Tom Withers: Mapping Out Your Trial

Episode Synopsis: Every lawyer prepares for trial in their own way, but what matters to Savannah-based attorney Tom Withers is the level of organization that he can bring to a case. Withers explains how he outlines his case from start to finish by creating a road map for everything from deposition to demonstratives. He also shares how he manages high profile cases, client expectations, and what to do with unexpected surprises.

Podcast Transcript: The following is a transcript of Episode 16 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple PodcastsGoogle Podcast, and Spotify.

Tom: Those attorney client interactions are the bread and butter of what we do. They establish the foundation of how we’re gonna proceed with respect to whether we’re gonna be retained and if we’re retained, how the case is gonna proceed. My view is that I always want to be truthful, candid and plainspoken with my clients.

Scott: The law is often about difficult conversations and those difficult conversations call for us to tell the truth, to tell the client sometimes that their position is difficult, sometimes that their position is untenable. But in being truthful and plainspoken, and in giving sometimes difficult but candid advice, we are at our best as lawyers. I enjoyed speaking with Tom Withers, a true giant in the legal profession, and one of my favorite Georgia trial lawyers. And I hope you enjoy listening in on our conversation about many things, including lawyers in the media, how he began his career and developed a practice in complex criminal and civil litigation. And so, without further ado, I give you Tom Withers.

Scott: Well, Tom Withers, how are you? It’s so good to have you on the podcast.

Tom: I’m fine, Scott. Thank you very much for having me. I’m privileged to be chatting with you.

Scott: Yeah, it’s so good to talk to you here. I know that we’ve done some cases together and I visited with you when I’ve been in Savannah, but it’s really good to have you on here. Something that we’ve sort of talked about, we’ve kind of been around the edges it, but what’s it like to practice law in Savannah, Georgia?

Tom: I think Savannah is a good jurisdiction in terms of both the civil and criminal trial practice. From a civil perspective, I do a lot of stuff in the federal courts, historically the federal courts have been difficult places, particularly in the southern district of Georgia that practice, and so I get a lot of referrals for the civil matters. And we have what I want to call, good crime in southern district of Georgia and in the state system as well. And so, we’ve been blessed to have a number of substantial matters, both in the federal and state systems.

Scott: So how much of your practice is civil? I always think of you in the criminal context, as those are the kind of cases we work on together. But how does your practice break down in terms of civil and criminal?

Tom: It depends kind of on the year or years, but probably 30% to 35% civil and the balance, criminal. But, you know, it comes and goes. I guess you get your name in the paper more, or in the media more in criminal matters than civil matters. But, the majority would be consistently federal criminal matters and then civil trial practice as well.

Scott: And the civil, is that plaintiff’s work? What kind of civil work are you doing in federal court?

Tom: A little bit of everything. I would say more on the defense side, but I have over the years, had some good friends out of the western district of Pennsylvania that I’ve partnered with on some civil class cases, class action matters, and we’ve had some pretty good success, including locally. I’m just the guy in those cases though, that plows a straight line. They’re the brains and brawn behind the cases.

Scott: What does it mean to plow a straight line? Are you just kind of doing the yeoman’s work out there?

Tom: Yep. Generally, I would be what’s called a liasion counsel, which is kind of like the local counsel and they’re doing the yeoman share of the litigation.

Scott: And what kind of class actions are these? Are these mortgage cases, I think?

Tom: So back in, you know, ’08, ’09, we were on the other side of the wave of the subprime mortgage cases. And we had a couple of those. More recently within the last four or five years, we’ve done several data breach cases up in the northern district of Georgia, including Home Depot, which is just on appeal to the 11th circuit and a couple of other of those data breach type matters.

Scott: So data breach, this is like a big retailer or creditor whose database gets hacked and personal information’s released?

Tom: That’s exactly right.

Scott: And then, you represent as a class, the people who are victims of that?

Tom: True.

Scott: Okay. So, let me back up and I’m gonna go way back here. I know that you were raised in Atlanta. How did you go about…and I know that you went to University of Georgia, I think as an undergrad and in law school, tell me little bit about the process or how it is that you sort of became a lawyer, and what made you become interested in becoming a lawyer?

Tom: You know, funny thing, I mean, my mother used to always say that I was good at arguing with people. And my first love in terms of profession would have been NBA basketball, but it turns out my talent would not take me that far, so I had to fall back on, you know, some other manner of making a living. I did play one year of basketball at the University of Georgia in 1975, ’76, but that was as far as my talent would take me. Went to law school and had the really, the blessing to come to Savannah, my happenstance and go to work with a firm that was then called Oliver Maner and Gray and really was fortunate to practice with two guys that were exceptional lawyers, Bill Franklin and Greg Hodges. Greg still practices, Bill is retired, who tried a lot of cases. And they were really good trial lawyers. And so, I was kind of thrown into the mix, you know, and tried my first case a couple of years out of law school doing med mal defense and other insurance defense, but mostly med mal defense.

