MOTION ARGUMENT - DOES IT PASS THE “LAUGH TEST”?: COURTROOM LESSON #6

Maintain Your Credibility

No matter how much you stress certain principles of pretrial practice in a law school pretrial advocacy class, the lessons don’t stick the way seeing them come live in a courtroom does. Students in my semester-long Comprehensive Pretrial Advocacy course go to court, watch a motion calendar and write a report about what they saw and learned. The students select from federal, state or municipal court, and they can choose either a civil or criminal calendar.

Here is a student’s report about maintaining credibility with the court and how to do it. The name of the judge is changed, but otherwise this is the true account. The student reports:

“I was impressed with the argument from Plaintiff’s attorney. She was posed, able to jump right back into her argument after answering questions from Judge East, and possessed a convincing candor. Neither of the defendants’ attorneys displayed similar skills as the plaintiff’s attorney. Their arguments seemed to not pass the “laugh test” and that lead them to lose credibility with me. One thing I learned is that you need to put your best arguments forward, but if they cannot pass the “laugh test”, you should not move for summary judgment. Additionally, remaining calm and collected like the plaintiff’s attorney goes a long way for controlling the courtroom and creating credibility with the judge.”

CRITICAL TRIAL ADVOCACY RULES: COURTROOM LESSON #5

Seeing is Believing

No matter how much you stress certain principles of pretrial and trial practice in a law school trial advocacy class, the lessons don’t stick the way seeing them come live in a courtroom does. Students in my semester-long Comprehensive Trial Advocacy course go to court, watch a day of trial and write a report about what they saw and learned. The students select from federal, state or municipal court, and they can choose either a civil or criminal share their observations.

Here is a student’s report about the importance of professional courtesy and trial preparation – two principles that are taught in every trial advocacy class. The names of the participants and place are changed, but otherwise this is the true account.

“Several aspects of this trial stood out to me. First of all, I had never seen a judge take such an active role during trial proceedings as Judge Hoppy did in this case. At one point, for example, the judge responded to the objection, ‘Lack of foundation,’ by simply laying the foundation himself: instead of requiring the defense attorney to do so, he turned and asked the witness whether she was personally familiar with the subject on which she was testifying.

“The reason for Judge Hoppy’s involvement, however, became more apparent to me as I began to notice two other interesting aspects of this trial: (1) the incivility of both the plaintiff’s attorney and the plaintiff’s attorney’s colleagues and (2) the lack of preparedness by the defense attorney.

“The first sign of incivility by the plaintiff’s attorney and the plaintiff’s attorney’s law firm appeared while watching the direct examination of the first witness. In a mere 45 minutes, I counted 16 objections. Although some of these objections were worthwhile, the rest were inconsequential speaking objections that delayed the pace of trial and clearly irritated Judge Hoppy. Compounding the borderline improper basis for some of these objections was the hostility with which the plaintiff’s attorney then conducted cross-examination. For example, the phrase ‘under penalty of perjury’ seemed to follow closely behind every single question: ‘Are you testifying today, under penalty of perjury, that . . .’ The plaintiff’s attorney’s colleagues were even worse. Because I had taken a seat on the right hand side of the courtroom behind plaintiff’s counsel table, I realized, after a short while, that I was sitting among members of the plaintiff’s attorney’s law firm. And from start to finish, they seemed completely unable to control themselves—nearly every word uttered by defense witnesses prompted a visible scowl or roll of the eyes, so much so that I was embarrassed to be sitting among them.

“Yet as uncivil as the plaintiff’s attorney and the plaintiff’s attorney’s colleagues may have been, at least they were prepared for trial—the defense attorney was not. For some reason, the process of establishing a proper foundation was the defense attorney’s worst nightmare. Not only did this trigger a series of objections by the plaintiff’s attorney, it made the defense attorney come across to the jury as incompetent and unprepared. The worst instance of this trend was when the defense attorney began questioning the second witness about a report prepared by a third party network security contractor. First of all, the report had not yet been admitted into evidence. Second of all, not only was the report not in evidence, there was nobody present in the courtroom who could authenticate it. The witness had no personal knowledge of how the report was created or where it had come from—all that he knew was that the city of Jamestown had received it from a 3rd party contractor and had given it to him. As debate over this issue brought the trial to a halt, Judge Hoppy was clearly not pleased at the prospect of delaying the witness’s testimony for a day so that the defense could call someone else to authenticate the report. . .

