Pretrial, Trial, Appellate & Evidence Blog

DON'T RUIN YOUR OPENING STATEMENT

2012-01-26T17:45:00.001-08:00

Checklist of Pitfalls for Opening Statement

Don’t ruin your opening by stumbling into these pitfalls. Avoid:

 Preramble: “My name is . . . and I represent;” “As His Honor has told you everything we say in opening statement is not evidence . . .;” “First, I want to thanks you for your jury service because. . .;” “I want to apologize for . . .”
 “I believe . . .” Rule of Professional Responsibility 3.4(e)
 “Mr. X will testify that . . . Ms. Y will testify that . . . Then, Mr. Z will testify that . . .” An endless list of witnesses and what they will testify to. Rather, tell the story of the case.
 Past tense – “Jane saw.” Bring the story alive for the jurors with the present tense – “Jane sees.” Let them be eyewitnesses to what happened.
 “This is a complex case.” “This case is simple.”
 A podium unless the court requires otherwise. It’s conversational, not a lecture.
 Losing eye contact. Reading.
 A disconnect between the nature of the case and demeanor, such as anger in a forgery case.
 Just saying it. Visuals will bring the opening to life – tell and show.
 Trying to be someone you’re not.
 Not revealing an admissible weakness in your case.
 Mentioning inadmissible evidence (particularly if the judge has already excluded it as the prosecutor did in the Roger Clemens case) or evidence that may be excluded
 Going on too long.
 A case you don’t believe in – insincerity will show.
 Being themeless.
 Overpromising what the evidence will show or overstating the case.
 Misstating the evidence.
 Too many details.
 A weak beginning.
 A weak conclusion.
 Being boring.

VALUABLE WEBSITE FOR ADVOCACY INSTRUCTORS

2012-01-20T11:38:00.000-08:00

Visit Teaching Advocacy Blog

This blog is dedicated in part to teaching pretrial, trial and appellate advocacy, and, therefore, I was delighted to discover Teaching Advocacy Blog, which has teaching advocacy skills as its focus. That blog is administered and often written by Christopher Behan (Assistant Professor of Law, Southern Illinois University School of Law), Charles Rose (Director, Center for Excellence in Advocacy; Professor of Excellence in Trial Advocacy at Stetson College of Law) and Hugh Selby (Barrister and Australian National University where he writes about “courtcraft” - neat term).

If you are teaching pretrial, trial or appellate advocacy, this is a blog to follow for valuable articles on teaching advocacy. The authors of the blog include both the administrators and guest authors. The blog has passed a milestone of 20,000 page views. A history of the blog can be found here.

A very small sampling of what you can find here includes:

• Why we need to train young Public Defenders and a few thoughts about how
• Teaching Advocates to Listen
• Using Checklists in Advocacy Teaching and Practice
• Teaching Cross Indoctrination Instead of Cross Examination

Take a couple minutes to visit the site and you are likely to find something useful if you teach pretrial, trial or appellate advocacy.

FOCUS GROUPS AND DAVID BALL

2012-01-17T15:49:00.000-08:00

Book Review: How to Do Your Own Focus Groups: A Guide for Trial Lawyers

Even with a thorough investigation and analysis of the case, you can overlook things, even the most obvious. This is especially true once you’ve formulated a case theory because there is a natural tendency to miss or reject that which is inconsistent with that hypothesis. That is why focus groups are such valuable tools for trial lawyers.
Focus groups can give you insight into almost all aspects of trial advocacy. For instance, they can provide insight into how jurors will react to the case, the witnesses, the exhibits, and the case theory. They can provide: new ideas for how to present the case; effective arguments; analogies, themes.

A trial consultant can be hired to do the focus group. A good resource for locating a trial consultant is the American Society of Trial Consultants found online at astcweb.org. On the other hand, if your budget does not allow you to use a consultant, you can do your own focus group.

David Ball, PhD, a nationally known trial consultant and author of David Ball on Damages, provides detailed advice on conducting focus groups in How to Do Your Own Focus Groups: A Guide for Trial Lawyers, NITA 2001.

Ball covers the waterfront in his book; chapters are as follows:

1. What Kind of Focus Group Should You Do?
2. Who Should Present the Case?
3. How Is the Case Presented?
4. How Many?
5. What Is Wrong With Winning?
6. When to Do Focus Groups
7. Where to Do Focus Groups
8. Recruiting the Focus-Jurors
9. Rooms and Video
10. When Focus-Jurors Arrive
11. Introductory Remarks
12. Who Are You?
13. What is this Project?
14. Writing the Presentation Statement
15. The Neutral Statement
16. Plaintiff or Prosecution Statement
17. Defense Statement
18. Plaintiff or Prosecution Rebuttal
19. Witness Presentation and Focus-Juror Questions
20. Divide the Jurors into Deliberation Panels
21. Instructions Before Deliberating
22. Verdict Questions
23. After Deliberations
24. Optional Next Step
25. Analysis
26. Conclusion

The appendix includes forms and templates that can be used for letters, questionnaires, scripts and so on. Armed with this book, counsel can properly conduct focus groups and reap the benefits.

JUROR ONLINE MISCONDUCT

2012-01-14T10:29:00.000-08:00

Juror Googles the Defendant

Recently a family member of mine who is a prosecutor finished a jury trial. The jury convicted. He was talking to the jurors after the verdict and learned that one of the jurors had Googled the defendant in violation of the jury instructions. The juror learned information that had not been admitted at trial. The juror did not communicate what was learned was to the other jurors. Now, following his prosecutorial duty, my family member disclosed the juror’s misconduct to the judge. A new trial may well be granted. All the time, money and stress expended so far is likely to go down the drain.

Preventing juror misconduct with social media is a major goal of today’s justice system. A prior post here noted the state of Washington’s Pattern Jury Instruction committee created a poster to warn jurors not to go online and access information about the case. Other courts have used sterner measures. In August, 2011, a Fort Worth, Texas trial judge held a juror in a civil auto accident case in contempt for trying to friend the defendant and discussing the case on Facebook when the jury instructions forbid the jurors from discussing the case online. The juror was dismissed and after that he posted a message to the defendant on his Facebook that said in part “. . . I guess you know what it feels like to be prosecuted too. Good luck with everything.”

What other measures can be taken to prevent this form of juror misconduct?

FAVORABLE ATTRIBUTES OF A TRIAL LAWYER

2012-01-11T15:00:00.000-08:00

Through the Jurors’ Eyes

I asked my law students to put themselves in the jury box and ask what they as jurors would want to see in a trial lawyer. Three students came up with this nice list of attributes worth aspiring to project:

• Credibility
• Compassion
• Capability
• Clarity
• Conciseness
• Conscientiousness
• Charm
• Charisma

SHAKEN BABY SYNDROME EVIDENCE QUESTIONED

2012-01-07T15:16:00.000-08:00

ABA Article - “Unsettling Science”

Once unquestioned, shaken baby syndrome evidence, which has been the underpinning of child abuse prosecutions is now under attack. “Unsettling Science,” by Mark Hansen (ABA Journal Dec. 2011) should be read by any prosecutor or defense counsel assigned to such a case.

The article focuses on Audrey Edmunds (left), who was convicted of reckless homicide for shaking a couple’s infant to death. SBS at the heart of the prosecution’s case. The SBS theory is that a characteristic set of head injuries, including swelling of the brain, bleeding around the brain and bleeding in the retinas of the eye which are otherwise explained, can be attributed to violent head shaking. In 2008, the Wisconsin appellate court overturned Edmund’s conviction, holding as follows:

“The newly discovered evidence in this case shows that there has been a shift in mainstream medical opinion since the time of Edmunds's trial as to the causes of the types of trauma Natalie exhibited. We recognize, as did the circuit court, that there are now competing medical opinions as to how Natalie's injuries arose and that the new evidence does not completely dispel the old evidence. Indeed, the debate between the defense and State experts reveals a fierce disagreement between forensic pathologists, who now question whether the symptoms Natalie displayed indicate intentional head trauma, and pediatricians, who largely adhere to the science as presented at Edmunds's trial. However, it is the emergence of a legitimate and significant dispute within the medical community as to the cause of those injuries that constitutes newly discovered evidence. At trial, and on Edmunds's first postconviction motion, there was no such fierce debate. Thus, the State was able to easily overcome Edmunds's argument that she did not cause Natalie's injuries by pointing out that the jury would have to disbelieve the medical experts in order to have a reasonable doubt as to Edmunds's guilt. Now, a jury would be faced with competing credible medical opinions in determining whether there is a reasonable doubt as to Edmunds's guilt. Thus, we conclude that the record establishes that there is a reasonable probability that a jury, looking at both the new medical testimony and the old medical testimony, would have a reasonable doubt as to Edmunds's guilt. Accordingly, we reverse and remand for a new trial.” The full opinion can be found here.

The ABA article concludes: “. . . (A) growing chorus of critics says the entire theory rests on an uncertain scientific footing that continues to erode under the weight of scientific scrutiny, raising the specter that hundreds if not thousands of innocent people – parents, grandparents, baby sitters, nannies, boyfriends –have faced criminal charges and even been imprisoned in the past three decades for crimes they may not have committed."

A TRIAL TO FOLLOW IN 2012 - ROGER CLEMENS AND RUSTY HARDIN

2011-12-30T13:41:00.001-08:00

Advocacy at Its Best – Rusty Hardin at Work

The trial had just started. July 14, 2011 was the second day of testimony when the prosecutors made a mistake that the judge said a first year law student would not have made. This occurred in the trial of Roger Clemons, who is charged with perjury, obstruction of justice and making false statements. This is another high profile case alleging that a Major League Baseball player was involved with steroids and other enhancement drugs. The boneheaded mistake - prosecutors Steven Durham and Daniel Butler played a video that showed a Congressman discussing Laura Pettitte's sworn statement, which United States District Judge Reggie Walton had previously ruled inadmissible. Pettitte’s statement was that her husband had told her that Clemens admitted using human growth hormones, and the judge held it was inadmissible double hearsay.

Defense counsel Rusty Hardin moved for a mistrial and a ruling that double jeopardy attached because the prosecution deliberately offered the inadmissible evidence. Judge Walton granted the mistrial but reserved ruling on the motion to dismiss on double jeopardy grounds. On September 9, 2011, he ruled that jeopardy had not attached because the prosecutors had not deliberately introduced inadmissible evidence. He decided that the prosecutors were negligent rather than calculating, reasoning that things were going well for the prosecutors at the time, giving them no reason to want to end the trial and that he knew the prosecutors to be highly professional and not the kind who would deliberately terminate the case.

Judge Walton scheduled the trial for April 17, 2012. It will be worth following because of its social importance but also because of the quality of the advocacy. Defense counsel Rusty Hardin is one of the best of the best. Hardin is now known for successfully representing high profile clients including: Arthur Anderson (Supreme Court overturned Enron case conviction); the estate of Texas millionaire J. Howard Marshall (Anna Nicole Smith got nothing); Victoria Osteen, wife of evangelist Joel Osteen (civil suit filed by airline attendant) and sports figures (Warren Moon, Wade Boggs, Scottie Pippen and so on).

I first got to know Rusty as a prosecutor in Texas. He has it when it comes to being able to communicate with judges and juries. He exudes sincerity and trustworthiness. He was once aptly described in Texan as follows: “Rusty is as slippery as deer guts on a door knob.”

Looking forward to the Clemen’s trial and watching a master at work.

PRICELESS COURT ORDER OF 2011

2011-12-27T13:51:00.001-08:00

Judge Euphoric Over Settlement

Time for a new tradition – awarding the Priceless Court Order of the Year. Criteria for the Award are at best ambiguous.

The recipient of the 2011 Priceless Court Order of the Year was not the one shown here. Rather it goes to the First Division of the Commonwealth of Kentucky’s Kenton Circuit Court. When the parties informed the court that the matter had been settled and there was no need for trial, Judge Middleton entered this order in Barbara Kissel vs. Schwartz Maines & Ruby Co., LPA, et al. (Cause Number 09-C1-0016):

“And such news of an amicable (footnote states that the Court used the word ‘amicably’ loosely) settlement having made this Court happier than a tick on a fat dog because it is otherwise busier than a one-legged cat in a sand box and, quite frankly, would have rather jumped naked off a twelve foot step ladder into five gallon bucket of porcupines than have presided over a two week trial of the herein dispute, a trial which, no doubt, would have made the jury more confused than a hungry baby in a topless bar and made the parties and their attorneys madder than mosquitoes in a mannequin factory. IT IS THEREFORE ORDERED AND ADJUDGED by the court as follows: The jury trial scheduled herein for July 13, 2011 is hereby CANCELLED.”

Top that for 2011?

MICHAEL PETERSON GETS A NEW TRIAL

2011-12-22T16:08:00.000-08:00

The Staircase Case Not Over

Prior post recommended Academy Award recipient and French director Jean-Xavier de Lestrade’s documentary of a murder trial in Durham, North Carolina as an excellent tool for teaching both pretrial and trial techniques. The defendant in this documentary film of a murder trial is Michael Peterson (pictured on right with his attorney) who is accused of bludgeoning his wife to death and attempting to make it look like she fell down a flight of stairs.

In October of 2004, the jury convicted Peterson, and he served time in prison until on December 14th of this month, Judge Orlando Hudson granted him a new trial based upon a finding that the state’s bloodstain pattern analyst Duane Deaver gave misleading testimony. Agent Deaver had testified that he had reported on around 200 bloodstain cases when the defense contended he had only gone to 15 scenes. Deavers has been fired.

The documentary of the first trial is packed with interesting evidentiary issues as well as illustrations of trial techniques. The retrial, if some plea bargain is not reached, will be worth following. Too bad, director Lestrade won’t be there to document it.

NEW SET OF PRETRIAL AND TRIAL BOOKS AND DVDs LAUNCHED

2011-11-29T15:04:00.001-08:00

Litigation Bundle with a 50% Price Savings – Call 1-800-294-6777

Wolters Kluwer (Aspen) has just launched the sale of a litigation bundle of materials at a price that can’t be beat. The suite of books and DVDs covers pretrial litigation and trial from START to FINISH.

The Books

The litigation package includes four books: Pretrial Advocacy, Trial Advocacy, Cross-Examination Handbook and Evidence: Skills, Strategies and Assignments. Pretrial materials start with the initial client contact, and run through case theory development, discovery to pretrial resolution. Trial materials encompass everything from jury selection through closing argument. They explain how to think and act as a pretrial litigator and trial lawyer.

The Videos

The package includes two DVDs. These videos show skilled, experienced lawyers at work. Going beyond being able to read about how to think and act as a litigator, the demonstration videos show how to do things well. The Pretrial DVD shows: how to take a deposition, how to use a deposition in trial, a crime scene tour, a settlement documentary and software slideshows for mediation. The Trial demonstration DVD shows veteran trial attorneys doing everything from jury selection through closing argument as well commentaries by those attorneys and true crime writer Ann Rule.

Other Special Features of the Litigation Package:

• For small to large firms that want easy to use and sustainable modules for in-house CLE training on pretrial litigation, evidence skills and cross-examination techniques and strategies, the books include Case Files, performance assignments, Actors’ Guides for witnesses and Teacher’s Manuals
• Skills checklists
• Ethics are covered in each skills chapter
• Judicial expectations for trial counsel
• Both criminal and civil cases
• Today’s technology is incorporated throughout including: using software for case management, e-discovery, creating pretrial and trial visuals, introducing and displaying emails, website pages, Google Earth and utilizing argument visuals
• Robust Wolters Kluwer websites (aspenadvocacybooks.com and crossexambook.com) and blogs with supplementary materials.

