David K. Greer
Attorney and Counselor at Law
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Legal Memorandum Leads to Juvenile Client's Acquittal of Robbery Charge

From what we often see on TV and movies about the legal profession, it is a spellbinding closing argument like Gregory Peck's in "To Kill a Mockingbird" that wins cases.  It sometimes does, but much more often, winning a case comes down to tireless legal research and tight legal writing.  Such was the case with one of attorney David K. Greer's clients who was charged with robbery in Franklin County Juvenile Court.
The case was tried before a visiting judge in late August 2014.  At the close of the state's case-in-chief, David orally argued that his client should be acquitted of the robbery charge because the state failed to meet its burden of proof.  The judge declined to rule on the acquittal right then.  Instead, the court invited the prosecutor and attorneys (this was actually a joint trial involving a total of four juvenile co-defendants) to submit a legal memorandum in support of each of their positions.
David's memorandum was only five pages long.  But in law, it is not length that matters.  What matters is tight-writing with impact, and great research.  And David found the perfect case.  The case was from another appellate district in Ohio, but it was exactly on point.
On October 31, 2014, after the judge carefully read David's memorandum and the state's response, David got the result he wanted for his client.  The judge granted his motion for acquittal, making his client (who had since become an adult) a free man.  Double jeopardy would bar any further criminal or delinquency proceedings against the client.
So the next time you're in litigation and looking for a lawyer, ask that lawyer if they have a lot of experience writing briefs.  Briefwriting is an extremely important aspect, if not the most important aspect, of litigation.
In his right hand, attorney David K. Greer holds a copy of the court's decision on October 31, 2014 acquitting his client of robbery in Franklin County Juvenile Court, arising from a police incident in Whitehall.  In his left hand, he holds a copy of his 5-page memorandum which was instrumental in the acquittal. 
Oral Argument Set in Juvenile Confession Case
Imagine being 13 years old again.  You have no previous record in juvenile court or brushes with the law.  You're at a community festival and see someone assaulted by a group of other youths.  The victim identifies you as being in the vicinity of the attack, but that's all.  To him it was just "a flash of faces."  You're arrested anyway, and put in handcuffs for nearly 4 1/2 hours.  You're finally seated in a cold police interview room.  At 4:00 A.M., a detective finally speaks with you.  He wants to interrogate you, without either of your parents present.  You've been up all night.  The detective reads you your rights, and assumes you understand them because you have no questions and sign a piece of paper.  You try to explain you had no involvement in the attack, but the detective won't listen to your side of the story.  He mentions the possibility of a 28-year prison sentence, which isn't legally possible even for an adult, but as a 13-year old you believe him.  The court may show some leniency if you confess to the crime and say you're sorry.  The detective also deceives you into thinking that your friends implicated you in the episode.  Surely this kind of interrogation can't happen in the United States right?
Home sweet home
When Attorney Greer found this happened to his court-appointed client, he immediately filed a motion to suppress his client's statements to the detective.  A Franklin County Juvenile Court magistrate allowed the client's statements into evidence, and that ruling was upheld by the judge.  With the statements admitted, but no other corroborating evidence, David's client was adjudicated a delinquent minor, having committed the offenses of robbery, felonious assault, kidnapping, and other serious crimes.  The client was placed on two years probation and ordered to complete 50 hours of community service.
Believing his client's statements were involuntary, and there was no valid Miranda waiver, Attorney Greer appealed the denial of the suppression motion to the Tenth District Court of Appeals.  He filed a 34-page brief in support of his constitutional arguments on October 16, 2014.  David contended in the appellate brief that the interrogation, and the court's use of it against him at trial, violated his client's rights under the Fifth and Fourteenth Amendments of the U.S. Constitution, as well as the Ohio Constitution.
Oral argument before the court of appeals is scheduled for Thursday, February 5, 2015, at 9:00 AM.  David is hopeful that the court of appeals will do the right thing and reverse the delinquency adjudications and suppress his client's statements to the police.  It is anticipated that the appeal will be decided sometime in early spring.  "The chance to enforce the Constitution with these kinds of cases is exactly why I went to law school," David said.

