Saturday, July 25, 2015


Want to improve your motion and brief writing? Want to write clearly and concisely? Want to write to win? Then, there is a valuable website for you. King County Superior Court Judge Suzanne Parisien recommended it to me and to my Pretrial Advocacy law students.

The website is WordRake. While the website is designed to sell WordRake, which is described as a “revolutionary editing software,” you are not required to purchase the product in order to take advantage of the posts. The author of the posts is Gary Kinder, who has taught writing programs for the ABA and Microsoft among many others. If you subscribe by submitting your email address, you receive his free writing tips every Wednesday. Judge Parisien swears by the posts.

Here you can click and sample some of Gary Kinder’s Tips:

      The weekly Tips from Gary Kinder are worth reading and practicing.

Wednesday, July 15, 2015


Judge Terry Lukens (Ret. King County Superior Court and pictured here) is a mediator and arbitrator with JAMS. He provides those with whom he will serve as the mediator with this Mediation Preparation Checklist, which you may find useful along with the checklist provided in PretrialAdvocacy 4th Edition:

Mediation Preparation Checklist
Judge Terry Lukens (Ret.)

    Analyze the barriers to settlement – why hasn’t this matter settled?  Lack of communication? Emotion? Lack of information?  Old family grudges? What can be learned from the negotiations, if any, that have already taken place?
    Consider how the mediation and mediator can help you overcome those barriers to settlement.
    Make certain that everyone whose decision is necessary for settlement can participate and that someone with sufficient authority to settle is available – the absence of a party or a decision maker can doom the mediation  
    Identify other people who may need to be at the table or available by phone – accountants, actuaries, insurance advisors, or business and tax advisors.
    Educate your client about:
·      The key issues in the case
·      What the process is and the roles of attorney, client and mediator
·      What to expect
·      How to listen and when and how to reply
·      Expectations from prior discussions
    Familiarize yourself with the specific details of your case.  The greater your familiarity and ease of presentation, the more expeditious and effective the proceeding.  Have the basic documents of your case succinctly arranged so they can be referred to easily to aid your argument and to educate the mediator.
    Talk with your client to become clear about his/her interests (or "needs"), as distinct from the positions (or "wants") that have been asserted in the dispute.  Which interests are most important to your client and how might they be satisfied?
    Talk with your client about the interests and concerns of the other parties to the litigation.  Which interests are most important to the other parties to the litigation and how might they be satisfied?
    Discuss reasonable settlement goals with your client.
    Critically evaluate your own case – do your own realistic risk analysis.
·      Ask yourself: How could we lose this case?
·      Ask yourself: If we lose, what/how much will we lose?
·      Ask yourself:  If we win, what/how much will we win?
·      Ask yourself:  What is the real risk of either winning or losing and what is the most likely outcome?
·      Ask yourself: What is our worst document? Witness? Fact?
·      Ask yourself: How does the other side see the key issues,      facts, and law?
·      Ask yourself: What is the other side’s best argument?
·      What will the litigation cost (legal and expert fees, costs, client’s time sitting in the courtroom or arbitrator’s office) and the effect on the parties (disruption, emotional cost)?
    Consider how the other party is likely to evaluate the probable outcome if the case is litigated, asking yourself the same questions outlined above, but from the other side’s perspective.
    Consider what you could do in your mediation presentation to change the other side’s evaluation of the case. 
    Consider what information that has not already been shared might be helpful.  Remember to bring it with you - you can always control whether and how it is used.
    Think about items that would appeal to your client as part of a settlement package -- do not limit yourself to the types of relief sought in the litigation.  Think about options that might appeal to the other side.  Be creative!
    Submit a mediation memorandum to your mediator
·      Brief, usually under 10 pages
·      Focus on factors that affect settlement
·      Discuss confidential information vs. that information that is disclosed to opposing counsel
·      Attach exhibits if essential to a disputed issue
·      Excerpt pertinent portion of relevant documents such as wills, trust instruments and depositions
    Consider issues that may arise in final settlement documents or the implementation of a settlement
·      Are there tax or business issues and who will resolve them?
·      How will later disputes be resolved – further mediation followed by an arbitration or just an arbitration?
·      Who will be the mediator/arbitrator of any later disagreement?
    Prepare a draft of a CR2A Settlement Agreement on your computer and bring it with you to the mediation so that the parties may move quickly and seamlessly from a verbal to a written agreement.

Thursday, July 9, 2015


Just returned from the Balkans. For four days – June 29-July 2, 2015, my co-instructor Margaret Bodman (a prosecutor from Columbia, South Carolina and an experienced trial advocacy teacher) and I (Ron Clark) conducted a train-the-trial-advocacy-trainers’ course in Prishtina, Kosovo. The course was held under the auspices of the Justice Department’s Office of Overseas Prosecutorial Development and Training (OPDAT). Resident Legal Advisors Michelle Lakomy and Constantine Soupios were in charge of the program. We are all in the above group picture.

The overarching goal of the course was to spread the rule of law in Kosovo. During the course, the participants received lectures and saw demonstrations. Also, they learned by doing, delivering opening statements and closing arguments, conducting direct and cross-examinations and making a trial advocacy presentation.  Further, they practiced critiquing, which they will use when they train others. The fact pattern that they used was the State v. Hard homicide case that is available with Trial Advocacy: Planning, Analysis and Strategy 4th Edition

Our audience was composed of Kosovo judges, defense attorneys and prosecutors who will in turn be teaching trial advocacy concepts and skills to other lawyers and judges throughout Kosovo. One of the participants is pictured below receiving his certificate from Margaret and me at the conclusion of the course.

This was my second opportunity to teach for OPDAT in Kosovo, and, once again, it was an honor and pleasure to work with these receptive and wonderful lawyers and judges in one of the newest countries in the world as it recovers from its recent, war-torn past.

Friday, May 29, 2015


The Advanced Trial Advocacy Institute 2015 is just around the corner - June 15-19, 2015. ATAI is held at Seattle University Law School. The Institute is a CLE program co-sponsored by two prestigious organizations - the American College of Trial Lawyers and the American Board of Trial Advocates – and is offered in SU’s Summer Academy.
The Advanced Trial Advocacy Institute offers a proven approach to trial practice. Combining premier trial principles and strategies, participants prepare and try a case, including: conducting jury selection, presenting opening statement and closing argument, and examining witnesses. Participants’ performances are video recorded, and participants will receive individualized feedback from communication specialists, veteran trial lawyers, and judges.

Participants learn from and watch trial advocacy demonstrations by the best. The distinguished faculty includes: Hon. Terrence A. Carroll (ret.); Hon. John H. Chun; Thomas Lemly, Jeffery Robinson; Hon. John P. Erlick; Barbara Frost; Karen Koehler; Hon. Dean Lum; Lisa Marchese; Amy Forbis; Sim Osborn; Stephen Penner; Jeffrey Tilden, and other successful trial attorneys.

TUITION: General Registration (in person only): $1,499 • SU School of Law Alumni: $1,399

For complete information about the distinguished faculty, course schedule and registration for the Advanced Trial Advocacy Institute, click here. 

The course is designed for beginning trial lawyers who are seeking a firm foundation in the finest trial skills through more experienced trial lawyers who want to take their skills to a higher level.

Saturday, May 2, 2015


Each student in my Comprehensive Trial Advocacy class creates a demonstrative exhibit that could be used in the murder trial of Edward Hard. The goal is to teach them how to bring reality into the courtroom using visuals. Here are some of the exhibits that they created displayed in the lobby of the faculty office area in the Seattle University Law School.