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Judge Christopher McFadden Offers Advice on Requesting Oral Argument

June 13, 2011/by J. Scott Key

How do you make the most compelling possible case for oral argument in the Georgia Court if Appeals? According to Judge Christopher McFadden, it is important to draft a self-contained request that summarizes the key issues in the case. It is important also to explain exactly how argument will assist the court under the unique facts and with the unique issues in the case. Finally, it is important also to explain exactly how argument will assist the court under the unique facts and with the unique issues in the case. It is also important to assume that the Court will not have seen your brief when they take up your request to argue.

Judges McFadden, Blackwell, and Dillard spoke to a combined meeting of the Appellate Practice Section and Criminal Law Section of the State Bar of Georgia. And, for Judge McFadden, this was an important issue. Below is a summary of Judge McFadden said, combined with a little editorializing from me.

Don’t spit out boilerplate.

Write a request tied to the unique facts and legal issues in the case. From time to time, lawyers call me requesting a form for a request for argument. I love helping other lawyers, so I don’t mind providing some of my past materials just to give folks a visual of what a request to argue looks like. But I get concerned when it appears that the lawyer is looking for assistance in how to word the request. There is no formula. In fact, if you fire up the computer and start generating boilerplate you probably wont’ be arguing this case.

Get to your point and theirs.

The request should quickly and succinctly educate the Court on the essential issues in your case, what your argument is, and without conceding the merit, a summary of what the other side’s position is. There’s a little art in all of this. You don’t want to concede your opponent’s position, but you don’t want to portray your opponent’s as a straw man either. If the case isn’t even close, I’d forego argument.

A request for argument is the opportunity to advocate.

It’s not only a reader’s digest condensed version of your argument but of your opponent’s anticicipated argument also. And it can be a great second brief in condensed form.

You can’t write it if you don’t really know your case.

By the time you’re drafting a request to argue, you should be in a position where you could tell your spouse or a friend or someone at a picnic or cocktail party the essence of your case in about 90 seconds. Because that’s what a request for argument is. It’s an elevator speech.

Finally, Judge McFadden explained that it’s important to explain exactly how oral argument will assist the court in deciding the case? What is it about this set of facts and this set of legal issues that lends itself to written and oral argument? Next to setting out the issues in a succinct fashion, your oral argument should set out exactly why it is important to have an exchange with the court before deciding the case.

If you follow Judge McFadden’s advice, even if you don’t win the request to argue, the process of honing your argument to its essence will likely help you refine your brief and know your case better. And if argument is granted, it is a good first step to prepare.

Judge McFadden Speaks on Getting Elected and Getting Started

January 17, 2011/by J. Scott Key

Approximately 16 attendees made the snow-ladened trek to the appellate practice section luncheon Nashville, Tennessee, held in conjunction with the State Bar of Georgia’s mid-year meeting.

The Honorable Christopher McFadden, newly elected to the Georgia Court of Appeals, gave a fascinating talk on the process of campaigning for the appellate bench, the process of moving into the court as a new judge, and his first days as the newest judge on the Court of Appeals.

Participants heard a “nuts and bolts” account of the process of getting elected to a statewide judicial seat and how Judge McFadden integrated lessons learned from his unsuccessful bid in 2008 to get into a runoff and ultimately win a resounding victory in the runoff

Hiring a strategist/consultant

Judge McFadden noted that there are a few people in the state that know how to best run for statewide election. For the 2010 election, he hired one of them. The most innovative contribution was the introduction of what Judge McFadden termed “Robo calls.” The consultant relied upon a list of phone call recipients likely to vote in the runoff election, the use of recorded endorsement messages by key Democratic and Republican figures throughout the state, and strategic times for calling. The bottom line is that robo-calls work, even if some people called him back to complain about them.

Meetings Meetings Meetings

In addition to working with a consultant and executing a set of recorded phone calls to his target audience, Judge McFadden said that he spent a great deal of time going to meetings. Toward that end he devoted a great deal of time to attending civic organization meetings as well as Democratic and Republican party meetings throughout the state.

However, one of the challenges that came from attending partisan party meetings was maintaining a sense of “neutrality” in partisan meetings. Judge McFadden seemed proud of the fact that the judiciary in Georgia is non-partisan. He noted that there were moments, though few and far between, where members of his audience pressured him to “reveal” his political leanings and threatened to assume things from his choice not to disclose.

The Use of Resources

One key strategy he noted for the use of resources was to raise money and use most of it at the end of the election. The strategy appears to pay off significantly if one considers that he finished second in the general election but finished resoundingly in first in the runoff

Qualifications Succinctly Discussed

Judge McFadden noted that one of the keys to winning a statewide election court judicial race is to pick a theme, a short phrase or single word and run with it throughout the entire election. In this election, his strategy was to compare his qualifications for the job to all of the others who he believed to be less qualified. “I wrote the book,” a reference to his appellate hornbook, became a campaign theme that was simple, resonated, and encapsulated the whole idea of superior qualifications in a single pithy phrase.

Starting Out as Judge

A new judge has to find an office. And any vacancy on the Court creates a great deal of activity as judges move to more desired offices than the ones they currently occupy. It’s a process Judge McFadden called “musical offices on a grand scale.”

Prospects for the Future

Judge McFadden wants to be proactive as a judge, getting involved in the opinions from the beginning rather than simply signing off on opinions drafted by staff attorneys. He has found that the sheer volume of work necessary as part of a Court of Appeals judge makes it difficult to get in front of the cases the way he would like. He also notes that the amount of time he has to spend own cases as a judge is less than the amount of time he had to spend on drafting briefs for clients.

