ll give my testimony. Why do we lawyers sometimes write like this. It’s some straight up bad storytelling technique. But we’re not trained to be storytellers. If we were, it was beaten out of us in the first year of law school when we started viewing people’s life events as “fact patterns.”

 

Relative Dating (It’s Not the Same Thing as Dating Relatives)

Bad chronology is a good way to get a Statement of Facts on paper with minimal effort.

The alternative? Gray suggests, “relative dating.” Don’t worry, I’m not making an Alabama reference. Relative dating, he explains, involves

put[ting] events in relation to each other and giv[ing] useful information about the passage of time where it matters, such as: before, after, very shortly, or more than two years after the accident

So, think twice before you put a date in your brief. Does the date advance your narrative or your client’s cause (the way it might in a Speedy Trial Demand or Statute of Limitations issue). Otherwise, you might want to consider relative dating to get the story out there.

What I Learned from Supreme Court Information Officer Jane Hansen This Week

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The August break for the Supreme Court of Georgia is over. The Court is back in full swing next week with two days of oral argument to be followed by more argument the week after next. Earlier this week,famed convicted murderer Lynn Turner was found dead in her cell at Metro State Prison. What do these two events have in common? Georgia Supreme Court Public Information Officer Jance Hansen has reported on them both.

My ritual for Oral Argument at the Supreme Court of Georgia always include picking up on argument day and reviewing on the internet the fantastic case summaries that Ms. Hansen’s office provides. The summaries let me know who else is there and that kind of cases are going to be argued that day. I quickly figure out whether I want to go into the courtroom watch the cases before mine or stay in the lawyer’s lounge and monitor my turn in line from there. Invariably, the summaries make me want to watch them all, even the real estate and will contest cases.

The other thing I like about Ms. Hansen’s summaries is that she manages to make every case sound close and interesting. Every case is high drama in those summaries. Even when I am there with less than high hopes, those summaries make me feel like the case is close.

Back when Lynn Turner was on trial for the poisoning deaths of her husband and former boyfriend, Ms. Hansen covered those trial for The Atlanta Journal-Constituion. In the wake of her sudden death (cause unknown — toxicology tests pending), Ms. Hansen was interviewed by the AJC to recall her days covering Ms. Turner’s criminal trials.

Once again, she showed her command of the basic with her same open mind, remembering what it was like to consider the possibility of a defense verdict in both cases. She said:

I never presumed she was guilty or that she was going to be convicted. I always believed maybe the jury would hear something I didn’t know. Even when I talked to other reporters and they said, “you know she’s guilty,” I always presumed there might be something that would prove her innocence.

In this statement, I hear the voice of the person who writes those case summaries. Of course, she reports that Ms. Turner once offered her a piece of gum during a break at trial. And there we learned the limits of her open mind. She opted not to chew the gum.

What’s my point? Are you knee deep in a case that feels hopeless? Have you already made up your mind that you have a losing position but you’re headed into a trial or an appeal because your client insists or because there’s no offer on the table? Maybe it’s time to channel your inner Jane Hansen. Sit down and pretend you are writing a press release that conveys the story of both sides with just the facts. Are there two competing stories with a result still up in the air?

Maybe when you write it and read it, you’ll realize that it’s closer than you think. Jane Hansen does it with every case that’s argued, and they all look close on paper.

The “Great Trial Lawyers” Get Creative When Making a Record

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I really loved Maxwell Kennerly’s blog post yesterday, Titled “Young Lawyers: Be Careful Emulating Great Trial Lawyers.” I loved the ethos though I am not wild about the application. Mr. Kennerly’s post is a reaction to another blog post offering advice for trial lawyers. Essentially, Mr. Kennerly wonders whether it is a good idea for young lawyers to learn from great lawyer characters from old movies. More particularly, he wonders whether lawyers should use some of the tools Paul Biegler, played by Jimmy Stewart, used in the 1959 movie Anatomy of a Murder. Those tools include speaking objections, ignoring the judge when he tries to govern your conduct, and knowingly asking questions in violation of the rules of evidence in an over the top, Jack McCoy on Law and Order sort of way.

He thinks he would advise against it but laments that fact and wonders aloud.

My fear is that as the hairs on my head gray, I have become increasingly conservative. Rather than thinking outside the box, I recokon where the walls are before trial and try to stay within them, to demonstrate my legal acument. But since when is trial about anything other than the narrative at hand? Is time spent in silent struggle with [the] evidence code time that could better have been spent constructing a narrative that persuades, and then finding the means to tell it, including the drawing of objections?

