Tuesday, May 16, 2017

TO BE A TRIAL ATTORNEY


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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 report is an example from this semester.

TO BE A TRIAL ATTORNEY
By Emily Schwab, Seattle University Law School Student & Law Clerk

I am a law clerk.  I sent out an email to the attorneys in my office asking to tag along to any upcoming trials in late January.  I was slated to go to a trial at the end of February.  I had talked to the attorney and had even helped him set up his trial notebook.  Three days before trial, it was continued for a fifth time because they could not find the plaintiff.         
I decided to go to another trial down in Pierce County.  Once again, I read up on the case and chatted with the attorney before the start day.  I drove down to the courthouse and found the attorneys and clients waiting in the hallway outside of a courtroom.  Apparently the judge was unavailable because the case before ours was expected to go on for another month.  The trial was continued until June.  The plaintiff was very upset because she had already missed a lot of work to come down to the trial.  The lawyers told me that this was a common occurrence and that being a trial attorney is mostly about waiting around.
            Finally, I was able to actually attend a trial for a low impact traffic collision.  The lawyers said it was a “mess of a trial.”  Tensions were high between counsel and the parties did not agree on much of anything.  There were some discovery violations by the defense and two of their experts were excluded.  Accordingly, the defense had to quickly change their trial strategy.
            The trial had already been continued at least once so there were many scheduling conflicts prohibiting experts from testifying in person.  The judge apologized to the jury and stated that live testimony is better but the circumstances required that the testimony be a video. The plaintiff presented a video deposition in lieu of live testimony on the first day I was observing.  The lights were low and neither the jurors nor the judge appeared to be paying much attention.  Following the video several jurors had questions but were unable to ask them since the witness was not physically present.  Additionally, the plaintiff’s counsel had misedited their video and had to read in significant testimony that was cut from the final product.   
On the second day the defendant intended to use the video testimony of one of their expert witnesses.  The attorneys argued about what portions were admissible for 45 minutes.  After the judge ruled on the objections, the defense’s legal secretary literally ran the list of approved segments to a videographer who would hopefully have the changes done before court reconvened after lunch.
There was a marked difference in the jury when the plaintiff was put on the stand for her live testimony.  They were more engaged and many were leaning forward.  They were able to have their questions answered and were presumably better able to assess the credibility of her testimony.  The attorneys were also better able to react to what she was saying and what the jury seemed interested in.  Although the administrative requirements of the video depositions are understandable, nothing can compete with live in-court testimony.
It was also really interesting to see the different courtroom styles of the various lawyers.  The plaintiff’s attorney had a relatively aggressive style.  He argued forcefully that the defendant had failed to produce discovery.  I was never able to get the full details of it, but the judge agreed with the plaintiff that there were indeed violations.  The plaintiff’s attorney was likely justified in his argument but his tone was whiney and unprofessional.  Additionally, he was visibly exasperated and loudly sighed several times while the defense was responding.
On the second day of trial I sat with the managing partner of our firm.  She pointed out key things that the lawyers on both sides did well and things that they probably should not have done.  The defense lawyer referred to his client as “the defendant” more than once.  The partner nudged me and told me never to do that in a trial.  Additionally, the defense attorney used a large photograph of the plaintiff’s car as a demonstrative exhibit.  He was just going to hold it with one hand while holding his notes in the other.  His co-counsel attempted to bring him an easel but had difficultly navigating it around other obstacles in the courtroom.  It created a bit of a spectacle and would have run smoother if the attorney had been able to set up first.  Kelley also told me to always ask the judge to publish an exhibit because a lot of attorney’s forget to do that.
After a bit of a rough start, the defense lawyer asked a lot of great questions.  The client was a young man, only 22 at the time of the accident, and had a difficult time focusing.  Throughout the video depositions he kept bouncing between sitting at the defense table and in the benches in the gallery.  His lawyer attempted to help him get back on track and lead him through his testimony step by step.  However, he volunteered that he had been cited for a traffic violation.  All four of the lawyers in the room had to hide a look of surprise when he said that.  Generally, police reports are excluded from juries because they are prejudicial.  I am not sure if the witness was not sufficiently prepped by his lawyers or if he did not realize what he was saying.
The plaintiff’s counsel had a masterful cross.  The defendant essentially admitted to either lying to the police officer at the scene or in court under oath.  The plaintiff’s attorney had the witness in the palm of his hand.  Eventually the defendant just kept talking and volunteering more information than he was asked.  Defense counsel was visibly shaken.  I was unable to watch the rest of his testimony to see when the attorney was going with that specific line of questioning.  It would have been interesting to see whether the defense was able to rehabilitate him.
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I learned a lot from this experience.  I did not realize just how much went into a trial.  Civil trials in King County are scheduled more than a year out.  Lawyers work on these cases for years and there are innumerable things that make come up before a verdict is read.  I have watched attorneys spend 20 hours one weekend preparing for a trial that settled an hour before it was set to begin.  I have heard of cases settling on the front steps of the courthouse just before closing argument.  Most importantly, I learned that life as a trial attorney is frustrating and unpredictable.  Would we have it any other way?



Sunday, February 19, 2017

PREPARING LAW STUDENTS FOR A LITIGATION PRACTICE

As few as 23% of all lawyers believe that law students are ready to practice law when they graduate. The Institute for the Advancement of the American Legal System  (IAALS), a research center at the University of Denver, is examining what foundations fledgling lawyers need to begin a successful practice and what  legal education models support those foundations. What can we learn so far from the Institute’s research as it applies to teaching law students about a litigation practice?

