Friday, November 17, 2017

HOW NOT TO MAKE A RECORD AT TRIAL


WITNESS: He cut me right across here, right here, right up under here, over under here.
PROSECUTOR: May it please the Court, may we have permission to have him remove his shirt so we can show the jury that?
THE COURT: Yes, sir.
PROSECUTOR: Come over here, Mr. Williams, take your coat off. Step right over here, Mr. Williams. I believe you said you got cut on the neck from here, is that right? Down like that?
A.         Yes sir.
Q.        Where else did you get cut?
A.         Right there and there, there.
Q.        Any other places?
A.         Here.
Q.        Is this a cut here?
A.         Yes, sir.
Q.        Did he do that?
A.         Yes, sir.
Q.        Are these cuts here?
A.         Yes, sir, small ones.
Q.        This one and this one.
A.         Yes, sir.
Q.        Any up here that he did?
A.         Right here and here.
Q.        Right over here and here?
A.         Yes, sir.
Q.        Any down around here that he did?
A.         No, sir, not in here.
Q.        But that one right there?
A.         Yes, sir.
Q.        Did you have your brace on when this happened?
A.         No.
PROSECUTOR:  Your Honor, could the witness step in the jury room and put his brace back on and his shirt?
THE COURT: Very well, be at ease. Where is his brace?
PROSECUTOR:  Right here.
Q.        Mr. Williams, is there any doubt in your mind as to who it was that cut you with the knife?
A.         No, sir.
Q.        It was the man right there?
A.         That’s right.

For guidance on how to properly make a record, consider Trial Advocacy: Planning, Analysis andStrategy 4th Edition, which provides instruction on that and much more.



Thursday, November 9, 2017

TWO-DOZEN 4-STAR ADVOCACY MOVIES

Anatomy of a Murder - A four-start trial movie

Here are two-dozen of my favorite 4-star trial advocacy movies. The movie descriptions include some background – most of the movies are based on actual cases. Movie clips can enliven a trial advocacy lecture, and, included in parentheses are what the film clips from the movies can be used to demonstrate. What have I missed?

A Time to Kill (Warner Brothers, 1996, Directed by Joel Schumacher) Based on a John Grisham novel. (storytelling)

Amistad (Dream Works 1997, Directed by Stephen Spielberg) Anthony Hopkins won the Academy Award for playing John Quincy Adams. Amistad involves trials centering on an 1838 rebellion on a Spanish slave ship, the Amistad. A federal trial court decided that the initial transport of the African slaves was illegal and that the Africans were free, not slaves. Former President John Quincy Adams argued before the United States Supreme Court which affirmed the lower court’s finding. In 1842, the Africans went home. (storytelling – the best story wins)

Anatomy Of A Murder (Columbia Pictures, 1959, Directed by Otto Preminger, music by Duke Ellington) Movie is based on a bestselling novel by Robert Travers. Travers was the pen name of John Volker, prosecutor, fisherman, and a Michigan Supreme Court judge from 1957-1959. Jimmy Stewart wins Best Actor Academy Award. The inspiration for the book was the 1952 Big Bay Michigan Lumberjack Tavern murder trial. The defendant killed the tavern's proprietor, Mike Chenowith, claiming that Chenowith had raped his wife. (everything)

Bananas (MGM, 1971, Directed by Woody Allen) (the perfect cross)

Caine Mutiny (Columbia Pictures, 1954) Best Actor Academy Award to Humphrey Bogart, based on Pulitzer Prize winning novel by Herman Wouk. (cross)

Chicago (Miramax, 2003, Directed by Rob Marshall), Academy Award for Best Movie in 2003. Chicago was a 1927 play, which became a 1927 silent film, a 1942 romantic comedy film Roxie Hart, the 1975 stage musical Chicago, and then the 2002 movie musical. Chicago concerns two women convicted murderer who are on death row together in Jazz-age Chicago. The inspirations for the play and then movies were the murder trials of two women, Belva Gaertner and Beulah Annan, both of whom were acquitted at trial. (trial performance)