Attorney David K. Greer poses with a copy of the appellate brief he hopes will reverse his 13-year old juvenile client's adjudications for robbery, kidnapping, and felonious assault.  The client confessed to a police detective, without any corroborating evidence, after being in handcuffs nearly 4 1/2 hours, interrogated at 4 AM and repeatedly advised to confess and say he was sorry, the client had been up all night, and was falsely told he could be facing a 28-year prison sentence.
Appeals Court Reduces Two of Client's Felonies to Misdemeanors
Attorney David K. Greer will represent just about any new client who wants his services, but is especially eager to take on small business owners who feel they have been unjustly accused by the government.  A store owner was convicted by a judge of five felonies for receiving stolen property.  The problem is, the property wasn't stolen.  It was all part of a sting operation.  The client, who was indicted for five felonies, maintains his innocence.
Prior to David's involvement with the case, the client hired a lawyer to represent him at trial.  For whatever reason, the client waived his constitutional right to a jury trial.  The judge found the client guilty of all five counts.  The Franklin County Court of Appeals appointed David to handle the appeal.
On November 28, 2014, the appeals court reduced two of the client's felonies to misdemeanors.  The appeals court ruled the state produced insufficient evidence that the "stolen" property Attorney Greer's client allegedly received was valued at $1000 or more, which would make it a felony.
On December 15, 2014, David filed a discretionary appeal to the Supreme Court of Ohio, for the three counts the appeals court left undisturbed as felonies.  The Ohio Supreme Court is expected to decide whether it has jurisdiction to hear the appeal sometime this spring. 
Ex-Husband Continues Litigation With David's Client
Frustrated with the court system and unhappy with her former lawyer, J.L. came to Attorney David K. Greer for help in September 2011.  David's law office was temporarily in the Cleveland area at that time, but this case meant a great deal to the client and she was willing to make the trip.  Her trust in David was rewarded.
After a trial in February, Judge S. Farrell Jackson of the Fairfield County Domestic Court issued his ruling on March 21, 2014.  The ex-husband will be required to reimburse David's client for one-half of the sons'  student loan payments as she makes them.  He will also be required to reimburse the client one-half for payments made previously.  Finally, Judge Jackson ruled that the client may send the ex-husband notice of her intent to call the various providers of the student loans which are currently dormant, to reactivate these loans.  If the ex-husband declines to participate in these calls, the client may negotiate repayment terms with these providers on her own, and the ex-husband must pay one-half of whatever monthly payment the client negotiates.  All of this was in accordance with the parties' original dissolution decree in 1998, which required the ex-husband to share in the cost of the client's sons' college education.
The Fifth District Court of Appeals will have the final say however.  The ex-husband appealed Judge Jackson's decision, and the case was argued before the court of appeals on November 20, 2014, at the Licking County Courthouse in Newark, Ohio. 
This is the ex-husband's second appeal in this case, and the third overall.  Last August the court of appeals reversed Judge Jackson's remand decision from the first appeal on grounds that the judge exceeded the scope of the court of appeals' remand instructions.  The appeals court later clarified however that the reversal was based on that specific legal issue and was not to be construed as affecting Judge Jackson's ability to enforce the original dissolution decree.    
This latest appeal by the ex-husband delays justice for the client, but only to a certain extent.  The filing of the appeal does not affect Judge Jackson's decision in the interim, barring the granting of a stay.  Unless this happens, the ex-husband will still be required to reimburse the client for her loan payments as she makes them, as well as abide by other aspects of the judge's order.
Client Wins Custody Battle with Ex-Boyfriend
After a three-day trial in April and May, 2013, a Franklin County Domestic and Juvenile Court magistrate announced her decision in the custody battle between David's client, Taylor S., and her former boyfriend, and it was the decision Taylor was hoping for.  On October 10, 2013, the magistrate denied the former boyfriend's motion for shared parenting and named Taylor the sole residential parent and legal custodian of the parties' daughter.  The decision was a big win and a great relief for David's client, who had cared for the girl a majority of the time since birth.  The daughter is now nearly two years old.
In her decision, the magistrate cited testimony that the father failed to consistently be involved in the girl's care and well-being.  In addition, the magistrate concluded that when the father did exercise his parenting time with their daughter, his mother played a major role in the child's actual care.  The magistrate also took into account that the father has had outbursts of anger throughout his life.  At the same time, the magistrate found that Taylor and her daughter have a good and loving relationship, which extends to other members of the mother's household as well.  While the father also has a loving relationship with his daughter, the magistrate concluded it was in the child's best interest that David's client be named the sole residential parent and legal custodian, with the father granted visitation.
Needless to say, the client was pleased.  Taylor also received a substantial increase in child support.  Unlike the other cases on this page, no appeal is expected fortunately.  David is pleased with the result as well.  "The magistrate allowed both attorneys to try their case and heard all the evidence from both sides, but ultimately the facts supported the magistrate's verdict as being in the child's best interest," attorney Greer commented on his client's win in court.
Attorney David K. Greer poses with his client Taylor S. outside his office on October 13, 2013 with a copy of the magistrate's decision in hand.  This photo was taken shortly after David informed the client of the magistrate's decision designating her the sole residential parent and legal custodian of her daughter after a three-day trial this past spring.   
David Speaks to Credibility in Citing to the Record and Case Law in Appellate Practice
The need for appellate attorneys to accurately cite to the record and case law was one of the points Attorney David K. Greer stressed in a one-hour presentation at the Ohio Appellate Practice: Real-World Tactics, seminar on September 18, 2013.  The seminar was sponsored by the National Business Institute (NBI), and held at the Hilton Garden Inn Columbus Airport.  Attorney Greer was one of several distinguished faculty presenters at the seminar, which included the Hon. Judge John A. Connor of the Tenth District Court of Appeals.  David also spoke of the duty to advise of errors and malpractice, ethical issues regarding oral argument, civility toward opposing counsel and the court, and frivolous appeals.
David was pleased with his interaction with the attendees, a few of whom commended him for his presentation afterward.  "It was a rewarding experience and I enjoyed it," David said.  Although the seminar sponsor pre-selected David's general speaking topics, he felt they needed to be addressed, particularly that of accurately citing to the record and attorneys not overstating facts in their brief.  He pointed out in his presentation that appellate attorneys have a heightened duty of candor to the tribunal, in that credibility is especially important in the appellate court.
David thanks the NBI for the opportunity to speak on these issues, and the attendees who gave their attention and participation.
Attorney David K. Greer poses with a copy of the Ohio Appellate Workshop: Real-World Tactics brochure, a CLE seminar held on September 18, 2013 in Columbus.  David spoke on the subject of legal ethics in appellate practice. 
5 Tips for Writing a Winning Appellate Brief