Scott: So I think you came out of law school, was it in ’84, and you were there at Oliver Maner, what, six years or so?

Tom: Yep, that’s exactly right. And you know, another, kind of looking through the respective scope, another one of the blessings in my life was I had the good fortunate of practice at Oliver Maner and Gray with Willie Moore, who in 1992, I think, got appointed by President Clinton to the United States District Court. But Willie had been a former U.S. attorney, and so he got me involved in a federal criminal matter in 1988 [inaudible 00:08:15] trial. And it was an insurance fraud case, prosecuted both by Maine justice and the local U.S. attorney’s office, and we were fortunate enough to have prevailed in that case and got not guilty verdicts at trial, the result of which led to an offer from the United States Attorney’s Office to go to work for them.

Scott: So after you beat them in ’88, they asked you to come onboard?

Tom: That’s true.

Scott: What was federal, I mean, was this pre-guidelines 1988? I’m trying to…

Tom: Guidelines, I guess, went into affect, I think, in November of ’87. So, that would have been right at the cusp of the sentencing guidelines.

Scott: What was your practice? I know you mentioned that you did medical malpractice defense, and I guess your first trial was in med mal defense? Is that right?

Tom: True. Yeah, yeah.

Scott: What was litigation like? You mentioned that you had three people you sort of credit with being mentors to you. I don’t think you used that exact word, but you said essentially that.

Tom: Really true.

Scott: What are some of the big lessons you learned from them, practicing with them when you first started out of law school?

Tom: One was to have the courage to try your case and two was to prepare, you know, demonstrated to me how to put your case together. At that point in time, it was from a civil defense perspective. But in med mal cases, those cases are well funded by the insurance companies and they’re well defended. You have very good experts, you know. Back then it was on the other side of tort reform, and so you had a few more cases that were not so substantial. But the, you know thing that I came away from practicing with Bill Franklin and Greg Hodges, in terms of watching them appear was how diligent they were in preparation and their willingness to go into court and try the cases.

Scott: And that was the first thing, I know you said that first, courage to try the case before preparation, and I know they’re very important. What do you think is distinctive? First for a non-lawyer who might hear this, you would think everybody has the courage to try the case. And so, people that don’t really know lawyers except for the news or I guess TV shows or whatever, would just assume that all we do is try cases. Why does the courage to try the case, I mean, to me, that strikes me as a very distinctive thing both in criminal and civil, but what do you mean by that and do you think that’s something that has been lacking in litigation?

Tom: Well, I mean, so I could compare, I would watch my then partners at Oliver Maner and Gray, I was made a partner in 1988, but I could watch my partners be willing to go into court and try their case and see in comparison some of the folks in the civil defense of those very cases who were not willing to try their case. And so, it was a stark contrast where I could see certain lawyers who, you know, didn’t have the wherewithal, for whatever reason, to go in and try cases and could match that with what I was actually seeing with respect to Greg and Bill and going into try their cases. And so, I was expected, you know, being raised up by them, I was expected to go into court and try my cases. And I think, you know, two years out of law school, I tried four cases in that first year, which would have been 1986. And so, that’s you know, that’s a great benefit to have learned that, you know, you gotta be willing to try the case. And of course, the client has to be informed about the various risk and benefits. Those were civil cases, that trial, my first criminal case, that federal criminal matter 1998, but I think it was a case of actual innocence. And fortunately, the jury saw the same.

Scott: I would imagine one of the benefits to the willingness to try the case is, you get experience. I mean, I’m moving into more civil, you know, later in my career, where I find myself, but having started out in doing nothing but criminal defense practice, I find that a lot of civil practitioners don’t, I mean, I think probably my first year out of law school, I did more trial work than a lot of civil lawyers have done so far in their career who’ve been practicing as much as I do. Were you requiring skill from getting into the courtroom? I mean, did it give you a negotiating edge? What do you think the advantage of being able to, having the courage to try the case gave you as a civil practitioner?

Tom: Great question. You know, so one of the things that I was able to learn at an early age is if you are willing to try your case, and you’re preparing your defense, that was civil defense again, insurance defense, you’re preparing defense like you’re going to try your case, then it gives you a better outlook in terms of alternately disposing of your case. And so, that’s one of the things that I’ve brought forth over the years, you know. Be well prepared and you know, it’s something that Ronald Reagan in the Cold War used to talk about peace through strength in terms of the old Soviet Union. And I think that attains to the practice of law. You are gonna get your best result in terms of negotiation, when you’re the most well prepared to try your case. And so, that’s a lesson that I brought forward over the years and I think I learned at a very young age legally.

Scott: What were some of the things that, I mean you mentioned Franklin and Hodges were diligent in the preparation of their trials. What do you think set them apart and I think everybody thinks that we’re diligent, but what, you know, looking at what they would do, what are some things they would do that you sort of learned from? When you say diligence, sort or take me through if you’re Franklin or Hodges preparing for a trial, what are some things they would do? What did their preparation look like?