A Civil Action (Paramount, 1998, Directed by Steven Zaillian) Based on Jonathan Harr’s book A Civil Action. The case upon which the book and movie are based on Anne Anderson, et al., v. Cryovac, Inc., et al. 96 F.R.D. 431. The case involves the polluting of the Woburn, Massachusetts water supply with toxins which results in the deaths of the townspeople. The citizens hire Jan Schlichtmann to sue. See the movie The Verdict, below, for the connection between Schlichtmann and the author of the book upon which The Verdict was based. My co-author, Marilyn J. Berger, produced three educational documentary films in the series, Lessons from Woburn. The Untold Stories" with Henry Wigglesworth. The films have been used in over 100 law schools. (pleading, depositions) 

Erin Brockovich (Universal Films, 2000, Directed by Steven Soderbergh) Erin Brochovich, a legal assistant, goes after Pacific Gas and Electric Company for polluting the water supply. Julia Roberts wins the Academy Award for Best Actress and the real Erin Brochovich appears in the movie as a waitress. Literary license is taken in the film: Massey’s partner, not Massey, represented Brochovich in the automobile accident case and Brochovich was Miss Pacific Coast, not Miss Wichita. (interviewing)

A Few Good Men (Castle Rock Entertainment, 1992, Directed by Rob Reiner) The movie is based on a play by David Sorkin who got the idea from his sister who was in Navy JAG went to Guantanamo Bay Naval Base to defend marines who almost killed a fellow Marine in a hazing ordered by a superior officer. (interviewing, cross) 

Freck Point Trial (Aspen Publications, 2008, Directed by Gretchen Ludwig) This movie is a trial advocacy training film with veteran actors doing everything from jury selection through closing argument. The movie comes with the book Trial Advocacy: Planning, Analysis and Strategy by Berger, Mitchell and Clark. For more information visit this website.

Inherit the Wind (United Artists, 1960, Directed by Stanley Kramer, who also directed Judgment at Nuremberg) The movie is based on the Jerome Lawrence and Robert Edwin Lee 1955 play. It is inspired by the 1925 trial of John T. Scopes who was convicted of teaching Dawin’s theory of evolution in a Tennessee high school science class (hence called “The Scopes Monkey Trial.” Scopes was ordered to pay a minimum fine. The play liberally drew from the transcripts. Scopes was represented by Clarence Darrow, and William Jennings Bryan prosecuted. (jury selection) 

Judgment at Nuremberg (Roxlom, 1961, Directed by Stanley Kramer who also directed Inherit the Wind). Maximilian Schell won the Academy Award for Best Actor. The actual Katzenberger trial was a subplot of this movie. In a Nazi show trial, Leo Katzenberger, a Jewish businessman and Nuremberg community leader was convicted of having an affair with a young Aryan woman, and sentenced to death. During the Nuremburg trials, the presiding judge at the Katzenberger trial was convicted and sentenced to life imprisonment. (cross)

Legally Blonde (MGM, 2001, Directed by Robert Luketik). (fun)

Murder on a Sunday Morning (Direct Cinema, 2003, Directed by Jean-Xavier de Lestrade) Academy Award winning documentary, Documentary about a murder in Jacksonville, Florida. (wide variety)