Writing a winning appellate brief takes creative thought, and a lot of editing. Here are 5 tips for writing a winning appellate brief.

Tip #1

Briefs should be brief

One thing I've learned over the years is appellate judges have increasingly less time to read briefs, as caseloads have increased while the number of judgeships on each court have by and large remained the same. That means you're going to have to continually edit your brief, perhaps four or five times, and eschew points that don't really advance your argument. Don't think you have to impress your client by writing to the page-limit maximum. Make your main points stand out.

Tip #2

Write in short sentences

Run-on sentences with too many clauses and subclauses are difficult to read, and your argument will have less impact. This goes back to the point that judges have less time to read your brief, let alone try and understand your argument. Break up sentences into short declarative statements and avoid the use of passive voice. Also, don't be afraid to use commas! Commas are very important tools of understanding. As an example, consider the first sentence in this segment. It's easier to read with a comma between "read" and "and."

Tip #3

Try and come up with a creative angle before you write a word

Avoid hackneyed assignments of error which don't differentiate your case from dozens of others, like, "The judgment is against the manifest weight of the evidence." Instead say, "The trial court erred in awarding only $500 in damages when the evidence was undisputed that appellee has not paid anything toward his court-ordered reimbursement since 2009." Or, instead of "Appellant was denied the effective assistance of counsel," get to the thrust of how your client didn't get a fair shake by saying, "The defendant was denied the effective assistance of counsel when his lawyer advised that he reject the state's plea bargain, which would have resulted in a more favorable sentence." In other words, write arguments that will captivate the judges' interest and make them actually want to read your brief.