What Lawyers are Saying about the Materials:

• Cross-Examination Handbook: Randy Cox, Boone Karlberg P.C., Missoula, MT: “I can say that this book will not only be something I review as part of trial preparation but is also a book to be given to new lawyers in our office.”
• Trial Advocacy 3rd Edition: Kenneth Shigley, President State Bar of Georgia, 2011-12: Trial Advocacy 3rd Edition is “an excellent introduction for students and new lawyers, and a valuable handbook for seasoned trial lawyers. With its coverage of newly emerging topics, I will keep it at my desk.”
• Evidence: Skills: Christina L. Dixon, Esq. The Waltz Law Firm, Denver, CO: Highly recommended. . . It is a great modernization of evidence that should have made Irving Younger proud.”

Costs Less than One Billable Hour

This set of books and DVDs is being offered at a price that Can’t be Beat. If they are purchased separately the total cost of the books and DVDs is $297.50 (Pretrial - $111, Trial - $111, Evidence: Skills - $36 and Cross-Examination Handbook - $39.50)

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Call Wolters Kluwer today for this special price for the litigation bundle: 1-800-294-6777

GUARDING AGAINST JUROR ONLINE RESEARCH

2011-11-25T16:48:00.001-08:00

Washington State Jury Warning Poster

Access to Information Online

In their article “Online and Wired for Justice: Why Jurors Turn to the Internet (the ‘Google mistrial’)”, The Jury Expert (Nov. 2009) Douglas L. Keene and Rita R. Handrich recount how since 2001 jurors have been going online and upsetting trials. Instances include a 2009 lengthy federal drug trial ending in a mistrial because nine jurors had done internet research. A California court excused a panel of 600 prospective jurors because several admitted doing Internet research on the case. The authors conclude that jurors, who should know better, go online because:

“. . .We live in an era when access to information is ubiquitous. We are used to having a question cross our mind and checking for the answer. We do it without thinking. And jurors do too.”

In a section entitled “Guarding Against Juror Online Research” of Trial Advocacy: Planning, Analysis and Strategy, Third Edition by Berger, Mitchell and Clark, we discuss several measures that trial lawyers can take to prevent jurors from going online to research the case.

New Poster Warning Against Internet and Electronic Communication

A Washington Courts November 21, 2011 press release discussed the problem and discussed its new prophylactic as follows:

“Starting this month, jurors in Washington courtrooms will see a new poster designed to remind jurors of their critical role in assuring a fair trial -- and the importance of refraining from researching a case online or commenting on social media sites while the trial is ongoing.

“’We recognize that, in their normal 21st century lives, jurors may routinely post information about all of their activities on websites and are probably accustomed to using the internet to get quick answers to any question that might arise,’ said King County Superior Court Judge William Downing Co-Chair of the Washington State Pattern Jury Instructions Committee.

“’Because these are such natural impulses in our electronic age, jurors will benefit from a gentle reminder that their duty to provide a fair trial requires them to postpone these activities until after their trial is finished.’”

The press release goes on to state that “(T)he poster was created by the Washington Pattern Jury Instructions Committee, with private funds at no cost to taxpayers.”

WINNING CLOSING ARGUMENT – HOW TO CONCLUDE

2011-11-14T13:33:00.001-08:00

The Call to Arms

Prior posts – one on closing argument strategies and another on analogies - have recommended modeling closing arguments after Vincent Bugliosi’s closing argument templates found in his book Outrage, which provides sample closings that he would have given if he had prosecuted O. J. Simpson.

Another Bugliosi book, Helter Skelter, also provides closing arguments that either can be adapted to other cases or at least provide inspiration for what can be done with final remarks. Helter Skelter has been described as the one of the best true crime books ever published. It won a 1975 Edgar Award for Best Fact Crime book.

Charles Manson and his co-conspirators were the defendants in Helter Skelter. The case involved seven people who had been shot, stabbed and beaten to death.

Initial Closing Argument

At the end of his initial closing prosecutor Bugliosi sought to pull the sting of the defense closing by anticipating it and then he concluded his initial closing with a rallying call as follows:

“Under the law of this state and nation these defendants are entitled to have their day in court. They got that.
“They are also entitled to have a fair trial by an impartial jury. They also got that.
“That is all that they are entitled to!
“Since they committed these seven senseless murders, the People of the state of California are entitled to a guilty verdict.”

Just reading these words won’t suffice. They must be said out loud to be fully appreciated. Say them out loud. Feel the ringing of the words. Feel the power of the cadence.

Finishing Rebuttal

Bugliosi’s final words in rebuttal argument were equally compelling; they are described in Helter Skelter as follows:

“I came now to the end of my argument, what the newspapers would call the ‘roll call of the dead.’ After each name I paused, so the jurors could recall the person.
“’Ladies and gentlemen of the jury,’ I quietly began, ‘Sharon Tate . . .Abigail Fulger. . . Voytek Frykowski . . .Jay Sebring . . . Steven Parent . . . Leno LaBianca . . . Rosemary LaBianca. . . are not here with us now in this courtroom, but from their graves they cry out for justice. Justice can only be served by coming back to this courtroom with a verdict of guilty.’”

Again, the impact of these final words can be only fully comprehended when they are said aloud.

INSPECT TRIAL EXHIBITS

2011-11-03T10:17:00.001-07:00

Jurors Discover the Exhibit

An irrefutable principle is that a trial lawyer must carefully examine every exhibit that may go to the jury room. Adhere to this rule or live to regret it.

One cautionary tale I use to drive home this point involves the trial of a criminal sexual conduct, first degree burglary and kidnapping case involving a 72-year-old woman victim. An Orangeburg, South Carolina trial judge granted a mistrial, “ruling that the jury was prejudiced by evidence not submitted at trial. Jurors found a confession in the back pocket of the pants (defendant) Bradley was wearing when police arrested him. The pants had been admitted into evidence, but the document had not.”

The written confession was not admitted into evidence at trial because the police had lost the original. Upon retrial, the crime lab confirmed that the defendant had written the confession, and it was admitted into evidence. (Associated Press, October 13, 2005).

UNORTHODOX REBUTTAL CLOSING ARGUMENT STRATEGY

2011-10-28T14:57:00.001-07:00

Averting an Attempt to Blunt a Rebuttal Argument

Is there anything more powerful and gratifying than a good rebuttal closing argument? It’s rightfully called the “hammer.” When you have the rebuttal, you can expect that opposing counsel will attempt to deflect the hammer blows. Here is a transcript of just such an effort:

Defense counsel used this time-worn (for good reason) argument: “Now, I’m pretty much through. . . I must sit down and keep my mouth shut and Mr. Clark is going to argue again. . . I will be sitting there thinking of things I would say in response. The questions that I would ask him, I will be thinking of them. But, I will have some relief, I think I take great relief knowing that each of you is capable of asking the same questions and holding him to the same burden.

“So I may be sitting over there clenching my fists or writing notes. But I know that each of you, because you are reasonable jurors, because you are people we have on this panel, can ask the same questions, can have the same questions, can have the same reasonable doubts. . .”

In rebuttal, the prosecutor turned to defense counsel and offered an opportunity to ask those questions that counsel was musing over during the prosecutor’s rebuttal. Defense counsel asked a couple and then sat down.

The defendant was convicted, and, in a motion for new trial, defense counsel argued that he should not have been given time during the prosecutor’s rebuttal argument to ask the prosecutor questions. In his motion, defense counsel conceded, “. . . no case in Washington comments on the precise tactics employed by the prosecutor in this case. . .”

The prosecutor’s brief in response to the motion for new trial (which was denied) stated, “In a generous gesture, the prosecutor gave the defendant’s lawyer what he complained of not having: additional time to speak so he would not have to sit there mute, clenching is fists. He was given a chance to ask those questions that he had been thinking of while the prosecutor spoke. Defense counsel not only never objected to this offer but also willingly ceased the opportunity to question the prosecutor. Because the defense never objected during the prosecutor’s closing argument, he waived his objection. . .”

The rebuttal was unorthodox but a proper response to the invitation by defense counsel and within the latitude of proper argument. Besides, it was what makes trial work so enjoyable and fulfilling. What unorthodox but effective rebuttal arguments have you made?

SUCCESSFUL CLOSING ARGUMENT STRATEGIES

2011-10-20T09:36:00.001-07:00

More of Vincent Bugliosi’s Best – The Unanswerable-Questions Strategy

As was previously discussed here, a winning closing argument is often the product of learning from hard working, skilled trial lawyers. In the book Outrage: The Five Reasons Why O. J. Simpson Got Away with Murder, Vincent Bugliosi, who successfully prosecuted Charles Manson (chronicled in his book Helter Skelter) and 20 other murder trials, not only describes his approach to preparing closing argument and strategies for closing but also provides illustrations of well crafted arguments. Although the focus of the Outrage is the O. J. Simpson criminal case, it is an informative book for trial lawyers, particularly prosecutors, who are hunting for convincing arguments and effective strategies.

An example of a winning closing argument line of attack is the unanswerable-questions strategy. To carry out this strategy, plaintiff’s counsel, in the initial closing, poses unanswerable questions to defense counsel, and then in rebuttal, plaintiff’s counsel either refutes defense counsel’s attempts to answer or comments on defense counsel’s failure to address the questions. The concept is that the questions will expose the defense as meritless, and, therefore, the questions must go to the heart of the defense. For example, the questions show that Simpson made contradictory statements about where he was at the time of the murders, and those discrepancies cannot be explained away.

The unanswerable-questions strategy puts the defense on the defensive. Defense counsel cannot rely on a canned closing that ignores the questions without running the risk of looking like the questions are unanswerable and that the defense is dodging them. Worse, the defense will hear about the failure to answer in rebuttal. Instead of plain argument, such as arguing that the fact that Simpson’s conflicting statements about his whereabouts at the time of the murders is proof that he was responsible, plaintiff’s counsel gives power and emphasis to the argument by posing unanswerable questions.

Bugliosi offers this illustration of the unanswerable-question strategy in his imaginary initial closing argument in the O.J. Simpson case: “For instance, Mr. Cochran, these folks on the jury and I want you to reconcile three contradictory statements. In your opening statement, you told the jury that Mr. Simpson was practicing his golf at the time of the murders. But, Mr. Simpson told the limo driver he was sleeping, and in his statement to the police, which we have all heard in this courtroom, when they asked him everything he had done that evening, all he said was that he was very busy packing and getting ready for his trip to Chicago. He said nothing about playing golf or sleeping. Again, we want you to reconcile these three contradictory statements, and we want you to do so confining yourself to the evidence that came from that witness stand at this trial. When I later address the jury, I’ll of course respond to what you have to say, or comment on the fact that you refused to answer the question.”

This is but one of the strategies and arguments offered in Bugliosi’s chapter on “Final Summation.” It is an argument and strategy that may be adopted and modified to fit another case. Perhaps yours. Outrage is available for $10 or less through Amazon.

THE WINNING CLOSING ARGUMENT

2011-10-16T12:25:00.001-07:00

Best of Vincent Bugliosi

A winning closing argument is often the product of learning from the best of the best trial lawyers, whether it is a how-to technique for delivery or some content for closing. A valuable resource, particularly for prosecutors, is Vincent Bugliosi’s book about the O. J. Simpson case, entitled Outrage: The Five Reasons Why O. J. Simpson Got Away with Murder. Bugliosi was hands down one of the best trial lawyers in America. And, his book is a treasure trove of gems for closing argument.

Why is the book so valuable a guide for shaping a closing argument? First, is packed with illustrative arguments that can with some modification be adopted by trial lawyers to their cases. When Bugliosi’s book editor asked him to write out the closing he would have given if he had prosecuted Simpson, Bugliosi declined, saying that it would be unrealistic because he normally put three to four hundred hours into prepping his own closings and for that case the closing would have filled a thousand pages of transcript. Instead, he wrote out some of his arguments, which are in bold type. Bugliosi’s “Final Summation” chapter is jammed with arguments and runs a hundred pages.

A second reason that his closing argument chapter is so valuable is because it is filled with gems – arguments that have been cut and polished to perfection. It is apparent that Bugliosi did what all good trial lawyers do; he took many of his arguments that he had crafted and delivered in his over a hundred trials (including 21 murder convictions) and adjusted them to fit the Simpson case. They are tried and true arguments. Here we sample a couple of Bugliosi’s analogies:

Octopus Analogy - This is one that, as Bugliosi writes “would have been ideal for the Simpson jury at the beginning of closing argument. . .”

“I wonder if any of you folks have read Victor Hugo’s account of the octopus. He tells us of how it doesn’t have any beak to defend itself like a bird, no claws like a lion, nor teeth like an alligator. But it does have what could be called an ink bag, and to protect itself when it is attacked it lets out a dark fluid from this bag, thus making all of the surrounding water dark and murky, enabling the octopus to escape into the darkness.

“Now I ask you folks, is there any similarity between that description of the ink bag of the octopus and the defense in this case? Has the defense shown you any real, valid, legitimate defense reasonably based on the evidence, or has it sought to employ the ink bag of the octopus, and by making everything dark around Mr. Simpson, tried to let him escape into the darkness.

“I intend to clear up the water which defense counsel have sought to muddy, so that you folks can clearly see the evidence, the facts, the issues in this case, so that you can behold the form of the retreating octopus and bring this defendant back to face justice.”

Now, that’s a compelling analogy that can be modified slightly to fit a situation where the other side has set out to confuse and confound.

Rope Analogy – This is an argument that Bugliosi writes that he gave in a double-murder case and that the prosecutors could have used in the Simpson case:

“I think that counsels’ problem is that they misconceive what circumstantial evidence is all about. Circumstantial evidence is not, as they claim, like a chain. You could have a chain spanning the Atlantic Ocean from Nova Scotia to Bordeaux, France, consisting of millions of links, and with one weak link that chain is broken.

“Circumstantial evidence to the contrary, is like a rope. And each fact is a strand of that rope. And as the prosecution piles one fact upon another we add strands and we add strength to that rope. If one strand breaks – and I’m not conceding for one moment that any strand has broken in this case – but if one strand does break, the rope is not broken. The strength of the rope is barely diminished. Why? Because there are so many other strands of almost steel-like strength that the rope is still more than strong enough to bind these two defendants to justice. That’s what circumstantial evidence is all about.”

Bugliosi’s book Outrage should be mandatory reading for every prosecutor, and it’s of value to other trial lawyers as well. Besides, you can get a copy for $10 or less on Amazon. It could sit on a bookshelf next to Interest of Justice by Joel Seideman which is another collection of precious gem closing arguments.

CONSULTING WITH COUNSEL DURING A DEPOSITION

2011-10-07T14:23:00.000-07:00

“We Need a Break”

David Boies, representing the government in the Microsoft antitrust case, famously annihilated Bill Gates when he took Gates’ deposition. Scenes from the deposition can be viewed on YouTube. In his book Courting Justice, Boies commented on remedial action that he would have taken if he had represented Gates:

“It was an understatement to say I was puzzled by Gates performance. . . When a witness of mine begins to damage himself the way Gates was doing, I will either interrupt the deposition for a break to get the witness on track or admonish the witness on the record to listen to the question, be responsive, and not volunteer. . .”

To what extent, if at all, should counsel be able to consult with the deponent during a deposition? Will the court impose sanctions if counsel interrupts the deposition to consult with the deponent?

Consider the situation in New York. In 1990, a Federal Bar Council committee on the conduct of depositions, chaired by now Southern District of New York Judge Sidney H. Stein concluded that “[n]o subject . . . generated more controversy . . . than the question of the extent to which a witness should be permitted to discuss matters with his or her attorney during the conduct of the deposition.”

A 2002 New York State Bar Association on Federal Procedure Report similarly held: “There still is no consensus as to when it is appropriate for a deponent to consult with counsel, and, if consultation occurs, whether the content of that consultation should be subject to examination by the interrogator.” This Report found that there were only two principles that could be agreed upon:

“(1) There should never be a consultation while a question is pending, except for the purpose of ascertaining whether a privilege or other protection from discovery should be asserted.”

“(2) There may be unfettered consultation during overnight breaks in a deposition.”

