Responsible Use of Social Media with Judge Stephen Dillard

 

Episode Synopsis: Judge Stephen Dillard, the “Twitter Laureate of Georgia” and Presiding Judge of the Georgia Court of Appeals, shares how he has leveraged social media to bring transparency to his role at the court, and explains how lawyers can use social media responsibly and effectively to virtually mentor law students and to educate the public on the practice of law. We also discuss Judge Dillard’s more “global” view of complex litigation and how a potential appeal can help lawyers win better settlements and more secure judgments at trial.

Podcast Transcript: The following is a transcript of Episode 2 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.

Stephen: And I think judges being available on the platforms where the vast majority of communication is going on, it makes sense. And judges can use those platforms for good. Judges can make stupid statements in real life and they can make stupid statements on social media platforms. But judges can also make positive statements on social media. They can educate the public about the courts and what they do. They can use social media platforms to mentor young lawyers and law students. That’s something I never would have imagined, but it has just kind of organically happened. And it’s good given how little is known about the judiciary, what a mystery it is to many people. I think it’s also good for people just to see that judges are human beings.

Scott: That’s the honorable Stephen Dillard, presiding judge of the Georgia Court of Appeals, and Georgia’s very own Twitter laureate. He’s sharing why he is active on social media as an appellate judge, a role traditionally seen as distant, even monastic. In this episode, we talk about so much, including how to establish your authentic voice online as a lawyer or judge, the value of writing briefs as if they are a judicial opinion, and the importance of specialization as you think about legal issues, motions practice, and preserving your record for appeal. In other words, the importance of thinking about assembling an appellate teammate as part of your trial team to focus on shaping up your case for appellate victory even as you’re in the pre-trial stages of your case. I learned something new every time I speak with Judge Dillard, and today’s episode is no exception.

My name is Scott Key, and you’re listening to “The Advocates Key” podcast, a show that explores the art and science of litigation with the nation’s top legal thinkers. For more information and content like this, go to scottkeylaw.com.

So, I’m joined with Judge Steven Dillard, the presiding judge of the Georgia Court of Appeals, prior Chief Judge. And I’m happy to have him here with us today to talk a little bit about appellate practice, social media, whatever it is that we ended up talking about. How are you doing today?

Stephen: I’m doing well, my friend. I hope you are.

Scott: I’m doing great. How are things going with COVID at the court?

Stephen: I think the nice thing about being an appellate court and having a forward-thinking staff is that we had already been testing our systems and our ability to work remotely. We’d already been doing that long before there was any discussion about the pandemic just based on kind of our strategic plan and moving toward that more modern approach to work and having greater flexibility because even without the pandemic, as you know, Atlanta can be really challenging at different times just with regard to traffic or events that are going on. And so thankfully, our clerk and our staff did a lot of amazing work. So, when this hit, it was really kind of a turnkey operation. And we’ve been really fortunate. And a lot of the judges who live outside of Atlanta, we usually work from home anyway a couple of days a week. And so we’ve expanded that, obviously, but I think we’re doing fine. The work is getting done. If anything, I feel like I’m more productive because I’m not going to, you know, 10 or 12 events every month. I miss them, obviously. I miss being around people, but if there is a silver lining, it’s been that I’ve been able to get ahead in my work. And so I’ve been thankful for that. But I’ve been really pleased and proud of our staff for how they prepared us for this type of situation.

Scott: Well, appellate practice is one of the areas that lends itself to being able to work remotely. And I haven’t seen my physical office in about two weeks. I’ve fitted out my home office with… I bought better lighting, like, studio-quality lighting because I’m doing a lot of things by Zoom. Like I say, if you look for a silver lining, I think a lot of the things that can be done from home are done from home. And I’ve enjoyed doing routine motions, things like that from home.

Stephen: Right. Well, that’s gonna really be the interesting thing. Right, Scott? I mean, it’s going to be fascinating to see how much of this kind of brings the legal profession into the modern era. Are we still gonna have calendar calls where people sit around for hours waiting to simply announce? Maybe, but I think a lot of judges and courts are realizing just how much time was wasted and how much money was expended, you know, traveling or, you know, sitting around waiting for things to happen at the courtroom. And so I’m hoping that we’re gonna rethink. If there is a silver lining to all of this that we’re gonna rethink how we do the business of law. So, it’ll be interesting.

Scott: I really hope that some of the efficiencies sticks around after the pandemic is over because… I mean, there are certain things that you can only do in court. And I think the Court of Appeals and the Supreme Court has done a great job of moving oral argument online. I can’t wait for that to be back in person again.

Stephen: Me too.

Scott: But there are lots of routine administrative things, certain motions, you know, housekeeping sorts of things that we would be better off if we just move those things to online.

Stephen: I agree. And I think the appellate courts in Georgia, I think we’ve done about as well as… I mean, I’ve watched some of the Supreme Court’s arguments and I’ve obviously participated and watched a lot of hours. And I think we’ve done the best job we can in replicating the in-person argument, but it’s still not the same. But I am grateful because I think the attorneys who have appeared before us during this time have really worked well with our staff in kind of getting through the bugs and kind of getting like you’re dealing with your home office getting that equipped and ready to handle it. So, I think there have been a lot of really positives with lawyers and judges working together to keep the wheels of justice turning during the pandemic. But I’m like you. I can’t wait to get back to in-person oral arguments at the Court of Appeals. We’ve got that beautiful, as you know, that beautiful new courthouse and building in downtown Atlanta and we really wanna show it off. We want people to come see it and we want lawyers to be there and to be able to argue cases before us.