There are two ideas in this well-written paragraph presented as mutually exclusive that really are not. But I think it’s important that the point not get lost. That point is the single thread that runs through his blog post. So, let’s take the thread first then come back to the two points.

The thread is the idea of Beginner’s Mind. I think it’s okay to go there in talking about this post because there’s a zen category on Mr. Kennerly’s blog. In his prologue to Zen Mind, Beginner’s Mind, Shunryu Suzuki writes that

In the beginner’s mind there are many possibilities, but in the expert’s there are few. … For a while you will keep your beginner’s mind, but if you continue to practice one, two, three years or more, although you may improve some, you are liable to lose the limitless meaning of original mind.

I’m not sure that Suzuki would appreciate me lifing these concepts out of context and dropping them into a discussion of trial law and preserving an appellate record. But they work, and I think that Mr. Kennerly is getting at it. So, now to the mutual exclusivity piece.

  • Yes, it is important to find your narrative or your story. That story should be the glue that holds it all together for you. And it is the glue that holds an appeal together as well. If you are the appellant and you only talk nuts and bolts, you will lose most of the time. The nuts and bolts are how you win. But the narrative gives the court (for the trial lawyer, the jury) a reason to want for you to win. But the narrative is not the banner you carry with you as you march over decorum or the rules of evidence. The narrative is what drives those in power to help you win. You take the narrative with you into the time you spend struggling with the evidence code. After all, suppose your opponent finds her narrative. Should your opponent’s grasp of narrative allow her to introduce your client’s character, comment on his failure to testify, or wave around evidence that probably can’t be admitted to inflame the jury?
  • Thinking outside the box means approaching the law with a sense of creativity, even playfulness, and finding new angles, challenges not dealt with before now in precedent, and a view of the statute and cases with a new set of glasses. With your beginner’s mind, you can ask the judge for rulings based upon your fresh approach. If you win, all the better. If you lose, then the appellate lawyer will have something to try in the appellate court. But outside the box should not mean acting less than an officer of the court (not saying that Mr. Kennerly claims that you should, but others might read his writing on this point and reach this conclusion on their own).

Now, getting back to Jimmy Stewart’s character. He’s not exactly a guy in love with the law. There is a real cynicism in him as portrayed in the movie. He’s not exactly finding the narrative and using it to breath life into the trial. Remember the famous scene where he tells his client all the possible defenses before he gets his story so that client will shape the facts accordingly. The character is actually everything that Mr. Kennerly fears lawyers might become with age.

A beginner’s approach is in order. It will make it fun for you, and it will make for a better appeal — if you ever need it.

How to Lose Your Appeal: Ignore the Court’s Rules / Make the Court Find Your Argument

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It’s one thing to get practice tips from judges at a seminar or in a bar publication. Court of Appeals Chief Judge Yvette Miller has some tips in appellate advocacy in this Month’s Georgia Bar Journal (PDF page 28 – worth the wait for it to download). It’s quite another thing to get advocacy advice in an appellate opinion telling you how you ignored the rules and how confusing your brief was to read.

Such is the case in the August 27 opinion of McCombs v. State. Before the Court of Appeals reaches the case’s merits, they begin by explaining why they had trouble with the appellant’s case:

As a threshold matter, we note that McCombs has failed to comply with Court of Appeals Rule 25 (c) (1), which requires that the sequence of arguments in a brief follow the order of the enumeration of errors and be numbered accordingly. McCombs includes three enumerations of error, but only two argument sections. Moreover, the arguments do not coincide with the numbered enumerations, and do not follow the order of the enumerations. As we have previously held,

 

Rule [(25)] (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, [McCombs has] hindered the Court’s review of [his] assertions and [has] risked the possibility that certain enumerations will not be addressed.

We learn two valuable lessons from this opinion. One, is that briefs should comply with the Rules of the Court of Appeals. There aren’t many, and they are easy to find.

The other lesson is that you shouldn’t make the Court work to figure out what or where your argument is. Things are hard enough already for the appellant. Energy and precious resources the Court could spend being persuaded by you should not be spent flipping pages.

Even if Rule 25 did not exist, wouldn’t you want to do what the Court advises anyway? Ever read a book where the chapters were in a different order from the way they were listed in the table of contents?