IAALS has published two monographs. The first issue entitled “Foundations for Practice: The Whole Lawyer and the Character Quotient” explores what the legal profession believes new lawyers need to be successful and makes recommendations. The Institute surveyed more than 24,000 lawyers to determine what characteristics, such as integrity and common sense, and professional competencies were important for new lawyers. More narrowly, they submitted questions to lawyers who had a litigation practice. At least half of the respondents considered three foundations to be necessary in the short term, as follows: drafting pleadings, motions and briefs (72%); request and produce discovery (65%) and interview clients and witnesses (50%). Other foundational skills with significant percentages included: comfortably engage with e-discovery processes and technologies (45%); draft demand letters and releases (42%); prepare a case for trial (27%); provide quality in-court trial advocacy (27%); conduct and defend depositions (24%); prepare for and participate in mediation (21%).

Knowing what lawyers are looking for in a new hires informs those of us who teach pretrial and trial advocacy about where we should place our emphasis. It is gratifying to know that our advocacy courses concentrate on the desired skills. Our two books, Pretrial Advocacy and Trial Advocacy explore  these subjects in depth and provide students with experiences in drafting the mentioned documents and performing, such as taking and defending depositions and engaging in all aspects of trial from case preparation through closing argument.

The Institute’s second monograph, “Foundations for Practice: Hiring the Whole Lawyer:Experience Matters,” reports on the Foundation’s survey of lawyers that asked how lawyers would hire if they wanted to hire those with the needed foundations to practice. The report summarized its findings as follows:

We learned that experience matters. While many employers in practice still rely on criteria like class rank, law school, and law review, our respondents indicated that if they wanted to hire people with the broad array of foundations they identified as important, they would rely on criteria rooted in experience, including legal employment, recommendations from practitioners or judges, legal externships, participation in a law school clinic, and other experiential education.” (emphasis added)

Specifically, the report indicates that of all the listed hiring criteria, 32% of the respondents found experiential education very helpful in hiring. It is gratifying to know that pretrial and trial advocacy courses with strong experiential components will provide the type of foundation that practitioners are looking for in candidates for employment.

Wednesday, February 1, 2017

TRUMP COMPLAINTS


In less than two weeks, Trump has become a petri dish for legal issues and law school discourse. Just as comedians are viewing Trump as a gift, law school faculty members may also see an opportunity. They can use Trump’s actions to stimulate discussions of legal issues, fundamental legal principles and the noble practice of law.

As an example, at the outset of this semester’s Comprehensive Pretrial Advocacy class that I teach at Seattle University Law School, we focus on drafting pleadings. We begin with drafting a complaint. The day before the class when this topic was discussed, Citizens for Responsibility and Ethics in Washington filed the first suit against Trump as President, alleging, “. . . countless conflicts of interest, as well as unprecedented influence by foreign governments.” The legal theory is that Trump violated the Foreign Emoluments Clause. This current event brings the discussion of drafting a complaint to life. It can spawn not only a discussion of the development of the legal theory underpinning the complaint but also provide the students with a nice example of a well-crafted complaint, which can be found in the BuzzFeed News article. How often do you see a complaint that has been signed off on by Constitutional scholar Professor Lawrence Tribe?

When the Pretrial class met again this week Trump had generated yet a number of new complaints against him all across the country as a result of his executive order on immigration. The executive action raised for discussion the issues of due process as well as the remedies of habeas corpus and injunctive relief. Again, the news account in the New YorkTimes comes with the complaint that students can examine as they prepare to draft a complaint as part of their course work.  
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Law schools are using Trump’s actions as opportunities to explore legal issues. American University Washington College of Law held a panel “teach in” on the immigration executive order; the panel discussion can be viewed on YouTube. American University’s action prompted Dean Annette Clark to pull together a panel of Seattle University Law School faculty to also discuss Trump’s actions with the students.

Monday, January 16, 2017

COURT REPORTERS: MAKING A RECORD

We just finished a three-day intersession course entitled Essential Lawyering Skills at Seattle University Law School that focuses on professional communication, and a major component of the course deals with depositions. The law students read, receive a lecture on and discuss how to take and defend a deposition.

As part of the instruction, Lori Rapozo, 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. Rapozo discussed the importance of making a proper record and how to do it.

During the presentations Ron Cook (pictured above) 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 is the current Washington State speed champion. 

Later, the students are divided into workshop groups, and Green River students who are learning how to be a court reporters, 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. 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. Having the court reporters present brings the deposition experience alive and prepares the law students for what they will face in practice.



During the course Lori Rapozo provided the law students with a 15-page handout entitled “Making the Record: A Guide for Attorneys,” published by the National Court Reporters Association. Every law student and fledgling lawyer who is planning to be involved in a deposition should read this monograph, and experienced litigators would benefit from reading it for its reminders. 

The following are a couple examples of tips contained in the monograph.

GOING OFF THE RECORD

Regarding going off the record, the Guide states:

MR. BRAUN: Off the record.
MR. JONES: No, I don’t want to go off the record.
MR. BRAUN: Well, this is my reporter.

The “this” Mr. Braun refers to is in fact an officer of the court, impartial,and the property of no one. The reporter’s duty is to prepare a full and accurate record of proceedings. In most jurisdictions, only when all counsel agree will the reporter stop writing. At this point , the reporter will indicate in the transcript, “(discussion held off the record.)”  The reporter will not start writing again until directed to do so by all counsel.

REMEMBER, SPEED KILLS

The Guide offers this reminder along with an explanation:

In an average day, the court reporter will write anywhere from 30,000 to 50,000 words. It is best for everyone that this not occur within the first two hours.

As with other aspects of life, the pace of legal proceedings has increased over the years. People simply talk faster than they used to. The average rate of speech now is estimated to be 150 to 160 words per minute, or about two and one-half words per second. In the heat of trial or deposition, it’s not unusual for speech to approach double that rate. At around 200 words and above per minute, speech tends to become slurred and indistinct, making it more likely that words will be misheard. . .


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