The concerns expressed by the Committee were the usual two. First, that counsel would coach the witness and, second, that the break would interfere with the interrogator’s examination which could discover information and gain truthful answers

Committee members differed over other consultations. Some felt that consultation is appropriate to discuss harassment of the deponent and whether to suspend the deposition or to continue in light of the potential costs of suspending the deposition and seeking a remedy by the court. Some felt that consultation should be permitted because counsel and the deponent could expedite the correction of erroneous answers. Some felt that consultation should be permitted to alleviate stress on the witness and thereby produce truthful answers.

When I spoke with the Chair of the 2002 Committee, Gregory K. Arenson, he said the controversy continues to this day. He noted that practice varies around the state. It depends upon where you are in the state and in federal or state court. Counsel needs to know the controlling practice.

Clearly conferencing is fine when it is for a legitimate reason – privilege or to enforce a court order, and, on the other hand, consultation should not be permitted when a question is pending. Beyond those, what should be the universal principles?

ANY DOWNSIDE TO CHANNELING IN CLOSING ARGUMENT?

2011-10-01T12:21:00.000-07:00

The Too Powerful Closing Argument

As was discussed and illustrated in the last post, the trial technique of channeling the deceased in closing argument can be extremely effective in bringing the case to life in the courtroom. Counsel speaks as the deceased, telling the jury how the deceased feels.

An example of the power of channeling in argument and its potential downside is reported in the Montana case of Heidt v. Argani, 214 P.3d 1255 (2009). Plaintiff’s attorney in that case was Steven Harman (pictured here). I’ve witnessed him channel when I served on the faculty for Montana’s School of Law Advanced Trial Advocacy course and can attest to the fact that he can be very persuasive with this technique

The Montana Supreme Court’s opinion described the closing and how it affected the jurors, one in particular, as follows:

“Heidt's case against Argani was tried in the District Court before a jury in October, 2008. On the fifth day of trial Heidt's attorney presented his closing argument to the jury. Most of the argument was delivered as a first-person narrative by Heidt's attorney who assumed the persona of Heidt's deceased husband to recount the events leading to his death. On appeal Heidt's attorney describes his presentation as ‘[c]hanneling... as though he was the decedent.’ After an extended closing, Heidt's attorney began to ‘channel’ a description of the death of Heidt's husband, using phrases such as: ‘Then, oh my God, I'm dying.’ He then began describing being autopsied, including a description of being cut open and of his sorrow at not getting to see his children grow up.

“This got to be more than some could bear. One of the jurors announced that she was ‘not okay’ and that she thought she was going to pass out. She attempted to leave the jury box and the court called a recess. The remaining jurors were taken to another room, and the ill juror was assisted into the jury room. She was attended by the defendant Argani, by Heidt's co-counsel Hammond, who is also a physician, and, with the District Court's permission, by three other jurors who were also nurses. Emergency medical personnel were summoned and took the ill juror to the hospital. Dr. Argani was with the ill juror for approximately fifteen to twenty minutes.”

Plaintiff moved for a mistrial, and the court took it under advisement. The trial judge got the jurors’ assurances that they could ignore what they saw – the defendant treating the juror – and decide the case on the evidence. Defense verdict and plaintiff got the verdict reversed by the Montana Supreme Court. The court relied on an Illinois and New York appellate decisions holding that when physician defendants had come to the aid of jurors that new trials were required. The Montana Supreme Court held, “We agree with the courts in Campbell and Reome and their assessment of the substantial impact on the jury of observing the actual drama in the courtroom, when compared to listening to testimony describing past events during the trial itself.”

Now, it could be argued that Heidt v. Argani illustrates that there was no downside to channeling in that case. Plaintiff got a second chance when a defense verdict was rendered. Plaintiff got a favorable verdict at the second trial. However, if this doctor-to-the-rescue of-a-juror situation were to reoccur in Montana, a savvy trial judge relying on Heidt would grant a mistrial and a lot of time and money would have been wasted. And, there are some judges who would sustain a Evidence Rule 403 objection to channeling.

CHANNELING IN CLOSING ARGUMENT

2011-09-24T09:19:00.000-07:00

North Carolina Channeling

JOHN EDWARDS CHANNELS

Gerry Spence is credited with introducing the concept of channeling into closing argument – speaking in the first person as though the lawyer is the injured or deceased person. In his book Four Trials, John Edwards describes how when he was not more than a North Carolina trial lawyer he channeled what happened during the birthing of his client who became the victim of cerebral palsy, as follows in his closing:

“You know, six years ago, Jennifer Campbell did everything she knew how to do on the afternoon of April thirteenth, 1979, to speak to the hospital, and the only way she know how to do it was through that strip (referring to the fetal monitor strip). And what she said to them is this. She said at three, ‘I’m fine.’ She said at four, ‘I’m having a little bit of trouble, but I’m doing okay.’ Five, she said, ‘I’m having problems.’ At five-thirty, she said, ‘I need out.’

“And she said it to everyone there. At then at six, the cries got weaker. . . And the cries they heard were the cries of Jennifer Cambell dying. . . But she didn’t die. She made it. She survived, and she’s been fighting every way she knows how since.

“And so here we are again. She speaks to you again. But now she speaks to you, not through a fetal monitor strip; she speaks to you through me. And I have to tell you right now – I didn’t plan to talk about this – right now I feel her, I feel her presence; she’s inside me, and she’s talking to you. This is her. What I’m saying to you is what Jennifer Campbell has to say to you.

“And this is what she says to you. She says, ‘I don’t ask for your pity. What I ask for is your strength. And I don’t ask for your sympathy, but I do ask for your courage. I ask you to do what I’ve done for the last six years. I ask you to be courageous.’”

“THE STAIRCASE” – DISTRICT ATTORNEY JIM HARDIN CHANNELS

Channeling in North Carolina has not been confined to civil cases. It may be no coincidence that Jim Hardin, the District Attorney in Durham, in the murder trial of Michael Peterson resorted to a sort of channeling in his closing. The murder trial was the subject of “The Staircase,” a documentary film made by French director Jean-Xavier de Lestrade. Michael Peterson’s wife was found at the bottom of the staircase in their home.

The blood spatter patterns on the staircase were strong evidence that Michael Peterson had bludgeoned his wife, and Jim Harding summed up by emphasizing that evidence:

“I started looking around the scene and in the stairwell thinking – what if those walls could talk? What would they say? Ladies and gentlemen, these walls are talking. Kathleen Peterson is talking to us through the blood on these walls. She is screaming at us for truth and for justice. It’s all in these photographs.”

POWERFUL METHOD

Channeling during closing argument can have dramatic emotional impact. It brings the case to life in the courtroom by bringing the deceased back to life. However there are definite downside risks which will be covered in the next discussion of channeling.

SPEAKING ENGAGEMENTS – TRIAL ADVOCACY AND EVIDENCE SKILLS

2011-09-17T15:19:00.000-07:00

Successful Trial and Evidence Skills and Strategies Presentations

SOUTH LAKE TAHOE, NEVADA

Been on the road this week. On Wednesday, we were on the top floor of Harvey’s – from there the view of Lake Tahoe is spectacular. My subject for the afternoon’s half-day presentation is “Premier Trial Skills and Strategies.” Executive Director for the Nevada Prosecutors Advisory Council, Brett Kandt, is seen here before the program starts, and he is flanked by Churchill County Prosecutor Art Mallory (left) and Douglas County (South Lake Tahoe) Prosecutor Mark Jackson (right).

BUFFALO, NEW YORK

Friday morning I was in Buffalo, New York, and from 9 a.m. until 1 p.m. my presentation covers “Successful Evidence Skills and Strategies.” The seminar is at the Hyatt in downtown Buffalo. Unlike Wednesday’s audience which was all prosecutors, this audience at the Erie Bar Institute for Law is composed almost exclusively of attorneys in civil practice. Mary Kohlbacher, Director of Continuing Legal Education is in charge of this seminar. Pictured here before the presentation started are the duly elected District Attorney Frank Sedita and Senior Counsel Chris Belling. Chris was kind enough to introduce me. After the presentation, lunched with old friends at Betty’s.

I feel honored to be invited by these two organizations and appreciate the kindness and hospitality shown by both those responsible for orchestrating the programs and the attendees.

NEW VISUAL PERSUASION BOOK BY THE BAILEYS

2011-08-28T14:59:00.001-07:00

SHOW THE STORY: The Power of Visual Advocacy

Trial Guides has just published the new book SHOW THE STORY: The Power of Visual Advocacy by William and Robert Bailey. This is the quintessential trial advocacy guidebook on how to bring the trial story alive in the courtroom through visuals.

Show the Story has drawn praise from many of the best:

“It’s easy to convince lawyers that visuals are important. It’s not easy to teach lawyers how to create and use visuals well. Show the Story is the fix. This book is beautifully designed and written, and teeming with essential guidance. In the best tradition of Trial Guides, it is a crucial read.”
David Ball, author of Reptile and David Ball on Damages 3

“If lawyers employ the sophisticated visual strategies presented in this book, they will have a distinct advantage over those who do not. All will benefit greatly from this text. Bravo!”
Kathleen Flynn Peterson, fellow of the American College of Trial Lawyers, past president of the American Association for Justice

The authors certainly know their subject. Bill Bailey is an outstanding trial lawyer in Seattle, author of articles on trial techniques and adjunct professor at Seattle University Law School. His numerous awards include Best Lawyers in America, WSAJ Trial Lawyer of the Year, and National Law Journal Litigator of the Month. Bill teamed with his brother, Robert, to produce the book. Robert, who lives and operates his consulting business Trial by Design in the San Francisco Bay Area, is a nationally recognized trial consultant who concentrates on story development and visual communication.

Show the Story can be obtained by clicking here for the book.

CONTENTS

Part I: Visual Learning
1. Our Visual World
2. Communicating Visually

Part II: Show the Story
3. Thinking Like a Film Director
4. Establishing the Story’s Settings
5. Introducing Characters Visually
6. Presenting the Story’s Rule of Theme
7. Setting Up the Conflict
8. Showing the Standards
9. Identifying Character Choices and Actions
10. Re-creating Climactic Moments
11. Seeing the Big Picture

Part III: Visual Tools and Techniques
12. Making Your Case Stick
13. How Tech Savvy Should I Be?
14. Employing the Locus in Quo
15. Building the Theme
16. Creating Computer Illustrations and Animations
17. Working with Computer-Graphics Specialists
18. Avoiding the Pitfalls
19. Exmaining Computer-Illustration Case Studies
20. Creating Illustrations from Source Material
21. Using Google Earth

Part IV: Visual Foundation
22. Hearing a Judge’s Perspective
23. Dealing with Evidentiary and Ethical Issues
24. Enhancing Reality
25. Expanding Traditional Evidence Rules
26. Winning an Admissibility Knife Fight
27. Turning the Weapon Around: Defense into Offense
28. The Future Is Now

Appendices
A. Defending with Visuals
B. The Defense Playbook

EVIDENCE SKILLS AND STRATEGIES LEARNED BY DOING

2011-08-19T10:43:00.002-07:00

New Book Provides Experiences with Evidence Skills and Strategies

The new book Evidence: Skills, Strategies, and Assignments in Pretrial and Trial, which is due to be released by Aspen next month, provides opportunities for performance role-plays that simulate a range of adversarial practice situations involving evidence. Evidence: Skills, Strategies and Assignments contains all the materials necessary for pretrial and trial advocacy skills instruction with 22 criminal and civil assignments and a total of 49 evidentiary experiences within those assignments. The book and accompanying trial demonstration movie are intended for law school and professional development C.L.E. workshops.

All of the evidence experiences take place in the Freck Point hypothetical wrongful death or murder case that allows the instructor to select either a civil, criminal or combination of the two for the curriculum. The materials may be used in a stand-alone evidence skills lab or the material may be used as a supplement in a traditional evidence course or trial advocacy course.

The role-play assignments correspond to the traditional evidence topics, such as relevancy or hearsay. These assignments include either pretrial litigation experiences, such as writing or arguing a motion in limine on an evidentiary issue, or trial experiences, such as making or responding to an evidentiary objections. The versatility of the materials allows the instructor to select as many or as few of the assignments as time permits.

NEW ADVOCACY WEBSITE UNVEILED

2011-08-12T09:56:00.001-07:00

http://www.aspenadvocacybooks.com Website Refurbished

The website for Wolters Kluwer (Aspen) books and movies by Berger, Mitchell and Clark has been overhauled and updated. The reasons for the refreshing of the website include not only the publication of the 3rd Edition of Trial Advocacy: Planning Analysis and Strategy and the 2nd Edition of Trial Advocacy: Assignments and Case Files but also the soon to be released (September) new book Evidence: Skills, Strategies and Assignments for Pretrial and Trial.

The renovated website will include a new section focusing on evidence (supplementary materials and links), full information on the just released new editions of the Trial Advocacy books and movies, and a Members Only section for Professors and advocacy instructors who have adopted the materials for their courses.

ASPENADVOCACYBOOKS.COM WEBSITE BEING REMODELED

2011-07-27T13:58:00.000-07:00

New Books Call for Website Overhaul

Currently, the website for our books - www.aspenadvocacybooks.com is being completely overhauled. The reason is that Wolters Kluwer (Aspen) publications has just released the Third Edition of Trial Advocacy: Planning, Analysis and Strategy and the Second Edition Trial Advocacy: Assignments and Case Files and is about to release in September the brand new Evidence: Skills, Strategies and Assignments for Pretrial and Trial. Michael Caldwell of growth industrie is doing a superb job and we are looking forward to the unveiling. Not only will it feature full information about the Evidence: Skils and Strategies book but also will have a new password protected area with even more useful advocacy material.

A BOOK REVIEW OF EVIDENCE: SKILLS, STRATEGIES AND ASSIGNMENTS FOR PRETRIAL AND TRIAL

2011-06-17T11:04:00.000-07:00

Evidence Prof Blog Reviews New Book Evidence: Skills, Strategies and Assignments for Pretrial and Trial

On June 14, Colin Miller, Editor of the Evidence Prof Blog reviewed our new book and trial demonstration movie that will be published at the end of this summer. If you are a professor who teaches evidence or trial advocacy and are interested in reviewing the book in its current form (it is currently in production by Wolters Kluwer) and watching the trial demonstration movie, e-mail me at rclark@seattleu.edu . Colin Miller’s article reads as follows:

Resource Of Interest: Evidence: Skills, Strategies, and Assignments for Pretrial and Trial & The Freck Point Trial DVD

An old Chinese proverb says, "Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime." This proverb sums up the approach taken by Marilyn J. Berger, John Mitchell, and Ronald Clark with their new book Evidence: Skills, Strategies, and Assignments for Pretrial and Trial, which is accompanied by a DVD with an excellent simulated trial -- the Freck Point Trial -- and related materials. So, what makes the book such a good tool for use in an Evidence or Trial Advocacy class?

Well, let's start with the goal of the book. According to the authors,

“The goal of this book and the Freck Point Trial movie is to fill the need that law students and lawyers have for practical skills instruction on how to apply evidence in professional settings: in motion practice (motions in limine); during depositions; in alternative dispute resolution and in trial. Generally, traditional law school evidence courses teach legal doctrine, but not how evidence law works in real world practice. As a consequence of the lack of skills training on evidence, new lawyers are ill equipped for pretrial litigation and in trial settings....”
Evidence Skills, Strategies & Assignments provides practical pretrial and trial advocacy experiences which teach evidence skills. By including a movie that shows the skills of experienced trial lawyers working with evidentiary issues, the book is a ground-breaking way of providing a model of performance skills.

Evidence: Skills, Strategies, and Assignments for Pretrial and Trial is broken down into 6 chapters: (1) Chapter 1. Introduction; (2) Chapter 2. Objections: Skills and Strategies; (3) Chapter 3. Motions: Skills and Strategies; (4) Chapter 4. Exhibits: Skills and Strategies; (5) Chapter 5. Assignments; and (6) Chapter 6. Morgan’s Evidence Handbook.