Maybe Mr. McCombs’s conviction would have been affirmed anyway. But confusing the Court to the point that they start an appellate opinion giving you practice tips was certainly no help to the cause.

So, in short, read the rules. And write with the reader in mind with a resolve to make things easy. It’s important in any written work. It is particularly so when you are trying to convince a judge that she should order a person to receive a new trial.

 

Use Good Story Technique in your Next Appellate Brief

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Who doesn’t like a good story? We start liking them before we know how to read. Trial lawyers generally know that juries like them. But what about appellate writing? Is there a place for story in the appellate brief or at oral argument?There is, and if you start weaving elements of story into your appellate brief writing, your client’s case will stand out from the stack of briefs the judge, justice, or law clerk is reading. While you may not be guaranteed a win, you increase the likelihood that your court will at least read your brief all the way through. A thorough an interested reading is your first and greatest hope if you are the appellant. The easiest thing for a court to do, after all, is affirm the trial court. A thorough reading gets your audience out of default mode.

Enter Kenneth D. Chestek, Associate Professor of Law at Indiana University School of Law. In a paper he presented at the Applied Legal Storytelling conference in 2007, he argues that the IRAC brief (adopted from the case method to help first year law students grasp legal opinions by breaking them down into the components of Issue, Rule, Application, and Conclusion) leads to dry and boring writing. He adds that “[t]he problem with IRAC, however, is that it doesn’t have much room for people.” Which leads to his thesis: “legal writing need not be — nay should not be — boring. When we write legal briefs to a court, we are trying to resolve some human conflict. That’s inherently interesting stuff!”

Great, you might think, it’s time to spruce up the statement of facts and make it more compelling. That’s a good start. Mr. Chestek argues that a strong narrative thread should wind through the argument section as well.

What, pray tell, is a strong narrative thread? It’s the stuff that made your favorite movie so great or that last novel that kept you up late reading. Broken down to its component parts:

a compellng story is a strong plot line, in which conflict is revealed, the protagonist struggles to resolve the conflict, and ultimately succeeds in doing so.

And that, in one deceptively simple expression, is it. Your brief, your entire brief, should have a clear conflict, a protagonist (and what’s a protagonist without an antagonist), and a resolution.

Do Stodgy Conservative Judges Want More Stories?

They don’t usually put it that way, but yes. According to Chestek’s piece, Judge Ruggero J. Aldisert, senior judge of the United States Court of Appeals for the 3rd Circuit, reports that most of his colleagues complain most that the briefs they read are “rudderless [and contain] no central theme [,]… lack … focus [, and contain] uninteresting and irrelevant fact statements.” Put another way, they don’t tell a story.

What Does a Good Story Have to Do with a Good Appellate Brief?

According to Mr. Chestek, good fiction shares several traits with a good appelate brief:

  • It is plausible.
  • It is readable.
  • Most importantly, for present purposes, it evokes an emotional response from the reader

He adds that a good story and a good appellate brief has a definite setting. Setting could be the literal place where a crime took place, a courtroom where mistakes were made, or a small cramped interrogation room that smells of industrial cleaning chemicals, nicotine, and sweat. It might also be the law itself. Setting defines and limits conflict. What is the setting of your next appellate brief?

Good appellate briefs also have clearly-defined characters and a central conflict. Who is the protagonist in your brief? Who is the antagonist?

Finally, what is the theme of your brief? What is the plot? What will the end of the story look like after the protagonist prevails? That’s the part of the story you ask the Court to write.

Find Yourself Getting Lost?

Return to the definition of a compelling story: “a compellng story is a strong plot line, in which conflict is revealed, the protagonist struggles to resolve the conflict, and ultimately succeeds in doing so”

  1. What is the conflict?
  2. Who is the protagonist?
  3. Who is the antagonist?
  4. How should the conflict resolve itself?

If your reader can identify the answers to these questions, then your brief is likely readable, interesting, and probably one of the best briefs in the stack of briefs the judge or law clerk is reading at 4:53 p.m. on Tuesday afternoon as deadlines approach and as fatigue sets in.

For more on story, start reading more novels or when you’re watching television, try to keep the questions above in mind.

If you really want to become a story ninja, check out Robert McKee’s Story, Donald Miller’s book and blog on story, and Joseph Campbell’s works, which identify the central components of all stories running through many cultures.

Then, makes your next brief a good story

 

Good Appellate Writing is Not Stuffy or Formalistic

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I love Kendall Gray’s piece on Brevity and the use of conjunctions to start sentences. I, too, learned never to begin a sentence with But or And. It seemed like good advice at the time. But now I have learned that it is not a law of physics.

