The Legal Advocate

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Monthly Archives: April 2013

What, no opening or closing? How can I win?

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Hugh Selby

Hugh Selby

A prohibition upon an opening statement, a closing address, or both is in the nature of things in some lower courts and administrative forums.  The public rationales include the saving of time, less ‘formality’, and custom.

Informally this can be restated as, ‘the decision maker would not be helped by lawyer babble’.

Lest any readers still labor under the illusion that opening statements are really important, let’s recall the 1993 National Law Journal report that found that jurors make up their minds about who wins and who loses at the following key times (I’ve collapsed and rounded the figures): much less than 10% when openings are done; 40% or more during the evidence phase; up to 25% during the closings and judge’s instructions; with 25% in jury deliberation (report cited by Joseph Anderson in his ‘Effective Courtroom Advocacy’,  2010, NITA).

What we need, and don’t have, is a comparable survey of judges, magistrates and administrative judges to get a broad-brush picture of when they find themselves ‘making up their minds’.  To those who say, ‘Always when the parties have finished’ I just smile. Since judges and jurors share with us the common trait of being ‘prejudiced, fallible humans’ I’ll assume until the rigorous survey of judges that the figures for judges and jurors won’t be much different.

Originating process is an opening, just a non-voiced one.  Whether it is a civil or criminal matter the legal claim with its attendant particulars tells the bench whether or not the moving party knows what they are about.  The quality of the pleaded defense grounds, along with agreed facts, and pre-trial evidentiary rulings tell the bench about the caliber of the defense side.

During both direct and cross the bench can be cued as to what is coming, both by the early setting of an agenda with the witness, and the use of transitions to signal that the advocate is moving to a new point.  Following this process does not adversely effect the cross – contrary to those who keep claiming, mantra-like, that the benefits of surprise are lost if the witness sees the abyss ahead.

From the 1993 report it seems clear that a closing is more significant than an opening to lay people. Clearly the skillful interweaving of fact and legal principles in a complex case must assist the bench too, reducing the time they must otherwise take to do it for themselves.

But in the many short cases where the law is settled and the contest is about facts – the messengers and the message- then the argument from the lawyer to the bench should be wrapped up in the development of the chief and the indoctrination that is part and parcel of good cross.

Finally, but not least, the prohibition is usually on spoken closing.  I’ve yet to see a bench that refuses to accept a written closing.  Just make sure that you deal not only with your case but with your opponent’s also.

Hugh Selby ©  2013

Hugh Selby has taught on a number of NITA courses.  Along with his NITA friends Chris Behan and Charlie Rose he runs , a blog with a focus for all those interested in improving the teaching and learning of advocacy skills, especially at law school.  He is based at the Australian National University,

April 2013 Executive Director’s Letter: From Adaptable Attorney To Most Influential Attorney

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Karen M. Lockwood

Karen M. Lockwood

In its March 25, 2013 issue, the National Law Journal featured its first list in six years of “The 100 Most Influential Lawyers In America.”  Looking at the names and bios, every lawyer would have been thrilled to be counted among these stars.  They are practicing attorneys, members of the legal academy, and officials in law-centric government positions.

What made them so special – so unique that they could develop this high professional excellence?  The answers are evident just from the NLJ bios in the March 25 issue.  By the way, a significant number of them have been involved with NITA along their way.

Adaptability.  These most influential lawyers – all of them – are individually adaptable.  For example, many have served in private practice, switched to a high government counsel position, and with their enlarged perspective and knowledge gone on to serve as the wisdom in the room on challenging legal matters. Many have addressed widely varying disputes – from mass torts to cutting-edge competition clashes to challenges to statutory policy or regulation. In government service, some have advised at the very highest level.  Many have literally taken on the role and approach of general counsel to a business, whether with that formal title or as Trusted Advisor.  All of them have been imaginative, bold, sure, and able to assess the risks of positions to be taken. Virtually all have been active in the profession, engaging broadly to improve the practice, influencing the rules or process of justice, or donating substantial time and talent without compensation.

To have this authority and influence – and to dream the young lawyer’s dream of one day doing as much good with great effect – requires not only adaptability, but also a determination to find opportunities that force adaptation.  That attitude of adaptability starts working from the day the lawyer starts practice. It is not weak, or indeterminate, or random.  It is the will to dive deeply into subjects that are important to the outcome. It is the tenacity to set aside concerns about one’s own shortage of experience and learn all that is needed to create a successful outcome.

And these traits foreshadow success in the micro-efforts too.  On direct examination, posing the perfect framework for the witness’s testimony by understanding what the jury or judge needs to hear and what the witness is able to offer. On cross-examination, seeing the opportunities arise by surprise – and adapting to them without opening unprepared questions.

By stopping to remember to learn, we adapt our approach and master the new. I will have more to say about particular members of our NITA leading authors and teachers in this regard.  For now, let us marvel at the power of adaptability. And in all of our efforts, to live by the habit of “thinking to learn.” 



Karen M. Lockwood

Executive Director

NITA’s National Session Will Be Here Before You Know It

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The National Session is only a few months away.  This is the program that started it all.  For those of you who have attended or taught at National in the past (or both) you know what a life-changing experience this program is.  This year the nine-day program will be co-directed by Ben Rubinowitz and Hon. Nancy Vaidik.  Together they are assembling a star-studded faculty from across the country featuring not only premier practitioners, judges, and law professors, but also some of the nation’s foremost legal communication skills and focus group experts.

This year the program will feature dedicated drill rooms, motions practice, focus groups, and jury selection.  That of course is in addition to the various other learning-by-doing workshops that have always been a part of the National Session: opening/closing, direct and cross-examination of fact and expert witnesses, impeachment, and more.

