The Legal Advocate

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Monthly Archives: June 2012

San Francisco Attorney Wins Prestigious NITA Faculty Award

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San Francisco Attorney Wins Prestigious NITA Faculty Award
Cheng Teaches Lawyers in the U.S. and Macedonia Trial Skills, Teaching Skills

Doris Cheng of Walkup Melodia Kelly & Schoenberger in San Francisco has been selected to receive the 2011 Hon. Robert Keeton Faculty Award. In 2011 Ms. Cheng did a little bit of everything for NITA. In April she led a trial skills program for attorneys in Macedonia. Spanning two weeks in July she was a Team Leader for the National Session in Boulder, CO, NITA’s longest-running program. To close the year, she served as the program director for NITA’s Advocacy Teacher Training program in San Francisco.

In addition to all the work she’s done for NITA, Doris is also a successful partner at Walkup Melodia Kelly & Schoenberger, the treasurer for the San Francisco Trial Lawyers Association, and has been invited to join the American Board of Trial Advocates. Late in 2011 Cheng was named a member of the ‘Minority 40 Under 40’ by the National Law Journal.

The Hon. Robert E. Keeton Award is for Outstanding Service as a NITA Faculty Member. This award is named for Bob Keeton, one of the original teachers at the National Session and a long-time contributor to many programs. Bob authored one of the first texts on trial advocacy and was NITA’s Director from 1973-1976. To view a list of past recipients of this prestigious awardclick here.

NITA is the world’s leader in advocacy skills training and publications. A 501(c)(3) not-for-profit organization based in Boulder, Colorado, NITA’s mission is to train and mentor lawyers to be competent and ethical advocates in the pursuit of justice.

Contact:
Daniel McHugh, Director of Sales & Marketing
303.953.6828
dmchugh@nita.org

USD Professor Wins NITA’s Oliphant Award

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USD Professor Wins NITA’s Oliphant Award
Snyder Serves as Program Director, Volunteer Faculty Member


Boulder, CO: In recognition of his exemplary service to NITA as a teacher and program director, Allen Snyder, Professor at the University of San Diego School of Law, has been named the 2011 recipient of the Robert Oliphant Service to NITA Award. During 2011 Snyder again co-directed NITA’s three programs in San Diego: Deposition Skills, Deposing the Expert Witness and Building Trial Skills. He also is a regular faculty member for NITA’s Advocacy Teacher Training program in San Francisco. In addition to his teaching for NITA and USD, Snyder has long been involved in the training of Mexican lawyers for the new criminal trial process.

The Robert E. Oliphant Service to NITA Award is for Outstanding Service to NITA in all areas, including program directorship, public service, writing and support. It honors Bob Oliphant, NITA’s first administrator, who has taught at the University of Minnesota and William Mitchell law schools for over 35 years. To view a list of past recipients of this prestigious award Click Here.

NITA is the world’s leader in advocacy skills training and publications. A 501(c)(3) not-for-profit organization based in Boulder, Colorado, NITA’s mission is to train and mentor lawyers to be competent and ethical advocates in the pursuit of justice.

Contact:
Daniel McHugh, Director of Sales & Marketing
303.953.6828
dmchugh@nita.org

National Institute for Trial Advocacy Names New Executive Director

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Washington DC’s Karen Lockwood to Lead NITA Beginning December 1

Boulder, CO: The Board of Trustees of the National Institute for Trial Advocacy announced today that Karen M. Lockwood, Esq. will become the organization’s executive director on December 1, 2012.  Ms. Lockwood is currently CEO and founder of The Lockwood Group, a consulting firm focused on advancing sustainable diversity in the legal profession by innovating business systems and practices.

Lockwood will succeed John Baker, who has served NITA in that role since March 1, 2010.  A long-time program director and NITA faculty member, Baker plans to return to that role.  He will also return to the practice of law in Denver with an emphasis in public service and to his leadership in the Denver legal community.

Prior to founding The Lockwood Group in 2009, Karen practiced commercial litigation and appeals for 31 years in a global, a mid-size, and a small Washington DC firm. A member of the Supreme Court and 10 federal appeals court bars, she has tried jury and bench trials in federal and state court, specializing in construction, intellectual property, antitrust, and business litigation.  Her law practice extended also to arbitrating cases and serving as arbitrator, and to negotiating commercial transactions.  She has taught alternative dispute resolution as an adjunct professor of law at American University Washington College of Law.  Ms. Lockwood is deeply familiar with NITA and its teaching method, having served as a faculty member since 1997.  She has led one of NITA’s most popular public programs, Building Trial Skills: DC, since 2004, custom deposition and trial programs for government agencies, and directs the Equal Justice Works program aimed at public service attorneys.   Her longtime association with NITA makes Lockwood an excellent choice to lead the organization.

