Saturday, December 9, 2017

LAWYERS ARE LOUSY COMMUNICATORS

Law schools should produce professional communicators, but quite to the contrary they graduate lawyers who are poor communicators. Some are so bad they could put a jury to sleep. Law schools should focus on producing professional communicators – lawyers who are effective writers and speakers. However, Bryan A. Garner’s in his column for ABA Journal entitled, “Why Lawyers Can’t Write” subtitled: “Science has something to do with it, and law schools are partly to blame” states:

“While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to law schools. They inundate students with poorly written, legalese-riddled opinions that read like over-the-top Marx Brothers parodies of stiffness and hyperformality, And they offer law students little if any feedback (on substance, much less style) from professors on exams and writing assignments.” ABA Journal (March 2013, p. 24).

This is not the first time this problem has been mentioned here. For example, previously I wrote that law schools traditionally have not only failed to teach communication skills but also have been counterproductive. Jim McElhaney, advocacy instructor, ABA Journal contributor for 25 years, and also like Garner an ABA columnist, put it this way:

“Law school is as much obscure vocabulary training as it is legal reasoning. At its best, it can teach close thought and precise expression. But too often law school is reverse Hogwarts – where Harry Potter trained to be a wizard – that secretly implants into its students the power to confuse other people instead of sowing the magic seeds of clarity and simplicity. . .

“So we lard our speech and writing with words and phrases of awkward obscurity and rarely have anything to do with legal precision but that unmistakably say, ‘This was written – or said – by a lawyer’

“Because we are professional communicators, it is our obligation to be plain and simple. It’s not our readers’ and listeners’ jobs to try to understand us. It’s our job to make certain that everything we write and say commands instant comprehension.

“And because we weren’t turned out that way by our law school training, we have to reprogram ourselves if we want to be effective communicators.” ABA Journal (September 2012).

By the way, Seattle University Law School 
has the best legal writing program in the country.

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Tuesday, December 5, 2017

NEW JURY SELECTION HANDBOOK

Carolina Academic Press has just published Jury Selection Handbook: The Nuts and Bolts of Effective JurySelection (374 pages) by Ronald Clark and Thomas O’Toole. Jury selection can be a terrifying experience for even the most seasoned trial attorneys. Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection dissects the process and highlights the strategic choices available to trial attorneys at every step of the process. This book is intended for lawyers who are acquiring their jury selection skills, veteran trial lawyers who want to refresh and expand their approaches and law students. In essence, this book provides a comprehensive view of the jury selection process that can help all attorneys get a better perspective on the strategic choices available to them at every step of the process.

The book offers two perspectives on the principles and practices for conducting jury selection: that of a trial advocacy professor, who has extensive trial experience and as a trial advocacy instructor, and that of a jury consultant, who has picked over 200 juries across the country in state and federal courts on a wide variety of civil and criminal matters with exposure up into the billions.

The book provides practical guidance for how to prepare for jury selection; craft motions and responses to motions regarding voir dire; exercise challenges; make favorable impressions of counsel, the client, and the case; break the ice and question prospective jurors; and evaluate jurors and tap into hidden beliefs and pre-dispositions.

The book provides role-play jury selection assignments for both a civil and a criminal case that can be utilized in law school trial advocacy and clinic courses and in lawyer CLE or in-house law firm professional development training sessions.

Robust online appendices provide examples of jury questionnaires, motions and responses to motions relating to jury selection, and transcripts of a dozen complete jury selections in both federal and state courts and civil and criminal cases.

Jury Selection Handbook is part of a new series of course books, the Lawyering Series, published by Carolina Academic Press in cooperation with Northeastern University School of Law. The new experiential series, which will include core teaching texts as well as supplemental handbooks, is aimed at meeting the needs of law schools for more practice-oriented materials.

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Tuesday, November 28, 2017

PRO SE: A FOOL FOR A CLIENT


It is important to get law students out of the classroom and have them watch the real lives of trial lawyers. For my Comprehensive Trial Advocacy course, Seattle University law students attend a day in trial and report on what they observed. Consistently they praise this courthouse visit. It is satisfying to read the students’ reports and to learn how being in the courtroom can be such a rewarding learning experience for them. The following observation-report was written by Claire Charbonneau.