Tom: Great question. I mean, from a practical perspective, how do you put your willingness to work hard into actual practice? Couple of things that right off the bat. One is, prepare your client and, you know, then your experts in the civil arena, for deposition testimony first. And so, you know, we would meet with our clients, our physician clients, and spend hours and hours and hours preparing them for their testimony first at deposition, and then at trial. What does that mean? That means going over the records so that you, as a lawyer, have a good idea of what those records say. And then, the testimony of the physician breaths life into those records.

That same willingness to review records and prepare your client then translates over into first in my career, criminal prosecution, criminal defense in that one case, and then criminal prosecution as a federal prosecutor. You know, I would be completely happy as a AUSA with a box of documents, reviewing those with the FBI agent and, you know, distilling down the hot documents that we thought we needed to have organized and learn from those documents, the essence of your case is. And so, you know, as a practical aspect, it would be knowing your documents and then preparing your witnesses to testify. And when we would go take posing depositions, being really well prepared in terms of attacking, you know, getting your opposing expert to express his or her opinions, and then attacking those opinions.

Scott: Mm-hmm. So, it sounds like, I mean, so when I hear preparation, I think about the lawyer sitting in the office and really kinda going over the documents. But there’s a real component for you in preparation in getting your witnesses prepared.

Tom: Yep. No doubt about it. And Scott, I know you have had Denise de La Rue on.

Scott: Yes, I have.

Tom: Denise and I have worked very closely for the last 15 years or so, and her helping me with theories of defense in cases and working with my clients in terms of preparation of that client. And so, you know, she has made me a better lawyer in terms of understanding, kind of distilling theories down and helping prepare my clients now in my current practice for trial testimony, what have you.

Scott: And in terms of what it takes to prepare, what are some other things you saw from the lawyers when you first started practicing that you still incorporate in your trial preparation? Because I know you talked a moment about kind of going over the record and preparing their testimony, but in terms of what you do, what are some things that you still do that you learned from them?

Tom: One of the things that I think Greg used to do was prepare a deposition outline. And so, I had brought that forward so that when I am examining a posing witness or conducting direct examination, I have kind of went over the years, I have come to call, chapters of examination. And that really rises out of what I learned from them. So, you know, it would go from something as simple as, you know, background information to then getting into education conduct of the, offense conduct etc., so that I actually organized both my cross and direct in terms of chapters of examination. In cross-examination, Scott, what I do is I organize each of those chapters that are contained in a separate binder so that I move from one folder to the next as I’m conducting that cross-examination, if that makes sense.

Scott: No, tell me, I think I understand but tell me a little bit more about that. So, if I were to walk into a trial that you’re doing and let’s just say you are defense counsel, and let’s just say that the lead agent is on the stand or is about to be on the stand, and I’m gonna be sitting at the table with you, tell me what you materials look like, how they’re organized and if I were to kind of have a camera on your lapel, what would I see?

Tom: So, I’m gonna have, you know, let’s say it’s gonna be the lead case agent in an IRS case. So, I’ll have six separate folders that are sitting in front of me. And each of those folders addresses a particular topic that I’m gonna be cross-examining that witness on. And I will, this sounds bad that I still do this after almost 40 years of practice, but I will write out my questions in a very careful manner, that I want to ask and I will have underneath that question in a separate ink, so I’ll write the question in blue and then I’ll write in red the answer that I want to get out of that question, right. And if that agent has testified in front of the grand jury here in the southern district of Georgia, you get that grand jury testimony as [inaudible 00:22:48] well in advance of trial. And if that question has already been answered, I’ll have the page and line designation that I will go to if I get an answer other than what I’m looking for. So, I’ll go through each of those folders and when I finish one chapter, you know, close that folder and put it back on my desk and then move to the next area that I’m gonna cross-examine the witness on.

Scott: And you say six folders. Is there anything, is that just a…

Tom: That’s just an example. So I mean, however many different chapters I’m gonna be cross-examining that witness on.

Scott: Okay. So you come in having written, and you’re actually writing the question out. You’re not doing an outline, but you’ve actually gone to the point of writing the question out that you’re going to ask. And I guess in separate or different colored ink, the answer that you anticipate. And then, you also have cross reference where to find, I guess, impeachment material or something like that.

Tom: That’s right. Exactly right.

Scott: Okay. So, that’s how you come in preparing. Now, obviously we are often surprised by what witnesses say on direct. What are you also doing as you’re sitting at the table listening to the direct testimony to deal with things that are unanticipated that arise?

Tom: Obviously, things do come up. So while the witness is testifying, there are two things I do at trial. I take my trial notes in blue except for the cross-examination that I’m gonna ask that witness that comes up while the witness is testifying. I’ll write that in red. And any issues that I think will merit motion for a new trial, I write in red also. So, you know, I’ll just write out kind of topics and then questions as the witnesses testify.

