The Legal Advocate

A blog brought to you by the national institute for trial advocacy

Monthly Archives: July 2013

Inaugural Arlen Specter Award Goes to Marsha Levick

Posted On By

Re-posted by NITA from The Legal Intelligencer.

The Juvenile Law Center’s Marsha Levick, who was at the forefront of the fight to expose what eventually became known nationwide as the Luzerne County “kids-for-cash” scandal, became the first lawyer to be honored with The Legal’s Arlen Specter Award on Thursday night.

The award, which was presented at The Legal’s 170th Anniversary Dinner, was designed to honor the late senator’s legacy and recognize the attorney or judge who in the past 10 years has done the most to promote the law, the legal profession or the cause of justice in Pennsylvania.

The other finalists were Senior Judge John M. Cleland, who chaired the Interbranch Commission on Juvenile Justice and presided over the Jerry Sandusky trial, and attorney Joe H. Tucker Jr., the founder and head of Tucker Law Group.

Levick, who was in Japan when the award was announced, had recorded a video in the event she was the winner. After thanking her colleagues at the JLC and Dan Segal and Rebecca Melley of Hangley Aronchick Segal Pudlin & Schiller, who worked with her on the Luzerne County civil litigation, Levick turned her attention to the victims of the corrupt former Luzerne County judges.

Read more

Depositions Part 3: Documents in a Distant Deposition

Posted On By

Written by Guest Blogger: Lawrence Silver

When the lawyer taking a deposition and the witness who is being deposed are not in the same room, there can be difficulties using documents during the examination. Ordinarily the deponent is subpoenaed to appear at a facility that offers teleconferencing. Assuming you wish to avoid the disclosure to the deponent and adversary counsel of documents you may or may not use in the deposition, you may want to send them (usually via Federal Express) to the operator of the facility. The envelope you send might contain a number of letter-sized sealed envelopes, each designated with a letter, say “A”, “B”, “C”, etc. During the course of the deposition, the taker of the deposition can ask if the deponent had received from the operator a Federal Express envelope and instruct the deponent, who is at a distance and while the broadcast is taking place, to open the Federal Express envelope. Then the deposing lawyer can ask, for example, that the envelope marked “A” be opened, at which point he would tender to opposing counsel a copy of the document in envelope “A” and tender a copy to the court reporter.

If your court reporter is at the distant location, you can transmit the documents to the court reporter, then at the appropriate time ask the court reporter to tender the documents to the witness.

Adverse counsel may require that the document that is marked or shown to the witness be verified to be the same document as the one he has received. No lawyer would likely provide a document which in any way differs, because the consequences of such a stunt would be enormously negative. Nonetheless, the adverse lawyer can require that the witness hold up the document that has been marked as Exhibit A and verify to the distant taker and adverse counsel the document’s content and what is being provided locally is the same as the document before the witness. The taker may want to have this assurance “on the record” as well.

If adverse counsel are in different locations, provide a Federal Express envelope to each location and request the administrator open the envelopes as they are called for. Or fax a copy of the document to be used from the taker’s facility to the facility used by adverse counsel in distant locations.

There are additional issues when the deponent at a distant location has been served with a subpoena duces tecum and is now bringing documents for the first time. This would preclude the taker’s review of the documents before examination. This problem can be solved by having a Custodian of Records deposition a day or so before the witness’s deposition. Often times, noticing the two depositions solves the problem. Usually a witness cooperates by providing the documents to the deposition taker in advance of the deposition, avoiding the necessity of two depositions.

Best Advocacy Fix: Mind-Mapping for Direct or Cross-Examination

Posted On By

Written by Guest Blogger:  Douglas L. Irish

Irish_DougWriting out the questions we intend to ask in direct or cross-examination can be a mistake.  We lose our place. We lose eye contact. We don’t listen carefully to the answer to ask good follow up questions. We get locked to the lectern.  We lack spontaneity. We produce fact-finder snoozing.

Outlines are marginally better, but here’s an alternative: mind-mapping.

A mind map is a graphic or diagram to visually outline information. You create it around a single term in the center (like the name of an entire case, or of an individual witness, etc.).  Radiating from the center are main elements, categories, or topics you must prove, and radiating from each main one are the subordinate items that go into proving the main categories.

That way you can see in an instant where you are, what you are trying to prove, and what you will be using to prove it. As you complete asking about each of the items to prove your point, simply strike through it and you can “see” when you have completed asking all you wanted to ask to make the point.  (It also helps when the court asks you, “How is that relevant, Counsel?”)

