Saturday, September 12, 2020


Online learning: As e-learning takes hold, creators flock to startups,  Technology News, ETtech

Pretrial advocacy can be taught online. When the pandemic hit us in the middle of my Spring Comprehensive Pretrial Advocacy course, I took what I learned from Seattle University’s Center for Digital Learning and Innovation about designing an online course and applied it to the remainder of the course. It was not ideal having the students argue a motion with Zoom, but it was satisfactory.


A good online course is quite different from one that is taught remotely. When the doors of the law school closed, the law school faculty was forced to teach remotely, lecturing and having discussions with Zoom. In contrast, an online course that is properly designed engages students in projects, discussions and other activities that have proven effective. At Seattle University, online courses are conducted on Canvas.


Using Canvas an online course can be designed to engage and teach students. Here are some of the activities in which students in the Pretrial Advocacy course will be involved. For example, they will collaborate online in small groups to plan the drafting of a complaint and discovery documents. They will draft and submit a complaint, an answer, discovery documents and either a motion or a response. After receiving comments on their first draft, they submit revised ones.


To learn about taking and defending a deposition, they can watch demonstration movies. They outline and submit on Canvas what they would inquire about during the deposition of neutral and adverse witnesses. They have a  discussion of how the deposition can be used in pretrial and trial . They take virtual field trips to the crime scene and to websites of vendors of litigation visuals and submit reports about what they learned.


Students taking and defend a deposition during Zoom sessions. Later, students argue the motion on Zoom, which is the final student performance activity for the course.

See Part I of Pretrial Advocacy Course Goes Online.

Saturday, September 5, 2020


Can you learn pretrial advocacy online? The answer is “Yes, Oh, Yes—you can.” Before the pandemic, I began taking a course at Seattle University’s Center for Digital Learning and Innovation (CDLI). I decided to take the classes because Seattle University Law School, where I teach Pretrial and Trial Advocacy, Essential Lawyering Skills and Visual Litigation and Today’s Technology, decided that, due to declining enrollment in its part-time students’ night classes, it would drop those classes and instead try something new—offer courses online to part-time students.

Originally, I was planning to teach a Visual Litigation course online during the Summer of 2020, which I did (it was so popular that it had two sections). But, one thing led to another, and now I’m teaching a Fall 2020 Pretrial Advocacy course online as well. When we entered into virus isolation half-way through the Spring semester, I had to convert my Pretrial course into an online one for the remainder of the semester.

The Comprehensive Pretrial Advocacy course is perfectly suited for this approach. Here’s a description of what the course entails, and you can see why it should prove to be a great way for law students to learn pretrial advocacy.
Using mock criminal and civil cases as a context, students develop patterns of thought and skills for the real-work practice of law. Activities will include, among others: case theory and theme development; forging an attorney-client relationship;  interviewing, counseling, negotiation, oral advocacy, and drafting of pleadings, discovery, and motions. Problem solving, decision making, and the professional role of the lawyer are emphasized. Alternatives to trial, such as mediation, are explored. Pretrial Advocacy allows a high level of student participation in discussion and role-play.
This course uses Pretrial Advocacy: Planning, Analysis, and Strategies as a text and concentrates upon pretrial advocacy in the context of both civil (Summers v. Hard) and criminal (State v. Hard) litigation. At the successful conclusion of this course, students will have acquired the skills that are essential to effective pretrial advocacy, including, among others, how to do the following:
1.    formulate a case theory and theme;
2.    forge an attorney-client relationship;
3.    interview and counsel a client;
4.    interview witnesses;
5.    develop and manage a case;
6.    visit the scene;
7.    negotiate;
8.    engage in alternative dispute resolution;
9.    take and defend depositions;
10. engage in discovery;
11. argue a motion; and
12. draft these legal documents: a complaint; an answer; interrogatories; requests for production; requests for admissions and either a motion or response to a motion.
In the next article, we can take a look at the projects, discussions and presentations that make up the online Comprehensive Pretrial Advocacy course.