Now, I do have to say that every lawyer does things in a different fashion. This is just what works for me. My partner, Greg Gillen, we have tried a couple of cases together, and Craig’s cross-examinational notes are much more cryptic. And he has the ability to stand up and conduct a cross-examination where he’s not looking at his notes, you know. He’s smart enough, intelligent enough to just, you know, go with what the witness is saying and then be able to walk that witness down a line that ultimately the witness ends up agreeing with a lot of what Craig says. So, this is the kind of chapter method has worked for me for decades and I find it an effective way to conduct cross-examination.

And by the way, one other thing I have started doing the last 10 years is when I get a answer that’s not consistent with what prior testimony or a FBI 302 or IRS report or whatever, you know, again I’ll have that handy. So I can either display it immediately for the jury or, you know, in state court you don’t have to lay the foundation for cross-examination for prior inconsistent statement like you used to in superior court. And so, you know, you’ll bash that witness with the prior inconsistent statement, just right off the bat when they veer from what their earlier testimony was.

Scott: Are your trial files, and you’ve mentioned different colored ink, so obviously it sounds like this folders, when you open them up, they’re handwritten, you know, you have handwritten materials. How have you, over the years, changed the way you, or have you, changed the way you do your…do you have a trial notebook? To what extent are you maintaining things in an electronic format when you go into court?

Tom: One of the things that I learned at Oliver Maner and Gray was the use of a trial notebook and I still do that. But now, my file, you know, sits in container directly in back of me, my trial file, instead of having a trial notebook, the trial notebook will mostly consist of the pleadings that are at issue and motions in limine and whatnot, you know, jury charges and whatnot. You know, and I maintain the course of trial in folders in a container or a box immediately in back of me, is where proceeding through trial.

Scott: When you say you’re ready to display something, do you have an assistant that’s helping you with that or tell me how you’re doing your exhibits and your demonstratives and things like that.

Tom: So, I’ve used a company for the last five or six, seven, eight years out of Atlanta called Bob Poston’s, is the principal, PO-S-T-O-N. I think it’s Legal Technology Consultants. And I’ll tell Bob we have…and I’ll talk to the jury about this in opening statement, “You’re gonna hear me talking to Bob. Bob’s going to be displaying exhibits and I’ll be asking him to call up exhibits.” And so, you know, if we’re gonna impeach somebody on, you know, page 62 of the grand jury testimony lines 12 through 14, we’ll have that marked as 1C. He comes up with the numerical designations. And so, I’ll just tell Bob, you know, “Pull up 1C” and that’ll be on my notes for cross-examination. That takes a lot of work and effort, but it’s very, very effective to be able to either play a snippet or display a snippet while you’re in trial. Now, if it’s a less well funded case, I use a fellow who used to be an IRS agent, who does that for me. But I think it’s important to be able to use those documents for cross-examination and, you know, hit the witness with their prior testimony or prior statement immediately during your cross-examination.

Scott: So, it sounds like you put a lot into making sure the demonstrative works in a way that’s not distracting. I’d like to talk a little bit more about that because I find reading a lot of trial transcripts as I do, it seems like, I mean, when I say more often than not, I mean, invariably more often than not, almost overwhelmingly more often than not, whether it’s a prosecutor or a civil plaintiffs lawyer or a defense attorney, it seems like it’s, in both civil and criminal, it seems like more often than not when it comes time to play a video, display something on a courtroom presentation system, there’s a problem. And, you know, the jury gets dismissed or the judge gets frustrated. It seems like lawyers aren’t doing enough or they just don’t understand the technology or they don’t bring someone in to help, and it seems like there’s just about always a hiccup when it comes to that. And people just kinda laugh about it. But, what do you think’s going on with the jury or what do you think the effect is, because I know it seems like you put a lot into making sure that stuff works when it’s supposed to work.

Tom: Yeah, it’s got to. And you know, so I would say two things or maybe three things with respect to that, Scott. One of the things that I see in depositions still is lawyers not making a sufficient record as to what the witness is reviewing. So like, civil depositions, you’ll be sitting there and the depositions will just be a mess in terms of making an appropriate record. Oftentimes, our cases are, I guess most civil cases now are document intensive. And I’ll just see some cases where it’s just a mess. So one, you have to be careful as a lawyer, both in civil and in criminal matters, to make certain that you’re articulating for the record what the witness is reviewing. And that’s true for both civil and criminal cases.

Scott: Because it’s easy to lose sight of the fact that even if it’s a video deposition, I mean, you know what the witness is looking at the witness knows what the witness is looking at, but you’re doing this for someone else who doesn’t know what both of you know. Or it’s easy just to lose sight of the fact that you’re doing this for an audience.