The book is accompanied by a a DVD with the 135 minute Freck Point Trial, a simulated trial that Professor Clark describes on the Pretrial, Trial, Appellate & Evidence Blog as follows:

The Freck Point Trial movie was inspired by several real cases, one of which is the Randy Roth case, which was the subject of renowned true crime writer Ann Rule's book A Rose for Her Grave. Ann Rule kindly joined in the project of producing this movie and provided her observations about the importance of watching skilled trial attorneys in trial as a means of learning how to be effective in trial.

I've had a chance to watch the entire DVD, and it really provides an excellent tool for students to learn how to conduct a trial from start to finish. The trial is a civil wrongful death case in which the plaintiff claims that the defendant-husband murdered his wife and the defendant claims that his wife was killed by an intruder.

The simulated trial is broken down into 6 chapters: (1) Jury Selection; (2) Opening Statement; (3) Direct & Cross of Plaintiff's Witness; (4) Direct & Cross of Expert Witness; (5) Direct & Cross of Defense Witness; and (6) Closing Argument. Most chapters have one of the attorneys (actual veteran trial lawyers) in the case initially describing the importance of each stage of the trial and the strategy that they use. We then see each attorney putting this strategy into practice as they strike jurors, make objections, and use visual demonstrations to drive home their points.

You can see a preview of the simulated trial by clicking here. The trial is accompanied by a CD which contains a case file with exhibits, witness statements, legal documents and other things pertinent to the case. The simulated trial and this case file are then integrated into the book through readings and assignments. For instance, in Chapter 4, students are given a sample stipulation that might have been used in the Freck Point Trial. And, in Chapter 5, students are asked to file motions as if they were one of the attorneys in the trial Here is one example:
As your instructor directs, defense counsel will either make a motion in limine or object to Montgomery’s following testimony and prosecutor/plaintiff’s counsel responds to the defense motion or objection:

“1. Testimony that Homicide Unit’s Sergeant Kameron called him at home and told him that patrol officers had just arrived at a house in the Freck Point neighborhood in response to a 911 call placed by the home owner Sam Griffith. Kameron said that a patrol officer found Sam Griffith’s wife stabbed to death in the bedroom of the house. According to Montgomery’s testimony, Kameron told him to go to the Griffiths’ house.”

Director Richard Linklater, who taught himself how to make movies, once directed the movie, It's Impossible to Learn to Plow by Reading Books. The point of Evidence: Skills, Strategies, and Assignments for Pretrial and Trial is that it is impossible to learn how to conduct a trial by (just) reading books. Instead, it let's students see a simulated trial that is, in a sense, even better than the real thing. And then it asks them to role play, to step into the shoes of the lawyers in the Freck Point Trial, to make motions, to question witnesses, to make opening and closing statements. It is highly recommended.

THE STAIRCASE MOVIE TEACHES PRETRIAL AND TRIAL ADVOCACY

2011-06-01T09:40:00.000-07:00

The Staircase Illustrates Advocacy Techniques

The Staircase is an excellent tool for teaching pretrial and trial advocacy. French director Jean-Xavier de Lestrade made this film after he won an Oscar for Murder on a Sunday Morning, a documentary about a murder in Florida. Murder on a Sunday Morning is about achieving justice and tells a compelling human story, and for those reasons is was for a time used as an orientation film for Seattle University Law School.

After achieving success with that film, Lestrade went up the coast to Durham, Nouth Carolina where he made a documentary about the pretrial and trial phases of the alleged murder of a woman who died at the bottom of a staircase. She either fell, which was the defense’s contention, or she was bludgeoned to death by her husband as the prosecution contended.

The filmmaker was allowed access to record both the prosecution and defense pretrial activities as well as the trial itself. Both sides were well represented and had the resources to present the case well. For examples, the defense had nationally known experts, a witness coach, and an animation of how the woman could have fallen.

The documentary is long, eight episodes, and that provides wonderful material. Clips from this film can be shown to illustrate all aspects of pretrial and trial, including: motions; witness preparation; brainstorming for case values; opening statement through closing argument; everything. And, it shows both the prosecution and the defense at work. Highly recommend it.

APPELLATE STRATEGIES

2011-05-23T14:08:00.000-07:00

Bob Foster Examines Tactical and Strategic Issues on Appeal

For years, Bob Foster was the Supervising Deputy Attorney General for the California Attorney General’s Office, San Diego, California. In the book entitled The Appellate Prosecutor: A Practical and Inspirational Guide to Appellate Advocacy, Bob Foster’s chapter on “Appellate Strategies” examines tactical and strategic issues involved in a post-conviction criminal appeal.

Among the issues Bob Foster explores are the credibility of the office and the personal credibility of the appellate advocate. As he accurately states, “if credibility is lost, it will undercut the primary goal of persuasiveness in the case at hand and in future cases before the appellate court.” Foster discusses five pitfalls that most often damage the appellate advocate’s personal credibility. Other areas covered in his chapter include: determining whether a brief is even necessary; ensuring that you have the full record for appeal; identifying procedural bars; protecting the record from future habeas corpus attacks; the finding-the real-issue strategy; and the finding-the-flaw strategy.

For Bob Foster’s chapter on “Appellate Strategies”, click here. To obtain The Appellate Prosecutor book, click here.

SOON TO BE RELEASED – TRIAL ADVOCACY: ASSIGNMENTS AND CASE FILES

2011-05-11T16:31:00.000-07:00

New Book and Materials for Mock Trials and Trial Performance Assignments

The 2nd Edition of Trial Advocacy: Assignments and Case Files will be available at the beginning of July. Assignments and Case Files provides both a criminal homicide and a related civil wrongful death case that can be used for mock trials and/or for 86 role-playing assignments.

Features are:

 Mock civil and criminal trials for trial advocacy courses or professional development seminars
 Excellent role-play assignments from the pretrial case theory and theme development stage through closing argument in both criminal and a civil cases
 Case files, legal memoranda, statutes, case law, jury instructions, witness instructions and exhibits for the role-play assignments and mock trials
 Checklists of proficiency standards for each trial activity
 Teacher’s Manual with sample syllabus and teaching notes

NEW to the Second Edition:

 Comprehensive instructions and materials for organizing and conducting mock trials
 Additional evidence assignments
 Completely updated to reflect changes in technology and law

Summary of Contents:

Chapter 1. Introduction to the Book, CDs, DVD, and Website
Chapter 2. Trial Preparation and Case Management
Chapter 3. The Assignments
Appendix A: Checklists for Trial Skills

COMING SOON -TWO NEW TRIAL ADVOCACY BOOKS

2011-05-05T10:25:00.000-07:00

New Third Edition of Trial Advocacy: Planning, Analysis, and Strategy and Second Edition of Trial Advocacy: Assignments and Case Files

Early this summer, Wolters Kluwer (Aspen) will release the new editions of Trial Advocacy:Planning, Analysis, and Strategy and companion book Trial Advocacy: Assignments and Case Files by Berger, Mitchell and Clark

A leader in the field, TRIAL ADVOCACY 3rd Edition offers:

 Accompanying DVD that features a jury trial demonstration movie with demonstrations by veteran trial lawyers
 Companion website www.aspenadvocacybooks is regularly updated and provides articles, supplemental materials, downloads, and links to additional resources
 A thorough overview of the trial process
 Balanced coverage of case theory and skills
 Practical instruction on how trial lawyers think and act
 How trial advocates use state-of-the-art technology
 Trial persuasion strategies and techniques
 Ethical and legal boundaries of trial advocacy

NEW to the Third Edition, which has been thoroughly updated:

 How to satisfy the judge’s expectations of counsel
 Practical checklists added to each chapter
 Comprehensive coverage of evidentiary foundations and the visual trial
 Guarding against juror online research misconduct
 Interlinking the trial demonstration movie with the text Bench trial advocacy

Summary of Contents
Chapter One: An Introduction: The Books, CDs, DVD and Website
Chapter Two: Trial Persuasion Principles
Chapter Three: Case Theory and Theme Development
Chapter Four: Jury Selection: Two-Way Exchange
Chapter Five: Opening Statement: Storytelling
Chapter Six: Making and Meeting Objections
Chapter Seven: Introducing Exhibits
Chapter Eight: The Visual Trial and Today’s Technology
Chapter Nine: Direct-Examination: Building the Case
Chapter Ten: Cross-Examination: Concession Seeking
Chapter Eleven: Experts: Yours and Theirs
Chapter Twelve: Jury Instructions: The Jury’s Law
Chapter Thirteen: Closing Argument: Art of Argument

The next post will cover the companion book Trial Advocacy: Assignments and Case Files, which may be used for mock trials and 86 performance assignments.

PRACTICAL ADVICE ON TRIAL PROFESSIONALISM

2011-04-22T16:05:00.001-07:00

The Courtroom Culture

A successful trial lawyer adapts to the courtroom culture. While protocols vary somewhat from courthouse to courthouse and even courtroom to courtroom in the same courthouse, minimum standards of conduct do exist. In the following article, King County Superior Court Judge John P. Erlick provides concrete advice concerning those standards. His advice should be heeded by everyone from the law student competing in a mock trial to the experienced lawyer in trial. Judge Erlick wrote:

If you Google the phrase “lawyers and professionalism,” you get about 1,620,000 hits. That’s a lot of commentary. The purpose of this article is not to debate academically what is or is not professional conduct on the part of attorneys, but rather to provide a more practical guide based on one judge’s perspective from the bench. Defining professionalism may be done using a multiplicity of sources, including the Rules of Professional Conduct (RPCs), which set a minimum standard of conduct, and the local culture in the courtroom, and within the bar.

Local culture or protocol is important to understand, because expected courtroom conduct varies greatly. For example, I recently returned from observing a trial being held in Old Bailey, London’s criminal courts, where the barristers bow to the judge when entering the courtroom and refer to the judge as “Your Lordship.” While those customs are not observed here, counsel in our local federal courts must stand at a podium when addressing the court or examining witnesses, a requirement generally not imposed in our state trial courts.

What does our culture expect of counsel appearing in our courtrooms? Again, that culture may vary from courtroom to courtroom across the state. Nonetheless, there is some uniformity of protocol and professional courtesies expected from counsel. At minimum, counsel should at least consider these issues when appearing in superior court.

Professionalism and the jury

Don’t waste the jurors’ time. Remember, they are taking time away from their jobs, their families, and their lives to hear your case. When you’re late returning to court from recess, you’re holding up the judge, the lower bench, opposing counsel and other parties, and 12 jurors (plus alternates). Along these same lines, make sure you have your witnesses ready to testify. It is better to have one witness waiting in the hallway for 20 or 30 minutes than to hold up the entire courtroom because your witness is late or a prior witness’s examination concluded earlier than you had anticipated.

Respect jurors’ privacy. When I first started practicing law, it was not uncommon to inquire about a juror’s religion during voir dire. Conventional wisdom among jury consultants was that Methodists would decide tort damages differently from Baptists or Jews. We have (thankfully) moved on from that type of blanket stereotyping. The point is that before you ask a sensitive personal question of the jury panel or individual, ask yourself whether you truly need that information for this case and what you will do with the information. Most judges will provide for prospective jurors to discuss highly personal matters outside the presence of the others. If you sense a would-be juror’s discomfort responding to a particular question, it may be appropriate to assuage his or her concerns by offering that option.

Limit your sidebars and requests that the jury be excused. Sidebars and excusing the jury are sometimes necessary, particularly when you have to address evidentiary issues. However, repeated sidebars and excusing of the jury can be disruptive to the proceedings and annoying to the jurors. Ask yourself whether the objection you have in mind is one you could make for the record in open court while the jury is present, and then reserve supplementation of the record or further argument until the jury is excused for a normal recess.

Respect the jury’s “space.” In state courts, you are generally free to move about the courtroom. However, in doing so, you should respect the jury’s space in the jury box. Don’t approach right up to the jury box and don’t lean into it.

Don’t say, “I’ll be brief” when you’re not going to be. Attorneys rely on their credibility, particularly before juries. When you say, “I’ll be brief,” and then launch into a 45-minute soliloquy, what is that communicating to the jury?
Be realistic about the length of your case. Jurors plan and rearrange their lives around the representations of counsel that a case will last a certain period of time. They have to arrange for child care and absences from work, not to mention rescheduling personal appointments and trips. It is better to be realistic on the length of a case. On the best of days, there are five hours of trial testimony. That assumes no interruptions and no delays in witnesses, the jury, or counsel. Generally, with a four-day trial week, that computes to a maximum of 20 hours of trial testimony. A good exercise is to map out all the anticipated witnesses in a case beforehand. Estimate the length of each direct, cross, and re-direct examination. In civil cases, you will need to add time for questions from the jury. Then add time for jury selection, opening statements, and closing arguments. You may need to take time during the trial day to work on jury instructions (although I typically attempt to work with counsel on those after hours). This will give you a rough estimate of how long your case may actually be.

Professionalism and witnesses

Don’t interrupt a witness or cut off the witness’s answers. Time and again, I’ve seen attorneys abruptly cut off a witness who is legitimately trying to explain or elaborate upon an answer. Of course, there are circumstances where a witness veers off course, rambles, or is nonresponsive. In those situations, it may be appropriate to ask the court to strike or repeat the question and instruct the witness to answer it. However, too often I’ve observed an attorney attempt to cut off a witness in mid-sentence. It comes across at minimum as rude — and as trying to keep something from the jury as if you were afraid of what the witness is going to say. Also, when two people are talking at the same time, the record gets compromised.

Don’t hover over the witness. I doubt if many attorneys have actually sat in the witness chair during a trial. For parties and lay witnesses unfamiliar with the courtroom setting, it can be a daunting, intimidating experience. If you must approach an adverse witness to hand him or her an exhibit, ask to approach, and then step back. Stepping back during examination lowers the tension and shows respect.
After a witness has answered, don’t add gratuitous editorial comments. Proper procedure is to ask a question and let the witness answer. I had one case in which I had to admonish counsel because he repeatedly would comment after a witness’s answers with phrases such as, “Oh, I see,” or “So that’s your answer.” It’s inappropriate and unprofessional.

Professionalism and opposing counsel

In the heat of litigation, emotions and zealous advocacy sometimes get the best of an attorney. I’ve rarely seen aggressive conduct be effective in the courtroom. Rather, respectful and reasoned presentations are much more persuasive. This means not interrupting your opposing counsel’s argument. You’ll have your opportunity to respond. That’s the appropriate time to address the points opposing counsel has made with which you disagree. In addition, whether the court has a court reporter or is recorded, interruption of counsel, witnesses, or the court compromises your record. If you have a court-reported courtroom, the reporter is likely to advise counsel that he or she cannot report with two people talking simultaneously. With a video or audio taped recording, you get no such warning and the recording may be garbled.
Don’t address your arguments toward opposing counsel. Don’t turn to him or her and state, “I did so provide those documents to you.” Such conduct rapidly turns up the heat in the courtroom; it personalizes an attack on counsel. Proper practice and common courtesy is to address the court. Direct colloquy with counsel during argument is inappropriate.

Professionalism and the lower bench

Know who they are and what they do. The court clerk handles the exhibits, records the minutes, and assists attorneys with trial notebooks and numbering and marking exhibits. If the courtroom has an audio or video tape record, the clerk is in charge of that. The bailiff does the judge’s scheduling; answers the phones; coordinates motions and hearings; manages juries; and coordinates trial readiness, pretrial conferences, and trial calendars. If the record is not automated, the courtroom court reporter creates the official record.

During trial, please understand that while the bailiff and the clerk are there partly to assist you, they still have their other courtroom responsibilities such as managing the jury, answering phones, and assisting the judge. Please don’t ask the lower bench to make copies for you. Also, our phones are extremely busy. To keep the lines available, we ask that you not use the court phones.