He quotes Professor Wayne Scheiss, who presented at a CLE in Texas, who recommended “that in place of however, on the contrary, on the other hand, and the like, you try but and yet without a comma afterward.”

Holy cow! That’s kooky talk. But it’s actually quite liberating. Mr Gray notes:

After attending that conference ,therefore, I no longer have to write in this tortured syntax where formal, introductory clauses are inserted and set off with commas or even semicolons in order to guard against preparatory conjunctions, which are something up with which we will not put.

With this blog, I am now retiring my use of the phrase, “to be sure.” I usually resort to “to be sure,” because I get sick of all the other clauses in a brief. And I won’t miss it one bit.

Are Law Review Articles Relevant in Georgia or 11th Circuit Appellate Decisions?

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Kirk Jenkins, at The Appellate Strategist Blog, poses an interesting question. Does Legal Scholarship Have an Impact on the Work of the Courts? The ABA and some judges say no, and a recent study says yes.

Mr. Jenkins quotes United States Chief Justice John Roberts who recently characterized legal scholarship as not “particularly helpful” in deciding cases. He cites an ABA study that commented that practicing lawyers view legal scholarship as “irrelevant to their day-to-day concerns.” He reports that even law school professors believe that legal scholarship as increasingly removed from the work of the courts.

Such a view seems odd with the introduction of Google Scholar, blogs, and other places where law review articles are more available than ever before. You don’t have to be a member of a big firm with a library that subscribes to law review articles to get them, and you don’t have to trudge over to a law school or courthouse library to find law review articles.

In fact, I read my first law review article in a long time (PDF) after I found out about it on a blog. I found the article, put it on my iPad as a pdf, and found myself immersed in a seemingly esoteric debate with real world application to how I respond to my clients’ ideas for the handling of their case. It challenged some of my practices, made me consider some, reject others, and change my approach to hopefully be less paternalistic and more client-centered. So, not only are law review articles easy to find, they are easier to copy and to carry than they were just a few years ago. The law review article was very relevant to my practice.

From there I read another article about the professor who wrote the piece and discovered that one of her law review articles had come up in a Supreme Court Oral Argument and mentioned in the opinion. Now, I find myself more open to reading law review articles, particularly as a starting point for legal research as I begin to prepare a brief or consider issues to preserve for appeal.

Mr. Jenkins found some research indicating that legal scholarship may be in its heyday. According to a new study from Professor David Schwartz of Chicago-Kent College of Law and Lee Petherbridge of Loyola Law School, legal scholarship is on the rise in the appellate courts. This excellent study looked for citations to law review articles in 296,098 opinions and found an increase in citations.

The blog post ends with a question: are practitioners citing to law review articles in briefs? They really should — put differently, I really should. In fact, with the Georgia Supreme Court re-examining precedent and its value, now may be the best time ever to cite to law review articles that criticize the reasoning behind precedent.

I’d probably leave off the law review articles that apply de-constructionist literary theory to jury charges for now, though.

A Very Disturbing Appellate Sanction Story

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Jay O’Keeffe, in his blog reports that he is bothered by a recent development involving a lawyer who has been summoned to show cause and explain comments he made in a lower court transcript about the Virginia Supreme Court.

Bothered is a mild way to describe my reaction to the story. Put more accurately, I think I feel hot water in the back of my mouth, and I don’t even practice law in Virginia. The story is the ultimate in “there but by the grace of God go I” cautionary tales for lawyer like myself.

So, here’s the story. A lawyer in Virginia was representing someone on a criminal case that was appealed successively. When the lower court asked the lawyer about an issue that the appellate court never reached on appeal, the lawyer responded that the appellate court had decided to “stuff it” because it “did not have the guts to handle it.”

Low and behold, the matter reached the Virginia Supreme Court and the powers that be read it. They were not amused and have summoned the lawyer to appear and explain himself in person. Did I mention the hot water in the back of my mouth?

The problem is that law is all about analyzing what and how judges and courts rule. Every brief contains those things more or less. One court revisits the analysis of a previous court. In fact, law could be reduced down essentially to a bunch of people criticizing each other. I’m not defending the “stuff it” language, but would he be in trouble had he said that the issue was a hot potato, and the Court did not appear to want to touch it.