Scott: Right. I had an oral argument I think would have been in the new courthouse late in the winter. And that argument was moved to a college in South Georgia. So, I missed that opportunity to argue at the new courtroom. And then I have one coming up next month, but then that’s gonna be via Zoom, but I’m kind of excited to do it via Zoom as well. I think that’s gonna be kind of an interesting first for me as well. But I’m glad it’s working out.

Stephen: Me too. I mean, I think it could be a lot worse and like I said, I’ve been really impressed that we’ve been able to continue the business of our courts, largely due to our staff and their forward thinking, their strategy and their hard work just preparing us in general for the modern age. And so I hope all the courts are going to, as you pointed out, you know, think about these efficiencies that we’ve gained. And obviously, some of them, you know, may go by the wayside, but I suspect we’re gonna keep a lot of them.

Scott: Yeah, I certainly hope so. Well, I noticed during some of COVID or some of this period of time, I know that you and I teach together, so we know each other pretty well. But I don’t think I ever knew that you were the official Twitter Laureate of Georgia.

Stephen: Yeah. My good friend, Scott Holcomb, who’s a legislator, he and Josh McLaurin and Matt Wilson and there were some others too, and I apologize to them for not mentioning their names. But I think Scott was the one who spearheaded it. And when he found out about Judge Willett back when he was on the Supreme Court of Texas being the Twitter Laureate, it’s very nice. I think the main thing that I’m proud of is the extent that it recognizes doing social media in a way that can hopefully be positive, that can raise awareness and educate the public about the courts and, you know, hopefully, promote civility and civics education and things I care about. And so, you know, that’s really, to me, what’s being recognized. I mean, I’m in part being recognized, but I hope more importantly it’s the message that’s being recognized.

Scott: Well, and I’ve heard you speak at CLEs on this and I’ve heard you, you know, speak with the class about this. I know that having the kind of presence on Twitter, I think, has largely been very well received and most of the public and the bar and the bench really enjoy your Twitter account. But I know that there’s been some criticism of judges being on Twitter. What do you think is the good or the positive that comes with a judge on an appellate court or maybe even a trial judge or a Supreme Court justice being on Twitter and having a Twitter following?

Stephen: I think the most positive thing about it is… One of the things that’s often discussed in the media is that we don’t know enough about the courts, especially the judges that we elect in Georgia, we’ve made that decision. You and I could probably do an entire show on the pros and cons of judicial elections. That said, Georgia has made the decision to hold their judges directly accountable to the people through elections. And so because of that decision, I think, for a judge, it is political malpractice to not make those judges make themselves available to the public. And the positive of that is not just that it’s good politics, although, like my mom has always taught me, doing the right thing is good politics. And I think judges being available on the platforms where the vast majority of communication is going on, it makes sense. And judges can use those platforms for good. Judges can make stupid statements in real life and they can make stupid statements on social media platforms. But judges can also make positive statements on social media, they can educate the public about the courts and what they do. They can use social media platforms to mentor young lawyers and law students. That’s something I never would have imagined, but it has just kind of organically happened. And I mentor a lot of students and young lawyers throughout the United States. And that has been very rewarding. But I think just in general, it’s good given how little is known about the judiciary, what a mystery it is to many people. I think it’s also good for people just to see that judges are human beings. I think when you and I were coming up, Scott, I don’t wanna say we’re old, but we’re older. And we certainly have some experience now as lawyers and judges. And I wanna say when you and I were really young lawyers, you know, seeing a judge at a bar event or coming across one, I mean…

Scott: It was intimidating. It was very intimidating.

Stephen: It was intimidating. They had white hair. I mean, they seemed to be up here and we were down here. And that… I was intimidated. And when I became a judge, I just decided I wanted to take a different approach that I have always viewed being a judge, as a public servant. You serve the people. We’re not, you know, black robe philosopher leaders. So, that’s not… I’ve just never viewed the role of a judge that way. I take my job very seriously. I don’t take myself very seriously. I am a person who holds this position and trust. And I don’t think it’s a bad thing for people to know that there are judges who listen to alternative music and like college football and engage and consume some of the pop culture that other people in society. I think that’s a good thing. I think it lets people know that judges are human. They’re not just kind of cloistered off and they only come out when court is in session. So, my approach has been that you can educate the public about your job and what the Court of Appeals does. And you can still do that in person. I’ve done that through a law review where I’ve gone into detail, as you know, about the inner workings of the court. I’m big on transparency. I think it’s another way for courts and judges, courts can have their own accounts. It’s a way to promote transparency, to promote live streaming of our proceedings. There’s all sorts of things we can do. And I just think beyond that, I think it’s hard for judges who are going to be called upon to make really difficult decisions regarding the Fourth Amendment in technology to make those decisions if they’d only have basic competency and understanding about these platforms. And so there are other reasons as well, but that’s just… I know I’ve bounced around a little bit, but those are just some of the things that come to mind for me when I think about why it’s positive for judges to be on social media.

Scott: And I would imagine it probably makes life feel a little bit less monastic.

Stephen: Yes.

Scott: I’ve heard judges describe their job, particularly at the appellate level, as monastic.

