The Legal Advocate

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Monthly Archives: May 2013

Movie Review: The Same Privilege as a Sponge

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In 1925, a teacher named John Scopes went on trial for teaching evolution in a public school in Tennessee.  At the time, this was against the law and Scopes was charged with a crime.  The “Monkey Trial” became a national sensation, especially after two of America’s biggest legal names, Clarence Darrow and William Jennings Bryan, became involved as counsel for the Defendant and the Prosecution, respectively. In 1955, Jerome Lawrence and Robert E. Lee, in response to the McCarthy era, wrote a play called Inherit the Wind, dramatizing that case.  And in 1960, Stanley Kramer (later to direct Judgment at Nuremberg) brought that play to the screen.  The film, starring Spencer Tracy and Frederic March, is a powerful indictment of governmental suppression of the right to think and talk about controversial ideas.

Tracy plays Henry Drummond, modeled on Darrow: a brilliant trial lawyer, rough around the edges, an agnostic who sees his job as defending the teacher’s right to think, to have “the same privilege as a sponge.” March pays Matthew Harrison Brady, modeled on Bryan: a passionate defender of his religious beliefs, a sincere opponent of evolution and a man trying to hold on to a fading political career.  The two opponents are portrayed as good friends, even though their beliefs are apparently 180 degrees from one another. You should also appreciate Gene Kelley (!) as E.K. Hornbeck, a cynical newspaperman, modeled on the great cynic, H.L. Mencken.

While the film has important elements that occur outside the courtroom, it is inside the courtroom where the primary tensions of the film work themselves out.  Both Tracy and March are brilliant (Tracy was nominated for Best Actor); their final confrontation is an epic example of great actors in the hands of a great director delivering great dialogue.  Before the opponents reach that point there is much jockeying for position, with Brady seeming to get the better of things with help from the judge, portrayed by Henry Morgan, best known to TV viewers as Col. Potter on MASH.

From a legal perspective, there is much food for thought in this film.  One point that has always struck me: who do these guys represent?  As the film progresses, you begin to realize that both lawyers have agendas that may not actually be the same as their respective clients’. This raises the question as to what a lawyer’s role should be in cases involving controversial issues: is it your job to advance the issue, even at the expense of your client’s rights—or freedom? What if your client changes his mind, and no longer wants to be a symbol – or a martyr? Should you let your strong beliefs about an issue impact how you try a case if those personal beliefs may actually be contrary to your client’s best interests? What’s more important: the legal process or the issue? And in a much larger context,  how and why, in the United States, did the courthouse become a place for social change (think Brown v. Board of Education or Roe v. Wade)?

Inherit the Wind was—and is—a film that rewards repeated watching.  Its subject matter still resonates today, not just on the surface issue of the role of religion in education, but about what we Americans are allowed to read about and learn about and talk about and think about—and whether we get to decide those things for ourselves.

This post was written by NITA guest-blogger Bob McGahey. 

NITA Board Member Named Managing Partner

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Rubinowitz_BenThe New York law firm of Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz has announced that Ben Rubinowitz has been elected Managing Partner of the firm.  Throughout his 30-year legal career Ben has made his mark as a leading trial lawyer, teacher, and leader.  He is a member of NITA’s Board of Trustees and is Co-Program Director for this year’s National Session.

Rubinowitz is a member of the exclusive Inner Circle of Advocates, The International Academy of Trial Lawyers, a Director of the New York State Trial Lawyers Association and a Past President of the American Board of Trial Advocates. Most recently he was named Best Lawyers’ 2013 New York City Personal Injury Litigation-Plaintiffs “Lawyer of the Year”.  GGCSMB&R was also named by U.S. News and Best Lawyers® the 2013 Law Firm of the Year, Personal Injury Litigation-Plaintiffs.

In addition to his trial work Ben teaches trial advocacy as an adjunct at Hofstra University School of Law and Benjamin N. Cardozo School of Law.  He also continues to teach in NITA programs across the country.

Congratulations, Ben, from the entire NITA community.

Jo Ann Harris named Scholar-in-Residence Emerita of Pace Law School

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Harris_Jo_AnnWHITE PLAINS, NY, April 30, 2013 — In recognition of Jo Ann Harris’ significant contributions to Pace Law School and the legal community, Dean Michelle S. Simon has conferred upon her the title of Scholar-in-Residence Emerita. “Jo Ann Harris, a former Assistant Attorney General in charge of the Criminal division of the Department of Justice, has been a prominent white-collar crime practitioner,” remarked Dean Simon, adding, “We are very fortunate to have the benefit of her vast skill and experience.”

A nationally-known lead instructor for, and Board Member of, the National Institute for Trial Advocacy, Professor Harris joined Pace Law School in 1992 to develop the school’s trial advocacy program. She was instrumental in the creation of the Federal Judicial Honors Program several years later.

Commenting on the fact that there is only one Scholar-in-Residence Emerita on the Pace Law faculty Dean Simon said, “We hold Jo Ann Harris in the highest esteem.”

