Friday, January 19, 2018

TURNING POINTS AT TRIAL: A BOOK REVIEW


Shane Read has done it again; he has written another must-read book for lawyers and law students. Read’s latest book is Turning Points at Trial: Great Lawyers ShareSecrets, Strategies and Skills. This new work is on a par with his prior award winning books Winning at Deposition and Winning at Trial.

Turning Points at Trial delivers exceptional trial strategies and techniques in an effective and highly readable fashion. Shane Read recruited superb trial lawyers to help with his project and set about interviewing them. Each of those talented lawyers was asked to share the trial skills that turned the trial in their client’s favor. Read gathered transcripts from these lawyers and included excerpts from those transcripts in the book to illustrate the particular trial skills under discussion. Also, Read wanted the ideas in the book to stick with the reader, and this determined which cases he included in his book. Read expressed it this way: “Learning trial skills from great lawyers in the context of these fascinating cases makes them easier to learn and more memorable.”

Here is an example of how turning points in trial are discussed in the book. Chapter 8 “Wage Guerrilla Warfare with the Expert” begins with an introduction to the trial lawyer and the case that will be used to illustrate the trial techniques covered in the chapter. The attorney is Robert S. Bennett, whom Read describes as “one of the country’s finest criminal defense attorneys and crisis management lawyers for corporations.” Following a description of Bennett’s background and the prominent clients he has represented, the chapter provides a synopsis of Zapruder v. United States, the case involving an arbitration of the government’s dispute with Zapruder over the appraisal of the film showing the assassination of John F. Kennedy. Next, Read lays out Bennett’s strategies and techniques including: setting up cross-examination in opening statement and cross-examination principles, such as narrowing cross to one or two points – “less is more”, looking for ways to make the expert look weak or not knowledgeable, and how to use the pitch of your voice when asking a question to indicate doubt or demand an agreement. For the rest of the chapter, Read employs excerpts from the transcript of the Zapruder trial to illustrate the strategies and techniques already discussed plus others. Finally, the chapter concludes with a “Chapter Checklist” summarizing: Bennett’s trial strategies; Bennett’s tips for cross-examination; Bennett’s strategies for cross-examination of expert witnesses; Bennett’s insights for hiring expert witnesses; Summary of cross of Macauley (the government’s appraisal expert); Summary of the cross-examination of Staszyn (another government appraisal expert), and Bennett’s advice for closing argument. Read’s utilizes this approach for each chapter and it is both thorough and engaging.


-->
In addition to covering every aspect of trial work, Turning Points for good measure has chapters on “Depositions” and “Appellate Oral Argument.” Turning Points is Shane Read’s latest engaging masterpiece on trial and appellate advocacy.

Friday, January 12, 2018

JUDICIAL WIT

In a pretrial ruling on a motion for a more definite statement in a complaint, the Honorable Ronald B. Leighton, United States District Judge, Western District of Washington at Tacoma provided gems of judicial wit. In Presidio Group, LLC, vs. GMAC Mortgage, LLC. Judge Leighton's order granting the motion began with William Shakespeare, Hamlet, Act 2, Scene 2, Line 90: “Brevity is the soul of wit.”

The good Judge then went on to point out that “(b)revity is also the soul of a pleading. See Fed. R. Civ. P. 8(a). The Federal Rules envision a “short and plain statement of the claim showing that the pleader is entitled to relief.” He then went on to describe portions of the 465 page Complaint:

"Not before page 30 does the Complaint address the facts alleged. Plaintiff’s allegations continue for 87 pages – including a 37 page pit-stop to quote e-mails. (Compl. 39-76). The Court notes, with some irony, that in his response opposing Defendants’ motions for a more definite statement, the Plaintiff successfully states his allegations in two pages."

Then, in granting the motion, Judge Leighton added a bit of his own poetry:

Plaintiff has a great deal to say
But it seems he skipped Rule 8(a),
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today.

In case you missed it before, here is his order.

