Ct. of Appeals Judge Carla McMillian’s Ten Tips on Practice

Judge Carla McMillian’s campaign for re-election is in full swing. The Augusta press ran a full interview last month. And Judge McMillian took some time out to speak to the Appellate Practice Section’s monthly luncheon, where she reflected on a year on the Court and shared her top ten lessons and tips from her time as an appellate judge. Aly Palmer of the Fulton a Daily Report covered the event (article behind the pay wall). The article from the Fulton Daily Report talks more about how Judge McMillian was made a judge and her reaction to the appointment. The article also details some of Judge McMillan’s reflections upon her first year on the bench. This post focuses on the practical tips from Judge McMillian’s presentation.

The top 10 lessons are:

1. Jurisdiction is not always clear cut. Judge McMillian said that many cases are transferred from the Supreme Court to the Court of Appeals based upon the Supreme Court’s position that it lacks jurisdiction over the case. What is a practitioner to do? She advises that it is best to file first in the Supreme Court if jurisdiction is doubtful. The Supreme Court will then transfer the case down to the Court of Appeals. Beginning in the Court of Appeals in such cases has the downside of creating what Judge McMillian calls “a ping-pong match” of the case being transferred up only to be transferred back. The relevant statutes on jurisdiction can create much confusion in “edge cases” where there is an argument to be made that either court might have jurisdiction.
2. Even if you don’t get a docketing notice, your brief is still due. This bit of advice created the scariest moment in the room as lawyers (at least I did) began to think about what might be sitting in their spam folder. Judge McMillian noted at least two instances where lawyers did not get their docketing notice. In such situations, the court has some discretion regarding whether to dismiss the case or not. But, if you have recently paid the costs to send the record up, you may do well to check with the court every week or so to make sure the cases not been docketed. Docketing notices go out electronically now, and it is easy for emails to get lost in the shuffle of the inbox or inadvertently placed into a spam folder.
3. When you do not know whether to file a discretionary or direct appeal, err on the side of discretionary. Some matters can be appealed directly, and others must be appealed by discretionary application. Choosing the wrong form can be fatal to the case. If you file a discretionary application in a case where you have the right to appeal directly, then the court will allow you to appeal directly. If you file a direct appeal where you are required to file a discretionary application, your case will be dismissed. So, it is best to file discretionary when in doubt. On a related note, Judge McMillian pointed out the value in making discretionary applications lengthy enough to explain the case but not so lengthy that the court is overwhelmed with material.
4. If you want the full court to examine the case then request that precedent be overruled. In any case where a judge votes to overturn precedent, the matter will go to the full court. If you can get one judge to agree overturn precedent, then all 12 judges will decide the case.
5. Be more creative in helping the court understand the case. Judge McMillian noted that it is perfectly acceptable and welcome for advocates to place graphics or photographs into their briefs. She noted by way of example an advocate who placed a map of disputed land into the brief to illustrate the major concepts at issue in a dispute over a deed. She also noted that the judges like to see relevant exhibits displayed on screen during oral argument. I would note that judicial opinions differ on these points.
6. Don’t disparage the trial judge, opposing counsel, or other judges on the panel. Judges often make this point when they speak or write about professionalism. Judge McMillian cited a recent and real-life example of a lawyer who had compared the judges to some characters from Mayberry. There is a temptation to disparage on a motion for reconsideration; she advises just don’t do it.
7. Formatting / fonts. Judge McMillian offered several comments about formatting and fonts. First, formatting is important to her. She noted a recent walk with her husband, another lawyer, where the two argued about fonts. However, if opposing counsel makes a formatting mistake, then it is likely not worth raising unless opposing counsel has derived some unfair advantage from it.
8. Recordings. Recording don’t automatically go up with the record. Do not assume that they have. If the recording is critical to you, make sure that it is included in the record. If it wasn’t, then move to supplement the record on appeal.
9. Oral argument requests should be self-contained. The judges who read the request for oral argument will not be familiar with the case. Also, they likely will not have read the brief by the time that they consider the request. Therefore, the request should summarize the case well enough for the judges to make an informed decision. Also, if you want argument, go ahead and request it. Any one judge can grant the request.
10. If one of the judges on the panel concurs in judgment only, then you should file a motion for reconsideration. A JO often indicates some doubt about the decision by one of the judges. Filing a motion for reconsideration may change the outcome or draw a concurring opinion. (Note: After this post was published, Judge McMillian clarified in a tweet that this advice relates to J.O.s that come at or around distress time. Don’t know what a J.O. is? Check out Court of Appeals Rule 33. Don’t know what distress time is? Check out a previous post I wrote about it).

The Appellate Practice Section frequently invites judges and justices shortly after they are elected or appointed. Judge McMillian was a particularly engaging speaker who gave practical insightful tips about how to practice before the court.