Legal Ethics Part 3: Coercive Litigation Tactics

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Coercive Litigation Tactics – Playing Hardball in The Board of Trustees of the University of Illinois v. Micron Technology Inc.

By Hayes Hunt and Thomas M. O’Rourke



It is not uncommon for the parties to play hardball litigation to exert pressure on the other side to settle a case.  But if your opposing party engages in tactics that you perceive to be coercive, should you immediately seek relief from the court?  A recent decision illustrates some of the issues to consider before you ask a judge to solve your litigation problems.

In The Board of Trustees of the University of Illinois v. Micron Technology, Inc., a patent infringement suit, the University alleges that Micron sold semiconductors that were made using its patented process.  Before the lawsuit, the parties had a collaborative relationship and Micron actively recruited the University’s engineering students to work in its facilities.   The lawsuit brought this relationship to an end.  An email from Micron’s Academic Program Manager to many of the University’s engineering professors in January 2013 read as follows:

Because Micron remains a defendant in a patent infringement lawsuit that [the University] filed against Micron . . . , effective immediately, Micron will no longer recruit [University] students for open positions at any of Micron’s world-wide facilities.

The University immediately demanded confirmation from Micron that it would not engage in any further communications of this kind.   Micron requested a legal basis for the University’s demand, which apparently was never provided, and refused to confirm that it would cease its communications.  The University then filed a motion with the court seeking “an injunction that prohibits Micron from sending similarly coercive correspondence to the University.”

In support of its request, the University argued that Micron’s behavior was “coercive” under Illinois law and was designed to compel the University to dismiss the case.  The University acknowledged that Micron could choose not to hire its students, but argued that Micron could not convey that choice to University personnel in an effort to put pressure on the University.

District Court Judge Sarah Darrow rejected the University’s requests for several reasons.  Initially, the injunction sought was vague and could not be tailored to describe what future communications would be prohibited.  The requested injunction was also a prior restraint on speech, raising serious First Amendment concerns.  In addition, Judge Darrow determined that the University improperly sought to “enjoin an alleged injury that is unrelated to its underlying complaint of patent infringement.” Finally, Judge Darrow noted that the University failed to present sufficient evidence to suggest that Micron’s email was sent in a calculated effort to interfere with the litigation.

So, while Judge Darrow considered Micron’s “decision to shun the University’s students  [to be] without tact” and was “very concerned” about the manner in which the decision was communicated, she could not provide the University with any relief.

If the University’s goal was simply to make the court aware of Micron’s behavior, then its strategy worked.  But getting the court involved in a fight that it is unable to be resolved is not a valuable practice.  Before requesting relief, it may be best to attempt to resolve the dispute by agreement or seek leave to pursue discovery in order to determine whether there is basis for the court to intervene at all.  Along with assembling evidence, you should determine whether there is a viable judicial remedy.  If not, the parties must simply resolve the issue on their own and not ask the court to umpire hardball litigation.

Hayes Hunt is a NITA faculty member. You can read more from him at his blog.

NITA Wins Rich Media Impact Award

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BOULDER, CO — April 29, 2013: The National Institute for Trial Advocacy (NITA) was named the winner of the Rich Media Impact Award in the category of Innovation.  The winners were announced at Sonic Foundry’s annual Unleash Conference in Madison, Wisconsin,  and the awards ceremony can be viewed on-demand at

“This year’s awards program was the most competitive to date. Customers in education, government, and the enterprise are increasingly becoming aware of the distinct advantage of using video to communicate, save money, and increase productivity,” said Rob Lipps, executive vice president of Sonic Foundry.

NITA is widely known for its in-person, learning-by-doing training programs for attorneys.  NITA pioneered that model over forty years ago and winning this award shows that the organization is as dedicated as ever to continued innovation.  Using Sonic Foundry’s Mediasite System, NITA is now able to incorporate recorded content into live programming which allows participants to perform and receive faculty feedback twice as often as they would in a program without the video content.

The Mediasite system also offers attorneys the option of participating in a learning-by-doing program online, without incurring the costs of travel and time away from the office.

“Our goal is to increase our distance learning capabilities to include even more online programming on different topics. Mediasite for me means innovation. It gives us the freedom to try new things and reach more attorneys nationwide. Our online program via Mediasite will only get bigger from here, and we’re looking forward to experimenting with more online courses and webcast series in 2013,” said Wendy Velez, NITA’s Associate Executive Director of Operations, who accepted the award in Madison.

About the National Institute for Trial Advocacy (NITA):
NITA is a 501(c)(3) charitable organization, consisting of a dedicated team of professors, judges, and practicing lawyers who believe that skilled and ethical advocacy is a critical component of legal professionalism and all systems of dispute resolution that seek justice.

About Sonic Foundry®, Inc.
Sonic Foundry (NASDAQ: SOFO) is the trusted market leader for enterprise webcasting solutions, providing video content management and distribution for education, business, and government. Powered by the patented Mediasite webcasting platform and webcast services of Mediasite Events, the company empowers people to advance how they share knowledge online, using video webcasts to bridge time and distance, enhance learning outcomes, and improve performance.

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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