Monday, January 8, 2018

DEPOSITIONS: LEARNING FROM AND WITH COURT REPORTERS

Law students taking and defending a deposition with court reporters
To give the law students a complete experience of taking and defending a deposition, we have them take a deposition with court reporters transcribing their work. At Seattle University Law School, we have a three-day intersession course entitled “Essential Lawyering Skills” that focuses on professional communication, and a major component of the course deals with depositions. The law students read about how to conduct depositions in their Pretrial Advocacy text, receive a lecture on depositions and discuss how to take and defend a deposition. Then, they take a deposition  (we have students who are not taking the course act as witnesses for the depositions).

As part of the instruction, Lori Repozo, who is in charge of the Court Reporting program at Green River College, provided the students with practical advice on how lawyers should and shouldn’t take and defend a deposition. For instance, Ms. Repozo discussed the importance of making a proper record and how to do it.

During the presentations Ron Cook did realtime reporting, and the students went online to follow along as Ron transcribed what was said. He also provided the students with advice about working effectively with a court reporter. Mr. Cook is remarkably skilled; he is the 2016 and 2012 National Court Reporting Association (NCRA) gold medalist in realtime Q&A and holds the Registered Diplomate Reporter (RDR) Certification, the NCRA’s most prestigious certification. Also, Ron Cook has been Washington State’s speed champion. 

Later, the students were divided into workshop groups, and Green River students who are learning how to be a court reporters (pictured above), were present in the workshops performing as they would during a real deposition, swearing in the deponent, writing what is said and handling the exhibits. Having the court reporters present brings the deposition experience alive and prepares the law students for what they will face in practice.


Following the course, the reporters prepare transcripts that are delivered to the students. This enables the students to see how they performed – how what they said looks in the transcript. The reporters do not clean up the transcripts, allowing the students to see their filler “um”s and “ok”s.

Wednesday, December 27, 2017

TRIAL ADVOCACY SKILLS CAN BE TAUGHT




-->
Michael E. Tigar in the preface to his book Examining Witnesses (ABA Litigation Bookshelf) expresses the view that good lawyering can be taught and that trial skills, not luck, will win out. Tigar supports the thesis with this Mark Twain story:

“I believe that good lawyering can be taught. . . . Mark Twain tells the story of a dozen men on trial for running a game of chance, to wit, ‘seven-up’ or ‘old sledge.’ Their lawyer, old Jim Sturgis, brought witnesses to say that it was a game of skill, but deacons and dominies summoned by the prosecutor pronounced it a game of chance. So Sturgis convinced the judge to put four deacons and two dominies on the jury, along with six old gamblers, give them candles and a couple of decks of cards, and ‘just abide by the result.’ As the deliberations went on, various of the ‘chance’ jurors sent word into court to borrow money from their friends. At dawn, the jury returned its unanimous verdict:

“’We, the jury in the case of Commonwealth of Kentucky vs. John Wheeler, et al, have carefully considered the points of the case and tested the merits of the several theories advanced, and do hereby, unanimously decide that the game commonly known as old sledge or seven – up is eminently a game of science and not of chance. In demonstration whereof it is hereby and herein stated, iterated, reiterated, setforth, and made manifest that, during the entire night, the ‘chance’ men never won a game or turned a jack, although both feats were common and frequent to the opposition, and furthermore, in support of this our verdict, we call attention to the significant fact that the ‘chance’ men are all busted, and the ‘science’ men have got the money. It is the deliberate opinion of this jury, that the ‘chance’ theory concerning seven-up is a pernicious doctrine, and calculated to inflict untold suffering and pecuniary loss upon any community that takes stock in it."

(Tigar concludes:) “Good lawyering is not a game of chance, or luck, even though both of these may play a role. Day in and day out, in the tournament of trial, skill wins out.”

Saturday, December 23, 2017

HOW TO AVOID STUPID BLUNDERS AT TRIAL

Judge Ruben Castillo of the Northern District of Illinois in Chicago covered how to lose at trial in 12 easy ways and, conversely how to avoid losing in an ABA Section of Litigation podcast, which is repeated here. Here is his advice:

1. Wasting time. Jurors are especially concerned about their time and the time they’re giving up, Castillo said. “So the first way to lose a trial is to waste a juror’s time, and it’s something to be avoided,” he said.