            The trial proceeding that I observed was a criminal proceeding under Judge Ramsdell in the Superior Court in the King County Courthouse on 10/17. I came to understand that the trial was in regards to the defendant’s assault charge; although initially upon entering the courtroom I was confused for multiple reasons. I first noted that defendant was testifying, but was not being directed by an attorney. Per his testimony, I came to be more confused about what his actual charges were due to the nature of that testimony. I noticed an attorney sitting across the room at the counsel table who I took to be the prosecutor. At this point I understood that the defendant was acting pro se, which was very unfortunate for him, because if anyone could have used an attorney, it was certainly this defendant.

            While the defendant was without question, an interesting individual, his testimony was extremely long winded, and he practically did the prosecution’s job for her. The defendant began with the direct examination of himself, his only witness. He began by telling the story of the charge at hand which involved the assault of his then girlfriend; however it took a long time for the story to arrive at this point, as he would trail off on loose ends and side stories that seemed to have nothing to do with the issue. Half the jury looked extremely bored, and the four corrections officers in the room often smiled at each other, amused by the testimony. The prosecutor thankfully made several objections to the scope of his testimony, hearsay, and in general to the time that the defendant was spending on the rabbit holes of his testimony. 

While parts were very slow and cringe worthy, the narrative did not lack for intrigue, as he told a tale of fighting with his girlfriend where he was blinded by perfume, broke his hand, fell on a Christmas tree while his girlfriend swung a hammer at him, and he pulled her down with him onto the tree. He then discovered a gun which he claimed she had placed under the seat of his truck. After that event, he failed to show up to work for several days, due to his broken hand, and left to the Tulalip Casino where he stayed at a motel and gambled while he was “percoceted out” by his own admission on his girlfriend’s Percocet pills. He made several other statements such as: “I’m no angel”, calling his girlfriend “every name in the book”, that he “has dated a lot of women, and spoils ‘em, because [he is] a gentlemen – as long as he ain’t mad”, that this woman (and others he later referenced) was a “vindictive woman” and that he “is a fighter”. He stated that although he is “not innocent” in many incidents that he later brought up, he was in this one. In one of the most cringe-worthy moments, which surely made every woman in the room dislike him, he said that “all women lie” and that “every man who is sitting in jail for a DV is there because a woman lied about it” because “that is what they do”.

After being prompted along by the prosecutor’s time objections and the judge, he later went on to testify about a laundry list of other crimes and incidents that had not been brought up by the prosecution. The prosecutor had to absolutely loving it, and the whole courtroom seemed shocked that he would freely offer up this information. He went on to detail his life story which included – but was not limited to the following. He was charged with assault on his ex wife, which he claimed was a lie, but also described as an event where they wrestled over a(n) amp and he backhanded (her) in the face. He then detailed a confusing relationship with another woman where he claimed he owned a ship used to fight pirates in Africa, which somehow led to an incident where this woman turned him in to homeland security, which led to some charges, and apparently another assault on her. Her claims in that case – as detailed by the defendant – were eerily similar to the ex wife’s claims and the present trial, which all involved beating, pinning (her) to the bed with his legs, and choking, or grabbing them around the throat. He claims the victim in the present case used homeland security’s discovery files against him to fabricated a similar claim, as the “mountain of discovery files” were in the home that they shared. He also apparently bought a helicopter from a man in Switzerland, that he was fixing up with a woman, against whom he was also charged for assault. There was an additional assault he did admit to, where he beat up a man who had hit a child. Lastly he testified that his first run-in with the law was an accessory to a robbery, which he claimed he was unaware of, he had only been living with this man, who he picked up as a hitchhiker, in the forest, in a van, with his then girlfriend. There was also colorful testimony about him “bleedin’ like a stuck hog”, drinking “Wild Turkey and Mountain Dew”, and running with a bucket of KFC, afraid for his life. Despite the lulls in the long winded stories, I was overall entertained. When he finally ended his testimony, he spoke about himself briefly in the third person, as if he was a lawyer, which confused the judge, counsel, and jury.