Professionalism and the court

When addressing the court, please don’t refer to us as as “Sir” or “Ma’am.” Reserve that for your parents or commanding officer. The proper way to address the Court is “Your Honor” or “Judge _____.” (Until one of us starts wearing a powdered wig, “Your Lordship” would be entirely unwarranted.) Some judges prefer that attorneys stand when addressing the court. Find out whether the judge before whom you are appearing has such a preference and what other protocols apply in that courtroom. The bailiff will be familiar with the judge’s preferences in this regard, or they may be posted on the judge’s website.

When we’ve ruled, we’ve ruled. If you truly need clarification of a judge’s ruling, you may ask for it. But don’t use it as an opportunity to re-argue your motion. Similarly, as is my practice, if the judge asks whether there are any questions, this is not an invitation to continue arguing or to re-argue your point. Once we’ve ruled, if you want further relief, you have the option of a motion for reconsideration.

Be prepared. Know your case law, your exhibits, and your record. As judges, we do our best to prepare for oral argument on motions and trial issues. That said, during argument, counsel often refer to particular evidence or facts. You should be prepared to cite specifically in the record where we can find it. That makes for a much more efficient hearing. If it’s not in the record, we can’t rely on it in our decision.

Conclusion

The above is one judge’s perspective on professionalism in the courtroom. It is not exclusive or comprehensive of all issues involving professional conduct in the courtroom. I suspect an entire edition of Bar News could be devoted to the topic. Another edition could be devoted to attorney professionalism outside the courtroom. And I’m confident that other judges would have different perspectives — and different priorities than those I’ve discussed above. I also believe there are some universalities about professionalism in the courtroom — courtesies toward the lower bench, respect for the jury, patience with witnesses, and civility toward opposing counsel. As for the court, the best guidance I can give is to know your judge and the judge’s courtroom.

Originally published in the August 2008 issue of the Washington State Bar News. Reprinted with permission of the Washington State Bar Association and Judge Erlick.

BOOKLET REVIEW OF VOIR DIRE

2011-04-07T16:28:00.000-07:00

Jury Selection Booklet by Karen Koehler

Stumbled across this gem of an 85-page booklet on jury selection, and it’s free. It is published on the website of the plaintiffs’ personal injury law firm of Stritmatter Kessler Whelan Coluccio. The booklet, Voir Dire (December 2010), was written by Karen Koehler (pictured to right), known to some of her opposing counsel as “The Velvet Hammer.”

Voir Dire contains practical advice for novice and experienced attorneys as well as law students. Rather than being a tedious manual, the booklet is engaging and entertaining. This combination of practical and interesting is the result of combining Karen Koehler’s trial diary, in which she recounts in the first person her experiences in jury selection, with excerpts from the law firm’s voir dire brief, which was primarily written by Ray Kahler and Garth Jones with contributions by other members of the firm.

Examples of the practical are systems for keeping track of jurors (grid with sticky notes vs. a chart), three pages of tips on how to establish a human connection with the jurors, five bad habits of trial lawyers in jury selection with rehabilitation advice to rid yourself of those habits, pluses and minuses of jury questionnaires along with a sample questionnaire, and the law on jury selection, (such as case law to the effect that coaxed recantations as a result of counsel’s leading questions designed to rehabilitate a juror who has been challenged for cause fail to establish impartiality).

Examples of Koehler’s engaging and on-point trial accounts include Judge McD putting the end to a mutiny by the prospective jurors (during the judge’s reading of a neutral statement of the case, “. . .a 72 year old retired Boeing engineer hollers [yes hollers] out something along the lines of how disgusted he is that people won’t take personal responsibility for their own actions and have to blame someone else” followed by another juror exclaiming about how ridiculous it is) and her voir dire about damages in an admitted liability case, jurors becoming entrenched (“I cannot enter a judgment against the defendant – I have no idea if it would force him into poverty. . .”) and Ms. Koehler wielding her challenges for cause, resulting in so many jurors being excused that a mistrial must be declared.

I highly recommend Voir Dire, and did I mention it is free and can be located on the Stritmatter Kessler Whelan Coluccio website.

CONFRONTATION CLAUSE AND THE GANG EXPERT

2011-04-01T15:32:00.000-07:00

Judge Nevins Visits with Sir Walter Raleigh’s Ghost

Judge Jack Nevin wrestles with the challenge presented by the Confrontation Clause requirements of Crawford and gang experts who are called to testify based on hearsay statements by the unavailable and uncross-examined. Judge Nevin, in the most recent issue of the Seattle University Law Review, describes the problem as follows:

“(This part of the article) will expose the intersection of gang expert testimony and the Confrontation Clause, showing how gang expert testimony can often be based on testimonial hearsay and therefore violate both the spirit and letter of Crawford. This Part will show how the growing area of gang expertise and the principles of Crawford are on a collision course. The end product of this course is the admission of testimonial hearsay by way of expert testimony, all with a view toward conviction rather than ensuring a defendant’s right to effectively cross-examine the witnesses providing evidence against him. As a result, hundreds, if not thousands, of alleged gang members nationwide have been, and will be, convicted without the benefit of cross-examination and, therefore, a fair trial. . .”

The article explores:

• Crawford v. Washington and the Right to Confrontation
• The Emergence of the Officer/Expert in Gang Cases
o The Scope of Rules 702 and 703
o The Rise of the Gang Expert
o The Trouble with Gang Expert Testimony
• The Intersection of Gang Expert Testimony and the Requirements of Crawford
• A Formula for Reconciling Gang Expert Testimony with Crawford.

To read the entire article – click here.

4-STAR PRETRIAL AND TRIAL ADVOCACY MOVIE FAVORITES

2011-03-24T14:59:00.001-07:00

Two Dozen Advocacy Movies

This is a list of 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 the Pretrial and Trial Advocacy website here.

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.

AUTHORS ON A JAUNT

2011-03-18T10:09:00.000-07:00

Trip to the San Juan Islands

Berger, Mitchell and Clark have teamed up over the years to write advocacy books. But, all is not work. For instance, here we are recently on a trip to the San Juan Island in the Northwest. Life is good.

IMPORTANCE OF THE SCENE VISIT

2011-03-12T12:47:00.000-08:00

Garage Tavern – Scene of the Shooting

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 contained in Pretrial Advocacy and Trial Advocacy Assignments and Case Files texts).

Because the bar is the scene of the shooting, my Seattle University law students (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 a DVD that comes with their text (you can view part of the video on the website for the book and DVD here). 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. To purchase or get an examination copy of Pretrial Advocacy click here.

SUMMARY JUDGMENT – WRITING AND ARGUING

2011-03-04T15:59:00.000-08:00

Writing and Arguing Motions – Tips from Judge John Erlick

When Judge John Erlick, served as Chief Civil Judge of the King County Superior Court (Seattle), he created a column entitled “Tips from the Top” for the King County Bar Bulletin in which he answered questions posed by members of the bar. One lawyer wrote asking, “I’ve noted differing approaches by the judges. What should I do — or not do — when preparing and arguing a summary judgment motion? Do you have any insights on what judges want and what they’re looking for?” Judge Erlick’s response provides excellent advice for summary judgment and other motions as well.
He answered as follows:

Indeed I do have some insights (concerning summary judgment motions). My colleagues have been good enough to share with me their preferences, peccadilloes and pet peeves. I’ve created an amalgamation of some of the more salient and recurrent themes. Here you go:

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. Reprinted with permission of the King County Bar Association and Judge Erlick.

TRIAL LAWYER, TEACHER AND PRINCE

2011-02-21T15:03:00.000-08:00

To Know Him Was To Love Him

The Great Dan McCarthy died on Valentine’s Day, and he’s probably up there with some wry remark about that. Dan was a Bronx Assistant District Attorney whom I had the great good fortune to get to know when I worked for the National College of District Attorneys and he served as a frequent College faculty member, teaching new and experienced prosecutors how to try a case.

Dan was an extraordinarily fine teacher, trial lawyer and a “Prince of a guy.” A recent news article described him as a “quietly brilliant seeker of justice.” Defense counsel Sam Braverman summarized his approach to trial work in this way: “Dan was so successful because he was able to see the whole case in both legal and human terms.” Michael Flaherty, First Assistant in the Erie County District Attorney’s Office in New York, put it well when he said that “to know him was to love him.”

Sarena Straus, author, news commentator and former Assistant District Attorney in the Bronx, praised Dan’s mentorship and his teaching skills in an article entitled “In Memory of Dan McCarthy – My Friend and Teacher.” She explained his talent as trial lawyer in this way:

“Above all, Dan was a brilliant story teller. When you sat in his courtroom and listened to him try a case, you felt like you were not in a court of law, but inside a compelling and often horrifying but brilliant book, hearing a story about people and the things they do to each other - terrible things. But in this book, you had the power to do something about it. The end was in the power of the people.”

All these things are true. He was a wonderful human being, trial lawyer, teacher, friend and mentor. Add to that his sense of humor that delighted all who knew him or heard him teach. We miss you.

VIDEO REVIEW: A SKILLS BUILDING TOOL

2011-02-14T10:34:00.000-08:00

The Value of Video

Jennifer Shapiro, pictured here, stands before a jury of her peers – students in her comprehensive trial advocacy class at Seattle University Law School. She delivers her first opening statement in the class. It’s not her first opening because she has competed in mock trials before.

As she delivers the opening, a fellow student videos her. After Ms. Shapiro delivers her opening statement, she takes the video card and loads the video on her computer so that later she can watch and critique her performance. The goal of the video review is to see herself as others see her and by this means improve performance. Shortly, we will come back to what she learned.

At the National Advocacy Center in Columbia, South Carolina, where federal and state prosecutors receive advocacy training, the courtrooms serve as classrooms. Each courtroom has multiple cameras that feed into a video room. Student prosecutors are videoed as they do everything from opening statement to appellate argument. Following each performance and courtroom critiques, the prosecutor picks up the video in the video room and goes to a video-review room where a faculty prosecutor sits with the student-prosecutor and critiques the student’s performance while it is shown on a television monitor. While the critiques in the courtroom focus on content and speech, the video-review critique concentrates on non-verbal communication.

Video review is common in other trial advocacy training settings. For example, the Advance Trial Advocacy Course conducted at the University of Montana Law School is like that used at the National Advocacy Center. On the other hand the equipment we use in the Seattle University class is neither fancy nor expensive - a handheld Kodak PlaySport video camera on a small tripod placed on a jury box rail. However, both the picture and sound are good enough to accomplish the task.

Seeing yourself as others see you can be a painful experience because you are your own worst critic. Initially, you might focus on such things as needing to drop a few pounds or your hair thinning on top. But, after you get past that, you discover ways to improve.

Video review is best used to correct and perfect nonverbal communication skills. You can see distracting habits, such as pacing (watching the video in fast forward can produce an amusing dance), awkward fiddling with a pen or looking down at notes. You can adjust your behavior so that you maintain eye contact with the jurors, have good posture and gesture naturally. It is also helpful to hear your voice so that you can get better. You can learn to do such things as modulate your voice rather than have a constant monotone, pause to take advantage of silence rather than going at a steady pace and slow down rather than rushing ahead. Video review is a valuable catalyst to improve advocacy skills.

Ms. Shapiro viewed her video and this is what she wrote to me:

“I learned a lot from the video review. I have competed in a few mock trials, so I think I have a good understanding of what an opening should consist of substantively, but, as a former teacher, I feel awkward in front of the jury without a white board to point at or a book in my hand. After watching the video, I understand why you told me to, "Watch my hands." It was not until I saw the video that I even knew what I was doing with my hands as I spoke.

“The video was also helpful regarding my recovery if I forgot something or misspoke. In those moments, my appearance to the jury is last on my mind, so it is helpful to see how quickly I recover and what I look like as I try to remember something.

“Overall, the video review was very helpful.”

CIVILITY CREED

2011-02-04T10:19:00.000-08:00

A Creed to Guide Professional Conduct

Civility is not a new subject here – see earlier post. Just attended the first of three sessions at Seattle University Law School on civility. I sat next to and visited with Judge Harry McCarthy who was there as a speaker. Judge McCarthy served on the Professionalism Committee of the Washington State Bar Association that promulgated the Bar Association’s Creed of Professionalism. A plaque with this Creed should be on the desk of every lawyer.

Washington State Bar Association Creed of Professionalism

As a proud member of the legal profession practicing in the state of Washington, I endorse the following principles of civil professional conduct, intended to inspire and guide lawyers in the practice of law:
·In my dealings with lawyers, parties, witnesses, members of the bench, and court staff, I will be civil and courteous and guided by fundamental tenets of integrity and fairness.
·My word is my bond in my dealings with the court, with fellow counsel and with others.
·I will endeavor to resolve differences through cooperation and negotiation, giving due consideration to alternative dispute resolution.
·I will honor appointments, commitments and case schedules, and be timely in all my communications.
·I will design the timing, manner of service, and scheduling of hearings only for proper purposes, and never for the objective of oppressing or inconveniencing my opponent.
·I will conduct myself professionally during depositions, negotiations and any other interaction with opposing counsel as if I were in the presence of a judge.
·I will be forthright and honest in my dealings with the court, opposing counsel and others.
·I will be respectful of the court, the legal profession and the litigation process in my attire and in my demeanor.
·As an officer of the court, as an advocate and as a lawyer, I will uphold the honor and dignity of the court and of the profession of law. I will strive always to instill and encourage a respectful attitude toward the courts, the litigation process and the legal profession.

This creed is a statement of professional aspiration adopted by the Washington State Bar Association Board of Governors on July 27, 2001, and does not supplant or modify the Washington Rules of Professional Conduct.

And yes you can order a mounted copy of the Creed for your desk from the Bar Association for $20 by going here.

CO-AUTHOR’S “OUT OF THE ASHES” FILM

2011-01-24T13:44:00.001-08:00

Marilyn Berger’s Exploration of the Controversial 9/11 Victim Compensation Fund

My advocacy books' co-author, Marilyn Berger, was the executive producer, writer and co-director of a forceful new documentary that explores the controversial September 11th Victim Compensation Fund created to reimburse those who were injured or lost family members in the terrorist attacks. The film is currently being screened around the country. To view a trailer for the documentary, learn more about the project and learn about attending a screening or obtaining a DVD, visit the website for the film.

The following is a brief description drawn from Seattle University’s announcement about this documentary:

"'Out of the Ashes’ tells the stories of seven 9/11 families and how they struggled to make sense of the tragedy - and how they chose to deal with the fund that was designed to help them put their lives back together. . .

“The film explains how the Fund was created and implemented, portraying both its strengths and its weaknesses. Featured interviews include Kenneth Feinberg, the Special Master of the Fund, who is now overseeing the $20 billion fund to pay claims related to the BP Gulf oil spill. . . .

“The film raises important questions: Did the Fund undermine the legal system, as its critics claim? Or did it offer victims a way to avoid the extraordinary cost, complexity and excruciatingly slow pace of a lawsuit? And if the Victim Compensation Fund was the right thing to do, do those affected by other tragedies like Hurricane Katrina, the Oklahoma City bombing, and other disasters also deserve compensation? If so, is this Fund, with its methods for calculating the value of a human life, an appropriate model?”

NEW CROSS-EXAMINATION HANDBOOK PUBLISHED

2010-12-13T16:18:00.001-08:00

Aspen has just published Cross-Examination Handbook: Persuasion, Strategies and Techniques (416 pages) by Ronald H. Clark, George (Bob) Dekle and William S. Bailey. The Cross-Examination Handbook shows how to take control and cross examination. All the essential skills and strategies you need are covered. And, the Handbook provides step-by-step instruction combined with outstanding examples from illustrious cases such as the John Scopes, Enron, Sen. Stevens and OJ Simpson trials.

Cross-examination skills training assignments or two criminal and to civil cases are provided for use in law school classes and professional skills development CLE workshops.