“Observing this trial reminded me of two rules that are easy to follow in theory, but probably difficult to follow in practice: (1) be civil and (2) be prepared. Despite the degree to which I was unimpressed with nearly all of the attorneys involved in this case, I know that their jobs are not easy. Trials can be enormously complex, as well as heavily emotional. Truthfully, it was to some extent comforting to see trial attorneys making mistakes in court—it made the prospect of conducting my own trial someday less daunting. But as difficult and emotional as trials can be, I was still disappointed. Even with my limited experience, I am confident in concluding that the conduct and preparedness of the attorneys in this trial were subpar.”

“PREPARATION AND CONFIDENCE REALLY SHOW”: COURTROOM LESSON #4

Observing Pretrial Motions and Jury Selection

Students in my semester-long Comprehensive Trial Advocacy course go to court, watch a day of trial and write a report about what they saw and learned. The students select from federal, state or municipal court, and they can choose either a civil or criminal share their observations. This article is another in a series of the student’s reports. The names are changed to protect those concerned, but otherwise they are true accounts of the student’s experiences.

Here, the student attended a civil trial in which the plaintiff was injured when a bus drove over a portion of his leg. The following are excerpts from the student’s report:

“Motions

“A large portion of what I observed was determination of pre-trial motions a determination of what evidence would be admitted. . . .

“I found that if you know your evidence rules, you are well ahead of the game during the pre-trial conference. (Defense counsel) knew the rules and could intelligently speak to applicable case law. It was handy that she had copies of the cases that were on point and that she could tell the judge what the cases said. The plaintiff’s counsel, well, not quite as on top of it. Hearsay objections seemed to confuse the plaintiff’s counsel. At times defense counsel seemed a bit confused as well, but Judge Short was on top of his hearsay and knew what he was doing. What a difference a competent judge can make in a trial!

“Another key lesson from this portion is to make sure that you have copies of any documents, photos, diagrams, etc. that you want to have admitted! You need a copy, opposing counsel might want a copy and the judge needs a copy. MAKE COPIES!

“Voir Dire

“Observing voir dire was a fantastic experience! The two attorneys had very different approaches, and it was easy to see how the trial really begins at voir dire for a jury and how it is an important time to begin building your case theory and developing a positive rapport in the courtroom. . .

“It was great, having just done the voir dire exercise in class, to watch the two attorneys in action. It was clear that counsel for the plaintiff had not really thought through his “good juror/bad juror” profile – at least that is how it appeared. Plaintiff’s counsel seemed to ask questions intended to find those individuals who had ever previously worked for the state, county, or even metro. The judge had previously asked members of the jury pool to raise their hands if they had worked for metro or knew someone, but it did not appear that plaintiff’s counsel took very good notes and missed the opportunity to speak with all the people who had raised their hands. The attorney asked several questions about the standard of proof and whether the jury understand preponderance. He spoke about reasonable doubt and how that was not the standard here. This really seemed to confuse the jury. Overall, the plaintiff’s counsel did not have a conversation with the jurors and instead asked questions that did not seem to have a good flow or organization. During his second session of asking questions, he asked the following questions, “What have you heard about trial attorneys?” and “Will you give me a chance to earn your trust?” This exchange was awkward and the jury did not seem to respond to it well. In fact, I think that these question hurt whatever credibility he was trying to establish. Some potential jurors seemed to answer the latter question in the affirmative not because they believed he could gain their trust but just because it seemed like the right response. Granted, the attorney did seem quite nervous, but it seemed that if he had spent more time thinking through his questions that it would have gone over better.

