It’s been nearly a year since Carla Wong McMillian got the call.
Then a Fayette County State Court judge, McMillian had been shortlisted for an opening on the state Court of Appeals, and interviewed for the job with Gov. Nathan Deal. She had a full docket of cases to handle, however, so she pressed on with her work.
Speaking at the State Bar of Georgia on Tuesday, McMillian recalled the moment in January when she learned she would become an appellate judge. As McMillian presided over a bench trial, a staff member signalled that she needed to call a recess. She took the call from the governor’s office.
Returning to the courtroom, McMillian recalled, a prosecutor asked, “Judge, is there something you need to tell us?” McMillian, having been admonished to await the formal announcement of her appointment, demurred. But her secret already was out. “He heard screaming in my chambers,” she recalled. “They got a little bit of a tip that I had been appointed.”
Now, McMillian is one of several state appellate court judges who must face the voters next year to keep their seats. She was scheduled to appear Tuesday night at a campaign fundraiser hosted at the recruiting firm, RMN Global Search, founded by a former Sutherland colleague, Raj Nichani.
She spent the lunch hour speaking to members of the bar’s appellate practice section, recalling her first year on the appeals court bench and sharing some practice tips.
She said when she first started at the court, her office was filled with piles of records and opinion drafts from other judges, and two law clerks who had stayed on after the retirement of Judge A. Harris Adams a few weeks before had been “writing in the dark,” not knowing for whom they were writing or what she would want to do about the cases.
The appeals court’s work is organized into three terms per year, and McMillian said, “every term has been better and better.” She noted that for the most recent term, the judges beat their constitutionally mandated deadline for deciding another batch of cases by several days, which she called a “great accomplishment” for the court. “We did not want to spend Thanksgiving week in distress,” she said.
Among her practice tips was a reminder to “really spell it out for us” if a lawyer wants the court to overturn its precedent. She pointed to a 2011 concurring opinion by then-Judge (now Justice) Keith Blackwell in which Blackwell wrote that although he wasn’t sure that some of the court’s precedents were correct, no one had asked the court to overrule those cases and thus the court shouldn’t do so.
McMillian also suggested that decisions issued at the end of the term in which one of the judges concurs in judgment only—meaning the judge assented to the outcome of the case but didn’t sign on to everything that was said in the court’s opinion—might be good targets for motions for reconsideration.
McMillian urged lawyers to plan ahead if they wished to file documents that had been sealed by the trial court along with an application for interlocutory or discretionary appeal. They might get relief from the trial judge or the appeals court, she said, but shouldn’t wait until the last minute.
The appeals court judge said attorneys should make sure that audio or video evidence, such as a tape of a traffic stop, is transmitted to the appeals court along with the rest of the trial court record. Often, she said, parties refer in their briefs to a recording the appeals court doesn’t have.
Lawyers should point out when opposing counsel has violated the court’s brief formatting rules only when the violation has given the opposing party a significant advantage, McMillian suggested, noting that she recently said in an opinion that the court simply hadn’t read the pages in a reply brief that went beyond the court’s page limit. The judge said she had been surprised how some briefs or motions seek to persuade the court by disparaging opposing counsel, the trial judge or even judges on the appeals court.
Prompted by Christina Smith, a staff attorney to Court of Appeals Presiding Judge Anne Elizabeth Barnes, McMillian noted a recent example found in a motion for reconsideration. “Basically,” McMillian recounted, “the MFR said that the judges were apparently sleeping when this rogue staff attorney wrote this opinion, because it’s clearly so wrong,”
“Don’t do that,” she added.