Friday, October 20, 2017


Henry Brown & Thomas Leach

NITA Studio 7 is sponsoring a free live webcast on Character-Evidence Rules (404-406 and 608-609) on October 26 (10:00 a.m. PDT & 1:00 p.m. EDT). You can go here to register. The presenters are Thomas Leach, Program Director at Pacific George School of Law and Assistant Professor Henry Brown. You can view them do a teaser for a program on direct and cross here. If you teach evidence or trial advocacy, you may wish to recommend it to your law students.

The NITA blurb for the program on Character Evidence states: “The character-evidence rules (FRE 404-406, 608-609, and state equivalents) are definitely the most confusing and trouble-causing of all the rules. Compared to them, hearsay is easy! Jay Leach and Henry Brown will walk you through the rules, the usage, and the underlying theory. You will emerge with a calm, cool, collected mastery of the subject.”

Thursday, October 19, 2017


Through trial preparation means that you must go to the scene. To understand a case requires a sense of the people and the place involved. It is critical to go to the scene at the earliest opportunity. You can’t truly understand the place unless you have been there. The scene could be an intersection in a negligence collision case, a nursing home in an elder abuse case or the bar in a case involving a shooting in a tavern on a Saturday night. Witness statements, pictures and diagrams are poor substitutes for being there. This is not a new subject here; it is worth repeating.

The case that my law students work on for both the Comprehensive Pretrial and Trial courses involves a Saturday night shooting in a bar which results in a criminal homicide prosecution and a civil tavern liability civil suit.  Full case files for these cases are located on the website that is a companion resource for Pretrial.

Because the bar is the scene of the shooting, my Seattle University law students (this fall’s class pictured above) and I, as part of the strenuous curriculum, visit the Garage Tavern where the shooting took place. I usually play the role of the lead detective and the students in the role of counsel question me about the location and the people involved. To prepare for the class the students watch a video tour of the tavern on the website which is a companion to the Pretrial Advocacy book. The students note that the differences from even what they saw in the video of the scene, including the ambient noise and the low lighting when they are there in person. Factors which would interfere with a witness’s ability to see and hear.

I stress the importance of going to the scene as soon as possible not only so that they, as counsel, will have a grasp of the location when they talk to witnesses but also because the scene may change from the night of the shooting or whatever the incident might be in their cases. How has a scene visit worked to your advantage?

We discuss the value of having someone who was involved in the incident present because they can point out where people and things were when the shooting took place. Also, we talk about having a camera to take photos of the scene before something is changed if this has not already been done.

The experience of going to the Garage Tavern will hopefully stick in the students’ minds the vital value of visiting the scene, doing it as soon as possible and how to approach the scene visit. Beyond that, it is a great opportunity to spend time getting to know your students in a non-school setting. Do you do this as part of your pretrial advocacy course?

Going to the scene is an important aspect of pretrial preparation and case development.

Sunday, October 15, 2017


You can find historic and outstanding openings and closings in this book: In the Interest of Justice – Great Opening and Closing Arguments of the Last 100 Years, HarperCollins Publishers, which was reviewed here in August of 2009. When you set out to craft your opening statement or closing argument, it is always helpful to refer to outstanding opening statements and closing arguments from the past, and this book provides them and continues to be an excellent resource.

--> The author of In the Interests of Justice is Joel J. Seidemann, Adjunct Professor at Pace Law School and Senior Trial Counsel in the New York County Attorneys Office. Professor Seidemann’s book contains excerpts from transcripts that meet Mr. Sideman’s two prerequisites. The selected cases are very high profile, including, among others, the trials of: O. J. Simpson; Marv Albert; Sean Puff Daddy Combs; Adolf Eichmann; Martha Stewart; John Scopes; Amadou Diallo; Timothy McVeigh. Second, the advocacy in these cases also satisfies the excellence test, with the lawyers demonstrating how to effectively use these devices: storytelling; analogies; phrasing; humor; pathos; logic; themes and so much more.
Joel J. Seidemann

Beyond satisfying these two requirements, Mr. Seidemann arranged the material in ways that are both entertaining and educational. For example, he juxtaposed Daniel Petrocelli’s opening statement for the plaintiff in the O. J. Simpson civil trial against Johnnie Cochran’s closing in the criminal case showing how two fine trial advocates can work the same case. Further, Mr. Seidemann provides well-written introductory overviews setting the stages for the transcripts of the openings and closings as well as thoughtful postscripts describing case outcomes and providing thoughtful commentary on the cases and trial work by the lawyers.

This book continues to be a wonderful resource for trial lawyers, professors looking for illustrations of superb openings and closing and law students who are taking trial advocacy classes.