SUMMARY OF CONTENTS

1. Introduction to Book, CD & Website

2. Purposes of Cross & the Total Trial Approach

3. The Content & Concession-Seeking Cross

4. Constructing the Cross: Your Chance to Testify

5. Impeachment Cross: Reliability

6. Impeachment Cross: Report

7. Impeachment Cross: Reporter

8. Character & Conduct in Trial

9. Witness Control: Strategies & Techniques

10. Preparing the Winning Cross-Examination

11. Cross-Examining Expert Witnesses

12. Forgetters, Perjurers, Adverse Witnesses, Deponents, & More

13. Ethical & Legal Boundaries of Cross

14. Cases and Assignments

CD in pocket of back cover: Case Files for two civil & two criminal cases

TEACHER'S MANUAL (100 pages) with Actors' Guide with instructions for witnesses who will be subject to cross-examinations.

Bench Trial Advocacy – Article by Dean Paul Holland

2010-09-11T10:26:00.000-07:00

The article Sharing Stories: Narrative Lawyering in Bench Trials, 16 Clinical Law Review 195 (2009), provides insights into what is and what isn’t effective advocacy in a bench trial. The author of the article is Paul Holland, Associate Dean for Academic Affairs and Associate Professor of Law at Seattle University Law School. Besides his duties as Dean, Paul Holland continues to teach the Youth Advocacy Clinic, which he headed from 2004 until becoming the Associate Dean in 2009. In his article, Dean Holland reviews the bench trial of the Seattle Sonics’ case before Federal Judge Marsha Pechman and trials of everyday criminal cases before King County Juvenile Court judges. Dean Holland’s article examines how trial lawyers not only can effectively use narrative lawyering in bench trials but also the pitfalls for trial lawyers who don’t. He also explores the challenges that trial lawyers face in jury trials. For example, here are his observations regarding closing arguments in bench as opposed to jury trials:

. . . In the tight professional circle of a bench trial, with lawyers and judges sharing traditions and, yes, stories, lawyers must find a way to keep their advocacy fresh. Jury trial lawyers will often return in closing argument to a familiar trope, a story that, although they are telling for the tenth time, is new to the audience. Bench trials force lawyers to be creative, to craft an argument that is truly unique, a distillation of this case and the experience of trying it in a way that will never be duplicated.

Dean Holland’s observations and research provide valuable insights for any trial lawyer who is preparing for a bench trial.

NEW - 3rd Edition Pretrial Advocacy Book

2010-02-27T12:07:00.000-08:00

NEW- Pretrial Advocacy 3rd Edition

Pretrial Advocacy, Planning, Analysis and Strategy 3rd Edition was just released by Aspen Publications.
The great appeal of Pretrial Advocacy is its consistently accessible method of teaching concepts and practical aspects of pretrial litigation in a manner that reflects the real-world practice of law.

PRETRIAL ADVOCACY features:
DVD including videos on how to take a deposition and used it in trial, new mediation videos, settlement documentary, tour of the crime scene, and computer animations
Case files for civil wrongful death and criminal homicide cases on a CD that comes with free trial advocacy
78 assignments for student role-play skills performances
NEW to the third edition:
E-discovery is updated and expanded
Internet searches to locate free or inexpensive reliable information
ADR advocacy expanded and explored in depth and
Rule changes are incorporated into third edition

To order or if you are an instructor who would like an examination copy go to http://www.aspenadvocacybooks.com/

JUDGE’S EXPECTATIONS FOR TRIAL ADVOCACY

2009-11-26T14:09:00.000-08:00

Superior Court Judge Timothy Bradshaw’s Web Site

Before going to trial, a trial lawyer wants to get to know what the judge likes and dislikes. This can be a challenge because procedures and customs vary from courthouse to courthouse and courtroom to courtroom in the same courthouse. Judge Timothy Bradshaw, of King County Superior Court, informs trial lawyers of what he expects from them before they enter his courtroom by posting his expectations on his Web site.

Judge Bradshaw Presides

Judge Bradshaw’s lists of Procedures cover things such as:

· Interaction with the lower bench;
· When to have witnesses available and what to tell them, such as to inform them of the court’s rulings on motions in limine, and
· Handling exhibits, such as not showing or asking a witness to show anything to the jury unless it has been admitted.

Regarding Jury Selection, Judge Bradshaw not only provides a list of the general questions that will be asked but also the precise procedures that he will use during voir dire.

Judge Bradshaw has counsel submit on a chart, provided on the Web site, whom the parties intend to call as Witnesses along with anticipated length of their testimony on direct, cross, redirect and so on.

Among the other matters covered on his Web site are these:

· Jury instructions – What the parties are expected to submit in terms of proposed instructions;
· Exhibits – Two sets are to be submitted (a judge’s working copy in addition to the one used in trial along with an exhibits list for which a template is provided;
· Depositions – They remain with counsel until filed and the process after they have been filed, and
· Technology – What is available and what counsel needs to do to get access to it and use it in trial.

Judge Bradshaw’s compendium of requirements serves both as an aid for practice in his court and also as a nice set of guidelines for practicing lawyers on how to conduct business with and in a court.

PRETRIAL AND TRIAL ADVOCACY WEB SITE

2009-09-04T15:41:00.000-07:00

Visit www.aspenadvocacybooks.com for Valuable Resources

Pretrial Advocacy and Trial Advocacy is a Website that gives valuable resources to trial advocates, law professors, and law students.

For PRETRIAL ADVOCACY the Web site provides the following useful material:

Justice Paul Anderson’s article: “Fielding Difficult Questions from the Bench;”
Sample Complaints;
Sample Answers;
Sample Motions – Motion to Compel and Motion for Summary Judgment;
Sample Declaration;
Sample Interrogatories;
Sample Requests for Production;
Sample Requests for Admissions;
Links to worthwhile Web sites including trial visuals; tour of a courthouse, and trial advocacy blogs and websites;
Research Web sites, such as Rules of Professional Responsibilities, E-discovery, Federal Rules of Civil Procedure and much more;
Case management and preparation Web sites, and Web sites for locating people, conducting background investigations and public sleuthing, and
Descriptions of the book Pretrial Advocacy: Planning, Analysis and Strategy, 2nd Edition; as well as accompanying movies on a DVD (how to take and use a deposition at trial, guided crime scene tour and visuals) and CDs.

As was discussed in a prior blog the site also offers the following TRIAL ADVOCACY resources:

Trial transcripts including personal injury and the Sonics’ trial;
Juror questionnaire;
Sample trial motion;
Preview of the Freck Point Trial demonstration movie, and
Descriptions of Trial Advocacy: Planning, Analysis & Strategy, 2nd Edition and Trial Advocacy: Assignments & Case Files as well as the accompanying trial demonstration movie - Freck Point Trial on DVDs and CDs

LAST SUMMER READING FOR TRIAL LAWYERS – IN THE INTEREST OF JUSTICE BY JOEL J. SEIDEMANN

2009-08-19T12:38:00.000-07:00

Great Opening Statements and Closing Arguments

This last recommended summer read – In the Interest of Justice – Great Opening and Closing Arguments of the Last 100 Years, HarperCollins Publishers, 2004 – is a gift to trial lawyers. The gift to trial lawyers is given by author Joel J. Seidemann, who is a Manhattan Assistant District Attorney and currently prosecuting the Astor case in Manhattan. After reading his book, I contacted him to thank him for the gift, and he e-mailed back that the openings and closings had to meet two requirements to be included in his book: “excellent advocacy in high profile cases.”

The included transcripts excerpts of advocacy 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. Advocacy in these cases also satisfies the excellence test, with the advocates demonstrating how to effectively use these devices: storytelling; analogies; phrasing; humor; pathos; logic; themes and so much more.

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 is a wonderful resource for trial lawyers, professors looking for illustrations of superb openings and closing and law students who are taking trial advocacy classes. If you know a deserving person with an interest in trial advocacy, In the Interest of Justice is the perfect gift.

TRIAL ADVOCACY WEB SITE

2009-08-16T10:19:00.000-07:00

A Web Site Chock-Full with Valuable Resources

Pretrial Advocacy and Trial Advocacy is a Website designed to offer valuable resources for trial advocates, law professors, and law students learning about trial advocacy.

This Advocacy Web site contains:

Trial transcripts including personal injury and the Sonics’ trial;
Juror questionnaire;
Sample trial motion;
Preview of the Freck Point Trial demonstration movie;
Links to worthwhile Web sites including trial visuals, tour of a courthouse; trial advocacy blogs and websites;
Research Web sites, such as Rules of Professional Responsibilities, E-discovery, Federal Rules of Civil Procedure and much more;
Case management and preparation Web sites, and Web sites for locating people, conducting background investigations and public sleuthing, and
Descriptions of books Pretrial Advocacy: Planning, Analysis and Strategy, 2nd Edition; Trial Advocacy: Planning, Analysis & Strategy, 2nd Edition and Trial Advocacy: Assignments & Case Files as well as accompanying movies on DVDs and CDs.

CREATIVE LEGAL OPINIONS

2009-07-17T10:38:00.000-07:00

The Camel Cigarette Ad Case

Creative writing is a confection – a treat to read and a treat to experience. Two judges got creative in their opinions in the Camel cartoon case. In 1998, the R.J. Reynolds Tobacco Company entered into a multi-billion dollar settlement with several states and as part of the settlement agreed not to use characters like its icon Joe Camel in its advertizing campaigns. When Rolling Stone ran the ad pictured here, Washington state’s Attorney General sued seeking sanctions and to stop the ad campaign.

At the trial court level, King County Superior Court Judge Bill Downing displayed his renowned creative writing skills and crafted a delectable comparison when he rejected the state’s arguments. He wrote in his opinion that the ad was:

“. . . (a) thought-provoking metaphor regarding the growth and nurturance of artistic creativity. . . They are as different from the sunglass-wearing, saxophone-playing, comically hip Joe Camel as [surrealist painter] Renee Magritte is from Walt Disney."

In overturning the trial court’s ruling on in mid-July, Appellate Court Judge and former King County Judge and colleague of Judge Downing also resorted to literary flourishes in her opinion which describes the same ad this way:

"Under a blue sky in a pastoral Eden, roosters hitch rides on floating tractors, speakers grow out of the ground and radios fly. This is in a world where the natural laws do not obtain, where cancer and serious health problems can cease to exist. . . . For a product known to cause both, such a world is a potent sales device."

Legal opinions don’t have to be dry as Stephen Colbert’s wit or as dust or as the desert or as a bone . . .

SUMMER READING – PRETRIAL AND TRIAL IN ITALY

2009-07-09T09:12:00.000-07:00

The Monster of Florence by Douglas Preston and Mario Spezi

Between 1968 and 1985 in the province of Florence, Italy, a serial killer, dubbed the Monster of Florence murdered eight couples and as part of the signature slayings removed female victims’ organs.

Italian journalist Mario Spezi and American crime novelist Douglas Preston, who moved to Italy in 2000, tell the story of the Monster of Florence’s investigations and prosecutions that flow from the murders. That a single weapon, a Baretta .22, ties the cases together is in and of itself intriguing under the circumstances, which won’t be gone into because that would reveal too much.

Equally fascinating are the author’s accounts of the workings of the Italian justice system that leads to even one of the authors getting charged with a crime. The authors at one point comment on the Italian system as follows:

"During that time I (Preston) began to understand my own obsession with the Monster case. In twenty years of writing thrillers involving murder and violence, I had tried and largely failed to understand evil at its core. The Monster of Florence attracted me because it was a road into the wilderness. The case was the purest distillation of evil I had ever encountered, on many levels. It was, first of all, the evil of the depraved killings of a highly disturbed human being. But the case was about other kinds of evil as well. Some of the top investigators, prosecutors, and judges in the case, charged with the sacred responsibility of finding the truth, appeared to be more interested in using the case to leverage their power to greater personal glory. . ." Amanda Knox & Raffaele Sollecito

The case has a Seattle connection because the prosecutor of Amanda Knox, a Seattleite who is also an alum of the University of Washington, was also a prosecutor in the Monster of Florence case. Amanda Knox has been on trial because the prosecutors claim that she and her ex-boyfriend, Raffaele Sollecito killed Meredith Kercher in Perugia, Italy. Prosecutors accuse Knox of murdering during a sex game that went wrong. Currently the trial is in recess and the verdict is expected next year.

The Monster of Florence reads like a fast paced novel and gives insight into the justice or, more appropriately described - injustice system in Italy.

PLAYING TO YOUR TRIAL AUDIENCE: THE JURY

2009-06-24T16:07:00.000-07:00

Juror Infuriated by Prolonged Cross-Examination

What happened earlier this month in a Brooklyn courtroom is a reminder that trial lawyers must be ever mindful of the effects of what they do on their audience – the jury.

The New York Times reported that a juror in a Brooklyn court could take it no longer after having sat through two days of the prosecutor’s cross-examination of an accident reconstruction expert. The juror wrote to the trial judge that she was “infuriated to the point that I am no longer able to serve as an objective juror.” She further noted, "Things go on and on and on and on endlessly and I don't see the value in it and people are asleep." The trial judge dismissed the juror over defense counsel’s objection. Defense counsel observed, "Clearly this is a very intelligent woman and someone who clearly appreciates the gravity of the situation,"

CIVILITY IN PRETRIAL, TRIAL AND APPELLATE ADVOCACY

2009-06-04T17:09:00.000-07:00

Principles of Civility, Integrity and Professionalism

Last week I was at the University of Montana Law School teaching at their Advanced Trial Advocacy course and met Don Robinson. Don is a member of the American Board of Trial Advocacy, and during the course he lectured on civility and showed a video produced by ABOTA, which is intended to encourage civility in the practice of law.

AMERICAN BOARD OF TRIAL ADVOCATES

ABOTA has promulgated Principles on Civility, Integrity and Professionalism which are to be followed by its members. The principles for courtroom behavior are set out below. The remainder of the principles can be found on line at the ABOTA website. Wouldn’t life be better if all lawyers adhered to them?

American Board of Trial Advocates Principles of Civility, Integrity and Professionalism:

When In Court I Will:

1. Always uphold the dignity of the court and never be disrespectful.
2. Never publicly criticize a judge for his or her rulings or a jury for its verdict. Criticism should be reserved for appellate court briefs.
3. Be punctual and prepared for all court appearances, and, if unavoidably delayed, notify the court and counsel as soon as possible.
4. Never engage in conduct that brings disorder or disruption to the courtroom.
5. Advise clients and witnesses of the proper courtroom conduct expected and required.
6. Never misrepresent or misquote facts or authorities.
7. Verify the availability of clients and witnesses, if possible, before dates for hearings or trials are scheduled, or immediately thereafter, and promptly notify the court and counsel if their attendance cannot be assured.
8. Be respectful and courteous to court marshals or bailiffs, clerks, reporters, secretaries, and law clerks.

TRIAL ADVOCACY: ASSIGNMENTS AND CASE FILES BOOK

2009-04-17T14:40:00.000-07:00

Aspen Publications Releases New Book

Aspen Publications has released the new Trial Advocacy: Assignments and Case Files by Berger, Mitchell and Clark. The publisher would like to send you an examination copy of this Assignments book with the Case Files on a CD and a Teacher’s Manual if you may adopt it for your law school trial advocacy class or for a trial advocacy training course for practicing lawyers. The book and CD have received excellent reviews as a valuable resources for teaching trial advocacy skills.

If you wish to receive an examination copy of the book and teaching manual (at no cost to you of course), you can e-mail me with your mailing address at ronhclark@gmail.com and I’ll get the books to you or you can contact Aspen directly using the contact information below.

Assignments and Case Files is used as supplementary material with either the completely revised Trial Advocacy: Planning Analysis & Strategy, 2nd Ed. (which you may also request to examine if you have not yet adopted it) or with other trial advocacy texts. Assignments and Case Files is affordably priced for students at $24.95.