“(Defense counsel) did a great job during jury selection! She had a conversation with the jurors and had a clear and coherent flow to her line of questioning. She had a great presence, never coming across as threatening or insincere. She was confident, smiled, and had good follow-up questions. Additionally, and what I thought was fantastic, is that she stood by the court reporter rather than stay at her desk or go up to the jurors. This encouraged the jurors to speak loudly enough for the court reporter to hear. The attorney seemed to have thought through the types of people whom she wanted on her jury, and I thought she did a good job of staying focused on that. The jury responded well to her in part because of her confidence and presence, but also because she never confused the jury and spoke to them clearly and with a line of questioning that seemed natural. She did a great job; it was truly a great experience to watch.

“While I did not get to observe many components of trial, it was a great day and I learned a lot from the experience. Overall, my takeaway was that preparation and confidence really show.”

CLIENT AS A WITNESS: COURTROOM LESSON #3

“Our client was a complete disaster!”

Sir John Mortimer’s fictitious Old Bailey barrister Horace Rumpole dreaded putting his client on the stand because somehow the client would manage to ruin the case. But, what about when the other side calls your supposedly thoroughly prepared client?

Students in my semester-long Comprehensive Trial Advocacy course go to court, watch a day of trial and write a report about what they saw and learned. The students select from federal, state or municipal court, and they can choose either a civil or criminal share their observations. The following are the student’s observations:

“Our firm represented the personal representative and sole beneficiary of the estate. The people challenging this testamentary devise were the decedents family, who were affirmatively and expressly disinherited in each of the decedents testamentary devises. The challengers challenged the will in most of the “standard” forms. They alleged undue influence and lack of testator capacity.

“After over a year of witness interviews, depositions, follow up interviews and general discovery, the firm that I was working for was of the position that the facts, and the law were fairly comfortably on our side. Not that anyone wants to go to trial, but I believed (perhaps in my youth and naivety) that we had a superior position to the other side, and that this trial might have been disposed of at a half time motion before the judge presiding over the bench trial.

“However, this peaceful stretch ended mid-way through the second day of a 4 day trial. The plaintiff decided to call our client as her last witness. We thought we had prepared him well regarding the type of questions he should have been expected to answer and how they might be asked. Our client was ready to go, but we did have some slight concern because past depositions had shown that our client could be “double talked” into making inconsistent answers. But with this in mind, we were prepared to cross in a way that would have rehabilitated our witness with relatively little damage being done.

“Our client was a complete disaster! He started getting shaken pretty easily early on in his questioning. His answers were inconsistent, and starting to go in directions that we had not expected them to go. He even answered a couple of questions in a manner completely outside of what we thought. Not only were his answers different than anything either attorney expected, but many of the “slam dunk” answers were met with “I don’t remembers” and “I’m not sures”. The attorney I worked for did a solid job rehabilitating our client, but by then the damage was done. He told me he was less surprised than I was about the bad direct of our client by the other party. Our case went from appearing to be firmly on our side to up in the air. And with the concern of our witness being put on cross by the plaintiffs’ attorney who had figured out how to cross his wires, we had to think long and hard about what to do when the plaintiff rested their case in chief following our client’s testimony.

“The case ended up being settled at half time. Although we were very nervous about what the judge was going to think about our client, who was really the most pivotal witness. The attorney I work for ultimately held that a half time settlement was proper, and our clients’ interests were still very well protected.

“This was a great lesson to learn early for a couple of reasons. First and foremost, I learned that although you can have a general idea of what people will say on the stand, you cannot ever really know what is going to happen when you are not the one asking the questions. I though this trial was disastrous (again, maybe in youth and nativity), but the lawyer I work for had been around the block, and did not appear to be shaken (or at least he did not show it).

“This was a very interesting a real world application of what we were talking about in class at the time. When I went and observed this trial, we were learning about case theories and telling the story. I did not think that the plaintiff was telling a good story, and that their theory was legal without any human element. In that regard, I thought we were “winning” in that we had spun a human interest tale about decade’s long friendship that ended with the loss of a best friend and companion. And everything was going well until the disastrous witness testimony.