Stephen: It is. I mean, it very well can be. And even in our new courthouse, as beautiful as it is, it doesn’t feel as homey as the old place where you could kind of go out into the hallway. We’re like in little pods, you know, at the new judicial center. And so that’s another thing. I do think it’s an outlet for that and it’s an important outlet. And I think, once again, it’s how people are communicating and people that do not realize that are going to have trouble, you know, understanding modern society. If you are not involved in social media, you’re missing out on the primary platform that people are using to communicate. My kids don’t talk that much on the phone. They don’t even text that much. They are primarily using, you know, social media, Snapchat, Instagram, other forms of social media communication to communicate with one another. So, once again, I think it goes back to competency and I think it goes back to, you know, not removing yourself. I mean, Scott, think about some of the oral arguments that you and I’ve listened to at the Supreme Court of the United States when technology comes up, you know, where there’s this lack of understanding among the… With all due respect to the justices, some of the things they say with regard to technology is just frightening. There’s that lack of an under… Now, I know that Justice Kagan, I’ve heard at least, has a Twitter account. She’s following people. And I think that’s great. Even if she’s not participating, I think it’s a good idea for judges to at least get an idea of what’s going on out there in the world.

Scott: Well, that’s the frontier of the Fourth Amendment right now.

Stephen: Exactly. Exactly. And so I do think it’s helpful to at least… I’m on TikTok. I don’t participate on TikTok. I basically use it to monitor my middle child. But even if I didn’t, I would probably still have an account just to monitor it even though that’s really not my thing. But I have an understanding of what TikTok is and what it’s about and how it’s culturally significant. I think… You don’t have to spend hours and hours a day. You can just check it out every once in a while and I think you can get a general sense of what it is and what role it plays in our culture.

Scott: But I’ve noticed also that you will, from time to time, you will take a sabbatical. You will say, “Hey, I’m gonna be away from here for a little bit.” And I know that you’ll leave those outlets from time to time.

Stephen: Right.

Scott: And why… I mean, I think maybe it was Lindt for maybe in one instance. But what are some reasons why you kind of will step back from it from time to time?

Stephen: I think it’s good to do that. I think like right now I’m thinking about taking a sabbatical because I think things are gonna get really, without going into the details of all the things that are going on in our society right now. I think things are in the lead up to the election are going to get pretty nasty. And I do think people that are on social media or public servants, I think there are times where it’s probably best not to do much on social media just because anything you do can trigger a response or it can be misinterpreted. And there are downsides to social media for all public officials, but I think especially judges. And so I do think you have to kind of be careful about, you know, you might post something and you don’t know there’s some event going on or some story that just broke, and it otherwise might be a benign post, but because of some event that you’re not aware of somebody might think you’re being insensitive. And so, you know, I think the next few months are gonna be pretty… And I’ve got the stress coming up as well. So, I probably will either take a sabbatical or reduce, you know, what I’m doing for the next few months just because I think things are gonna be really toxic, unfortunately. I think really what it boils down to is, I don’t if mental health is the right word, but sometimes you’re just not in the space where you got a lot going on in your life. I think it’s okay to step back and say, “I’m gonna take some time off.” I mean, I think, everybody, whether you’re a judge or lawyer or anything else, I think if social media is causing you to be anxious or it’s causing you issues, then it’s probably not a bad idea to step away for a little while.

Scott: When you step away, are you just not producing content or are you not consuming it either?

Stephen: I am not producing it and I’m consuming it less. I probably will still get on because every once in a while I’ll get messages from people that I’m friends with and that’s the only way they have to contact me. And so I’ll check for messages. And sometimes, even if it’s not someone I know, I might get a message from somebody asking for clerkship advice or something like that. So, even when I’m not consuming it as much, I usually check, you know, once or twice a day just to see if there’s anything. If my phone is blowing up, you know, then I might look and see, “Oh, what’s going on here?” Although there is apparently some new documentary where they recommend that you turn off your notifications. And I may end up doing that. It may be a good advice.

Scott: So, for a lawyer who maybe wants to step out into social media to promote their practice or for a judge or another public official that kind of wants to get into social media and use it, you know, as an outlet like you do, what are some best practices and what are some things to avoid?

Stephen: I, obviously, as a judge avoid any kind of partisan commentary. I think I would be careful even if I were not a judge in this day and age to… And I say that as a former offender of this. When I was a lawyer, I did engage in partisan commentary. I think even so it has become so amplified even in the last 5 to 10 years that I would at least be cautious about partisan commentary. And if I did decide to do it, I think you need to make sure that your firm or wherever you’re working is okay with it, that you’re not violating any written or unwritten rules. Now, if you’re a clerk or something like that, there are pretty strict guidelines about that sort of thing. But I just think if you’re trying… If you’re a sole practitioner, you’re trying to build a business, the idea of saying things that are going to alienate prospective clients, that just seems to me to be something you’ve gotta think about whether or not you really think your voice is so important and what you’re saying is so unique that it is worth the potential loss of income or the potential loss of clients. So, that’s something I think every lawyer… So, I’m not saying don’t do it necessarily. I’m saying I’d think long and hard about it. I do think there can be a price to pay.

Scott: It’s a challenging medium because it seems like it’s… I mean, the people who… The companies that create these outlets like Twitter and Facebook, they obviously are in the business of attracting eyeballs. And so conflict attracts eyeballs. It just seems like it’s not a place… Even if you think that you’re gonna engage in healthy, you know, spirited debate, it’s almost like a medium that doesn’t lend itself to it.