Court of Appeals Rule 10

Under Georgia Court of Appeals Rule 10, “Personal remarks, whether oral or written, which are discourteous or disparaging to any judge, opposing counsel, or any court, are strictly forbidden.” I did some research, and it turns out that Rule 10 has only come up once in a published opinion. In Hampton v. Bank of LaFayette, a party tried to have the other side sanctioned for personal remarks made in a brief, and the Court declined to do so. They didn’t even include the remarks for our voyeuristic reading pleasure (although, I am sure the most honorable Court had a very wise reason for doing so, because our appellate court is very wise. We also have the most attractive court in all the land).

Our appellate bench seems to be a little more thick skinned than Virginia’s. Keep in mind, Virginians have always been about honor. I sure hope that the lawyer isn’t handed a dueling pistol when he arrives for his hearing.

 My Shameless Attempt to Capitalize in the Past.

A few years ago, an opponent was being obnoxious to me in a motion for new trial hearing. He was getting personal in one of those cases where it seemed kind of pointless to be that way. I had nothing. It was one of those cases that makes you miss Anders briefs. But I was getting annoyed by the gratuitous “go for the jugular” approach opposing counsel was taking.

Then came a little gift from the prosecutor. He turned his attention from me to appellate courts, and he commented that he could do his job if “those courts in Atlanta would just get their foot off my neck.”

With little else to argue on this appeal, I devoted a good portion of the statement of facts to his comments about the Court of Appeals. In fact, I think the brief began with a quotation about the appellate courts and a neck and some feet.

The Court affirmed the conviction without so much as a peep about the lawyers statement. Oh, to have been in Virginia. However, if I had made a comment like that, I wonder if it would have made a splash?

Conclusion

Of course, in Georgia I wouldn’t press my luck. There can sometimes be a fine line between criticism and being insulting. The key, I think, is to be critical of reasoning, application of precedent, and judgment without discussing motivations and personalities.

For instance, in motions for reconsideration, I always ask for reconsideration because I was unclear and failed to communicate the law in a good way. If the Court reached an erroneous decision, it came as a result of a failure in advocacy on my part.

I don’t think being passive aggressive is actionable under Rule 10. And I’m sure the ole malpractice carrier loves this language.

 

A Key to Success on Georgia Appeals is to Really Know Your Audience

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When I succeed in my brief writing or at oral argument (I measure success by writing a good brief and by fluid conversational delivery at argument — not necessarily by result), it is because I stop to think about my audience. More particularly, I remember that my audience includes a set of staff attorneys and judges or justices with a stack of briefs to read that hopefully don’t look exactly like mine.

An article in today’s legalnewsline.com reminded me of the fact that the people who hear my argument and who read the briefs that I write are people with interests beyond my particular cases. They even have interests beyond the law.

According to the article, Justice Robert Benham of the Georgia Supreme Court “has his own woodworking shop, [where he makes] objects like toys and music boxes with his two sons.” He also “builds birdhouses for Habitat for Humanity.”

Those facts humanize him and tell me more than his official biography does. Official biographies, like resumes, start looking the same after a while. But to know that someone makes toys, music boxes, and birdhouses for Habitat tells me that one member of the audience is compassionate. It also tells me that workmanship and craft are important to him. I should be very precise and concise in the future.

Justice Antonin Scalia and Bryan Garner make it a point to tell lawyer how important it is to know about your judge before you present your brief, try your case or show up for oral argument. In their book, Making Your Case: The Art of Persuading Judges. Scalia and Garner advise:

“learn as much as you readily can about the judge’s background. Say you’re appearing before Judge Florence Kubitzky. With a little computer research and asking around, you discover that fly-fishing is her passion; that her father died when she was only seven; that her paternal grandparents, who were both professors at a local college, took charge of her upbringing; that she once chaired the state Democratic party; that she enjoys bridge … and so on. … you might well find some unpredictable use for this knowledge over the course of a lengthy trial.”

Most importantly, they add, “at the very least, these details will humanize the judge for you, so you will be arguing to a human being instead of a chair.”

Keeping in mind that your audience consists of people and not a judicial machine will help you write better briefs that help them decide the case. If yours is the 53rd brief in a stack of 100 that looks exactly like the others, then your judge might get bored, might skim your text, or might just affirm the conviction because that is a nice safe default.

Of course, not all judicial hobbies are good. I suppose that when you find bad hobbies, you have a nice new enumeration of error to raise for your client and and the opportunity for a new judge with a healthy life and more wholesome hobbies.

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