Michael Washing discusses the importance of talking like a regular person.
Written by John Baker, former CEO of NITA, during his last few months leading the NITA team.
Injustice, inequality, suppression of fundamental freedom– these are all issues confronted globally. Fortunately, NITA’s reputation for excellence in advocacy training has spread worldwide. In addition to its unprecedented value here in the US, NITA’s international programming promotes the core principles of the Rule of Law embodied by an adversarial trial system of oral advocacy in courtrooms and tribunals. In recent years, NITA and the NITA Foundation have supported the “learning by doing” training of attorneys, barristers, solicitors, solicitor advocates, magistrates, and judges from Scotland, Northern Ireland, the Republic of Ireland, Mexico, Kenya, Japan, and Macedonia.
Through our relationships with the U.S. Department of Justice, USAID, Lawyers Without Borders, Justice Africa Advocacy, and other legal organizations, some of our international programs are co-sponsored with NITA and therefore require no funding from the NITA Foundation. For example, in early September six NITA faculty members and I traveled to Belfast, Northern Ireland to teach a six-day trial skills program. The program, NITA Advanced Advocacy for Solicitors, was held at the Queen’s University Belfast Institute of Professional Legal Studies for 49 solicitor advocates from Northern Ireland. The program was designed and taught cooperatively by the NITA faculty members as “American tutors” and NITA-trained local “Irish tutors,” drawn from the bench, bar, and the Law Society of Northern Ireland. NITA also continues to teach co-sponsored programs in Japan through the PSIM consortium of Japanese law schools. Mike Ginsberg and I traveled to Nagoya, Japan in early November to speak to the Consortium.
In addition to our co-sponsored NITA programs, the NITA Foundation funds international NITA programs, primarily in Africa, that are not possible without donor support. In fact, NITA has been active in enhancing the Rule of Law in developing countries in Africa, including South Africa, Kenya, and Liberia. NITA board members and faculty have been working with and providing trial skills training for the Black Lawyers Association in South Africa for more than 30 years. Over the past seven years, NITA has led delegations of judges and lawyers to Kenya, Liberia, and Uganda to provide trial skills training for prosecutors and magistrates. In all of these African countries, the effort includes teacher training for local attorneys so programs can be self-sustaining. NITA has supported these efforts by paying for travel costs for faculty and providing the programs with books and other teaching materials. In 2010, the NITA Foundation committed $50,000 to support Rule of Law efforts in developing countries with the NITA International Rule of Law and Access to Justice Programs Fund. Over the last three years, we have received a greater demand for international support and while our funds have been applied to worthy efforts they have subsequently diminished. Looking ahead, we respectfully ask for your help to continue international NITA programs for attorneys dedicated to advancing the cause of justice through Rule of Law in their countries.
Join me as a global advocate of justice and give to the NITA Foundation to ensure NITA’s ability to be a world citizen, championing change and human rights for all. Please consider making a gift by visiting www.nita.org/Donate. We appreciate every donation, whether it’s $50, $500 or $1,500. Thank you for believing in our mission and making a positive difference.
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One of the characters Billy Crystal created when he was on Saturday Night Live was Fernando. Fernando’s catch phrase was, Darling, I got to tell you something. And I don’t say this to everybody. You look mahvelous. Absolutely mahvelous. You know, my dear, my father used to say to me, Nando, don’t be a schnook. It’s not how you feel, its how you look. It is better to look good than to feel good.
Except for some professional witnesses such as police officers, child protection workers, others who regularly appear in court, and experts, most people who take the stand are anxious and, often, uncomfortable. As trial lawyers one of our most important tasks is to help our witnesses be successful. So how do we make our witnesses look “mahvelous”?
One way is through the use of exhibits. Steve Lubet tells us in Modern Trial Advocacy, “[Y]ou can enhance the effectiveness of almost any witness by illustrating the testimony with charts, photographs, maps, models, drawings, computer simulations, and other visual aids. As a society we are accustomed to receiving a substantial amount of information visually. By utilizing visual images and physical objects we enhance the memorability of the information attached to those images and things.
Making the information more memorable is one benefit of using exhibits. Another benefit is changing the focus from all eyes on the witness to the exhibit–it helps the witness relax. And, by transforming the witness into a teacher with props and aids, you alter his or her perception of being “on stage.” The witness now has something to do with their hands and has the ability to stand and move around in the courtroom.