Stephen: Unfortunately, I think that’s right and can be right in many cases. So, if you’re gonna engage in that commentary, I think, you at least want to make sure that you don’t allow yourself to be dragged into… In other words if people are coming after you for, you know, a take that’s fairly middle of the road or certainly well within the mainstream of political or legal thought. If you feel compelled to do that, that’s fine. But I think you need to be prepared for criticism. You need to be prepared for nasty criticism. And you need to understand that, if that happens, it’s probably best for you not to respond in kind, especially when a lot of the people leveling this stuff that you are going to be anonymous, you know, they’re gonna be what I refer to as troll accounts. But one of the pieces of advice I give in the article that I recently co-authored with my good friend, Chief Justice Bridget McCormack from the Supreme Court Michigan. One of the things we talked about is don’t engage the trolls. It’s just not… It’s not worth it. But you have to distinguish between a troll and somebody who may be asking a good faith question. So, I tend to err on the side of assuming that the question is being asked in good faith unless it’s obviously not. If somebody comes and says, “I have a hard time navigating your website,” you know, I think maybe that’s a fair criticism. Maybe I need to ask them what the issue is and then tell my tech guys about it. Other questions are obviously bad faith and I think I just ignore those. And so I wouldn’t respond to trolls. I would try to put out content that is substantive and informative. If you are specializing in criminal defense in Georgia, there’s a lot of good accounts like yours and Andrew Fleischmann’s and others where you can become a bit of…known as an expert in that area and you can build up a pretty big following. And that’s a good thing. And I think you guys also do a nice job of, I think, conveying what I call an authentic voice. And I think that’s important too. I mean, you need to be… People need to be able to get a sense that this is a real person with a real voice, not just somebody that is promoting. You know what I mean? It’s…

Scott: Right.

Stephen: Obviously, that’s part of it. I mean, that’s part of it for me. It’s part of it for anybody who’s on social media. Part of it is promotion. And that’s okay. But to me, the promotion part should not be the driving factor. It should be that you benefit from putting out content that people enjoy or that people find informative, if that makes sense.

Scott: Nobody wants to be on the receiving end of a sales pitch, but people like to find value in what they’re viewing and consuming.

Stephen: Right.

Scott: So, I noticed that you are… I mean, I think we’re connected on Facebook too. But I noticed that you tend to be more active on Twitter versus Facebook. What is it about Twitter that you like so much?

Stephen: I think I like Twitter better just because Facebook seems to be… I don’t know what the right word is. Facebook strikes me as a little bit sillier. Twitter certainly has a toxic aspect to it at times, if not all the time. But I guess the way I would say it is I go to Twitter to be informed. I go to Facebook to inform.

Scott: That makes sense.

Stephen: I mean, I inform some on Twitter, but I also go to Twitter to be informed. Facebook is like where I go to kind of tell my family or friends that something’s going on. And while sometimes I’ll do cross-posts, like, the same thing on each medium, there’s a lot that I put on Facebook that I don’t put on Twitter just because it just might seem like oversharing. I try to show some of who I am on Twitter, but I’m probably a little more restrictive about what I put on Twitter in terms of personal things, although I do a decent amount.

Scott: You can more limit your audience on Facebook than you can on Twitter.

Stephen: Right. Right.

Scott: The whole world is on Twitter…

Stephen: Exactly.

Scott: …when you do something on Twitter. And I think there’s something too about the limited number of characters that I like about Twitter.

Stephen: Yeah, me too.

Scott: Yeah. So, tell me… Let’s sort of back up for a second. I don’t think I really introduced you at the beginning of this.

Stephen: That’s all right.

Scott: I know that… And I guess… I had forgotten about this. You actually left after law school, were in private practice for a period of time, and then you left private practice to go and clerk for a federal appellate judge before going back into the private practice. And I know that’s not really a traditional arc. What was it about clerking… Tell me about the story of going and clerking on an appellate court after you’ve been in practice for a bit.

Stephen: It’s a great question. And it certainly is not a traditional arc or certainly wasn’t then. I think it is far more common now, but back then it was virtually unheard of. So, the short story is, is that when I was getting ready to graduate from law school, my wife wanted to come back to Macon and so I’d applied with several Macon law firms, was interviewing and…but I also told, you know, my wife, “Look, Macon is a very…it’s a smaller town. It is a different type of town.” People from Georgia know that Macon is very…it’s just unusual in some ways. And I don’t mean that in a bad way, but I mean, it’s very… I’m trying to think of the word to describe Macon. But it’s very much where people wanna know that you’re from here and that if they’re hiring you that you care…that you wanna be in the community. You’re not just, you know, graduating from Mercer or graduating from wherever, or, you know, coming to Macon until you can get to Atlanta, you know, or something like that. And so, I was looking at Macon and I didn’t go to Mercer. And so I was at a bit of a disadvantage because I’d gone to law school out of state in Mississippi. But I did an interview with a Supreme Court justice with the Mississippi Supreme Court and he actually offered me a clerkship, and I had been in negotiations with the law firm that ultimately ended up being my first firm. And I called him and I said, “Listen, I think you guys are great a firm. My wife wants to come home. But I gotta tell this justice something on Monday and I’m not gonna not take this job unless I have something.” And so I think I called them all out late Friday and they called me back on Saturday afternoon and offered me the job in Macon.