Tom: More importantly in my view, you’re doing this, you’re conducting your examination in a civil deposition with an eye towards that witness’ testimony at a trial, right. And so, if you don’t have your witness’ testimony cabined to an exhibit or tied to an exhibit, then when you get to a trial and you’re trying to tie that document to this witness, it’s a mess. So, you’ve gotta be careful when you’re conducting your depositions that it’s apparent what the witness is referring to. And again, that’s because what’s the ultimate goal? The ultimate goal is the purpose of an effective use of that deposition, either a trial or mediation.

I will say a couple of other things with respect to use of audio visual or other demonstrative aids. You’re always going to run into a technical issue, right? Even when I’m well prepared and Bob Poston, the AV guy, is well prepared, you’ll still run into an issue. And so, you’ve got to instead of, you know, looking disgusted and sitting there waiting for something to go on, you gotta be willing to just move easily to the next topic or next [inaudible 00:34:34], you know. And sometimes you might even lose that ability to effectively cross-examine a witness on that particular page or item. You just gotta be able to move on so that the jury doesn’t see you getting upset. Or you know, as you describe, the trial going off the rails. You just can’t do that. You gotta be able to move on and do that effectively.

And in order to, you know, conduct that examination in an effective manner, you and your AV person have to be on the same page. And so, you know, what does that mean for me? That means that Bob and I have been over everything that I’m gonna talk about, and he knows the exact page and line or the, you know, timestamp if it’s a prior video or audio statement, he knows exactly what it is. Again, he’s the one who will have labeled what that exhibit number is, but you know, he’ll have labeled on page 3 of my examination, fourth question down. I’m gonna ask Nancy about her statement at, you know, page 9, lines 12 through 14 and he’ll label that, you know, exhibit 1C or whatever. But you know, again I’ll tell the jury at the start of the trial, “You’ll hear Bob and I talking about these.” And that’s just the manner, I’ll tell the jury, that’s just the manner in which we’ve organized our exhibit and our demonstrative aids so that they know what’s going on when I’m talking to him.

Scott: And one of the things that, I don’t know if this is just something that maybe less techy lawyers do or lawyers who aren’t comfortable do, but how do you balance the use of technology in court against potentially the accusation and maybe on the defense side, we don’t get this as much, but this notion that we’re being too slick or we’re being too fancy. Is that something that you worry about or is that something that you just think really isn’t a thing? How do you manage that or is it something you don’t think we have to worry about if we’re doing it right?

Tom: Yeah. I mean, I don’t worry about that. I want the jury to believe that we are well organized and well prepared. And I think it brings another level to your ability to effectively present your case if you properly use audio visual or demonstrative aids during the conduct of your trial.

Scott: And how much do you use, and it may vary depending on the case obviously, but on average, how much use of demonstratives are you using in your opening and closings?

Tom: So, not much in openings, and in closings, I will either have Bob or someone else, either inside or outside of the office, prepare or help me prepare the presentation for closing argument. So, really not much in opening statement, but a pretty good bit in closing arguments.

Scott: And I know you’ve mentioned Denise a moment ago and her assistance in shaping themes and theories of the case. You know, to me, if you’re gonna try a case, the use of a jury consultant and at least doing some sort of a focus group, even if it’s you’re kind of on a shoestring budget, is so important, how much are you using Denise or someone like Denise? And I guess another question would be, how much do you…I found Denise sometimes can be helpful not only in preparing for trial, but in showing the client that a trial is a bad idea.

Tom: That’s true. I’d have to say in every trial I’ve had over the last 15 years, I have employed Denise for the purpose of trial preparation in some fashion. So, I have convinced the client to help us out, to let her help us out in that respect, and I think it is effective. And so, I’d have to say consistently over the last years I’ve used Denise, both for preparation of a client and for jury selection. Now, you know, in some cases, she has, you know, reminded me that, you know, I’m nuts if I think I can try a case. I went up to her office a couple of years ago in Atlanta on a weekend and after, you know, listening to me talk about the defensibility of this case, you know, she very candidly asked me if I was serious that I could try this case or not. And she’s not quite that delicate.

Scott: Right, she’s not. Well, so we were talking about the things you do in trial, the way you prepare for cross-examination, the use of demonstratives in getting help with that and everything. And so, in terms of, I mean, and that’s in terms of just preparing, sometimes preparing for trial and executing in trial was the easy part. There are all kinds of things that sort of surround a trial, particularly in a high profile case. Talk to me a little bit about cases you’ve done that are high profile and some of the things you see…well, that you see lawyers not doing so well when it comes to high profile cases in the media.

Tom: So, I think a good and important issue for the legal community generally, Scott, I’m glad you asked. My belief is that as lawyers, we should try our cases in the courtroom. And so, as a general matter, the only statement that I will make prior to a verdict or prior to disposition of a case, will be that we believe in and trust in the system of justice, particularly our jury system, and we are not going to try the case in the court of public opinion, but will do so in the courtroom. And that’s it until the case is concluded, in my view. And so, that’s kind of a line we try to keep in mind in our cases.