THE ASSIGNMENTS BOOK
· A criminal homicide case and a civil wrongful death case arising out of a shooting in a tavern on a Saturday night
· 84 role-play assignments from jury selection through closing argument
· 36 witnesses featured in the assignments
· Expert witnesses, such as, a firearms examiner, doctors, economists, clinical psychologist, hospitality consultant, medical examiner
· Transcript for making and meeting objections assignment
· Checklists for trial performances from jury selection to closing

CD WITH CRIMINAL & CIVIL CASE FILES (PRINTABLE DOCUMENTS)
· Over 30 photographs, scene diagrams, legal documents (such as complaint and answer), documentary evidence (autopsy report, judgments and sentences, firearms application, insurance policies), news paper articles and more
· 36 witness statements and depositions
· Expert witness CVs and reports for firearms examiner, doctors, economists, clinical psychologist, hospitality consultant, medical examiner
· Transcript for the making and meeting objections assignment
· Courtroom Evidence Handbook for the assignments
· Statutes, administrative codes, pattern jury instructions, and research memoranda with case law for legal research assignments

TEACHER’S MANUAL WITH A CD
· Teacher’s Manual contains a syllabus, extensive teaching notes and critique sheets
· Actors' Guide on CD contains witness information and instructions for role-playing the assignments

Please visit http://www.aspenadvocacybooks.com/ where you can learn more about Assignments and Case Files, watch a trailer for a trial demonstration movie, get detailed information on the trial practice materials and find links, trial transcripts, sample pleadings and other valuable information for your students.

If you wish to receive examination copies of Trial Advocacy: Assignments and Case Files and the Teacher’s Manual, you can contact Aspen directly and:
Order Online at:
lawschool.aspenpublishers.com
examination copy:
Call: 1.800.950.5259
Fax: 1.800.915.3450
Email: legaledu@wolterskluwer.com

PRETRIAL DISCOVERY TRAIN WRECK

2009-04-10T11:08:00.000-07:00

The Steven‘s Ethics Trial and the Prosecutors’ Ethics

No topic gets more attention in my Seattle University Law School Pretrial Advocacy class on criminal case discovery than the prosecutor’s responsibility to turn over exculpatory information. Violating the duty can lead to disastrous consequences. A prosecutor can lose the case – do it right or do it again. The prosecutor can be reprimanded, destroy his reputation, lose her ticket to practice law and even risk contempt.

All these potential consequences might await on the horizon for the United States Attorneys in the Senator Stevens' case. Doing it again isn’t going to happen; there will be no retrial. Charges have been dismissed with prejudice. It’s a train wreck.

How ironic that a prosecution of Ted Stevens for ethics violations ends with Stevens walking away claiming vindication and the United States attorneys facing charges of ethics violations and potentially contempt of court and ruined reputations.

Dismissed : Ethics violation for failure to disclose Alleged: Ethics violation for failure to disclose

It’s so simple that a prosecutor’s discovery responsibilities can be summed up this way: if it hurts, give it up. The ethical responsibility is spelled out in Rule of Professional Responsibility 3.8(d). The prosecutor’s constitutional obligation was articulated in Brady vs. Maryland in 1935, and it has been said that every prosecutor’s office should have this declaration of a prosecutor’s role on a prominently displayed plaque:

"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer. He may prosecute with earnestness and vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed 1314 (1935).

LAWYER LINCOLN’S LESSONS: SINCERITY & TRIAL ADVOCACY

2009-04-03T09:59:00.000-07:00

Lesson 2 – Sincerity is What Matters in Trial Advocacy

The keys to trial persuasion are to be sincere and to be able to project that sincerity. Sincerity, more than eloquence, a good appearance or any other attribute, is what really matters in trial advocacy.

Sincerity in the trial context means that the lawyer believes the cause is just. In this bicentennial of Lincoln’s birth it is helpful to look to how this trial lawyer approached life, particularly trial work. The first Lincoln lesson reviewed his creed, which reads in part: “I must stand by anyone that stands right. Stand with him while he is right, and part with him when he goes wrong.” This second lesson continues to explore that theme.

While a trial lawyer can never state a personal opinion to a jury about the justness of the cause, no prohibition exists that bars a lawyer from being sincere about the cause. Sincerity is the quality that makes for a great communicator in trial. You are your case. If you are sincere and can project that to the jurors, you will be able to effectively convey your case to them.

Recognizing that above all else sincerity matters when it comes to communication, here is a newspaper reporter’s account of what he observed at Lincoln’s Cooper Union speech, which is the subject of Harold Holzer’s book Lincoln at Cooper Union: The Speech that Made Abraham Lincoln President, Simon and Schuster (2004):

"When Lincoln rose to speak, I was greatly disappointed. He was tall, tall, oh, so tall, and so angular and awkward that I had for an instant a feeling of pity for so ungainly a man . . . His clothes were black and ill-fitting, badly wrinkled – as if they had been jammed carelessly into a small trunk. His bushy head, with the stiff black hair thrown back, was balanced on a long and lean head-stalk, and when he raised his hands in opening gesture, I noticed that they were very large. He began in a low tone of voice – as if he were used to speaking out-doors and was afraid of speaking too loud.

"He said, ‘Mr. Cheerman,’ instead of ‘Mr. Chairman,’ and employed many other words with an old-fashioned pronunciation. I said to myself, ‘Old fellow, you won’t do; it is all very well for the Wild West, but this will never go down in New York.’ But pretty soon he began to get into the subject; he straightened up, made regular and graceful gestures; his face lighted as with an inward fire; the whole man was transfigured.

"I forgot the clothing, his personal appearance, and his individual peculiarities. Presently, forgetting myself; I was on my feet with the rest . . . cheering the wonderful man. In the closing parts of his argument you could hear the gentle sizzling of the gas burners."

Lincoln’s sincerity and conviction came across in his Cooper Union address and swayed the audience. Public speaking research suggests that two things emerge as the most powerful in persuasion: sincerity and conviction of the speaker. And, this explains why Lincoln had this effect on his audience.

FIELDING DIFFICULT QUESTIONS FROM THE BENCH

2009-03-22T13:20:00.000-07:00

Appellate Advocacy Advice from Justice Paul Anderson

Concrete advice on how to field tough questions from the appellate bench is provided by Justice Paul Anderson of the Minnesota Supreme Court in Chapter 16 of The Appellate Prosecutor book. Justice Anderson states:

“Appellate judges enjoy asking questions. It is our lifeblood. It is how we seek to understand a case, eliminate ambiguity, and test a proposed rule of law. We do not purposely think up difficult questions to put appellate advocates on the spot. Nevertheless, many of our questions are difficult to answer because we are testing or probing in an effort to solve complex legal problems.
“Most good appellate advocates welcome difficult questions because they know that this is how they can engage in a dialogue with the court. They know that it is only through such a dialogue that they and the court can act together to explore the nuances of complex legal issues. But not all appellate advocates appreciate difficult questions; many view them as a necessary burden. Why is there this difference? Generally speaking, it can be characterized as a difference in attitude, anticipation, expectation and preparation. By using the foregoing attributes properly, an advocate is able to significantly change the dynamics of oral argument so that even the most difficult questions are welcome or at least palatable. Fortunately, some principles and practices enable an advocate to successfully field the difficult questions. What follows are a few of these principles.”

Justice Anderson’s principles, insights and points include:

Entering the Dialogue: The Gift; Listen and Respond to the Question Asked and The Courteous Conversationalist

Preparation and Anticipation: How the Court Prepares and How the Court Views Your Case - The Three Categories

Answering Particular Types of Questions: The Premature Question; The Softball Question; The Stupid Question; The Nasty Hypothetical Questionn and Opposing Counsel's Questions

A Final Word About Preparation

Read the entire chapter at this Advocacy website .

PRETRIAL VISIT TO THE SCENE

2009-03-13T10:37:00.000-07:00

Really Understanding Your Case

This Tuesday evening, my Seattle University Law School Pretrial Advocacy class, Judge Dean Lum (my co-teacher) and I visited The Garage tavern in the Capitol Hill neighborhood. During the Pretrial Ad course, the law students work with cases growing out of a Saturday night shooting in The Garage tavern. The shooting led to both a criminal (murder charges) and a civil case (wrongful death).

The visit to the scene of the shooting is intended to get to know the students better in a social setting and to spice up the course with some practical, real world experience. Most of all, it is designed to drive home the point that a scene visit is a critical part of case development. No lawyer can completely understand the case without visiting the scene where the event took place. The visit gives the trial lawyer a grasp of distances, sight lines, ambient sounds, the look of objects and so on.

For the Pretrial Advocacy class, we use the Case File that comes with the Pretrial Advocacy: Planning, Analysis and Strategy book. The class assignment is to view a DVD, which comes with the Pretrial book, in which the prosecutor’s investigator leads a tour of the Garage. You can view a clip of that tour. When we meet at The Garage, the students are asked to explain what they learned by going to the scene that they could not learn by watching the video. The list includes things like learning how loud The Garage is in the evening hours when compared with the daytime tour on the video.

Three Other Teaching Points

Three other points are covered when discussing the scene visit with the students.

1. Sooner the Better - The visit should be scheduled for the earliest opportunity before any changes can be made. And, it should be at the same time of day as when the event occurred because the scene may change during the day, such being noisier and more crowded. Ideally, you would also visit the scene with a person who is familiar with what took place where and when.

2. Creating Trial Visuals - The scene is where you will get ideas for trial visuals to create. You can take photographs of the scene. You or your investigator can take photographs, measure so a to-scale diagram can be drawn, inspect the scene, make a video. All the time, you think about the witnesses who would identify and authenticate the exhibits at trial.

3. Jury Scene Visit - While you are at the scene, you will also be contemplating whether or not to ask the judge for a jury scene visit. At trial, you can request that the jury be taken to the scene. If the motion is granted, the jurors will be transported there and permitted to walk and inspect the scene. A jury visit could be helpful or harmful to the case theory. For example, where a defendant claims self-defense, asserting that he was frightened when the victim approached him in an alley, a trip to the secluded, dark alley crowded with drug addicts may give the jurors the sense of apprehension that the defendant felt as he was approached by the victim in that alley and lead to the conclusion the defendant did act in self-defense and should be found not guilty.

LAWYER LINCOLN’S LESSONS

2009-03-06T09:57:00.000-08:00

Lesson 1: A Trial Lawyer’s Creed

When I left the prosecutor’s office for the first time way back, my colleagues gave me the multi-volume set of Sandburg’s biography of Abraham Lincoln. They knew he was my role model for being a lawyer. He still is.

In this bicentennial year of Lincoln’s birth, we can still learn from his trial lawyer’s creed:

“I am not bound to win.
But I am bound to be true.
I am not bound to succeed.
But, I am bound to live up to what light I have.
I must stand by anyone that stands right.
Stand with him while he is right,
And part with him when he goes wrong.”

Abraham Lincoln

TRIAL ADVOCACY GOES TO THE MOVIES

2009-02-27T11:54:00.000-08:00

The Staircase Movie is Most Instructive

Trial work is theater work, and, movies can provide accurate illustrations of the best and worst trial techniques and strategies. Also, movie making and trial practice are very much about storytelling. Besides that, a good movie clip can enliven any lecture or discussion of trial practice. That’s why movies are so useful in teaching or learning about trial advocacy.

One of the best films about trial advocacy is The Staircase (Sundance, 2004), directed by Academy award winner Frenchman Jean-Xavier de Lestrade. The Staircase is a documentary about the Michael Peterson murder trial in Durham, North Carolina. Because the movie chronicles not only the trial but also behind the scene trial preparation by the prosecution and a well financed defense team, it is a valuable training video for trial advocacy professors and trainers and a nice resource for trial lawyers.

Favorite video clips for trial advocacy training are:

Good vs. Bad Fact Assessment Session: The defense team including a jury consultant, investigator, defense counsel and the defendant’s lawyer, brother and others meet to brainstorm good and bad facts, discuss how they affect the case and plan trial strategies.

Preparing the Defendant to Testify: Defense counsel and a witness coach go to a law school courtroom and run through exercises to prepare Peterson to testify, including having him hum tunes, recite sayings and practice cross. Of course, I’m not abandoning the expert preparation scene from the Verdict with James Mason, but this witness prep session in The Staircase is worth viewing.

Trial Visuals: The movie provides fine examples of trial visuals and how to use them in trial. The prosecution blood spatter expert has a large scale model of the staircase where Mrs. Peterson died, and a defense expert testifies with the aid of an animation showing the defense theory of how Mrs. Peterson fell down the stairs.

Closing Arguments: The movie shows defense counsel planning and then delivering closing. The two prosecutors’ closings show different styles, and prosecutor Black’s closing is remarkable. It has to be seen to be appreciated.

These are just a sampling of the many video clips that serve as demonstrations of how experienced trial lawyers work. For anyone wanting to know more about the case that the two-disc video can’t supply, you can visit websites about the case:

· courtTVnews has a very thorough collection including: videos; documents, photo gallery, daily articles and more.
· Behind the Staircase Exposing Jean-Xavier de Lestrade’s Film aims to do what the name indicates.

WHY TO NEVER ASK A WHY QUESTION

2009-02-13T11:04:00.000-08:00

A Concrete and Humorous Cross-Examination Example

“More cross-examinations are suicidal than homicidal,” wrote Emory Buckner in Francis Wellman’s seminal work on cross, The Art of Cross-Examination.” And one way to cause a self-inflicted wound is to ask a “why” question. One illustration of this took place when a defense attorney was cross-examining a police officer during a felony trial. It went like this:

Q: Officer, did you see my client fleeing the scene?
A: No sir, but I subsequently observed a person matching the description of the offender running several blocks away.

Q: Officer, who provided this description?
A: The officer who responded to the scene.

Q: A fellow officer provided the description of this so-called offender. Do you trust your fellow officers?
A: Yes sir, with my life.

Q: WITH YOUR LIFE? Let me ask you this then officer – do you have a locker room in the police station – a room where you change your clothes in preparation for your daily duties?
A: Yes sir, we do.

Q: And do you have a locker in that room?
A: Yes sir, I do.

Q: And do you have a lock on your locker?
A: Yes sir.

Q: Now why is it, officer, IF YOU TRUST YOUR FELLOW OFFICERS WITH YOUR LIFE, that you find it necessary to lock your locker in a room you share with those officers?
A: You see sir, we share the building with a court complex, and sometimes defense attorneys have been known to walk through that room.

APPELLATE ADVOCACY: A PRACTICAL AND INSPIRATIONAL GUIDE BOOK

2009-02-07T14:56:00.000-08:00

The Appellate Prosecutor: A Practical and Inspirational Guide to Appellate Advocacy is a book for appellate advocates, particularly those in attorney general’s and prosecutor’s offices.

Judge Charles Moylan, thirty-year veteran of the appellate bench and renowned lecturer put it this way:

"This work in my judgment will find an indispensable place on the desk, or at the bedside on the night before argument, of every successful appellate prosecutor. "

Authors for this book are some of the best-of-the-best teachers and authorities on how to be an effective appellate advocate. They were selected from across the country and include appellate prosecutors from attorney general’s and prosecutor’s offices as well as appellate judges and justices and a law professor. Additional biographical information for the authors is provided below.

Here is what others have said about the book:

"I have been a prosecutor for 25 years, and have spent about half of that time handling writs and appeals. I thought I knew what I was doing, but in reading your book I found myself thinking many times, ‘Oh! So that's how I'm supposed to do it!’ Thanks again for publishing a great book!"
Michael D. Schwartz, Senior Deputy District Attorney
Writs, Appeals and Training Supervisor, Ventura, CA

"I have attended many appellate practice seminars. Few of those presentations were as helpful to the appellate litigator as those in this book, whose topics range from the obvious (persuasive brief writing and oral argument techniques) to the practical (books and online research resources, complete with website addresses) to the sublime (standards of review).
. . . I will surely use it in my own civil appellate work and I heartily recommend it to all lawyers interested in improving theirs."

Annina Mitchell, Utah Solicitor General

The cost of the book is $21.95 and the information about ordering is at the end of this article.

