Georgia Criminal Trial and Appellate Law Blog

Are You Marketing Yourself or Marketing Victory as a Concept?

Open up the yellow pages, and take a look at the ads.  Google criminal defense lawyers for your area, and check out the webpages for law firms who do what you do.  How could you ever distinguish one from another?  Chances are that if you are prospective client looking to meet the right lawyer to handle your case, you are already sold on the concept of victory and success.  Why, then, is everyone trying to sell that concept in their marketing.  For this, lawyers are spending thousands per month. 

How do you become the best lawyer for the parent who's child was caught with a pocketknife at school, for the executive who went into a roadblock after having wine over dinner, or the helpless man or woman suddenly propelled into the frightening maze that is the criminal justice system?  They are looking for victory, yes, but they are looking for a guide, too.  They need help sorting things out, and they must somehow learn that you can do those things when they have never had to hire a lawyer before.

Market you to them when they call.  Be that person to those you represent now.  Without that, the web and the yellow pages ad doesn't matter.  Take care of the client, and much will take care of itself.

When you market, market yourself.  They already know that they want a way out.

For more on this concept and for the inspiration for this post, take a look at Seth Godin's blog post today.

Cross-Examining the Egotistical Witness

Do not let the egotistical witness intimidate you.  Egotistical witnesses come in three varieties:  the expert, the ex with an axe to grind, and the robocop witness who comes to court with all sorts of weapons and accessories strapped to his arm, waist, and legs.  These witnesses can make you feel as if you are not doing well.  When you ask, "so what is your name?" they retort with something like, "it's James Jones, and your client lied to me"  The best thing you can do with this witness is keep your cool.  The jury won't like him and won't pay much attention to his non-responsive pontificating.  If you retort back, raise your voice, or move to strike his answer, you only lend this witness credibility.

You can ask the exact same question over and over until you get the answer you want, or you can nicely ask, "so was the answer to my question yes."  Make sure you chop your questions to this witness to the bare bones. Take for instance:  "you saw my client walking down main street, right?"  Change it to, you were on a Street?  It was Main street?  You were looking around?  You saw a man?  That man was my client?  And he was walking? 

Short questions allow much less wriggle room and provide training for the witness in the rhythm of short answers.

If the witness continues to do it or insists on mouthy responses, just let him go.  In your closing argue that he had an agenda and was acting as much of advocate as you and the prosecutor.  Point out that a witness like that cannot be trusted not to shade the truth.  Argue that the officer probably approach the investigation with the same single-minded determination to cram the facts through a pre-determined conclusion.

In short, if the witness wants to cover himself in mud, don't jump in and wrestle.  Just let him roll around in it.

The Paperless Office

I have been moving toward the paperless office ever since I opened for business in my own firm a year ago.  The final piece wasn't in place until I got a second monitor on our office computers a few weeks ago.  A fast scanner and a good case management program is a must.  Another key is this great blog called PDF for lawyers.  You will never approach discovery and transcripts the same way again after you start converting it all to pdf. 

3 Quick Tips to Improve your Relationship with your Clients

The telephone is the number one source of bar complaints and the place where the attorney-client relationship has the greatest chance of eroding. The number one complaint about lawyers is that we do not return client phone calls.  It is easy to blow them off.  You get bogged down in substantive work.  You procrastinate because the person on the phone wants news and there is not news to report.  You have been putting off delivering some news.  By the time you decide to catch up, there is a mountain of phone messages.  However, you will find that if you are on top of client communication, you will have very happy clients no matter what the ultimate result is on their case.  Consider three things you could start doing right now.

1.    Encourage email and buy a Blackberry or iphone.

When your client retains you, have a conversation about your phone policy. Let him know when you return calls, how you can be reached in an emergency, and how long is too long for a call to go unreturned and when it is okay to place a second call. 

Encourage clients to email you (assuming that they are not in jail and don't have family with email access).  Let them know that you can often check email and return is in situations where you cannot use the phone.  Use time you would ordinarily waste to return email.  When you are waiting through a calendar or waiting for the jail to booth, or when you have five minutes of downtime, take the opportunity to check email and answer it.

Email also focus your client to a specific issue, focus you on a specific action, and creates a record of the correspondence.