“Not everyone gets to trial all of the time anymore.  But unless you know you can go to trial, you can’t really successfully take a deposition, or negotiate, or argue a motion,” said NITA’s Terre Rushton, who attended the National Session in 1981 and has taught at the program multiple times. “You have to have the confidence, and your opponent has to know you have the confidence, to go all the way. When you come to the National you learn how to do it all.”

For a complete description of the program and to register click here.NITA Nationals 2012 -¬Tobin Voggesser_-1 NITA Nationals 2012 -¬Tobin Voggesser_-8

Best Advocacy Fix: Losing Verbal Tics

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When the transcript arrives from what you recall as a strong cross-examination at deposition or trial, you look at the critical section and you wince. You find that you said “okay” after each answer as you began the next question, or that you began each question with the word “and”.

While not fatal to the examination, they don’t look good up and down the page, and they make the transcript quotes in our motions and impeachments less crisp than we would like.  They violate our goal of making our questions as short and tight as possible, eliminating unnecessary words.

The old school method for curing verbal tics seeks to modify the offending behavior by associating it with something unpleasant.  One advocacy instructor that I observed some years ago clapped his hands loudly each time the your lawyer began a question with “okay” or “and”  in her examination of the witness. The sound of the clapping was sufficiently harsh and embarrassing that in time the questioner became very focused on not uttering the words that would bring about the horrible sound.

I prefer a cure that addresses the causes of the problem rather than simply eliminating the symptoms.  One paradox in any cross-examination, either in court or at a deposition, is that in trying to establish a rhythm we tend to go faster and faster.  We acquire a sense of urgency about asking the next question quickly, in order to preserve the rhythm, but in the process we feel rushed.  It is as if the examination is a ping pong game in which we must return the volley with a question as soon as the answer to the prior question arrives.  The result is that we ask the question before we are ready, and it is not as tight and good a question as it could have been with just a little more time.

The back and forth between an intelligent witness and a prepared questioner is not ping pong; it’s more like chess. The questioner should listen to each answer carefully, calmly  formulate the next question, review it trying to tighten and shorten it, eliminating defects of form ambiguities and excess words, and then calmly ask it to the witness.  While that seems like a long process, it can be accomplished if you just give yourself a nanosecond before asking the next question. Slow down. Take a pause.

No one will notice that you are taking an extra nanosecond, but the brain can do all sorts of good things in that brief moment. Your next question will be stronger, tighter, and more strategic. Your transcript will offer no clue of the fact that you took the extra nanosecond between questions – other than the fact that your questions will be better, it will look exactly the same.

Except for the verbal tics, which will likely have vanished.  We add the “okay” and the “and” as filler, because we perceive that while it is our turn to speak but we don’t quite have the questions.  Taking the extra nanosecond will make them drop away.  Without all the applause.

About the Author: Mark Risk practices employment law and litigation at Mark Risk, P.C. in New York City, including litigation of discrimination, restrictive covenant, contract, wage/hour, and employee benefits cases.  He is co-editor of Labor and Employment Law, the quarterly newsletter of the ABA Section of Labor and Employment Law, and is a frequent speaker about employment law issues.  He has been teaching in NITA programs since 1996.

Preparing and presenting your expert.

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Forget about the charlatans, the junk science, and the expert for hire.  Spare a thought instead for how we can prepare and present our authentic experts so that they say, on the way out of the court building, “Thank you.  I believe we made a real contribution in there.”

Here’s a checklist (not exhaustive) that some readers will find useful. It’s all about building trust:

  • Customize the expert’s statement of qualifications and experience so that it puts the most relevant material up front.  Don’t include the irrelevant– this is not a generalized job resume.
  • If your expert can’t explain it to you then they cannot reach a decision maker (be that a judge or jury) so pay them and sack them.
  • Emphasize to your expert that their role is to opine on what facts mean because the lay audience (judge and jury) lack the skills to do that.
  • The decision making audience must find the expert credible and consequently be prepared to accept and apply the expert’s opinion.
  • What the expert is communicating is, ‘Here is my transparent, replicable process.  This is the data I had.  Here is my methodology.  Other credible experts can check.  By the way, here is my view of ‘missing data’, along with my assessment about how that data limitation affects my opinion’.
  • Rehearse with the expert so that they are comfortable listening to the questions from any lawyers but talking with, and looking towards the decision maker.
  • Deep into your direct reduce your expert’s target size on cross-examination by explicit recognition of any and all limitations.
  • Your expert should signal to you during cross what can be fixed on redirect; for example, a tag to their answer, ‘would you like me to explain’.
  • Rehearse with your expert to ensure that they can use an ‘incremental build’ during direct; that is, that you and they break down their explanation into such small, logical, clear segments that the decision making audience can repeatedly nod to show you and the expert that they can follow the concepts.
  • Be sure that you and the expert work as a team: settle them into role, show their expertness, be open about their fee, have them state their opinion, then share the agenda of topics by which they and you will substantiate that opinion to the decision maker.
  • Always explain a technical term by an explanation before it is used. Lay audiences appreciate that approach. An explanation after using the term is patronising.
  • Find ways, beyond just listening, to involve the decision maker in the expert’s explanations. Consider whether there is scope for visuals, models, demonstrations, being careful to meet evidentiary and procedural rules.
  • Treat an expert as you like to be treated: with respect and courtesy, coupled with such prompting and pushing as is fairly required.  This applies from first engagement through to prompt payment of their final account.

Hugh Selby © 2013.

Hugh Selby has taught on a number of NITA courses.  Along with his NITA friends Chris Behan and Charlie Rose he runs , a blog with a focus for all those interested in improving the teaching and learning of advocacy skills, especially at law school.  He is based at the Australian National University,

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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