CONTENTS OF THE BOOK

· Persuasion, Planning and Analysis for Appellate Advocacy – The building blocks of persuasion and how to use them in appellate advocacy.
· Writing the Persuasive Brief – How to effectively craft the three major sections of the brief.
· The Key to Good Legal Writing.
· A Sample Appellate Brief Template.
· Appellate Strategies – How to: find procedural and other bars; uncover flaws in Appellant’s brief; determine the real issue; enhance your credibility with the court and more.
· Research Resources: An Appellate Lawyer’s Tools of the Trade – Internet sites, prosecutor association information banks and written resources for appellate prosecutors.
· Standards of Review: The First Line of Defense.
· Protecting the Record for Appeal: Advice to the Trial Prosecutor.
· Professional Responsibility on Appeal – How to respond to ethical dilemmas that confront appellate prosecutors.
· Prosecutor Appeals - Eight considerations that may influence your decision to appeal.
· Successful Appellate Oral Advocacy.
· Appellate Court Conferencing of Cases – How appellate courts
conference and how that can effect your advocacy.
· Answering the Difficult Questions from the Bench.
· Inspirational Words for the Appellate Advocate.

***ABOUT THE AUTHORS***

JUSTICE PAUL H. ANDERSON is an Associate Justice of the Minnesota Supreme Court.

TIMOTHY A. BAUGHMAN is the Chief of Research, Training, and Appeals for the Wayne County Prosecutor’s Office, Detroit, Michigan. He has argued over 60 cases in the Michigan Supreme Court.

J. KIRK BROWN is Nebraska’s first Solicitor General.

HILARY L. BRUNELL is the Executive Assistant Prosecutor in the Essex County Prosecutor’s Office in Newark, New Jersey.

JUDGE JERRY G. ELLIOTT was appointed to the Kansas Court of Appeals in 1987.

PROFESSOR JAMES FLANAGAN is the Oliver Ellsworth Professor of Federal Practice at the University of South Carolina School of Law.

ROBERT M. FOSTER was a Supervising Deputy Attorney General in his 30th year with the Appeals, Writs and Trials (Criminal) Section of the California Attorney General's Office in San Diego, California.

JUDGE KAYE HEARN has served as a member of the South Carolina Court of Appeals since her election in 1995 and has been chief judge since 1999.

JUDGE BARBARA P. HERVEY is a judge on the Texas Court of Criminal Appeals in 2003.

JUDGE ROBERT J. HUMPHREYS is a judge of the Court of Appeals of Virginia.

JUDGE MICHAEL E. KEASLER is a judge on the Texas Court of Criminal Appeals.

JUSTICE NATHAN D. MIHARA is an Associate Justice on State Court of Appeals in California.

JUDGE CHARLES E. MOYLAN, JR. is a retired Judge sitting on the Maryland Court of Special Appeals, where he has served for over three decades.

JUSTICE PAUL TURNER is on the Presiding Judge for Division 5 of California Court of Appeal, Second District.
J. FREDERIC VOROS, JR. is Chief of the Appeals Division of the Utah Attorney General's Office.

DONALD J. ZELENKA is an Assistant Deputy Attorney General and Chief of Capital and Collateral Litigation in the South Carolina Attorney General’s Office in Columbia, South Carolina.

COST: $21.95 ($19.95 + $2.00 Shipping and handling)
Will invoice you or your office if you wish.
TO ORDER:
By E-Mail – clarkrh@comcast.net
By Phone – Call (206) 328-5220
By Mail – Send check or money order to:
Ronald H. Clark
1215 E. Allison St., HB-A,
Seattle, WA 98102

NO BETTER TEACHER

2009-02-02T16:15:00.000-08:00

Drafting Pleadings and Other Legal Documents

There is no better teacher than a good example. A great way to learn how to be a successful trial attorney is to watch one in trial and an even better way is to second-chair or co-chair a trial with that veteran. The same principle goes for other pretrial practice and trial work in drafting legal documents.

Here are some nice templates:

· Complaint – State Court
· Complaint – Federal
· Answer
· Motion to Compel
· Motion for Summary Judgment
· Interrogatories and Requests for Production
· Requests for Admissions
· Juror Questionnaire

Hope you find these useful.

COMPLAINT DRAWS JUDGE’S IRE, WIT AND POETRY

2009-01-29T15:24:00.000-08:00

Rule 8(a) and Drafting the Complaint

A student in my Comprehensive Pretrial class provided me with an Order in Presidio Group, LLC, vs. GMAC Mortgage, LLC. Thanks to the student, I’ll be working the Order into our discussion of Drafting Complaints. In the case, the defendants moved for a more definite statement in the Complaint. In his July 27, 2008 Order granting the motion, the Honorable Ronald B. Leighton, United States District Judge, Western District of Washington at Tacoma began with William Shakespeare, Hamlet, Act 2, Scene 2, Line 90: “Brevity is the soul of wit.”

The good Judge then went on to point out that “(b)revity is also the soul of a pleading. See Fed. R. Civ. P. 8(a). The Federal Rules envision a “short and plain statement of the claim showing that the pleader is entitled to relief.” He then went on to describe portions of the 465 page Complaint:

"Not before page 30 does the Complaint address the facts alleged. Plaintiff’s allegations continue for 87 pages – including a 37 page pit-stop to quote e-mails. (Compl., 39-76). The Court notes, with some irony, that in his response opposing Defendants’ motions for a more definite statement, the Plaintiff successfully states his allegations in two pages."

Then, in granting the motion, Judge Leighton added a bit of his own poetry:

Plaintiff has a great deal to say
But it seems he skipped Rule 8(a),
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today.

View the entire Order.

ORATORY – ADVOCACY LESSONS FROM OBAMA

2009-01-21T15:14:00.000-08:00

MAKING A GOOD SPEECH TO THE JURY (OR TO ANY AUDIENCE)

In his inaugural day Washington Post article entitled “Obama’s way with words,” Henry Allen states that “Obama is an orator, a rare thing in a time when educated people — a lot of them Obama supporters — have been taught to distrust old-fashioned eloquence.” Rare perhaps in most walks of life, but orators are still prevalent and valued in the courtroom. Opening statement and closing argument are, at their essence, public speeches designed to connect with the jury or judge in a bench trial and to persuade.

ELEMENTS OF GOOD RHETORIC
Repetition and Cadence

The Washington Post article does a nice job of reviewing the elements of good rhetoric and uses Obama’s prior speeches to illustrate his mastery. For instance, the article states:

"Connect with repetition, cadences, attitude, rises and falls of tone. Yes, we can. Obama's speech on Super Tuesday: "We are the ones we've been waiting for. We are the change that we seek.

"This is poetry.

"WE are the ONES we've been WAITing for.
It's ancient English metrics: WE are the CHANGE that we SEEK, a chant of dactyls, DA-da-da, DA-da-da, as in Longfellow's "THIS is the FORest primEVal."

Writing an opening or closing – a speech - with an ear for repetition and cadence is excellent advice for the trial lawyer.

The Post article was written in anticipation of Obama’s address. Did the new President live up to the expectations of him as a public speaker in his address? Let’s consider elements of effective oratory. While his inaugural didn't have the cadence that he is known for, it did satisfy many of the other elements of an excellent speech.

Pick Persuasive Language

While a trial lawyer may never be able to master a delivery style and cadence of the President, the advocate can follow his lead and concentrate on selecting the right words to express an idea or describe the facts. Care can be taken to select words with the right connotations. These are a couple well crafted sentences from the address:

"As for our common defense, we reject as false the choice between our safety and our ideals."

"For we know that our patchwork heritage is a strength, not a weakness."

Rule of Three

The rule of three is a rule of repetition and cadence. It is extremely effective in driving home a point. It’s as old as “venti, vidi, vici” - “I came, I saw, I conquered.” Note how the Rule of Three works in this portion of the address.

"Today I say to you that the challenges we face are real.
They are serious and they are many.
They will not be met easily or in a short span of time.

But know this, America — they will be met."

Analogies

Analogies can provide a convincing and concrete form of inductive reasoning. This is particularly true if the analogy is common to the audience and has a human element. President Obama told the human story of American revolutionaries and their struggle and related it to the capital.

"So let us mark this day with remembrance, of who we are and how far we have traveled. In the year of America's birth, in the coldest of months, a small band of patriots huddled by dying campfires on the shores of an icy river. The capital was abandoned. The enemy was advancing. The snow was stained with blood. At a moment when the outcome of our revolution was most in doubt, the father of our nation ordered these words be read to the people:

"'Let it be told to the future world ... that in the depth of winter, when nothing but hope and virtue could survive...that the city and the country, alarmed at one common danger, came forth to meet (it).'"

Then, President Obama used that struggle and Washington’s words to support his argument that America can overcome the challenges of today.

"America, in the face of our common dangers, in this winter of our hardship, let us remember these timeless words. With hope and virtue, let us brave once more the icy currents, and endure what storms may come. Let it be said by our children's children that when we were tested we refused to let this journey end, that we did not turn back nor did we falter; and with eyes fixed on the horizon and God's grace upon us, we carried forth that great gift of freedom and delivered it safely to future generations."

Aristotelian Arguments

The Post article discussed the importance of Aristotelian arguments, and how President Obama has used them:

"Aristotle said good rhetoric should consist of pathos, logos and ethos — emotion, argument, and character or credibility.

"Obama has won souls mostly with pathos and ethos. He hasn't needed logos much because he's usually preaching to the choir, all those shining faces full of hope. In an ugly and dangerous moment in his campaign, however, he used logos to justify the complicated position he had taken on the incendiary racial remarks of his former minister, the Rev. Jeremiah Wright. It worked for him."

True to his prior artful use of ethos and pathos, the President captured the significance of the moment when he delivered this part of his address:

"This is the source of our confidence —the knowledge that God calls on us to shape an uncertain destiny.

"This is the meaning of our liberty and our creed — why men and women and children of every race and every faith can join in celebration across this magnificent mall, and why a man whose father less than sixty years ago might not have been served at a local restaurant can now stand before you to take a most sacred oath."

The Washington Post article provides a nice review of the essentials of good rhetoric and the President’s inaugural address gives us an example of how an orator can apply those essentials.

JOHN MORTIMER GONE

2009-01-17T11:44:00.000-08:00

TRIAL ADVOCATE & AUTHOR OF RUMPOLE OF THE BAILEY

As it happens, I’m making my way again through The Second Rumpole Omnibus by John Mortimer when I read this morning of the author’s passing yesterday, Friday January 16, 2009. What a loss. Each evening lately I’ve settled in to read another installment in the life of the British barrister whose motto is “Never Plead Guilty.”

Last evening, I’d just completed Rumpole and the Female of the Species, in which Rumpole not only conducts two exemplary cross-examinations, winning the case for his client – a Timson of course (turns out the real culprit is a woman) but also witnesses his co-counsel Mrs. Phillida Erskine-Brown take silk and maneuvers his pupil Fiona Allways into chambers. With this installment Mortimer proves that those who think that “Rumpole is in some ways unsympathetic to the aspirations of women” (principally because he refers to his better half as “She Who Must Be Obeyed”) “are guilty of quite unworthy cynicism.”

The joy of a Mortimer’s Rumpole tale is that it is an amalgam of an interesting criminal case often with a display of skilled trial techniques and always twists and turns together with insights and stories about the life in Chambers, in the mansion flat in Foxbury Court and in Pommeroy’s Wine Bar. Sadly, there will be no more new tales, but tonight Rumpole will be battling on in The Second Rumpole Omnibus thanks to John Mortimer.

YOUR OWN WORST CRITIC - PRETRIAL, TRIAL & APPELLATE ADVOCACY TRAINING

2009-01-16T11:52:00.000-08:00

VIDEO REVIEW TIPS

Each of us is our own worst critic. That is why a video review is such a valuable tool in pretrial, trial and appellate advocacy training. For that matter, a video review is an excellent aid for any education in public speaking. When an attorney or law student watches a video of their trial performance, the first impression is usually a surface one – I am losing hair up there – I could shed some more weight and so on. Then, the viewer begins to not only see how others see them but also gain both an understanding of what must be done to correct any performance problems and a desire to change.

Video Review as a Training Tool

A video review is an effective teaching methodology for pretrial, trial or appellate advocacy training in either law school or other advocacy training course. For example, the National Advocacy Center in Columbia, South Carolina is a federal facility dedicated to the training of Assistant United States Attorneys as well as state and local prosecutors. The Center has ten courtrooms, which are all equipped to video mock trial performances. Following the in-court performance, the attorney first receives a critique in the courtroom and then goes to a video review room where a faculty member offers a one-on-one critique.

While a professor or trainer critique is valuable, it is not critical. The advocate will gain a great deal just by observing the video performance. As part of my trial advocacy and pretrial advocacy classes at Seattle University Law School, the students are videoed in class, doing such things as opening statement and arguing a motion. They receive in-class critiques. Then, the students view the videos alone and submit reports of their self critiques. The reports on what they learned they need to work on can either be provided by a brief (less than a minute) in-class report or a short e-mail. These self evaluations have proven to be very insightful and constructive.

Pointers for Critiquing Pretrial and Trial Performances

If the advocate receives both a classroom critique and then a later one-on-one critique along with a viewing of the video, here are some approaches that have proven effective for the one-on-one critique:

· Ask the person what they learned from the classroom critiques. This way the professor or trainer can avoid unnecessary overlap of advice;
· Divide the subject matter of the critique with the professor or trainers who are in the classroom. The classroom critique can focus on content while the video review can concentrate on body language, movement and speech difficulties – those things that the person can see and hear on the video.
· Keep the video running during the critique. If the video is stopped for comments, then a line of people will form waiting for their turn and the process will run over the time allotted.

The following are some problems to look for and suggestions on how to correct them:

· Pacing can distract the jury from the message the advocate is trying to convey. Movement is fine if it is purposeful, parading an exhibit for instance. Pacing is normally caused by nervousness, and the trainer can suggest techniques for reducing the nervousness, such as additional rehearsals. Another cure for the pacer and sometimes humorous, is speeding up the video to show the advocate how his dance step looks in fast motion.

· Reading causes lack of eye contact with the jurors and results in poor communication. Preparation is the principle way that an advocate can free herself from reading. The more notes and the smaller the print, the more likely that the advocates eyes will be drawn to the pages which act like an eye-magnets. Notes can be reduced to key words and only infrequently, if ever, glanced at. Another substitute for notes is to use visuals, such as PowerPoint slides; the slides become the notes.

· Fidgeting, such as playing with a pen or playing with change in the pocket, is again distracting. Usually, the advocate will be able to break the habit once it is brought to their attention as they watch the video.

· Sing-song or other monotonous voice patterns can cause boredom and even sleepiness. While a person with a soft voice will need to raise their voice for emphasis, a speaker with a powerful voice can stress a point by softening the voice.

Seeing your self as others see you is a very beneficial pretrial, trial and appellate training tool, that should be part of any advocacy training if possible.

TRIAL ADVOCACY DEMONSTRATION MOVIE

2009-01-09T16:04:00.000-08:00

FRECK POINT TRIAL MOVIE

I'm new to blogging, and this blog is obviously under construction. This blog is intended to discuss advocacy - pretrial, trial and appellate. Thought I'd start with the Freck Point Trial movie

Aspen Publications, Seattle University Law School Films for Justice, my co-authors and I have produced a trial demonstration movie - Freck Point Trial. The purpose of this movie is to show law students and practicing lawyers how veteran trial lawyers, like William Bailey (shown left) perform in trial. The DVD containing the movie is included with the totally new Trial Advocacy: Planning, Analysis and Strategy, 2nd Edition (2008).

The Freck Point Trial movie was inspired by several real cases, one of which is the Randy Roth case, which was the subject of renowned true crime writer Ann Rule's book A Rose for Her Grave. Ann Rule kindly joined in the project of producing this movie and provided her observations about the importance of watching skilled trial attorneys in trial as a means of learning how to be effective in trial. Aspen is giving copies of Ann Rule's book to law professors or trial advocacy trainers and their students when the Trial Advocacy book is adopted for the class.

If you are a trial lawyer or a trial advocacy trainer or professor who teaches trial practice, you may be interested in viewing a preview of the Freck Point Trial movie.