The Legal Advocate

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Monthly Archives: May 2013

The Importance of Deposition Admonitions: Part 1

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Milanfar_ShahradThis post is written by guest blogger Shahrad Milanfar.

Before we get into our discussion, I’d like to ask you a few questions:

1. How much time do you spend giving admonitions at deposition?

2. Which admonitions do you give?

3. Why do you give them?

4. Is any of that time spent establishing rapport with the witness?

Many attorneys see admonitions as an inconvenience. They often go through a cursory list of poorly administered admonitions because they feel obligated to do it but they don’t see the real value in it. This is a huge mistake and could be costing you valuable information in your case.

1. Admonitions allow the attorney to build rapport with the witness:

Unfortunately, many attorneys believe that intimidating witnesses or taking a hard line with witnesses is the best way to get favorable testimony. While having tight questions for cross-examination purposes is important, the ability to have a genuine conversation with a witness is often the best way to get good testimony.

How many of us have started the deposition with the words… “You just took an oath to tell the truth and if you change your testimony later, I or someone from my office will call your credibility into question at trial”? Translation: I get to call you a liar if you answer a question you don’t understand.

I would suggest that building rapport with a witness is the best way to get a lot of information from the witness, whether that testimony is good or bad. This approach helps minimize surprises at trial. Put yourself in the shoes of a witness. You are nervous about your deposition. A stranger is sitting across from you who is going to grill you. Your lawyer has likely told you that this stranger is the enemy. You have your walls up and are likely feeling nervous and alone. How would you react to that stranger throwing you a lifeline by telling the ground rules for the game? By telling you that you are being told the rules not because s/he wants to intimidate or trick you but because we all need to be on the same page, in order to get a clear record? Would this make you more likely or less likely to be at ease and willing to have a conversation?

2. Admonitions provide the witness with the rules for the deposition process: 

By going through the admonitions, you are allowing the deponent to play by the same rules as the questioner. This is only fair because you cannot hold the witness accountable later, if s/he did not know the rules for the deposition process. After all, you don’t want to have the witness playing baseball while you are playing basketball. Having everyone on the same page allows for a clear record. It also makes your and the court reporter’s jobs a lot easier. Most importantly, when someone (usually the senior attorney who is going to conduct the trial) goes to read the transcript later, that person is going to understand exactly what was said and how the answers impact the case. So make sure that everyone knows the rules and knows how they will be applied. You and your colleagues will be glad you did.

3. Admonitions lock in the witness to help prevent damaging changes at trial:

By giving admonitions, you are making sure that the witness is locked in to the answers s/he is giving. This can be done by giving clear admonitions and making sure that after you give each separate admonition, you ask the witness whether or not s/he understands what you just explained. Once s/he acknowledges that the admonitions have been understood, and that s/he will let you know if they don’t understand a question you ask, the witness is locked in to the answers s/he gives at the deposition. If the witness changes his or her testimony later, they will be subject to impeachment during cross-examination.

So, ask yourself….

1. Would you rather have good rapport with deponents and get better answers?

2. Would you rather have the witness understand the process?

3. Would you rather have the entire story?

4. Would you rather have testimony which is locked in?

Most of all….

5. Would you rather avoid surprises at trial?

If the answer is “yes” to all of these questions, don’t skimp on the admonitions. Taking the time to give the admonitions will provide you with testimony which is built on a solid foundation. In my next blog post, I will talk about the specific admonitions which must be given to create the solid foundation we all want. Stay tuned!

To download your deposition admonition cheat sheet, click on the link below.

http://wp.me/P3gsvC-df

Check back soon for Parts 2 and 3 in this series.

You can follow Shahrad Milanfar on twitter here: @CaMediation and read more on his blog: mediationaptitude.com.

Best Advocacy Fix: How to Deal With an Evasive Witness (Without Making the Jury Mad at You!)

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This post is written by guest blogger and NITA faculty member Jeffrey D. Boyd, Esq.

Every trial lawyer faces the challenge of a witness who won’t answer the questions they are asked.  I recently heard a highly-credentialed political researcher [i] from Harvard talk about an interesting study that I believe has a lesson for trial lawyers.  The subject of the study was politicians who “dodge” questions; those who, when asked questions in interviews or debates, give answers that are not responsive to the questions.

In the study, mock politicians were orally asked questions in front of a group of listeners. They each answered one of these questions:

1.            What will you do about the health care problem?

2.            What will you do about the illegal drug problem?

3.            What will you do about the terrorist problem?

The listeners/test subjects were then asked whether they thought the response answered the question, and how they felt about the person who gave the answer. What made the test interesting was that regardless of which question was asked, the answer was always the same: “I’m glad you asked that. We need universal health care in America.”