As a practitioner, I think this news is good. It signals that a brief that is well written, accurate, and that judges can trust is important because the advocates have much more time to spend on cases than the judges have. The brief is very important, which is good news for prepared advocates and opponents of unprepared advocates.

Nahmias and McFadden Win Election to Georgia Supreme Court and Georgia Court of Appeals

December 1, 2010/by J. Scott Key

Justice David Nahmias and Judge-Elect Christopher McFadden have been elected respectively to the Supreme Court of Georgia and Georgia Court of Appeals. Both won by wide margins. Georgia votes made the right choice in both elections. Justice Nahmias is likely to continue to do excellent work on the Court. I look forward to his well-reasoned and finely crafted opinions. And I am eager to continue to be challenged by him at oral argument. Judge-elect McFadden is going to be a great addition to the Court of Appeals. He will be fair, and his opinions are going to be scholarly. Yesterday’s election was good for the Georgia judiciary and the people of Georgia. Our legal system is as good as the professionals who occupy the bench and those who argue from the bar. Yesterday was a great step for Georgia.

The voters who braved yesterday’s Georgia weather did the right thing. While it might be easy to be cynical that such a small percentage of eligible voters showed up to vote, it appears that they made an informed decision on both parts of their ballot.

I will look forward to Justice Nahmias’s continued work on the bench and the days ahead with Judge McFadden.

Georgia Appeals Election Day

November 30, 2010/by J. Scott Key

If you haven’t already done so, please vote in today’s election. Polls close at 7:00 p.m. this evening. I voted at 8:00 a.m. this morning, and the woman at my precinct told me that I was only the fifth voter to darken their doors. This is a very important election, and much is at stake. If you are a lawyer, then you know why this election is important. If you have less experience in Georgia Courts, let me tell you a little more about why this election is important.

Our appellate courts make decision on individual cases that shape the way future cases are decided. Most decisions that come out of our Supreme Court and Court of Appeals become the law in terms of how we interpret our the United States Constitution, Georgia Constitution and Georgia statute. Though the governor’s office and the legistlature get the bulk of the attention, much power is placed in the hands of our appellate judges. An individual appellate judge is arguably more powerful than an individual state senator.
The Supreme Court is ultimately responsible for regulating attorney discipline in the State of Georgia. The Georgia bar is self-regulated, but decisions on how or whether to discipline lawyers are left in the hands of the justices on the Supreme Court, with the hard work and assistance of lawyers who work for the State Bar of Georgia. It is important to put the best person for the job in that office.
Finally, though many people will never end up in court, I meet with many moms, dads, uncles, brothers, spouses, sons, and daughters who are good “regular people.” They come to me because they have found themselves supporting a loved one who has been convicted of a crime or who has some other type of matter pending before our appellate courts. If you get sick and require the assistance of a specialist in the medical field, you have some choice in your doctor. When you appear in front of a judge, the moment to choose has already passed.
“The people get the government they deserve.” Alexis de Tocqueville is credited with saying it, but he more likely source is Joseph de Maistre. It rings true.

I’ve shared with you in previous blogs my choice for the Court of Appeals and Supreme Court. I’ve also shared resources with you where you can read up on the candidates. Even if you think my choices are way off base and you are going to vote the other way, please vote today. This election is just as important as any other election. And these offices deserve the involvement of the people.

So, About the Rest of My Ballot for Georgia Appeals Seats

November 26, 2010/by J. Scott Key

I recently wrote about my decision to vote for Justice Nahmias over challenger Tammy Lynn Adkins. That post was picked up by Aly Palmer on the ATL Law Blog, the blog of the Fulton Daily Report. The post has generated thoughtful emails to me about the election. I hope that you’ll research the candidates yourselves and make the choice you believe is best for the Georgia Supreme Court bench. For what it’s worth, I’ve always valued competence over philosophy in judges. I’m not a big John Roberts fan, but I thought that he was well-qualified to be an Associate Justice for the United States Supreme Court and now Chief Justice of the United States. And Senator Lindsey Graham’s stock went way up in my book when he broke from the Republican ranks and voted to confirm Elena Kagan to to an Associate Justice of the United States Supreme Court.

Anyway, I tried to research some more about Ms. Adkins after some emailers suggested I had been hasty. I’m still in the dark about her. This voters’s guide is a good example of what I’m talking about.

Enough about that race. Over at the Court of Appeals, there is a great deal of information about Chris McFadden and his opponent, Toni Davis. Both have run campaigns intended to inform Georgia voters about the importance of the Court of Appeals and their respective positions. Both have experience in the appellate courts.

I’m casting my ballot for Chris McFadden for several reasons. One, he is a lifelong student of our appellate courts and an experienced appellate practitioner. He will bring a lifetime of experience and a wealth of knowledge to the Court. He’s the author of the hornbook on Georgia appellate practice. His book sits on my desk, in arm’s reach at all times. It’s dog-eared, highlighted, tabbed, and heavily annotated. He’s the founder of the appellate practice section of the State Bar of Georgia and is active in that organization. He’s also worked hard as a candidate and will work hard as a judge. I also consider him a friend.

So, please research the candidates and vote. Also, take the time today to inform your friends that the upcoming election is important. Tell them what you know about the candidates, and encourage informed voting for these very important offices. Help them by guiding them to some places where they can learn about courts and the candidates.