So, I came back to Macon. And I was at that firm for about five…a little over five years, not quite five and a half, maybe five and change. And I never really gotten that out of my system. I really wanted to clerk. I had done pretty well in moot court and I had done well in my appellate classes and felt like that was an area that I really ultimately wanted to practice, if I could. But I just didn’t think I was gonna get there without a clerkship. And so I won’t go into all the events and how it happened, but eventually, my resume got out of the pile with Judge Manion in the Seventh Circuit Court of Appeals. He interviewed me in May of 2001, which was a little bit late, but he had kind of stalled his interviewing because a few of his clerks weren’t sure whether they were gonna leave and go work for the Bush Administration because the presidency had not been called. This was that year. That was in the wake of the 2000 election.

Scott: The year of the hanging chad and the pregnant chad.

Stephen: The year of the hanging chad. So, we were waiting to see how many vacancies he was going to have. And so, long story short, I went up there in May. I accepted it. Judge Manion is a little unusual in that he does not hire people out of law school. So, he wants experienced, more experienced law clerks. So, he might have been one of the few judges in the country that really saw my having been out for five years as an advantage. And so he hired me. I actually started 10 days before September 11. And so that was an interesting time to be a part of the federal government. And he also does this thing where he’ll sometimes ask people to stay on an extra year. He asked me to do that. And I just moved my world from Macon, Georgia to South Bend, Indiana. And so I did that. I did it for two years. It was an amazing time. I learned a tremendous amount from him. He’s an incredible judge, a great American.

I learned a lot from being on the court with judges, you know, like Judge Posner, Judge Easterbrook, Judge Diane Wood, Judge Rovner, Judge Flaum, Judge Cudahy. There were so many great judges and I got to know many of them, obviously, going back and forth to Chicago and just got to see some amazing cases and great lawyers, David Boies, Kenneth Starr, you know, you name it. I saw a lot of some of the very best advocates. So, that was like going back and getting an LLM in appellate advocacy for two years. And so it really made me a better lawyer. And I think I appreciated it more having been out for several years. And so I don’t know that I would recommend it to everybody because I was getting ready to make a partner. They would, you know, go five years and then go back and do a clerkship, but I don’t think it’s unreasonable, you know, to do something for two or three years, and then maybe go do a clerkship. I think in some ways you appreciate it more. And so it was an amazing experience. And quite frankly, I would not be the judge I am today if I hadn’t had that experience.

Scott: What do you think that did for you, that experience?

Stephen: I think it made me a better writer. I think it made me a better legal thinker in terms of really seeing the laws like patchwork, really kind of understanding, you know, having, you know, at that level, you get hit with so many different types of litigation issues, criminal and civil. And you really get to see law done at the very highest level, by really, really smart folks. I learned a lot about court administration from it. I think the Seventh Circuit is one of the best circuits in the country. The clerk of court at that time was phenomenal. So, getting to see some of that behind the scenes, how courts operate. A lot of what we’ve done at the Court of Appeals of Georgia is a direct result of my experience in the federal court system, including some other judges having similar experience in the federal court system of us reforming the Court of Appeals to make it look a lot more like how the 11th Circuit operates. So, I think I benefited greatly from it. It made me a better advocate too because I think it tempered and refined my advocacy in the sense that I started to care more about…less about finding law that supported my position and discovering what the law is, and then kind of filtering that through to an argument that I thought would be persuasive. But becoming more of someone who informs the court that this is what the law is, this is the landscape of the law, and this is how I win in that landscape.

Scott: Now, that almost seems counterintuitive because, you know, it seems like that’s what lawyers generally do is they find cases that help their position. When you got back in the trenches, because I know you came back to Macon and you practiced there for several years before you went to the Georgia Court of Appeals, what really was the difference? How did you advocate for a client in the context of here’s what the law actually is, particularly, if the law was not in favor of your client?

Stephen: I would write to the court in the way that I thought a clerk and judge would find helpful. And if the law was… If it was just flat-out against me, then I would just tell my partner, “Look, I mean, we need to settle this. We need to get out.” If there was as there often is confusion about what the law is or there was some tension in the law, I would acknowledge that tension upfront, and then just simply say, “Look, you’ve got some tension here, you’ve got this case saying this, this case saying this. This is why I think this line of jurisprudence is the better one, the more applicable one, and why it applies here.” And I would try to analogize as best I could to that. And if I could maybe even talk about how, you know, this line that I’m looking at or these two competing or three competing lines of jurisprudence, how this one is similar to a line of jurisprudence in a similar area of the law and makes… And so that’s why this one they ought to try to clean it up. So, when I first started turning in briefs to my senior partner, Tommy James, he looked at me and he said, “This doesn’t read like a brief. It reads like a judicial opinion.”

Scott: Which is a compliment.

Stephen: I said, “I know that.” I said, “I know this may be new for you. Let’s try it my way with…” I had these first two appeals. I was like, “Let’s try it my way with these first two appeals. And if I lose, then we can go back to your way, but let’s try it my way.” He’s like, “Sure.” So, I won my first two appeals. And then after that, he started to understand, you know, the approach. It’s still a form of advocacy, but I think it is a form of advocacy that is stronger because when you start seeing parts of your briefs lifted and put into opinions, you know you’re doing a really good job.

Scott: Well, I heard Justice Thomas speak at an event several years ago. And I was initially taken aback by his answer. And I forget exactly what the question was. It might have been, you know, when you’re looking at amicus briefs, like what do you find most helpful? Or it was something like that. And Clarence Thomas’s response was that he always will turn to the ACLU’s brief because he finds the ACLU’s brief to be helpful to him in deciding a case.