“In conclusion, although the trial did not go the way I thought it might, being able to see two practicing attorneys going at it after over a year and a half of discussions, discovery and negotiations was very exciting. It did however strengthen my position that litigation might not be my strongest suit in the practice of law. But I can say, that this experience on top what I am learning in class gives me some hope for future courtroom situations.”

NEW PRETRIAL ADVOCACY BOOK LAUNCHED

Complete Pretrial Litigation Package

My co-authors and I are delighted that Wolters Kluwer, Aspen Publications has just published Pretrial Advocacy: Planning, Analysis, and Strategy Fourth Edition. This edition provides an excellent conceptual and practical foundation for pretrial litigation for both practitioners, teachers and law students. With 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. 78 assignments are designed for law school courses or professional development continuing legal education programs involving role-play performances.

CD and DVD The inclusive package includes a CD with a wrongful death and criminal homicide case; a DVD with videos on depositions and touring a crime scene as well as visuals for use in pretrial or trial. The book also comes with a comprehensive Teacher’s Manual.

Website: The book has an excellent companion Website that includes articles on pretrial, sample pleadings, links to valuable resources and much more.

This Fourth Edition of Pretrial Advocacy, revised to reflect current Rules, has a new chapter on pretrial conferences in civil and criminal cases and expanded coverage of criminal case plea negotiations. The revised chapter on depositions includes new material on making and meeting objections, conferring with the client, and the interplay between the deposition and cross-examination. The practical effects of the Twombly/Iqbaldecisions are explored. New information is included on investigating social media during pretrial preparation. New developments in discovery—criminal prosecutors’ new responsibilities under MRPC 3.8 (g) and e-discovery―as well as new technologies are introduced. A File of Exemplary Forms contains sample documents essential to pretrial practice, such as client intake form, engagement and non-engagement letters, settlement brochure, and an agreement to mediate.

Features:
• coverage of both criminal and civil pretrial practice
• focus on both federal and state litigation
• emphasis on professional responsibility and civility
• checklists of skills, techniques, standards, and ethics
• 78 assignments for student role-play performances
• CD with case files
o wrongful death
o criminal homicide
• DVD containing:
o video of how to take a deposition and use it at trial
o video tour of the crime scene
o visuals for use in pretrial or trial
 mediation slide shows
 animations
 a settlement documentary movie
• excellent Website that includes articles on pretrial subjects, sample pleadings, links to valuable Websites, and more
• Comprehensive Teacher’s Manual with witness instruction for role-play assignments

Thoroughly updated, the revised Fourth Edition presents:
• a new chapter on pretrial conferences in civil and criminal cases
• expanded coverage of criminal case plea negotiations
• Rules that have been updated since the previous edition
• revised chapter on depositions with new material
o making and meeting objections
o conferring with the client
o the interplay between the deposition and cross-examination
• Twombly/Iqbal turbulence update and the effect of the decisions
• new information on investigating social media during pretrial preparation
• new developments in discovery
o criminal prosecutors’ new responsibilities under MRPC 3.8 (g)
o e-discovery
• discussion of new technologies
• sample Exemplary Forms in the bind-in CD
o client intake form
o engagement and non-engagement letters
o settlement brochure
o agreement to mediate

AMAZING TRIAL ANECDOTES: COURTROOM LESSON #2

Romance in a Strange Place

After years in the courtroom, you know you haven’t heard it all. There’s always another story, which makes you say: “Amazing!” This one comes from a law student’s courtroom observation. Students in my semester-long Comprehensive Trial Advocacy course go to court, watch a day of trial and write a report about what they saw and learned. The students select from federal, state or municipal court, and they can choose either a civil or criminal share their observations.

A student viewed a Driving Under the Influence trial at the King County Courthouse, in Seattle, and the following is the they-were-doing-what! excerpt from the student’s report:

“The case concerned a man who had been driving erratically. A trooper on his way home from work spotted the man weaving all over the road. The trooper pulled him over and asked him to step out of the car. The defendant took a really long time to get out of the car, and almost fell over when he stood up. The trooper asked the defendant if he would be willing to take some voluntary field sobriety tests. The defendant said yes. After the trooper finished explaining the “walk and turn test,” the defendant stated that he was too drunk to take that particular test. The trooper carried on to explain the “one leg stand” test. Again, the defendant stated that he was too drunk to take the test. At this point, the trooper chose to place the defendant under arrest.

