It Isn’t Done Until You Have Communicated in Georgia Appeals and Habeas Cases

Scott Greenfield wrote a good story a few days ago in his blog, Simple Justice. I say “good” in the sense that it made me evaluate the part of practicing law where it can be easiest to drop the ball.

In the post, he tells the story of a call he received from the relative of a person in custody. She began the call saying “I need a lawyer.” She said that even though she had a lawyer. The lawyer had spoken to her about the case but she did not understand what he was saying. Mr. Greenfield was not particularly interested in taking it on, so he called the other lawyer on the client’s behalf.

Turns out that what the other lawyer had said was technically correct. The problem is that it was not being put in a way that the client could understand. The client had done some things to worsen her prospects of being released, and those facts had not been discussed very well. He goes on:

This is not about telling the client what she wants to hear, but about telling the client what she needs to hear. This is the client’s life, and they must understand what’s to become of it. Some clients will understand quickly, while others will take more time and care. It’s the lawyer’s responsibility to find a way to communicate that works for the client. Use an interpreter. Get another lawyer to help if you can’t seem to get past the communication wall. Use a different approach. Spend the time to make it happen.

The chilling thing about this story is the end. He points out that, had he wanted the client he could have had her, and the lawyer on the case would never have understood why.

Things had gotten this bad with the lawyer and he was one of the minority of lawyers who was actually returning phone calls and doing all the necessary work. Think of the potential trouble those lawyers are in.

Now, take all of the dynamics at play in the story and magnify them. Welcome to appellate practice. Your client may be in prison hundreds of miles away from you. In the early stages of the case, you may not have met your client. He has just taken a loss at trial, and there are few small losses in Georgia criminal trials. As the case progresses, there are several things that will happen that just about virtually guarantee attorney-client alienation.

• The client will turn the case over and over in his head because there is little else to do and will initiate conversations with you on the assumption that you are doing the same.
• The client will go to the law library, and he will sometimes go down the wrong path. When he does, he will make “suggestion” to you about the direction of his case that are overly-optimistic and uninformed.
• The transcript will not come as quickly as you or he will like.
• Your client will think that the appeal is just like the trial. While you focus your efforts on whether the trial court should have given request to charge number 17 and whether the 911 call was covered by Crawford v. Washington, your client will expect you to prove to the appellate court that Officer Jones was lying.
• The temptation to speak to your client in legal jargon will only increase because appellate law lends itself to it way more than trial does.
• Appellate work makes you feel like a writer, and writing is largely a solitary activity. Plus, you are going to be busy, and all of the usual things you do to communicate when you are busy, like send a quick text or an email, will not be available for you to speak with your client. You will be doing a lot of letter writing — 19th century style. Visiting a single client will sometimes take an entire day. Phone calls have to be arranged and scheduled with the prison way in advance. All of this stuff is very alienating.

You have to work extra hard to make sure your client understands the appellate process and the differences between it and trial. You have to be a patient listener and understand that you will often be the lightning rod for many frustrations. You cannot take it personally. And, when you think you have explained it clearly, you may find that you haven’t

But Mr. Greenfield is right. Your job is to find away to communicate. It’s particularly so when your client is so far away from you and getting legal advice from other people in lock up.