Stephen: Yeah. I mean, they are great writers.

Scott: So, when you came back from the Seventh Circuit, what type of practice were you doing when you came back to Macon? What was a day like?

Stephen: I always tell people… I think what I advertised as when we sent out a little card to the community when I announced I was going back, it was a complex litigation and appellate practice. And really, what it should have said is “weird law” because that’s what I did. I really… It’s like the old Life cereal commercial. “I don’t want to eat it, let Mikey eat it.” And that’s kind of how it was with me and things that came into the firm. Anything that came into the firm that folks just didn’t know anything about, they knew I would want it because I loved being challenged.

So, it might be I had, for example, where these counties were stripping the ad valorem tax-exempt status away from religious homes for the agent. And so I kind of became an expert in that. And I beat back several counties, won several appeals where these counties were trying to take away the tax-exempt status of these homes for the agent, religious homes for the agent. That was a really fascinating area of the law. I had another case that was a non-profit derivative action. And so I became immersed in derivative actions and really enjoyed that.

In fact, since I’ve been on the court, I’ve probably written more… If you look at… There aren’t that many derivative action opinions. I think I’ve written more than half of them now for the Court of Appeals. I mean, just things like that. I was involved in a dispute with the mayor of Macon about his appointments to the Housing Authority which was a really big political event. And there were some really interesting statutory construction issues and the history behind the revision of the statute over the years. I really got to delve deep into the, not only the text of the statute, but the etymology of certain words. And so that was fun as well. But those are the kinds of things I did. I didn’t really do much routine work. In fact, when I left James, Bates I wanna say I had eight cases that I was working on.

Scott: So, you had a very small caseload, but I’m assuming that those eight cases probably they were the equivalent of the amount of work you would have been doing had you had a huge caseload.

Stephen: Right. That’s exactly right. I mean, I was spending a lot of… I was dealing with Beth the company cases. I had some really big reinsurance cases too. We represented Georgia Farm Bureau. And I did a lot of the brief writing and appellate work for Georgia Farm Bureau in coordination with Duke Groover. And there’s some… Insurance, to me, has some really fascinating, you know, construction issues in terms of the language. But I did a lot of appellate practice and a lot of motions practice. I mean, a lot of what I did… And I do try cases. I mean, I’ve probably tried over the span of about my 14-year career minus two that I clerked, so about the 12 years that I was in private practice I probably tried, I wanna say, you know, at least six cases, which considering the kind of work I was doing, mainly for businesses, a lot of those go for years and years and settle. So, I wasn’t trying hundreds and hundreds of cases, but I really wasn’t doing the kind of work that lent itself to that, to having a bunch of jury trials. I was in court all the time arguing before judges. And that’s… I like that better than jury trials. I liked going before judge and arguing. Whether it was the probate court, or whether it was the Supreme Court of Georgia, you know, I liked going and arguing before judges.

Scott: Were you teaming up with trial counsel and you had that role in the case as part of a team?

Stephen: Yes.

Scott: Okay. So, how did that just practically work out?

Stephen: I think sometimes it would be that I would be brought in after the case had concluded. But toward the end, it seemed like more and more I would actually go to hearings and trials where I would sit there and kind of give advice or be part of… Also I would be brought in at the beginning when we were talking kind of global litigation, what I call global litigation strategy. If it’s a big case and, you know, we go in the room and you’ve got the big board and you’re kind of diagramming everything out and, you know, here’s what they’re probably gonna do. Like, that stuff I love and I miss that. Getting a really big, big civil case, multi-million-dollar case and you’re like, “Okay. Here’s the players. Here are the lawyers. Here’s probably what they’re gonna try to do. Here’s the kind of evidence. Here’s what we’re gonna need to get in at the trial level.” And we knew that some of those cases they were gonna go up on appeal, like we knew regardless of who won that we were dealing with a case if it was gonna go up on appeal. So, you just went on and planned for it even if it… It might settle, but you have to… In big cases I think you have to go into them with the idea that it’s ultimately gonna be appeal regardless of who wins.

Scott: And so many lawyers wait until it’s time to do the appeal to think about the appeal.

Stephen: That’s a bad idea.

Scott: Because I get handed records and transcripts in my day to day life that, you know, I wish I had been involved in the case sooner than I was.

Stephen: You just start weeping while you’re reading it. You’re like…

Scott: It’s the worst.

Stephen: Yeah.

Scott: So, for a lawyer or for law firms that want to, you know, think big picture, think about the bigger picture, the potential appellate implications for a case, what is the value for having someone like, you know, in the role that you were in? Looking at it from the perspective of the appellate judge, talk a little bit about how many cases you see where there is there’s a vehicle problem or there are some waiver issue that kind of comes up.