Take a look at our selected vignette from Frank Rothschild’s NITA video program, 31 Ways to Winning Advocacy: the scene shows a direct examination where the lawyer asks the witness to use an exhibit. Things rapidly go south the moment the witness stands up. What do we learn from this examination that we can use to prevent problems the next time our witness is testifying and using an exhibit?
The first lesson actually comes before your witness ever takes the stand. Witness preparation, even if it only comes from a few minutes in the hallway before a trial starts, is critical to successful direct examinations. This is especially true when it comes to working with exhibits. Practicing with exhibits or demonstrative aids is key to a great exam. Explain the purpose of the exhibit, why it is important to the case, how the witness can use the exhibit to help tell the story, and where in the examination you will introduce and use the exhibit. Begin with a rehearsal of the foundation. Let the witness know the importance of answering these questions. Because the persuasive foundation (relevance) portion is as important as the legal foundation, you should also practice those questions and provide an explanation of why you are asking them – even if the exhibit is stipulated into evidence. Next come the questions where you actually use the exhibit. Remember, even though the exhibit is in evidence, it only becomes important if the fact finder thinks it is important. Practice with the witness until he or she is comfortable with the process.
In the next step you become a traffic cop – it is your job to direct the witness’ movement. The video shows what happens when you fail to tell the witness where to stand. Your job is to determine the best line of sight so the fact finder is able to see the exhibit and the witness. Tell the witness exactly where to stand. Be polite and respectful. The witness and fact finder will appreciate your control. Except when writing, make sure the witness does not turn his or her back to the fact finder when speaking, pointing, or demonstrating. In this way the witness becomes a teacher. Witnesses who speak while facing the exhibit have their voice get lost in the same way your elementary school teacher’s voice was lost when they talked while writing on the blackboard.
Step Three continues in your direction. When you ask the witness to place marks on a map, photo, or diagram, be specific. Unlike our friend in the video, give explicit directions on what you want the witness to do, e.g. Please put a two inch black X at the place you were standing at the time of the accident. The witness will appreciate your instructions and the fact finder will find the exhibit more compelling.
The final reminder for lawyers in most jurisdictions and in most courtrooms is, once the exhibit is received into evidence it is no longer your exhibit. It now belongs to the court and is part of the record. You cannot alter evidence once it is received. Therefore, consider using a copy or an overlay for your alterations that you then admit as a second exhibit once the testimony is complete.
Using firm but respectful and polite methods of witness control will help your witness feel empowered. More importantly, in the eyes of the jury, to use Billy Crystal’s words, they will look “mahvelous.”
 Billy Crystal as Fernando interviews New York Yankees owner George Steinbrenner in a skit from “A Comedy Salute To Baseball” — part of NBC’s All-Star Game programming in 1985. https://www.youtube.com/watch?v=ygs-4GfqPcM&feature=related
 Paul Shafer and Billy Crystal, You Look Marvelous, December 14, 1999. Universal Special Products. © 2000 Universal Records.
 Lubet, Modern Trial Advocacy (4th Ed. NITA 2009), at 72.
In light of the holiday season, here at NITA Central we decided to help people think of gifts to get that special attorney in their life. Although we can’t give the attorney in our lives what they might really want–billable hours, adjournment, a stipulation to continue, justice, a guilty or not guilty verdict, or just some peace and quiet–we can give them gifts to brighten their day. Here’s the list we came up with:
#10. A Star – Okay, so maybe you can’t wrap it and give to your favorite attorney directly, but still, having a star named after you is pretty cool!
#9. Leather Portfolio – Everyone needs one even if they say they don’t!
#8. Crystal Paper Weights – Spiff up your favorite attorney’s desk with a new paper weight.
#7. Cooking Classes – You are what you eat, so you might as well know how to create some good plates of food.
#6. Gift Certificate for a Massage – Being a lawyer can be stressful, and there’s no better way to relax and reinvigorate then with a good massage!
#5. iPad Stylus – Does your favorite attorney collect gadgets We bet they don’t have a Stylus, and we also bet that, secretly, they really want one.
#4. iPad Mini – It’s the latest and greatest Apple product, so it must be a good gift.
#3. Tickets to his/her favorite sports team – It’s easy for attorneys to get lost in their work and forget to do something fun every now and then. What better way to take in a night of entertainment than a good old sporting event?
#2. NITA Program Tuition – Nothing says “I love you” like the gift of a NITA program!
#1. A donation to a charity in their name – If your favorite attorney truly already has everything, or is just one of those people that is impossible to shop for, then a charitable donation in there name is a priceless gesture of gratitude.
Hopefully these suggestions help you in your endless search, and we wish you good luck and happy holidays!