2.    Pick a spokesperson

Sometimes your client has a big loving family, and they all want to ask you questions independently -- one at 9:00 a.m., one at 11:35, and one at 2:00. p.m.  You'll be overwhelmed answering the same question multiple times, and you won't answer it exactly the same way.  The family will then compare notes, and the variations on what you said will be a source of anxiety. 

Have the family pick one spokesperson (with your client's approval and assuming that you will not divulge anything confidential) and communicate with that person.  It will save you and them time, and it will improve the relationship.

3.    Batch Your Calls

Pick one or two times a day to return all your calls.  Let your client know about those times.  Take great notes and keep a record of them.  Save them immediately in your practice management program, a note book, or in a phone log.  To quote Jay Foonberg, do not let the sun set on an unreturned phone call.

Are you a Realtor or Telemarketer when you Plea Bargain?

What is the key distinction between the real estate agent giving you a tour of a home and a telemarketer who calls you at 7:03 p.m.?  The real estate agent and you have an appointment, and you have each other's undivided attention.  Because this moment was planned, you are not being asked to multi-task as you hear the pitch.  The homeowner has had some time to bake some cookies and put the vacuum cleaner marks in the carpet.  When the telemarketer calls, you are cooking dinner, changing a diaper, watching SportsCenter, and trying to prevent your other child from leaping from the couch to the loveseat over the top of your glass coffee table.

Don't be the telemarketer.  If you wait for the arraignment or calendar call, arrive at 8:57 a.m., get behind the other 30 lawyers in line to talk to the prosecutor who has seven crates of files open, don't expect your pitch to work.  Your "customer" is too stressed, unfocused, frustrated, and uninformed to engage in any meaningful conversation with you.  You will get twenty seconds of the prosecutor's attention, and fifteen of those seconds will be spent fishing the file out of the crate.

Be the real estate agent.  Visit the prosecutor at her office at a time when no court is happening and when you have meaningful time to talk.  Give the prosecutor a tour of your home.  Show her the things about your client not captured in her file.  Bring pictures of your client with family, letters from the community.  Describe the square footage -- the number of days he has been in rehab, the number of AA meetings he attended, and the number of years he has been at his job.  Cookies in the oven?  Have her imagine closing out this file. 

Most importantly, meet the "customer" where she can single-task.

The good news is that most of your colleagues will be standing in that line and getting their client the deal written inside the prosecutor's folder. 

Be the agent not the telemarketer,

What the Ancient Greeks Can Teach You about the Vicissitudes of Criminal Defense

What three writers could you read that would make criminal defense more palatable?  Let me suggest that you pick up some of the writings of Marcus Aurelius, Epictetus, and Lucius Seneca.  This is not an attempt to bring you back to some college philosophy class where some grad assistant or some bearded guy with a corduroy jacket talked about Socrates and a cave.  This stuff is relevant and practical. 

Not convinced that the stoic philosophers have any relevance to your life defending the accused?  Take a look at this passage from Aurelius’s Meditations:

When you wake up in the morning, tell yourself:  The people I deal with today will be meddling, ungrateful, arrogant dishonest, jealous, and surly. 

Marcus Aurelius, Meditations:  Book 2, paragraph 1.  Aurelius puts everybody in there from the judge (surly, meddling) to your client (ungrateful) to the prosecutor (arrogant, etc.). 

            Tim Ferriss started me thinking along these lines in his blog on Stoicism as a practical guide for entrepreneurs.  According to the writer of his blog, stoicism as popularized today gets a bad rap.  He writes that “stoic writing isn’t about beating up on yourself or pointing out the negative.  It’s a meditative technique that transforms negative emotions into a sense of calm and perspective.” 

 

            The stoics accepted that there was injustice and undeserved harm that would come as a part of daily life, but that you can cultivate a peace of mind about it while you do your duty.  As Epictitus put it, “life is hard, brutal, punishing, narrow, confining, and a deadly business.” Aurelius again, “Choose not to be harmed and you won’t feel harmed.  Don’t feel harmed and you haven’t been.”  The stoics cultivated a set of exercises to assist in approaching your duty without becoming overly attached to successes and present with misfortune.