Scott: Now, what do you do though that’s not unusual in bigger cases, particularly if there is a big cash of drugs that are found or something like that, it’s not unusual to see law enforcement, you know, that sort of, it’s almost cliched that law enforcement with the big table of guns and drugs and money behind them or to see prosecutors announce their indictment with a press conference or by inviting the media. Do you feel at all a need to respond to that in terms of your potential jury pool?

Tom: I do. So, a couple things in that respect. Recently, I have moved to dismiss an indictment based upon the press conference that the then United States Attorney held. It was probably a couple of years ago now. And so, you know, I think there are things we can do and that’s one of them. And the other one is to send a letter to the prosecutive authority, whether it be a district attorney or the United States Attorney, and inform them they need to hew to the local rules in federal court and to the Georgia bar rules, which are very, very similar, and that we expect them to do so. And if they continue to fail in their duties, that we’re gonna take appropriate steps.

Scott: So, you take that, whatever it is that you think is inappropriate or maybe inflammatory to your potential jurors, and you just even deal with that within the courtroom.

Tom: I’m not sure what you mean by that, but so, you know, recent case in southern district of Georgia, and I don’t want to get too much into the specifics because it’s still pending, but the U.S. attorney goes wildly off the rails in terms of what’s permissible. And so, I filed a motion to sanction the government for failing to comply with not only the local rules, but it’s codified in the CFR, how DOJ employees and assistant U.S. attorneys and U.S. attorneys are supposed to act and how their conduct is supposed to be conducted. [inaudible 00:45:02] way to phrase it. But, those local rules and the CFR really is largely reflected on the state bar rules. And so, you know, we have pretty, I think, tough but fair in informing the courts and the prosecuting authorities that we expect them to abide by the state bar rules, local rules, what have you.

Scott: Yeah. I think what I meant by my question a minute ago is, you don’t feel the need to respond in kind. If there’s a press conference, if the government or if the state is doing too much or using the media inappropriately, you don’t feel the need so much to respond in kind with a press conference of your own. You trust in the system itself. You’ll file a motion to trial to deal with it and let the court address it. So even the step of your opponent going to the media in an inappropriate way, you feel like the best response is to deal with it through the legal system itself, through a motion or through writing a letter or something like that within the system.

Tom: That’s exactly right, you know, and we have done that. And I think that’s the way. Now, the rules do allow you for a kind of tit for tat, the state bar rules and the local rules. So, I have never done that and I can think of only one occasion where my partner in Atlanta did that and he did it successfully, by the way. But, I think, you know, improperly using the press by prosecutive authorities is something that I take really very seriously. And I don’t think that the system or our clients are served by getting out in front of the press and trying to, you know, sculpt things, as it were.

Scott: Well, I share your view on that. I take a dim view. I mean, I think the press, they’re after a story and generally, my experience is guilt sells better than innocence. And…

Tom: Really true.

Scott: And I think that only marginally so, I think the print media does a little bit of a getter job than the broadcast media does, but I would say only marginally. So knowing, or if we assume that trying to sculpt, you know, the case in the media doesn’t work, why do you think so many of our colleagues are so anxious to try that or to try to get on TV and related to their cases?

Tom: Great question, Scott. I mean, I see it as the attorney’s pursuit of 15 minutes of fame to the detriment of the client. And I feel really strongly about that. I can’t recall a case as I sit here right now, where an attorney has gotten in front of the cameras pretrial and has made hay for his client in a positive manner. I just can’t think of one. Maybe there’s some out there. But I think that stuff has an ability to boomerang and it’s very difficult to control a narrative in a criminal case, particularly when you’re at the beginning of the case and you don’t know what the evidence is going to be. And so, I see that as lawyers disserving their clients’ best interest.

Scott: In the interest of promoting their own, I suppose their brand or their practice, or just because it’s, I guess, fun for some people to be on TV. Though I can’t imagine what’s fun about that.

Tom: I think that’s right. I think it’s selfish pursuit by an attorney of 15 minutes of fame, and you see it all the time and see it fail all the time. And in my view, the client is roundly disserved by the attorney’s pursuit of his or her 15 minutes or fame.

Scott: Well, on a related note, what are your thoughts, and I see you on Twitter, you’re not talking about your cases, but I see you talk about a number of things from, you know, you may retweet something that someone took a great photograph or something like that, what do you think the lawyers, what do you think about lawyers in social media and how we’re doing it wrong and how you think we might be doing it right? And I say “we” very generally, not you and I necessarily.

Tom: That’s a complex question, but I think that for us related to our law practice, we have to be very careful. And absent getting your client’s consent, I don’t think you can talk about your client’s case, except in the most abstract terms. I can’t think of an instance where I’ve ever done it. There are state bar rules that govern your ability to talk about your client’s case. And unless you’ve got your client’s consent, you’re treading on thin ice in that respect. Now, I know you’re friends, acquaintances with Judge Dillard, I follow him on Twitter, he tries to use that platform for educational purposes for, and transparency purposes for the courts, which I think is fantastic. I’m just really uncomfortable talking about a client’s case on social media. I wouldn’t do it unless the client gave me express permission and I would do it very carefully under those circumstances.

