Writing - Scott Key & Associates

A Very Disturbing Appellate Sanction Story

July 30, 2010/by admin

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

July 23, 2010/by admin

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.

Timing Problems for Getting Retained on Georgia Appeals

July 16, 2010/by admin

One of the problems with appellate law is that clients either show up too late or early. Some clients show up too late and too early.

Too late is after the trial attorney has screwed things up, after a deadline has passed, or after the client took things into his own hands and dabbled in his appeal.

Too early, is when the conviction has just happened and the transcript is not ready yet where nobody can say exactly what the errors were, if any.

Too late and too early is after the trial lawyer screwed things up, no transcript is available yet, and the deadline to file the motion for new trial is four hours away.

Ideally, the client comes in after being convicted, with the trial transcript in hand, with a referral from an excellent trial attorney who made all the necessary objections, filed all the right motions, and received bad rulings from the trial court on every one of them. The lawyer filed a motion for new trial, the hearing on it is three months away, and the client is out on an appeal bond. Really ideally is when the trial lawyer brings me on to assist with legal issues with a mind toward making the best possible record and with a mind of handing the ball to me if the client gets convicted. The trouble is that most clients don’t want to think about dealing with a conviction until they are convicted and don’t think it will happen to them.

When people come to see me for an appeal, it is often with variations on one of two scenarios. I’ll give you the most extreme examples of each.

Scenario One

The husband/brother/son/nephew/friend was convicted in 1998 and is serving a life sentence. He had new counsel represent him on appeal. Counsel was unsuccessful, and the conviction was affirmed in 2001. At that point, husband/brother/son/nephew/friend was fed up with lawyers and filed a pro se federal habeas petition, which he unsuccessfully appealed to the 11^th Circuit Court of Appeals. He then filed a pro se State habeas in 2003, which was denied and unsuccessfully appealed to the Supreme Court of Georgia and another pro se habeas petition in 2005, which was dismissed. He really knows a lot about the law now after all these years. He’s drafted his third habeas, and wants me to be his co-counsel.

Scenario Two

The wife/sister/daughter/niece/friend was convicted 29.5 days ago. The person who comes to see me did not see the trial because the rule of sequestration was invoked, but he thinks the wife/sister/daughter/niece/fried was railroaded. They don’t understand how this could have happened. They hired the lawyer in town who worked on Uncle Jake’s will and who closed the loan on their house. After they hired him, he quit taking phone calls, and all the discussions of the case were in the hallway on the way into or out of court at arraignments and calendar calls. One day, they got a call at 10:30 on a Tuesday morning to come to court. Low and behold, the judge made them start the trial. Now, she’s got a life sentence. All the witnesses lied. The judge was really mean. So was that 24 year old prosecutor who said this was her first case after passing the bar. They are tired of getting the run around from lawyers. They heard you do appellate law. They will hire you, but they want to know right now if you can win. And they are going to watch you like a hawk because they see how lawyers can act. Oh, and they don’t have any money left because trial lawyer dude got $250,000 already for the trial. Oh, and can they sue the lawyer/judge/prosecutor/bailiff/guy at the metal detector?

Managing Client Expectations

Appellate courts are for the correction of error. Meaning, if the State did something wrong, the defense lawyer complained to the judge, the judge ruled against the defense lawyer on the complaint, and the mistake made a difference in the outcome, then the appellate courts are there to say that the judge ruled improperly and give you a new trial. In really limited circumstances, if the trial attorney made a specific identifiable mistake, and that mistake was something that could reasonable impacted the outcome, then the appellate courts exist to grant a new trial.

There are a wide range of things not included in the list in the paragraph above. Consider some of the things not included in that list. One would be something the state did wrong, where the defense attorney never complained about it, or where the defense attorney complained about it but where the judge did not make a ruling. And also excluded is a situation where the State did something wrong, the defense objected, the court made a bad ruling, but where the court determines that it did not have any impact on the verdict. Also excluded are all the general things that a client did not like about the attorney but that cannot be reduced to a concrete demonstrable mistake. Certainly excluded would be such things as whether witnesses lied or were credible.

Bottom Line

The bottom line is that an appellate lawyer cannot clean up the mess left behind by a bad lawyer and cannot use the appellate process to retry a case that wasn’t tried well the first time. It is even more difficult to clean up a mess created by a pro se client who has dabbled in his own appeal before an appellate lawyer gets on board.

The way Georgia judges hand out sentences under fairly draconian mandatory minimums or because they are just plain mean, clients have no choice but to appeal. And the great thing is that judges and prosecutors in Georgia make mistakes. Every 7 seconds in Georgia a trial judge commits reversible error in a criminal case (a statistic I just made up but which is probably true). Issues are often there.

However, more appellate lawyers need to make the expectations clear early on, and clients need to be able to enter the process with a realistic outlook of what an appeal involves and what lies ahead.