There was a female passenger in the car, and during the trooper’s entire exchange with the defendant, she had been standing outside, banging on the top of the car, and yelling that the defendant should not take the field sobriety tests. Once the defendant was cuffed, the female was also cuffed because she was drunk and disorderly.

There was no other patrol vehicle available to transport the female to the jail separately, so the trooper had to place both the male and female in the back of his car for jail transport. During the five minute trip to the jail, the woman turned to the defendant and said “Thanks for all the partying!” They then began to make out (still handcuffed) in the back of the patrol car. . .

“The only witness called was the trooper who made the arrest. He was a twenty year veteran of the Washington State Patrol, and he had extensive training in detecting DUI’s. The prosecution was able to show the in-car video of the stop while the trooper narrated what was occurring. The defendant’s statements all came in.

“The absolute best part of the whole trial was when the trooper was explaining about the defendant and his female passenger making out in the back of his patrol car. The trooper was an older gentleman, and came across as a very steady, dependable person on the stand. When discussing the make out session, the trooper got a look of horror on his face, and said “Never, NEVER in my twenty years of law enforcement experience have I ever seen anything like that. Never!” I could clearly see some jurors covering giggles.”

The student reports that the jury was back in a half an hour with a guilty verdict. A courtroom lesson: trial work will give you a treasure trove of anecdotes.

COURTROOM LESSON #1: TRIAL LAWYER’S DEMEANOR

Through the Eyes of Law Students

The best way to learn trial skills is to second chair a trial with a skilled lawyer. The next best way is to watch skilled trial lawyers at work in the courtroom. Students in my semester-long Comprehensive Trial Advocacy course go to court, watch a day of trial and write a report about what they saw and learned. The students select from federal, state or municipal court, and they can choose either a civil or criminal case to watch. This and up-coming blogs share noteworthy and entertaining excerpts from the students’ reports. The names are changed to protect those concerned, but otherwise they are true accounts of the student’s experiences.

Medical Malpractice Suit - Observations

The first report comes from a student who observed the plaintiff’s case in a civil medical malpractice suit. She saw direct and cross-examination of the plaintiff and her husband. The student had these insightful observations about the styles of counsel:

“Immediately I could tell there were two very different styles between the attorneys. The plaintiff’s attorney was far more quiet and soft spoken than the defense. Defense counsel did a great job “owning” the courtroom without ever appearing disrespectful to the judge, jury or opposing counsel. He was able to have a commanding presence without appearing arrogant. This was amplified by the fact that the plaintiff’s attorney seemed almost uncomfortable making objections. At one point, he objected, but began by apologizing. Not only did he seem uncomfortable, but I could see how this may seem like a lack of confidence or trustworthiness to the jury. While I do not doubt his capabilities as an attorney, I could imagine that a jury may interpret a lack of confidence as a lack of trustworthiness. While they may not feel like he is trying to trick or lie to them, the defense counsel was so authoritative and he seemed more believable. He won most objections and seemed like he was the one who knew what he was talking about. It would have been interesting to see more days of trial, or to hear from the jury to see how they perceived the differences between the two attorneys. . .

“Overall, I saw how important it is to be confident without (being) arrogant in the courtroom. Because the jury is learning the case as the attorneys tell it, it seems that being confident in everything you do, from the objections to direct and cross-examination, provides a sense of believability to what you are saying. Almost as if by being confident, you can signal to the jury that you are right—if the attorney seems to believe what they are saying, it seems easier for the jury to believe it too.”

In class, we devote time to discussing the importance of being sincere and projecting that sincerity to the jury. However, nothing can drive home this important lesson like watching, as this student did, a trial lawyer who projects sincerity in the courtroom.