Scott: I think it’s just a good place for lawyers to, I mean, it’s almost like a, if you do it right, it’s a good way to, you know, interact and be friendly with other lawyers, just generally. But yes, I think when you come to the level of talking about…I think even you have to even be careful just generally, if you were frustrated by something that happened and you speak in the most generic terms, I don’t think it takes a lot of work for someone to figure out what it is you’re talking about sometimes too.

Tom: Yeah, yeah. There are specific rules that govern how we’re supposed to conduct ourselves that apply to social media as well. And you know, I see attorneys on occasion talking about their cases and I have…when they’re friends of mine, I’ve send them communications and said, “Hey, you need to be careful.” But I’ve often observed that and find it problematic really.

Scott: So one other thing I would like to talk about, because we’ve talked generally about trial preparation and cross-examination. Now we’ve talked a little bit about the use of media. And this is another topic outside of the courtroom and it’s one of the things that I’ve struggled with, so maybe I’m asking you this question for my own selfish purposes to try to learn from you. We all have the experience, whether it’s in the civil or criminal realm, where we realize sometimes it’s after getting the discovery and sometimes it’s after doing some witness interviews, that the case that we have is not the case that we thought we were going to have when we opened the file. It’s not as was represented to us by the folks we talked to. And I jokingly talked about Denise, how sometimes Denise’s contribution can be to tell us, you know not necessarily a theme for the trial but maybe you should reconsider trying this case at all. And I find myself often in this situation where the client and I don’t see the case the same way. The client’s expectation…or maybe it’s because of me. Maybe it’s my past successes or it’s because, you know, they have a lot of confidence in me, but the greatest lawyer can’t undo the worst facts, you know, no matter what. We’re limited in the law and the facts that we have. How do you manage client expectations and what are some things that you do to sort of, I suppose, help the client sometimes see reality of the case?

Tom: I think that’s a great question, Scott. I really do, because those attorney client interactions are the bread and butter of what we do. They establish the foundation of how we’re gonna proceed with respect to whether we’re going to be retained, and if we’re retained, how the case is going to proceed. My view is that I always want to be truthful, candid and plainspoken with my clients. So, and I mean that from the outset too. Certainly, we’ve had cases that have turned as we’ve gotten into discovering, you know, oftentimes as a lawyer, you’re kind of wondering where this case is going, you know until you get the discovery. But, even at the outset of a case, I will tell a client there are no guarantees other than I know what I’m doing and I work hard. But no guarantees in law or life. So, I just try to be very plainspoken and very candid with the clients, Scott. That, with some clients, I know I’ve lost clients because of my unwillingness to kind of jump on the bandwagon at the beginning of a case, but in my view, that ability to communicate with a client plainly and truthfully, is really a foundation of what we do. And so, if I’m gonna lose a client who doesn’t like me to talk in frank fashion about the jeopardy that they’re facing, then I think that’s just the way it’s gonna be.

In civil cases, I often ask if I’m on the plaintiff side, you know, “What is your expectation with respect to this case is going to do? Where are we going to be with this case?” And I don’t do a ton of civil plaintiff stuff anymore. But, it is always instructive to me to find out from the outset what the plaintiff’s expectations are in a civil case, because if the plaintiff has a $10,000 case and they think it’s a million dollar case, then they’re never going to be happy. And you’re best served, in my view, to send that client on down the line. But in the criminal realm, one of the things that I do at the outset is write a letter to the client explaining to them what the charges are and what the potential penalties are, and that’s in writing so that the client has it there, can look at it and digest what their jeopardy is in that particular case.

Scott: So in terms of it’s just being frank and plainspoken and truthful, so that is in terms of managing the client’s expectations and that’s in terms of potential results. Now, we do also know that there’s a lot of hurry up and wait in the law. So, if it’s [inaudible 00:58:28] appeal, we may be waiting for the court reporter, and if it’s pretrial motions, we sometimes find ourselves in the place where we’ve argued the case to the court and it may be a difficult decision or it could be that the judges are just slammed and they have a lot to do. There’s a lot of waiting and I find with some clients that sometimes there’s no news to report, but clients want there to be news and they call wanting news when there is none. How do you deal with the client’s expectations regarding just the way a case is unfolding or impatience about, you know, where things are going?

Tom: So, you know, we’re in a different world with COVID, right, and what I like to do, I can’t say I do it in every case, but what I like to do is set out for the client a roadmap of how the case is going to progress. And the reason I do that, Scott, is because 25 years ago, my mother was very ill and we were running around to this doctor and that doctor, and doctor would blow into the room, talk to you in three minutes, then out and you’d have no other manner to communicate with them. Well, I try and make myself available phone, in person, email, but I also want to have the client have something in his or her hands that they can look at for the purpose of, this is how this case is gonna go, you know. This is how the case is gonna progress. Now with COVID, it’s a little more difficult to predict because, you know, a client could get arrested in January of 2022, but you know, who knows when the case will be indicted. Who knows when the case will potentially go to trial, you know. And so, we’re in an unknown in that respect, in terms of timing and continuity of the case. And you know, I just try and tell the clients today, literally, I mean, in today’s world, we don’t have the ability to use our experience to forecast when a case might come to trial or when a case might be decided.