“Karen Lockwood brings the perfect mix of NITA experience, legal experience, and business acumen to this position,” Baker commented.  “That mix will serve her well in this position and will put NITA in good hands as it continues to move forward as an organization.”

Leo Romero, Chair of NITA’s Board of Trustees, echoed Baker’s comments.  “Karen Lockwood possesses all of the qualities the Board feels are essential to leading NITA as it adapts to new technologies that will change the delivery of training and teaching materials.  She’s been a successful trial lawyer, an excellent NITA teacher and program director, and a leader in promoting diversity in law firms.  I am confident that with her experience and her vision and passion for NITA, she will ensure that NITA, under her leadership, meets the challenges of a changing legal profession and that NITA and will continue to be the preeminent provider of skills training and advocacy publications.”

“NITA is an organization always near and dear to my work and my own passion to further justice through superb and ethical lawyering,” Lockwood said.  “John Baker’s wonderful management makes this a very special opportunity for me to begin taking NITA’s mission to new heights, in new and innovative ways.  We will reach deeply into the legal community, continuing our traditions of lawyers serving the future of the profession, and of friends supporting that mission.”

NITA is the world’s leader in advocacy skills training and publications.  A 501(c)(3) not-for-profit organization based in Boulder, Colorado, NITA furthers the mission to train and mentor lawyers to be competent and ethical advocates in the pursuit of justice.

Contact:
Daniel McHugh, Director of Sales & Marketing
303.953.6828
dmchugh@nita.org

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Who May Object to a Witness’ Non-Responsive Answer?

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Written by guest blogger: Mark Caldwell

Who may object to a witness’ nonresponsive answer?

a. Only the person examining the witness

b. Both the examining and defending lawyer

c. It depends on the question asked by the examining lawyer

Answer – C.  In order for either party to object to a non-responsive answer, the non-responsive answer must violate one of the Rules of Evidence beyond the fact of non-responsiveness. However, if the objection only depends on the responsiveness of the answer, the objection belongs solely to the questioner. Therefore, who can make an objection in response to a non-responsive question is dependent upon on the specific reasoning behind the objection.

Special thanks to Elizabeth Fisher and Danielle Michaels, research assistants of Professor Michael J. Dale at Nova Southeastern University Shepard Broad Law Center for their research and analysis of this complex problem.

  1. Legal Analysis

The issue of who may object to a witness’ answer to a question depends on the legal basis for the objection. 2 Federal Trial Handbook Criminal §42.10.  A non-responsive answer “occurs when the witness provides information not required by the questioning attorney.” Federal Trial Objections § N10 (2d ed.).  In that situation, only the lawyer asking the question may object.

In other words, the basis for the objection dictates who may object to an answer.  If the objection is based on the general admissibility of the answer, then the party’s ability to object will depend on the particular objection. 2 Federal Trial Handbook Criminal §42.10, see also Federal Trial Handbook Civil §36.10 (4th Ed.). For example, if the answer to a question is inadmissible under any of the Federal Rules of Procedure, then either party may object.

However, if the objection is based solely on the responsiveness of the answer, then the objection only belongs to the party asking the question. The courts give the opportunity to object to a nonresponsive answer only to the questioner in order to leave that party in control of the questioning. This is to avoid unnecessary interruptions and because the “unresponsiveness is not a matter of concern to the opposite party.” Graham, Handbook of Federal Evidence § 611.23 (4th ed. 1996).

The remedy to a non-responsive answer is a motion to strike by the lawyer asking the question followed by a request to the judge to direct the jury to disregard the information. U.S. v. Carr, 5 F.3d 986, 992 (6th Cir. 1993). The trial judge has the discretion to direct the witness to answer the question asked, when the answer is non-responsive, or strike the witness’ testimony. Magyar v. United Fire Ins. Co., 811 F.2d 1330, 1331 (9th Cir. 1987). However, if the non-responsive answer severally prejudices the opposing party it also may be grounds for a mistrial. U.S. v. Rivera, 61 F.3d 131, 135 (2d Cir. 1995). This power is subject to two restrictions: when the “non-responsive testimony is collateral to key issues in the case,” and the requirement for the judge to inform the witness why the testimony is being stricken before actually striking the testimony. Magyar, 811 F.2d at 1331. Striking  a witness’ entire testimony will occur when the non-responsive answers become so frequent that they infect the entire testimony. Id. The judge needs to give fair warning to the witness before striking her testimony because when the witness is a defendant, she must have a fair opportunity to answer questions, and if those answers are to be stricken, the witness needs to be aware of the consequences. U.S. v. Panza, 612 F.2d 432, 439 (9th Cir. 1979) see also Yates v. U.S., 277 F.2d 844 (9th Cir. 1955).