My Cousin Vinny (20th Century Fox, 1992, Directed by Jonathan Lynn). Marisa Tomei an Oscar for Best Supporting Actress. The writer, Dale Launer, explains the inspirations for the script as follows on his website: 
The next movie was one he wrote and produced - an original screenplay called HIS COUSIN, VINNY. This was one of his very first movie ideas - inspired by the fact that some lawyer in California took 13 attempts to finally pass the bar exam. 
He took a trip down south to do story research, starting in New Orleans, where he picked up a car, drove up through Mississippi, over to Alabama and down to the gulf coast. Along the way his car got stuck in the mud - which he worked into the story. He also noticed grits on every menu - which also got worked into the story. He stopped in the town of Butler, knocked on the door of the district attorney and had a chat with the deputy DA who reminded him of actor Lane Smith. This character found its way into the story (and Lane Smith played the part in the movie). Launer noticed they have gigantic cockroaches down there and that was massaged into a scene, but the director took it out for reasons that still mystify Launer. A screech owl too made it into the story. Everyone he met was very friendly and helpful, but when he told them he was making a movie that took place in the south - they'd get very concerned - afraid that Hollywood movies always made them look like bumpkins. That too woven weaved into the story. 
(cross, experts)

Philadelphia (Clinica Estetico, 1993, Directed by Jonathan Demme). Tom Hanks wins Oscar for Best Actor. The movie is based on the 1987 Geoffrey Bowers, suit against the law firm Baker & McKenzie for unfair dismissal in an AIDS discrimination case. 

Place in the Sun (Paramount Pictures, 1951, Directed by George Stevens, who won an Oscar for Best Director) The movie is based on An American Tragedy by Theodore Dreiser. The book was inspired by the 1906 murder case in which Chester Gillette was convicted of killing Grace Brown, his ex-girl friend who was pregnant and wanted Gillette to marry her. The murder took place in upstate New York at Big Moose Lake where Gillette took Brown out on a boat, hit over the head with a tennis racket, leaving her to drown. In 1908, Gillette was electrocuted. (demonstration on cross) 

Rainmaker (Paramount Pictures, 1997, Directed by Francis Ford Coppola, based on a John Grisham novel) (jury selection – fun)

The Fugitive (Warner Brothers, 1993, Directed by Andrew Davis), Tommy Lee Jones won the Oscar for playing Deputy United States Marshal Samuel Gerard. The movie is based on the popular television series by the same name, starring David Jansen. The series was based upon the Sam Sheppard case. Sheppard was convicted of killing his wife and sentenced in 1954 to prison. However, his conviction was overturned by the United States Supreme Court because of the prejudicial pretrial publicity. F. Lee Bailey represented Sheppard who in 1966 was acquitted at the retrial. (pretrial publicity)

Twelve Angry Men (United Artists, 1957, Directed by Sidney Lumet who also directed The Verdict). 

The Pelican Brief (Warner Brothers, 1993, Directed by Alan J. Paluka, who also directed the Presumed Innocent, based on best-selling novel by lawyer Scott Turow). Pelican Brief is based on a Grisham novel.

The Shooting of Big Man (Creative Common Sense, 1979, Directed by Eric F. Saltzman) Documentary of a assault with intent to kill case from arrest through trial in Seattle, Washington in 1979. (wide variety)

The Staircase (Sundance, 2004, Director - Jean-Xavier de Lestrade), Documentary about a murder in Durham, North Carolina. (wide variety)

The Verdict (20th Century Fox, 1982, Directed by Sidney Lumet who also directed Twelve Angry Men) The 1980 book on which The Verdict movie was based was written by Barry Reed, Massachusetts’s lawyer, with screen play by David Mamet. Barry Reed was a mentor to Jan Schlichtmann, who was the trial lawyer who filed suit against W. R. Grace and Beatrice Co. over the contaminated drinking water deaths in Woburn, Massachusetts. The case was written about in the book A Civil Action and later made into a movie by the same name. (witness preparation, closing)

Young Mr. Lincoln (20th Century Fox, 1939, Directed by John Ford). Although the movie is about Abe’s first case after he began practicing law in 1837, the movie trial is actually based on one of his much later cases from 1857. In that case, Lincoln’s client Duff Armstrong was charged with murdering James Metzker. Lincoln, using judicial notice, established that the eye witness Charles Allen’s testimony was false because the witness could not, as he claimed, have seen the shooting at a distance of 150 feet by moon light on that date according an almanac.