There were many interesting findings, but the one I think is important for trial lawyers is this: listeners who heard this answer after hearing question #2 were generally satisfied that the speaker had answered the question.  The dodge worked!

Why?  The research showed that in the #2 scenario, the listener’s memory of the question was changed by the answer.  That is, after hearing the question and hearing the answer, many people thought the question had been answered because they remembered the question as asking about something to do with health care.  They forgot it was really about illegal drugs.  However, this was only true when the question and answers were given orally; if the listener had the question in writing in front of them, they were much more likely to feel that the question had been dodged, and to be upset with the person answering.

So what does this mean for lawyers in the heat of a trial?  I believe the underlying social premise at work here is: fair questions call for fair responses.  A fair question should be answered fairly.  If it is not, the questioner has earned the right to push to get a responsive answer and the speaker will lose credibility if they don’t give one.  However, if the audience feels a fair answer has been given, they don’t like the lawyer repeating the question, looking for a “better” answer.

We have all told witnesses they can’t be hostile towards a questioner until they have “earned” that right, which usually means suffering through some unfair questions.  Likewise, as questioners, we know to be slow to squeeze a witness; we have to meet the social criteria of getting an unfair response to a fair question before we are “allowed” to ask sharper questions.  This matters, because in an “unfair” exchange the jury’s sympathy shifts to the party being treated unfairly.  Even an intentionally evasive witness can end up with the jury’s sympathy if the witness is handled the wrong way.

Based upon the research, the solution is to show the jury the original question.  Let them see it, so they can directly compare the question and the answer and be in a position to judge whether the answer is responsive evasive.  The best way to do this is real-time transcription.  If that is not available, write the question down on a whiteboard or a piece of paper so the jury can see it, and ask it again.  At the least, have the court reporter read back the original question, so their memory of the question will be refreshed. Once you have demonstrated that the answer is a dodge, you will have the jury’s “permission” to push harder to get a real answer.

A sad footnote is that the research found people who dodge questions artfully with smooth, polished dodges are liked and trusted more than people who respond to questions truthfully but with less polish.  Sometimes it is form over substance; another lesson for the trial lawyer.

Jeffrey D. Boyd, Esq is a faculty member for NITA. We would like to thank him for writing this post and sharing his knowledge, and we would like to invite you to comment below with any questions or thoughts.


[i] Thanks to Michael I. Norton,  Ph.D., Associate Professor of Business Administration at the Harvard Business School, for “The Art of Dodging Questions:  from Kissinger to Palin and Beyond.”

May 2013 Executive Director’s Letter: NITA Announces Annual Award Winners for 2012 Teaching Year

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Karen M. Lockwood

Karen M. Lockwood

NITA is thrilled to announce the 2012 winners of NITA’s three awards honoring outstanding contributors to its mission!  Please join us in congratulating each of our winners:

  • James R. Gailey, Miami Beach, FL, winner of the 2012 Robert Keeton Award for Outstanding service as a NITA Faculty Member (recognizing exceptional work as an instructor);
  • John T. Baker, Denver, CO, winner of the 2012 Robert Oliphant Award for Outstanding Service to NITA (recognizing service to NITA through program administration, volunteer service, and other participation that enhances NITA’s Mission); and
  • Prof. Barbara Barron, Hempstead, NY, winner of the 2012 Prentice Marshall Faculty Award for the Development of Innovative Teaching Methods with NITA (recognizing creativity in program development or teaching methodology).

 

In a year when the number of nominations doubled from the year before, the NITA Awards committee made hard choices among highly qualified nominees.

Mr. Gailey, of James R. Gailey & Associates, PA, earned praise for his focus and availability to NITA program participants. Nominators stated, “He readily volunteers to give demonstrations – demonstrations that are by the book. In all the years, he has never once overplayed it.”  And, “Jim has always been a ‘go-to guy.’ [Y]ou could call Jim at the last minute if you were in a jam….He always makes himself available.”

Mr. Baker, who completed his work as Executive Director of NITA in late 2012 after three years of dedicated service, now leads the Colorado Attorney Mentoring Program under the auspices of the Colorado Supreme Court. Members of the nominating committee commented, “We know of no one who has sacrificed so much for the organization”.

Ms. Barron, Professor of Law at Hofstra University School of Law, is singled out for her creativity in designing public and international programs program schedules. She regularly demonstrates creativity and flexibility with her planning and execution, and in bringing new methods into play. The committee noted that her work in crafting drills that enhance the learning experience is exceptional.

The NITA Awards recognize outstanding work by members of our family of Program Directors, Team Leaders, and general instructors. These people labor for NITA by working on Public Programs, Custom Programs, and Public Service Programs. They are authors, teachers, and administrators.  Each award is named after one of the pioneers of NITA who exemplified the nature of the specific award.