 

            Their message was not that you couldn’t have fun – quite the contrary.  It was that there is a certain amount of stuff that happens as a part of what you do – particularly if your job is difficult, but that you can control your reaction to it.  For the trial lawyer, it may be as simple as keeping your cool when called down by the judge – note things for the record and keep the issue for the appeal.  With the client, it may be a simple matter of recognizing that you are sometimes the lightning rod for his frustration with the system or with the things in his life that made him choose as he did. 

 

            In short, as Seneca put it, “Cling tooth and nail to the following rule:  not to give in to adversity, never to trust prosperity and always take full note of fortune’s habit of behaving just as she pleases, treating her as if she were actually going to do everything that is in her power.” 

 

            For a fuller treatment of stoicism and its real-life applicability, check out Ferris’s blog here.

Five Tips for Writing Better Briefs

There are five things that you can do a better job at brief writing.  None of these involve grammar, research, or bluebooking.  I assume that you are already tending to that. 

1.   Master the Facts and Craft them into a Compelling Story

The law matters, but it matters less than you might think. There is not a "case on point" that the court cannot construe as "off point."  If you are the appellant in a criminal case, the law is likely against you anyway.  There is no case or statute that matters without an emotional hook.  The hook gives the court the desire to rule with you.  The law gives them a way.  The statement of facts is the most important part of the brief.  Make it compelling.  It should get about seventy percent of your attention.  Before you can make the facts into a compelling story, you must know them virtually by heart. 

Free the facts from the transcript.  If you are trying to learn the facts the day or even the week the brief is due, you will not succeed.  If you are trying to work from the transcript, you will dig facts out when you should be storytelling. The trial transcript does not tell a story.  Witnesses were called at trial in the order they were called for reasons other than the story.  The expert witness who did the autopsy was only available on Monday, so the transcript begins with dry recitation of a body being examined.  The 911 operator was called on Tuesday morning at 11:48 because the judge asked the State to call a short witness just before lunch. 

Take the transcript and reduce it down to a summary with specific page cites.  Work from that summary.  It will liberate the facts and make your statements of facts more compelling.  However, you are not done yet.

Pay attention to storytelling.  A story will keep the judge or law clerk interested.  Want some tips on storytelling?  Pick up a copy of Robert Mckee's book on screenwriting titled Story.  Many of McKee's principles work for a statement of facts.

2.    Narrow the Issues

From the Court's perspective, the trial courts generally get things right.  If you are fortunate, you will convince them that the judge made one reversible mistake.  The odds of that happening go down, not up, with the proliferation of issues.  Except in rare circumstances where the judge really was as bad as you thought he was, there are no more than three real issues (three is really pushing it).  You water them down and will not be taken seriously if you fill the brief with issues.  Find your best argument, and develop it.

3.    Pay Attention to the Design of Your Brief

Design and appearance is important.  Sight pollution will garner an overworked law clerk or judge very little time on your brief.  Leave plenty of white space.  Group similar items together.  Pay attention to the font you choose.  Take a look at this article on the topic of design in the appellate brief.  In short, do not clutter the page with words just to meet your page limit.  If you have narrowed the issues you will not need all that space.

4.    Get a Second Computer Monitor

The late Randy Pausch said that the difference between a single monitor and a double monitor is the difference between working at a desk and working on a tray table in an airplane.  For writing a brief, it is the difference between a typewriter and a computer.  With a two-monitor work station, you can have your brief up in one screen and your research on another.  If you had a third (I don't yet), you could put the law on one screen, the record on another, and your brief on a third.  It makes a difference to scroll through or search through an electronic transcript versus a two-thousand page record on paper spread all over your desk.

5.    Listen to Your Client, but be Her Lawyer

Appellate law is a specialty, and the best issue may seem obscure to your client.  Your client's pet issue may be the moment where he felt most mistreated by the judge or betrayed by a witness.  For an incarcerated client, the best issue may be the one unearthed in a donated book in some prison law library or suggested by a "jailhouse lawyer."  Listen to your client, but do not be pressured into hurting his case to placate him.  However, really listen to your client and develop a relationship of trust if at all you can. 

None of these things will work if you don't work early.  You can't establish a relationship, master the facts, and craft a compelling story the week before the due date.  You can't design the brief and eliminate the weak issues hours before your due date.  These five things will transform your brief writing if you take the time to do them.