Tip #4

Don't include too many assignments of error

Unless it's a death penalty case, try and winnow your arguments into two or three, occasionally four, assignments of error at most. Appellate judges have told me in countless seminars that their ability to focus on a really good argument---perhaps your only good argument---is diluted by tangential arguments. Tell your client this reality, and ask if a longshot argument really should be included. Also, many appellate judges are skeptical of, say, 10 or 12 assignments of error, which may even come off as a personal attack of the trial judge. My personal guide is, if I'm not comfortable talking about it at oral argument, it won't be included in the brief. Another approach is to combine arguments into a single assignment of error.

Tip #5

Finally, use proper citation form

This issue is more important than you realize. Don't make the mistake that proper citation form is only for law clerks and geeks. Law clerks themselves have told me how the briefwriter's credibility is compromised when proper citation form isn't followed. I'm not talking about typos, but when the briefwriter obviously shows an ignorance of citation form. It's not as bad as misspelled words or bad grammar, but close. And you certainly don't want your improper citations to be a distraction from your substantive arguments.

Additional Resources


Should I try and handle an appeal myself?

Attorney Greer was asked this question by a gentleman in the state of Washington on Avvo.com.  Here was his response:
I'm not licensed in the state of Washington, but I think I can speak for most attorneys in saying that, if there is one area where you should retain the services of an attorney, it's in the area of appeals. And not just any attorney, but one who devotes a significant portion of his practice in the area of appeals.
Often trial courts will bend over backwards to help pro se litigants with court procedure, but the appeals court can be a trap for the unwary. A pro se litigant can lose on technical grounds, such as not knowing the difference between interlocutory appeals and final orders, "no just cause for delay" language, page limitations, citation form, even how the brief should be stapled. Appeals judges aren't ogres, but there are rules everyone has to follow.

Most important, apart from the minefield of technicalities in the court of appeals, you need to know how to write a succint, persuasive brief, and you absolutely must know the law. While it's always advisable to seek the services of an attorney, in the trial court you can often sort of get by, because often judges will try and help out pro se people and shepherd them through the process. In the appeals court however, the first impression the judges have of you is through your brief.

In short, don't try and do this yourself. Contact an appeals attorney licensed in Washington, and trust me, you'll save yourself a lot of grief. You know how there are some things you can try and do yourself and some things in which you should trust a professional? Doing an appeal is in the latter category.

OK, what if I hire an attorney to handle my appeal and I still lose?


The buck stops here.  If your case involves an interpretation of the U.S. Constitution, and you strongly feel the Ohio courts haven't treated you fairly, attorney David K. Greer can file a petition for writ of certiorari with the U.S. Supreme Court if necessary.  Attorney Greer has been a member of the Bar of the Supreme Court of the United States since 1993.
Should I hire a new lawyer for the appeal?
Attorney Greer was asked this question on Avvo.com by someone in California recently.  This was his response:    
A brand new attorney for the appeal is always a good idea, for a couple of reasons. One, the appellate attorney needs to make an objective independent assessment of the various issues, without influence from the attorney who tried the case. Second, although true ineffective assistance of counsel is relatively rare, the appellate attorney needs to independently assess the job trial counsel did, if this is a criminal case.

As for your question, why can't the appellate attorney just "help" the original attorney, this is a bad idea because egos are involved, and the trial attorney may not like the appellate attorney pursuing an issue he didn't adequately address, or missed altogether. Besides, having two attorneys involved may be just as costly anyway.

What I would recommend is to hire your appellate attorney to meet with the trial attorney one time in his office, for an overview. The communication, and further expense, will end there, and then the appellate attorney can take over the case from there. I always try to meet with trial counsel before deciding on issues for the appeal, but fully realize that, in the end, the ultimate responsibility for formulating issues for the appeal is mine and mine alone. ...








Honors and Recognition

David Named a Super Lawyer Ten Years in a Row!

For the tenth year in a row, attorney David K. Greer has been named a Super Lawyer by the magazine.  For 2015, he was once again given the honor in the area of Appellate Practice.  In previous years he was honored in the areas of Criminal Defense (general) and General Litigation.
David's recognition as a Super Lawyer for 2015 appears in the latest issue of the magazine, the cover of which is shown below.  David wishes to congratulate the other lawyers in the state who have been named to the Super Lawyers panel by Thomson Reuters for 2015. 