2. Needlessly antagonizing the judge. “The judge has so many discretionary rulings to make, from the simple to the more complex,” Castillo said. “The best way to describe this is to say that you don’t want to offend someone that you’re going to ask to borrow the keys from.”

3. Needlessly arguing with your opponent in front of the jury, or acting in an arrogant or uncivil manner. “I think it is important to be polite at all times, and in the end it really adds to your credibility,” Castillo said.

4. Purposely handling exhibits in a clumsy manner. Every document and exhibit used in a trial must be handled in a persuasive manner that indicates to the jury that the exhibits are the buildings blocks to your trial victory, Castillo said. “Obviously, witness preparation and knowledge of the rules of evidence will help you handle exhibits in a forceful manner, and computer aids I’ve seen used in a very persuasive manner at trial, so that is something to be considered,” he said.

5. Failing to have a central theme during the trial proceeding. Inconsistent, multiple theories are to be avoided, and “you want your witnesses to be as consistent with your trial theme as possible,” Castillo said. “Also, consistency between the opening and closing arguments and everything that occurs in between is really the hallmark of victory.”

6. Giving unfocused, rambling arguments. Organizing arguments using subheadings leads to a very focused, understandable presentation, Castillo said. It also brings back the jurors’ attention from daydreaming. “I’m a big believer in what I call subheadings, or transitions, an example of which is when talking to a witness about the morning of July 10, merely using the subheading, ‘I would like to talk to you, madam, about what occurred on July 10,’” he said. “That then clues the jury to the fact that you’re now heading to what could be a critical date in the proceedings.”

7. Not focusing on the applicable jury instructions until the close of trial. “The better attorneys that I’ve seen appear before me look at and evaluate the applicable jury instructions before even starting discovery in the case,” Castillo said. “An early focus on applicable jury instructions will allow for a very focused presentation and making sure that all of your proofs are in during the trial, and obviously coming back to the applicable jury instructions during the initial phases of closing argument is an important thing for a successful advocate.”

8. Not using any diagrams, models or PowerPoint presentations during the trial. Even simple overheads are effective and useful as exhibits during the trial, Castillo said. “But certainly in today’s world, jurors expect a certain amount of entertainment, and attention-getting exhibits are useful,” he said. “Often, for example, a chronology chart is helpful in evaluating contested issues of fact and can prove persuasive with the jury.”

9. Over-cross examining every witness. This exasperates the patience of the jury and is not an effective use of the jury’s time, violating rule No. 1, according to Castillo. “Short is better, simply put,” he said. “So learn to control yourself during cross examination. Even though cross examination can be a great deal of fun, learn that you don’t have to kill every single witness to win your case.”

10. Not focusing on evidentiary problems or theories before the trial. Giving rambling, unfocused responses to objections by your opponent is a sure way to lose the ruling on the objection, Castillo said. “As a matter of fact, I like to say that the more attention and preparation you give to evidentiary issues will ensure that you get a better ruling,” he said. “Oftentimes advocates get the ruling that they put the judge in a position to give. If you give me 10 seconds to make a ruling with very little input or suggestion, then you’re going to get the best 10-second ruling that I can give you. Obviously, it’s preferable to give me more time and to give yourself more time by writing motions in limine prior to the trial that will allow the judge to use all of the resources at his or her disposal, including law clerks, in a timely and less hurried fashion.”

11. Asking to conduct voir dire examination of the prospective jurors and then managing to insult the jury venire. “The classic example of that is during an age discrimination case, I had an attorney insist on having attorney voir dire and then ask the very first lady in the jury box how old she was,” Castillo said. “It was a question that offended every female prospective juror in the pool.”

12. Failing to maintain credibility in the courtroom. Individual credibility in the courtroom is the key to success in any courtroom, Castillo said. “Keep that in mind when you’re making representations either in writing or orally before a judge or jury,” he said. “Most judges as well as jurors will remember promises not kept or assertions not fulfilled.”


This post was worth repeating and another judge’s take on how to behave in court can be found here.