Scott: Because we just don’t know. I mean, literally I had a calendar call set for Monday that I just got an email that it’s now been moved virtual, and the jury trials for the term are off in this one particular circuit.

Tom: Yeah. I mean, I’ve got, you know, several cases where they were indicted a couple of years ago, I would be surprised that they get reached this year, 2022, and they’re a couple of years old already. And just because it’s a different world and it’s an unknown. Clients seem to be reasonably understanding with respect to that.

Scott: If they’re out on bond, in particular. Those not out on bond, it’s a whole different thing.

Tom: Oh, gosh. I’ll tell you what. I mean, you know, people that are incarcerated during, you know, surges of COVID, they’ll get locked down 23 hours a day and it’s just awful. And I’ve actually used that to argue at sentencing that, you know, if you’ve done 180 days in lockdown, then that’s like serving three years. I don’t know what the equivalency is, I really don’t. But there’s a pretty good bit of science out there about the deleterious effects of those types of lockdown.

Scott: Because it’s essentially solitary confinement for everybody and…

Tom: It really is. It’s awful, awful, you know. I don’t think that the courts have wrapped their minds around how difficult that has been and will be for the individual clients, individual offenders.

Scott: So how’s your practice changed over the course of COVID? Have there been some things that have improved for you or?

Tom: Well, one of the benefits is doing types virtual arraignments and at least here in southeast Georgia, we have a lot of calendar calls where you’ll go over and the judge is just trying to get a sense…I mean, I had one yesterday here in Chatham County, the judge is just trying to get a sense of what’s on her docket and, you know, how things are going to be progressing. I mean, it’s 30 something cases and what’s the potential trial coming up. It’s wonderful to be able to do those virtually because, you know, you can put yourself on mute and continue to work, and then when your case gets called, you know, turn on the video and unmute and spend five minutes chatting with the judge about the case. Whereas in the past, you might have to drive to Statesboro, a couple of hours in the car, a couple of hours in court, and now you just are able to sit there and in your office. I think that’s wonderful and I hope that we adapt that going forward. I really do. I have not had a jury trial since COVID started. So, I’m scheduled to have one next month, assuming that this most recent omicron surge continues to decline as it has in the last few days. I think that case will go forward. So, I can’t give you the benefit of my experience in terms of trying cases during COVID, but you know, it’s just been a pause both in federal and the state system in terms of the ability to get cases to trial. As you say, if your client’s out on bond, that’s okay. Although, you know, if you’ve got a case and I’ve got several that where I think they will end in trials, then you know, for the client, it’s like having [inaudible 01:05:29] sword over your head, but you know, better to be out on bond and that’s manageable.

Scott: Habeas corpus and appeals have never moved faster. I mean, and I bet you state habeas corpus will never go back to the way it was because there’s no more trying to coordinate getting the lawyer who representing the habeas petitioner and the attorney general and trial and appellate counsel in one room. All of that’s been taken away, so I found that habeas corpus has moved pretty fast.

Tom: That’s fantastic.

Scott: And motions for new trial in the state system have moved very fast. But I suppose one day, there’s gonna be a gap because the fact that we haven’t had so many trials is probably gonna catch up with us at some point, which maybe that’s a nice problem to have on the post conviction end.

Tom: Yeah. You know, Scott, a year and a half ago, say summer of 2020, I was worried that there was going to be a tsunami of trials. COVID was going to end September 1 of 2020, and then everything was going to be back going full boar. And it’s obvious to, I think, all now that we have to be much more resilient in our scheduling and that this is a problem that’s gonna plague the courts and DAs and defense counsel for years. I will say one thing that I have not seen from district attorney’s office. Maybe it’s happening, Scott, I don’t see it, but that is the triage of cases and just throwing some cases overboard that don’t need to be prosecuted, even on the best day. But there’s still proceeding a pace like we were pre-COVID. I’ve got at least two cases under indictment right now that never needed to be indicted, even on their best day. And I’m disappointed that the district attorney’s offices are not taking a closer look at cases and understanding that triage needs to occur.

Scott: Well, I really appreciate having you on the podcast and, you know, if there’s anything else you want to say to the listeners, please fire away.

Tom: I don’t. I’m grateful, Scott, and privileged for the ability to chat with you. If anybody wants to ask any questions, I’m happy to answer ’em and you can call me at the office and that number is 912-447-8400. Or shoot me an email and that’s available on my website.

Scott: Okay, Tom. Well, thanks so much.

Tom: Thanks, Scott. Take care.

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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