Super Lawyers Reception, Columbus 2015
On January 15, 2015, a Super Lawyers reception was held at De NOVO Bistro and Bar in Columbus.  David here is pictured with attorney David Shroyer, partner with Colley Shroyer Abraham, a medical malpractice and personal injury firm in Columbus.  Super Lawyers receptions are more than just wine and cheese: the two Davids discussed the possibility of a co-counsel relationship on future cases. 

What Being Named A "Super Lawyer" Means:
Super Lawyers rates outstanding lawyers in more than 60 practice areas.  Ohio Super Lawyers magazine features the list of selected attorneys and is distributed throughout the state, as well as being published as a special section in Cincinnati Magazine, Columbus Monthly, Cleveland Magazine, and Inside Business.  David is one of only 16 lawyers in the state to receive the Super Lawyer distinction for Appellate Practice in 2015.
To become a member of the Super Lawyers panel, the magazine employs a selection process that includes:
1. Each year, Super Lawyers magazine invites lawyers to nominate the top attorneys they've personally observed in action.  Their attorney-led research staff also searches for lawyers who have attained certain honors or results.
2. Their researchers evaluate candidates by 12 indicators of peer recognition and professional achievement.  Research evaluations are based on information from a variety of online and database sources including law firm websites, legal publications and information supplied by lawyers at my.superlawyers.com.
3. Candidates are grouped according to their primary practice areas.  Candidates in each practice area who received the highest point totals in the steps above are asked to serve on a review panel.
4. For the final selection process, candidates are grouped into categories based on firm size.  The attorneys with the highest totals from each category are selected.  Thus, lawyers are grouped with other lawyers of comparable firm size.
For a more detailed description of the Super Lawyers selection process, visit superlawyers.com/selectionprocess. 
The magazine often profiles a "Super Lawyer" regarding some aspect of the lawyer's life other than practicing law.  In 2006, David was featured in the magazine and his second job as a radio DJ was highlighted.

And Speaking Of David's Radio Career...
David was also featured in the fall 2007 edition of OSU Alumni magazine.  David is an Ohio State University graduate (B.A. Journalism, 1983), and the article talks about his dual career as a lawyer and DJ.

Job Well Done
The U.S. Court of Appeals for the Sixth Circuit's 70th Conference was held in Columbus, Ohio May 4-7, 2010.  The blockbuster list of speakers included U.S. Supreme Court Chief Justice John G. Roberts, Jr., former U.S. Solicitor and current U.S. Supreme Court Associate Justice Elena Kagan, and U.S. Attorney General Eric Holder, Jr.

David served on the planning subcommittee for the conference, and received this letter of thanks from Sixth Circuit judges R. Guy Cole, Jr. and Jeffrey S. Sutton.


Career Highlights
May 1998: Along with co-counsel Andy Cecil, Esq., then with the firm Plymale & Associates, helped obtain a $155,000 settlement from the City of Columbus in a wrongful imprisonment and malicious prosecution civil rights lawsuit.

March 2000: Won a not guilty verdict from a jury in Franklin County Common Pleas Court for a client indicted for rape.  The client, who was an employee of the Sheraton Four Points Hotel at the time, was charged based on the allegations of a guest.
December 2000: Obtained a $103,000 judgment for a client in a malicious prosecution civil suit in Franklin County, Ohio Common Pleas Court.  The case emanated from an arrest and charge of assault following an altercation outside the Lennox Theatre in 1998. The charge was later dropped after it was discovered that the client was not involved in the episode.  The case was later settled on appeal.

May 2001: Franklin County Court of Appeals reversal of a default judgment, where client (an attorney) had been denied permission to file a late answer and counterclaim and then had a default judgment entered against her. The appeals court ruled that the Franklin County Municipal Court abused its discretion in doing so and ordered the answer and counterclaim reinstated.
March 2002: Combined jury and judge acquittal of a client indicted for attempted murder and felonious assault.

January 2004: U.S. District Court acquittal of a client indicted for conspiracy to manufacture methamphetamine, after the court granted a motion to suppress certain statements made by the client to law enforcement personnel and a motion in limine to exclude evidence of prior drug use.  

March 2004: Franklin County Common Pleas Court acquittal of a client in a five-count rape indictment.
September 2004: Franklin County Court of Appeals reversal of an order imposing over $1,300.00 in restitution on a client, on double jeopardy grounds.

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