  1. Examples in Three States

The law in Illinois, Colorado, and Florida is illustrative. Illinois case law suggests that objections to an unresponsive answer mirror the Federal Rules of Evidence. For example, in People v. Fritz, 417 N.E. 2d 612 (Ill. 1993), the defendant’s wife volunteered a remark that was severally prejudicial to the defendant. The defendant objected to the testimony, but the objection was overruled.  The Supreme Court of Illinois reversed the judgment on the grounds that the testimony should have been stricken from the record because a jury that takes facts into consideration that severely prejudice the party are grounds for a mistrial. Id. In this case the objection belonged to either party because, not only was the testimony non-responsive testimony, but it also severely prejudiced the defendant, thus, violating his privilege against self-incrimination.

The Colorado Supreme Court has taken a different tack. It has held that there was nothing wrong with admitting testimony which may be non-responsive, as long as the testimony is relevant. If the testimony were both unresponsive and inadmissible for lack of relevance, however, it should be stricken. People v. Maestas, 517 P.2d 461, 465 (Colo. 1973). In Maestas, the defendant claimed that statements made by the expert in answer to the prosecutor’s questions regarding blood stains were non-responsive, when asked about the blood spatters. Id. at 644.   The Supreme Court, sitting en banc, said that part of the answer, while “perhaps unnecessary” was not totally without bearing on the question. Furthermore, citing Wigmore, the Supreme Court said that even assuming a portion of the answer was unresponsive, it was relevant testimony Id.  Also, according to Colorado case law, a defendant is required to take one of several steps when objecting to a non-responsive answer asked by the prosecutor, and he believes he has been prejudiced. People v. Abbott, 690 P.2d 1263, 1269 (Colo. 1984). The defendant must take one of the three steps: object to a non-responsive answer, move to strike the answer, or request the court to instruct the jury to disregard it. Id. If the defendant fails to take one of these steps, then the defendant waives her right to further object to the non-responsive answer. However, if the court deems the properly objected answer to be relevant, then it will still be admissible.

Florida case law mirrors the Federal Rules of Evidence regarding the above issue. In Brooks v. State, the Defendant appealed his conviction for aggravated battery based on the contention that the trial court should have granted his motion for a mistrial on the basis of his former wife’s non-responsive answer to the prosecutor’s question. Brooks v. State, 868 So. 2d 643, 634 (Fla. 2d DCA 2004). He alleged that his former wife’s non-responsive answer to the prosecutor’s question severely prejudiced the defendant. Id. Even though the defendant’s objection and request to have the court strike the non-responsive answer was sustained, the information heard by the jury was too prejudicial to disregard. Id at 636. Therefore, the Florida Supreme Court stated that the defendant’s motion for mistrial should have been granted when the error was so prejudicial as to vitiate the entire trial. Id. Even though the wife’s answer was considered non-responsive, and thus only available to the questioning lawyer, the objection belonged to either attorney in the Brooks case because under the rules of evidence, the testimony severely prejudiced the party.

Cozen O’Connor Attorney Wins Next Generation Faculty Award

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Cozen O’Connor Attorney Wins Next Generation Faculty Award
Hayes Hunt to Teach NITA Programs Across the Country


Boulder, CO: Hayes A. Hunt of Cozen O’Connor, P.C.’s Philadelphia, PA office has been named to the National Institute for Trial Advocacy’s three-member Next Generation Faculty (NGF) Class of 2012. Hunt was nominated by Louis Natali, a long-time NITA faculty member and program director. After four years at the Defender Association of Philadelphia, Hayes continues his criminal defense practice with Cozen and serves as the firm’s chair of training and pro bono initiatives. Hayes has taught at the Mid-Atlantic program in Philadelphia and other NITA programs.

“I am truly humbled to be selected considering NITA’s long-standing history of having the best lawyers throughout the world teach trial advocacy. In my experience as both a participant and faculty member of numerous NITA programs, I leave a better advocate every time. I am fortunate to be part of the NITA tradition.” — Hayes Hunt
As a member of the NGF Class of 2012, Hayes will be trained and invited to teach at geographically-diverse NITA trial and deposition programs between July 1, 2012 and June 30, 2013. He will gain valuable teaching experience as he spends more time with the NITA learning-by-doing philosophy.

Established in 1970 and ranked among the 100 largest law firms in the United States, Cozen O’Connor has 575 attorneys who help clients manage risk and make better business decisions. The firm counsels clients on their most sophisticated legal matters in all areas of the law, including litigation, corporate, and regulatory law. Representing a broad array of leading global corporations and ambitious middle market companies, Cozen O’Connor serves its clients’ needs through 21 offices across two continents.

NITA is the world’s leader in advocacy skills training and publications. A 501(c)(3) not-for-profit organization based in Boulder, Colorado, NITA’s mission is to train and mentor lawyers to be competent and ethical advocates in the pursuit of justice.

Contact:
Daniel McHugh, Director of Sales & Marketing
303.953.6828
dmchugh@nita.org

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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