Stephen: It happens all the time. And I think there’s great value. I mean, if you are… Let’s say you are a plaintiff’s lawyer and you’ve got a personal injury case, and it is a big case. A lot of times if you are…you’re a good solid PI lawyer, but even so, you might say, “You know what? This is a really big, like, possibly life-changing case. So, I think I’m gonna call…I mean, name all of the… I mean, I could go and name tons, Robin Clark. I’m gonna call Adam Malone and I’m gonna call all these, you know, big…Carl Reynolds. I’ll call all these great plaintiffs’ lawyers, Darren Penn, all those guys, and say, “I’m gonna bring them in too to help me out because this is a big, big case. And I might have to hire experts and I need somebody to help me, you know, kind of manage the litigation. I need some… I need kind of the apparatus of a firm that handles those really big…” Well, if you’re gonna do that and you’re gonna probably split your contingency with someone like that by bringing them in, doesn’t it make sense to also think about either hiring a firm that has somebody in-house that handles appellate work or picking someone separately and bringing them on that team as well? Because if you don’t spend the time at trial, preserving the things that need to be preserved, there’s a good chance that verdict is…if you get it, it can be reversed. And so let’s say, for example, you’re on a team, Scott, they brought in you because you do criminal and civil work and they bring you in, and you’re there at trial and you see those plaintiffs’ lawyers starting to get a little bit aggressive with jury charges, what are you gonna tell them?

Scott: Well, first of all, you’re gonna be in that position where that’s the kind of thing you’re thinking about. And you’re gonna say to the trial team, “Look, let’s research this issue because the judge may be listening to them because they’re talking the loudest or they’re talking the most. And let’s draft a motion in limine or let’s draft a motion that sort of says, “Judge, we object to this jury charge. We don’t think that this is proper. Here’s some case law as to why. And we think you’re probably gonna get reversed if you charge this way.”

Stephen: Right. And if your team is getting too aggressive, you might say to them, “Hey, guys…”

Scott: Let’s pull back.

Stephen: Do you wanna know the last five verdicts of the Court of Appeals that have been reversed, have been based on jury charges, overly aggressive jury… I mean, that’s the problem. I mean, that’s the thing an appellate lawyer knows because an appellate lawyer, you know, even a very good PI lawyer, they may only be involved in a handful of appeals over the years, but someone like you or someone like Mike Kerry or Darren Summerville, or whoever else that is doing this kind of work, you guys are reading these things and you’re reading almost everything that comes out of our court, God bless you, and you start seeing patterns. And not everybody is gonna see those patterns. And so you’re the one that can stop in the middle of the trial and say, “Whoa, guys,” or even before then, “Hey, no. When you’re strategizing, we can’t do that because that’s gonna leave us vulnerable and getting appeal. We’ve got to be careful about how we… So, we need to do this instead.” Or, “Let’s not fight every battle. It doesn’t matter. The evidence is in our favor. Let’s don’t get aggressive on a jury charge when we’ve got the evidence. We know we can get a verdict with this evidence. Jury charges are of limited value. Don’t go to the mattresses on something that we can get reversed on.” I mean, those are the kinds of things we’re having an appellate lawyer in on that big, big case. Now, can you justify that on a $25,000 case? No, you can’t. But in the big cases, absolutely. You should.

Scott: Well, and just because the judge is with you and will do the thing that you’re asking the judge to do doesn’t mean you should do it.

Stephen: That’s exactly right. As the words flew by.

Scott: And having a lawyer there that can advise you that way is pretty important. Even if the lead counsel on the case knows the law really well, probably, that lawyer is thinking about 10 other things that aren’t the appeal.

Stephen: The other thing that appellate lawyers, I think, do nicely, is that we are instinctively or certainly trained after many years to be dispassionate. Now, every lawyer should be dispassionate and not get emotionally invested in cases, but you and I both know that it’s very hard for people that have tried cases to sometimes be objective about what happened below. And I think having an appellate lawyer there during trial to kind of throw cold water on somebody and say, “Hey, I get that you’re upset, but we’re not doing our client any favor by doing what you want or saying what you wanna say here or doing what you wanna do here.” I think that’s just the way appellate lawyers are built. And so I think it’s good to have somebody like that around.

Scott: I think too, like, you know, even the cases that don’t go to trial, I read my share of summary judgment cases where there are, you know, summary judgment cases with written opinions. And, you know, just like I find myself looking at trial transcripts and I’m just miserable cause I just see things that were waived or motions that weren’t filed that could have made a difference. Sometimes when I’m reading summary judgment opinions and I’ve been involved, a lawyer brought me in a couple of years ago to talk about late stage of an appeal to help with a motion for reconsideration of an adverse summary judgment. I’ve seen a lot of summary judgment opinions, maybe opportunities that were missed where maybe things could have been said in depositions. I mean, there might have been evidence of a factual dispute that could have been injected into the record that maybe they weren’t there.

Stephen: I agree. I agree. And I think having an appellate lawyer, once again, I think, depending on the case and whether you can bring someone in or whether the case is worth having somebody like that, it helps to have someone who has a thorough knowledge of the law. And you’ve got plaintiffs’ lawyers who specialize in premises liability cases, right? And so they know, they read every premises liability case that comes out of the Court of Appeals and Supreme Court of Georgia. And the truth is, you know, not every lawyer is gonna have the time to do that, even if they handle those types of cases. So, having somebody that can say at the outset of litigation, “This is what we need to do. This is what we need to say. This is the kind of discovery. Here’s the sort of the way we need to craft the affidavit from our client about what happened at the grocery store. Here’s the way… Here are the things that trip people up in these cases and where the Court of Appeals ends up reversing in favor of, you know, the corporate defendant, Kroger, you know, Home Depot, whatever.” So, I think it is important.