Earlier movie reviews can be found here.

Tuesday, October 31, 2017

FUNNY FLAWED FORENSIC SCIENCE

While the subject matter is very serious – flawed forensic science used to wrongfully convict, John Oliver provides a funny flawed forensic science piece. It’s educational and entertaining at the same time. It’s ideal for a presentation on forensic science evidence. Watch it here.

You may also find these articles of interest: “Shaken Baby Syndrome Evidence Questioned” and “Michael Peterson Gets a New Trial”, resulting from erroneous testimony by a blood spatter expert Dwayne Deavers.

Friday, October 27, 2017

FEATURED PRETRIAL BOOK


Seattle University Law School has featured the fifth edition of PretrialAdvocacy: Planning, Analysis, and Strategy in its Our Scholars publication.

Pretrial Advocacy provides an excellent conceptual and practical foundation for pretrial litigation for trial lawyers, teachers and law students. This new edition is updated and has expanded coverage of both criminal and civil pretrial practice. The focus remains on federal and state litigation. Professional responsibility and civility are emphasized throughout the text. Checklists of skills, techniques, standards and ethics appear in each chapter.

Underpinning the Pretrial Advocacy book is the Confucian methodology of “I hear and I forget. I see and I remember. I do and I understand.” First, each of the Pretrial Advocacy’s fourteen chapters offers a comprehensive explanation of a core litigation activity, from client interviewing, case theory development, drafting pleadings and discovery requests, motions, pretrial preparation through Alternative Dispute Resolution and pretrial readiness conferences. Additionally, each chapter both covers ethical and legal boundaries as well as provides a checklist for the particular pretrial activity under discussion.

Second, Pretrial Advocacy enables the students to see and remember. With the streaming videos provided on the password protected website, students can see and retain the information. For example, they can watch experienced trial lawyers take and defend a deposition and also use the deposition at trial.

Third and most importantly, students can learn litigation skills by performing them. Unlike any other litigation books and materials on the market, Pretrial Advocacy comes with a complete set of materials, including 79 role-playing assignments, two case files (complete with exhibits, witness statements, depositions, and so on) an Actors’ Guide for the witnesses, and a Teacher’s Manual.

New in this fifth edition are such topics as cultural competency essential to effective pretrial preparation and litigation and the skills required to collaboratively work in teams and strategies for conflict resolution

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Tuesday, October 24, 2017

TIPS ON SUMMARY JUDGMENT MOTIONS

Judge John Erlick, Judge of the King County Superior Court (Seattle) provided the following excellent tips on summary judgment motions: both writing and arguing them.

Length of briefs

Stay within the page limits set forth in the local rule, unless you ask for and receive leave to file an overlength brief. Don’t ask lightly. Do not assume that an overlength brief will be read by your judge. It would be nice for counsel to file the motion for overlength brief prior to filing the actual motion for SJ.

Do not presume, because there is a stipulation (to my time) by both counsel for overlength briefing, that the motion will be granted. It is presumptuous of the court’s time and will be returned with an order granting the motion to shorten time and an order denying the motion for an overlength brief (along with instructions to re-file a brief within the proper page limitations). And please do not play games with margins, font size, etc., to get around the rule. Don’t try to do an end run around the page limits by including numerous footnotes that are single spaced and in “micro font.”

Counsel should be gently reminded that all judges hear about three or four summary judgments each week involving issues such as insurance coverage in the form of declaratory relief, medical malpractice claims, legal malpractice claims, constitutional issues, employer-employee cases, class actions, construction defect cases and the list goes on. The briefs that get my attention are those that are well-written and succinct.

Remember: Reply briefs are limited to strict reply and FIVE pages, even for summary judgments.

Organizing the brief

Trial judges do not have law clerks who write bench memos for us. We read everything submitted ourselves and are preparing for the Friday hearings while we are busy in trial all day long. In other words, be concise and clear because we don’t have the time to “figure out” what you are trying to say in your brief.