Saturday, August 22, 2020

Qualify Any Expert: A Template of Foundation Questions


To qualify any expert, just ask these predicate questions. This is just one example of what the book Trial Advocacy: Planning Advocacy and Strategy has to offer.  

        1.         INTRODUCTION:     During this phase, the expert can settle down, be comfortable and develop a rapport with the jury.

                  Q:        Please state your name.
                  Q:        What is your business address?
                  Q:        What is your title?
                  Q:        By whom are you employed?

2.         EXPERTISE:
                  Q:        What is your particular field? 
            Q:       As (e.g., a medical expert, forensic expert), what are your primary responsibilities?

3.         EDUCATION:
                   Q:        Where did you obtain your education in the field of. . .?
           Q:        Please describe your educational background in this area?
            Q:        What degree did you receive after completing  . . .?
                                                                             Q:        After receiving your degree in  . . , were 
you in a further educational program (e.g., for a doctor, intern and residency)?

            Q:        What is board certification (e.g., in field of medicine)?
            Q:        What are the requirements to become board certified?
            Q:        Are you board certified in  . . .?

5.         LICENSING:
            Q:        Are you or are you not licensed in this state to practice (e.g., medicine, law)?

6.         TRAINING:
            Q:        Could you describe for the jury the other training you received in . . . ?

7.         EXPERIENCE:
            Q:        Have you received any on-the-job training as a  . . .?
            Q:        How long have you worked as a  . . . expert?
           Q:        Over the years that you have worked as an expert in this field, roughly how often have you (e.g., compared known fingerprints with latent fingerprints; performed autopsies)?

            Q:        Do you belong to professional organizations in the field of  . . .?
            Q:        How are members of that organization selected?
            Q:        Have you held any office in the organization?

9.         TEACHING
            Q:        Have you had any teaching experience in your area of expertise?
            Q:        What was your academic title, if any?
            Q:        Do you still hold the title and appointment of (e.g., associate professor)?
            Q:        What subjects have you taught?
            Q:        Please explain to the jury, the process of how you achieved the position of . .

            Q:        Have you or have you not written on this subject?
            Q:        What written works of yours have been published?

11.       HONORS
            Q:        Have you received any honors in the field of  . . . ?

           Q:        Have you testified before as an expert in the area of . . . in (e.g., Superior Court, District Court)?
            Q:        How often have you testified in those courts?
            Q:        Have you testified as a . . . expert in other states?
            Q:        Have you been called to testify for the defense and the prosecution?
            Q:        How often would you estimate that you have been called by each party?

13.    TENDERING THE EXPERT  In some jurisdictions, the attorney at this juncture addresses the judge and tenders the witness as an expert, in words to this effect:  "Your Honor, the plaintiff submits that the witness is qualified as an expert in . . ."  In other jurisdictions, this is not done.  Check for your local custom.

Friday, July 24, 2020


Yes, I know, the title says, “The Right Words for Trial Lawyers”, and this stretches the topic. But, successful trial lawyer talk through visuals without text because they help jurors understand subjects with which they are usually unfamiliar. Trial lawyers use visual analogies. The images remind the audience of physical things that they can relate to. The images can replace a complex concept, showing it to the viewer in simpler and more understandable form, and thereby enabling the lawyer to explain the concept in understandable terms.

Here are a couple examples from Visual Litigation: Visual Communication Strategies and Today’s Technology.


Defense counsel used this staircase analogy to illustrate and explain the plaintiff’s burden of proof with each stair representing an element that needed to be proven.


With this iceberg analogy, showing the visible above-water and smaller part—Defense Cost—contrasting to the larger under-water Damages.

As with all analogies and metaphors, it’s good to test them out on folks to make sure that they work, are not offensive and cannot be turned back on the user. Baseball analogies usually result in opposing counsel claiming the user of the analogy struck out.