This year’s Awards Committee was comprised of Mark Caldwell (NITA staff and committee chair), Doris Cheng (2011 Keeton Awardee), Michael Dale (NITA Program Director), Allen Snyder (2011 Oliphant Awardee), Geraldine Sumter (NITA Board), and Wendy Velez (2011 Marshall Awardee). The committee considered all of the nominations and submitted its recommendations to me for final selection.

The NITA family is filled with exceptional people who regularly do exceptional things. Based on the work throughout 2012, we recognize these three special people for all they have done for NITA.

Sincerely,

Karen_ShortSig

Karen M. Lockwood

Executive Director

Malone Innovative Online Learning Memorial

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NITA expresses its sincere sympathy at the loss of our friend and colleague, David M. Malone. Mr. Malone was a highly respected and long-time NITA faculty member, a prolific author of NITA books and guides, and the recipient of the 1995 Robert E. Oliphant Service to NITA Award. As a teacher who used video lectures in connection with his NITA books, and an adopter of presenting NITA-style lectures and webinars in the form of on-line learning, Mr. Malone contributed to NITA’s first video-enhanced e-book by teaching in over thirty videos embedded in that book.

To honor his memory, the NITA Board of Trustees and the NITA Foundation Board of Trustees have created the Malone Innovative Online Learning Memorial. Gifts to the NITA Foundation in his memory will be used by NITA to continue this work, with the conscious purpose of research, development, and execution as a means to innovate, adopt, execute, and expand online learning offerings. With this measure NITA gives tribute to Mr. Malone’s work, creativity, and adoption of NITA’s new forms of learning. To make a gift, please visit www.nita.org/Donate and select “Tribute Gift” to give in memory of David Malone through the Malone Innovative Online Learning Memorial. If you have any questions contact the NITA Foundation at development@nita.org or (303) 953-6845.

Lawyers Are Not Hairdressers or Football Players

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By Peter R. Bornstein, a sole practitioner who has taught at NITA for over twenty years.

Among lawyers active in bar associations, teaching at NITA, or concerned with legal ethics, the words ‘professional’ and ‘professionalism’ have come into vogue.  It is said that the rules of ethics as promulgated in the Code of Professional Responsibility, are binding rules for lawyers, and are enforced with severe penalties for their breach.  These set a floor for lawyer behavior, but professionalism is different from ethics. It is aspirational, inspirational, and elusive.  What does the word mean, and what is really said when a lawyer is called ‘unprofessional’?

In today’s society we have professional football players, professional police and fire departments, and professional hairdressers and cosmetologists.  Most states license plumbers, chiropractors, social workers, barbers, and electricians.  Does that mean that law as a profession is like financial planning, tennis, and nursing?  Of course, that’s not what we mean when we apply the term to ourselves—or is it exactly what we mean?  Is being a lawyer and practicing law only a regulated economic  endeavor, a business not much different than being an accountant or stockbroker?  The answer is that it is different—very different.

It is different because the law comes to society from ancient times.  It is different because the law is a learned profession, not a regulated business or paid occupation.  Historically there were four learned professional fields: the priesthood, the medical field, the military, and the law.  Each required a long and difficult period of study before admission and further study after admission.  Each limited those who were admitted by virtue of their competence and character.  Each had a mechanism for policing bad apples like a court martial or defrocking.  And each had an ethos, a mission, and a purpose higher and more noble, like “we do not lie, steal, or cheat, nor tolerate those who do,” or “do no harm,” or “equal justice under the law.”  The ethos and mission of the profession is to serve the whole of society.

Lawyers who belong to a profession are keepers of The Rule of Law and believe that they ought to have a just society—one governed by laws, not men.  Judge Russell Carparelli of the Colorado Court of Appeals has given the matter considerable thought.  He has developed a curriculum for teaching certain skills to lawyers and would-be lawyers.  He has developed an acronym to define the term: SECRET.   The acronym works as follows:

Service to clients, profession, community

Excellence in knowledge, skill, judgment

Commitment to preserving the Rule of Law

Respect & civility in all interactions

Ethical in all dealings

Trustworthy in all words & deeds

Judge Carparelli has elaborated on his acronym by adding that lawyers as a group profess that everyone is entitled to enjoy the rights and benefits conferred on them under the law and to have the law applied fairly and impartially, and lawyers profess to use their knowledge, skills and understanding of the law to preserve equality, fairness, and the integrity of our legal system.  He concludes by defining professionalism as the commitment lawyers make to these principles through conduct which demonstrates that commitment.

The reason lawyers are not like hairdressers or football players is because of their commitment to higher principles; and those who choose not to be committed to these principals are lawyers who are unprofessional.

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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