Simplify your argument if possible. A brief should not look like a draft of a law review article. Tell the judge what s/he needs to know about your case as concisely as you can. If the facts are at all complicated, a timeline is very useful.

Proofread! Then do it again.

One approach is to do an introduction listing the main points of the argument and then later flesh out each point. Make it visually easy to read with bold divisions/break points. I don’t want to read pages of single-spaced materials without breaks unless it is the in-depth part of a given section.

Don’t waste precious space on the standards for summary judgment unless you have something new to say. We know the basics.

PLEASE tab the declarations and exhibits, preferably with highlighting of quoted or important portions, and if possible give the judge summary judgment notebooks, and follow the local rules by providing out-of-state and federal authority to the judge and opposing counsel.

Supporting documentation

If you are relying on deposition testimony to support your position, DO NOT simply attach the entire transcript to a declaration and expect the judge to read the whole thing to find the evidence you want the judge to find. Redact, highlight, whatever, the court’s portions AND the portions you send to opposing counsel, so we can streamline SJ prep.

When presenting numerous exhibits, tab the working copies in a way that makes it easy for the judge to find each exhibit. It’s most helpful to have numbered or lettered tabs that stick out; if you can’t do that, at least put a colored sheet of paper between each exhibit.

Along this same vein, if an exhibit has many pages, have it Bates stamped, and cite to the exhibit number and the page number in your brief. It’s frustrating to go paging through an exhibit that does not have easily recognized page numbers, such as insurance policies, or some real estate documents, trying to find a particular portion that is cited in a party’s brief. If you have photos as an exhibit, give us ones we can see, not grainy black-and-whites that show nothing

Citation to authority

It is always appreciated (since the rule requires it) to attach authority (case law), especially out-of-state case law. Significantly limit string citations to cases. When you use string cites, summarize briefly what the case holding was for the important cases.

Be forthright about authorities you cite. Don’t quote cases out of context; don’t cite a case for a proposition it doesn’t stand for. Citing a case means telling me something about how that specific case has application. Don’t cite a case you have not read because you will be very embarrassed and lose a lot of credibility if you cite a case for a proposition based on a headnote and the actual case says something different.

Oral argument

Find out in advance how long each side will have in oral argument. If there is more than one counsel aligned on each side, decide ahead of time how you want to allocate your time. Don’t expect to necessarily be able to present your entire argument without interruption.

Different judges approach oral argument differently. Some run a “hot bench,” peppering counsel with questions. Others take the Justice Clarence Thomas approach, listening to the argument in its totality, without questions. The types of questioning may clue you in to the level of detail your judge has familiarized him/herself with the facts of the case and the issues involved.

Know your important cases and how they relate to the legal issues in your motion. Also, when referring to asserted facts, know exactly where they are supported and referenced in the record.

Other considerations

Call the court if you settle the issue or intend on striking the motion so the judge does not read all the materials for nothing.

Call well in advance of when you want the summary judgment heard to reserve a time. Check in advance the availability of opposing counsel. The court does not want to get in the middle of your scheduling disputes.

Please note that the dispositive motion cutoff date on your case scheduling order is the last date that a dispositive motion can be heard by the Individually Calendared (IC) judge. That date is tied to the close of discovery on your case. If you find yourself up against a deadline without time on the judge’s calendar, you might ask the bailiff if the judge would consider the motion without oral argument. Another option is to request to be double-set, i.e., oral argument will be granted if a time slot opens up on the judge’s calendar.

Don’t stipulate to changing the briefing schedule without getting approval of the court.

Originally published in the November, 2007 issue of the King County Bar Association Bar Bulletin and republished here. Reprinted with permission of the King County Bar Association and Judge Erlick.


Should you want more articles relating to motions go here. Also, consider purchasing  PretrialAdvocacy: Planning, Analysis and Strategy.