And like a lot of those groceries slip and fall cases, some of those involve millions of dollars. And so I just think it makes sense, at the very least, to consult, to hire someone who does specialize in appellate law, especially in that particular area, and pay them a few hours at the outset of the case and maybe say, “Okay. Here’s what happened. What sort of things do I need to get my client?” I need to make sure that I have them, you know, not manufacturing, obviously, what they say, but, I mean, here are the important things. Don’t leave out these important things when they tell you their story. These are the kinds of things that are gonna help you survive summary judgment, so don’t leave that out of your client’s narrative. If they tell you what happened, it’s important to have all this factual information in their affidavit. It’s important for them, you know, when they’re in their deposition, to talk about what happened and to talk about these things. Those are the kinds of things you can tell people upfront, and then they can bring you in on the backend. If there is a summary judgment ran, they need help with the appeal or they need… Once you look at the brief, there’s all sorts of things you can do with someone. And I just think it makes sense in those cases you invest. Right? I mean, that’s what you’re doing. You’re investing in those cases, you take them on contingency, and I just think it makes some sense to pay some money upfront to talk to somebody whose job it is to know that area of the law.

Scott: Well, if you open a slip and fall case, you better be prepared for the summary judgment motion because there will be a summary judgment motion on a slip and fall.

Stephen: Yeah, it’s coming.

Scott: And then it’ll probably be hard to survive if you’re gonna open that case up because I think that seems like a very tricky, hard area of the law from the plaintiff’s perspective.

Stephen: And there’s all sorts of like… I mean, there’s all sorts of, like, sub-issues like the distraction doctrine. I had a case involving that in a Home Depot where I wrote a dissent that it should go to a trial. Does that person that… Do they know about the distraction doctrine? Maybe they do. Maybe they don’t. But those are the kinds of things that you would know. You would say to them, “Is there anything we can talk about? Is there any of you might talk to your client when they came into the grocery store that could have caused them not to see? Or did they tell them? Did they direct them to, like, come this way? And that’s the reason…” I mean, there’s all sorts of things that you can do to enquire that by knowing what facts are important, the surviving summary judgment, you can ask that person to tell you things and they may not even remember that unless somebody actually asked the question and triggers that part of their memory.

Scott: And it seems like, you know, you mentioned it earlier too in the context of reinsurance cases. But insurance coverage issues are about as complex as it gets in the law.

Stephen: Yeah.

Scott: And that’s kind of what most of these things turn on is the amount of coverage and trying to figure out a theory of coverage can be kind of life or death to these cases as well.

Stephen: Absolutely.

Scott: Well, so, tell me a little bit about what’s ahead for the Court of Appeals as I’m assuming… I know that the emergency order is gonna be modified. I think grand juries are about to start back up. But when do you think the court will start back hearing oral arguments live?

Stephen: It’s a great question. I don’t know. I know that we are doing Zoom arguments. I don’t if this is public, but I don’t think anybody would care about me sharing it. I know that we are doing Zoom arguments through January. At some point in the next month or so I think we’re gonna determine, you know, whether or not we should start doing in-person arguments again. I’m only speaking for myself right now. The more I think about it and the way our courtroom is constructed, I think what I would like to do is ask the parties whether, you know, if we grant or like say we’ve got oral arguments coming up in February, I think what I would like to do is to have the clerk call the parties and say, “Are you interested in an in-person argument?” And if both sides say, yes, there’s enough room in that courtroom to socially distance. The judges and the parties. So, I think it’s just a question of, you know, the comfort level that folks have. I would real… I think it’s important to resume them at some point just symbolically. I always go. I missed one. There was one argument where none of us were in the courtroom, and that was early on during the pandemic. But since then, that didn’t sit well with me and I didn’t feel well that day and we were just at the beginning of it. But since then, I’ve showed up and been in the courtroom for every oral argument. And I think it’s important to do that to be there symbolically, because technically I think people can still come. I don’t think people are coming because, obviously, for obvious reasons, but there’s something to me important about me being in that courtroom and presiding from the actual courtroom. So, I hope we’re gonna resume it. But I think we also… Just my opinion. I think we ought to respect if there’s a lawyer that just isn’t comfortable or is high risk and wants to argue it, I think we ought to make those accommodations.

Scott: I’ve been to court some, and, you know, for motions or for oral argument, I don’t think it’s as dangerous as it would be to summon jurors or witnesses or…

Stephen: Right.

Scott: That kind of thing. So, I mean, I think over time, it probably could work depending upon the lawyers and the judges’ level of comfort.

Stephen: Right. That’s just me. We’re gonna have that debate. But first and foremost, for me, is gonna be the safety of everybody. I mean, that matters more than my preference for in-person arguments.

Scott: Well, Judge, I really appreciate you taking the time to be on my fledgling podcast here. I really appreciate it.

Stephen: Listen, I’m happy to do it. This is you… You’re my co-teacher for Georgia Appellate Practice at Mercer. We didn’t even talk about that, but you and I have a good time with, you know, teaching those fine students at Mercer. And I couldn’t do that class without you.

Scott: I appreciate that. And I really love the guests that we have come in. I mean, I think every time we teach that I’m as much a student in that class as I am one of the teachers in that class and it’s a great experience for the kids, for sure.

Stephen: Absolutely. I’m looking forward to it this spring.

Scott: Is there anything else that I haven’t asked you about that you’d like to tell the listeners?

Stephen: I don’t think so. I think that’s about it. I’ve enjoyed being on your show. And I know it’s gonna do great. And I look forward to coming back some other time.

Scott: Well, thank you so much. I really, really appreciate it.

Stephen: Thanks, Scott.

Scott: Thanks for listening to “The Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com and please rate, review, and subscribe to this show wherever you get your audio content.

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