Of course after all of the testimony I just outlined the prosecutor hardly needed to cross examine the defendant. She impeached him by asking a few pointed questions abut the assaults and the charges he was found guilty of, and also why – if he was defending himself and afraid for his life in this case – he followed the police to her residence to serve a restraining order on the victim. She finished her questioning very quickly. He redirected, where he further detailed the above admissions, until the judge cut him off. There was some amusing commentary from t(h)e prosecutor and judge in regards to these long, incriminating tales, that got laughter from the jurors and the small group of spectators. Finally, the defendant rested.

After the jury had been dismissed for the day, the judge discussed the plans for the following day, asking the prosecutor whether she would be calling additional witnesses, and pointing out that “most of the information she would want has already been candidly offered up by the defendant” which got some more laughter from those present. She discussed the two witnesses she would be calling, and also wanted to spend time the following day discussing the jury instructions, particularly the self defense portion. The defendant was under the impression that he did not need to see them, though the judge tried to advise him that he would need to know the jury instructions as it would state the law by which the jury would determine his innocence or guilt. Again, this man really should have had a lawyer. The trial was an absolute mess for him.

Overall, I was pleased that I was able to observe a jury trial to see how the jury reacted to both sides. I could see that they were particularly affected by he length and confusion of the defendant’s ongoing testimony. I think they were grateful for every objection the prosecutor made, and happy she kept things extremely concise, which in my opinion was a good decision on her part, as the jury seemed exhausted. While the defendant’s story, was at times captivating, the take home message of this day of trial observation was certainly to always hire a lawyer, and never represent yourself. And likely also to not buy boats to fight pirates in Africa, or buy used helicopters from men in Switzerland.

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This is such a gem it will be also posted here.

Sunday, November 26, 2017

TRIAL ADVOCACY: Planning, Analysis, and Strategy 4th Edition

Trial Advocacy: Planning, Analysis, and Strategy 4th Edition provides the experience and approach to thinking, planning, and performing as a practicing lawyer. The book presents a wide range of practice situations and fosters the kinds of analytic processes and skills needed to perform trial work. Today’s lawyer must be fluent with technology for case organization and courtroom presentation, as well as with alternative forms of dispute resolution. The book provides these new tools while retaining the trial lawyer skills that remain very much the same as they have throughout the history of the legal profession.
Trial Advocacy: Planning, Analysis, and Strategy, 4th Edition, is divided into 14 chapters. Each chapter covers a separate trial subject area—persuasion, jury selection, opening statement, objections, and so on. Each chapter presents a theoretical and practical approach to the particular skill that is the subject of that chapter, provides illustrations of practice as applied to hypothetical situations, and offers a series of practical and strategic pointers in the subject area.  Each chapter also includes a checklist of skills dealt with in the chapter.
Accompanying the book are Assignments which take students through the trial process in the context of the criminal and civil cases, both of which arise from a tavern shooting after which the victim dies. The assignments are intended for role play in professional workshops and legal education advocacy classes.


The Fourth Edition of Trial Advocacy: Planning, Analysis, and Strategy has just been published by Wolters Kluwer. This edition continues to explore all aspects of trial persuasion with expanded and updated coverage.

Some of the Major Additions to the Fourth Edition are:
·      Complete case files for mock civil wrongful death and criminal murder trials, with witness statements, exhibits, legal memoranda, statutes, jury instructions for mock trials, and performance assignments
·      Seventy-nine role-playing assignments, from jury selection through closing argument
·      Comprehensive witness instructions for assignments and mock trials
·      Trial preparation and case management, covered in a new chapter
·      Updated rules for Civil Procedure, Criminal Procedure, Ethics, and Evidence

Particularly important is that this fourth edition comes with a brand new website AspenAdvocacyBooks.com  This website features:

·      A full-length trial demonstration movie that can be streamed, showing experienced trial lawyers engaging in every stage of trial from jury selection through closing argument
·      A video of a crime scene tour
·      Case files, Actors Guides and a Teacher’s Manual for mock trials or experiential exercises either in professional development CLEs or law school classes