They can be drawn by hand. There is also a  fairly inexpensive software out there that works even better. (For many years I’ve used “Inspiration” from www.inspiration.com. Google will help you find others.)  Here’s an example of a really simple partial mind map for a plaintiff’s case:

MindMapping

Depositions Part 2: Getting a Handle on Emerging Video Deposition Technologies and Techniques

Posted On By

Guest Blogger:  Richard J. Leighton, Co-Director, NITA Fact Witness and NITA Expert Deposition Programs, Washington, D.C.

Leighton_Richard_2This is a friendly reminder to good trial lawyers who still refer to video depositions as “video tape depositions,” who are not quite sure how to evaluate the advantages and disadvantages of synchronized deposition recordings, or who don’t know about the dramatic growth of remote depositions taken via the Internet and streaming technologies.

However, this is not the place to get technical on you, and I’m certainly not the author who could do so.  It’s just a heads-up, from one overworked lawyer to others:  it may be time to make sure that you’re sufficiently caught up on some basic deposition record options and trends so that you can continue to serve your clients well.

In terms of trends, I asked two national reporting companies (Atkinson-Baker Reporters and Henderson Legal Services) to review their data for the past five years (2008-2012) to see if they were seeing what I was seeing in my own practice and teaching.  They were.

Video depositions, now usually recorded digitally on CDs, increased an average of 12 percent over the period, the companies reported.  They now usually cost between $900 and $1000 per day, with a $250 to $325 initial setup charge.  (If my client can afford them and it makes sense for the particular case, I always recommend them.  There are few things more effective for impeachment than a 15-second burst of in-person video inconsistency on the court screen.)

More interesting, for the one company that kept track of such things, the number of orders for video deposition records synchronized to the written transcripts increased from 75 percent in 2008 to 91 percent in 2012.  When used in court, the words scroll under the deponent’s image, making searching and comprehension easier.

Both companies experienced significant reductions in non-video telephone depositions.  Commensurately, especially in the last two years, they experienced significant increases in Internet-based remote depositions.  The Internet-based depositions can be especially cost-beneficial in litigation involving multiple law firms taking and defending multiple depositions.  (In one multi-district litigation matter now pending, more than 240 depositions have been scheduled to be handled at various locations by attorneys from 15 firms.)  If videography is not chosen, a less expensive web cam can stream live video to remote attendees.  Setup costs appear to run about $150.00 per deposition plus another $150.00 for each remote connection.

So, how can you be master of the fast-evolving technical equipment universe?  I suggest that you don’t try, unless you’re technologically gifted and have plenty of time.  It’s better for busy lawyers to experiment and learn by osmosis, I think.  One of the best ways to get a flying start is to ask a good court reporting company to show you what options others are using and let you test drive them in their (or your) office.  They often are glad to do so.

Great Lawyers But Poor Managers: Project Management, People Management and Client Communication – A Panel Discussion

Posted On By

Rushton_TerreThe premise of our panel discussion was straightforward: the ability to manage projects and cases effectively and economically involves skillfully managing people. In a society increasingly dependent on technology to get work done, lawyers often look to technology for an easy and convenient answer to management problems.  But if all legal solutions could be found in software and databases, we might do away with lawyers altogether!

Today, law firm operations are increasingly dictated by client demands for greater efficiency and lower costs.  This culture demands that supervisors learn to delegate work effectively, and learn to trust associates to do the work assigned to them. The ability to work within a team is a critical skill for the modern lawyer, whether the firm model is established teams or teams formed to staff specific cases.  And yet this competency is often antithetical to those skills rewarded in law school.  Law students, unlike business school students, work independently and competitively and are rarely rewarded for team efforts.  But upon joining a law firm, associates are suddenly  thrust into a culture that demands cooperation, teamwork, and reliance upon the work and efforts of others. The skill of delegation will be key to their success, as indicated by the experience of two firms on the panel: Fenwick & West and Fish & Richardson.

Fenwick & West:  Cheri Vaillancour noted that because the law firm business model has changed, the failure to delegate effectively has serious consequences.  These consequences include inefficiencies, loss of talent, poor work product, and fire drills, all of which affect work/life balance. Cheri also discussed how the inability to delegate will show up in the evidence, whether that is feedback from clients and staff, or associates’ performance reviews,  development plans, and exit interviews.  Fenwick & West has addressed this delegation skill gap by teaching it at each stage of their attorneys’ careers, beginning with summer associates. In addition, Fenwick considers delegation, communication, and project management skills critical to an attorney’s success, and has thus included them in its competency framework. Attorneys are expected to develop these competencies over time, developing greater proficiency as they progress in their careers.

Fish & Richardson:  Kaydee was tasked with developing a program on effective case management for senior associates and principals at Fish & Richardson.  She worked with NITA and firm partners to develop a three-day training program based on three skills: Delegation, Project Management, and Client Communication.   The program was based on a single case study: a litigation matter in which the parties were proceeding to a preliminary injunction hearing within a ten-day period. Program participants were instructed to form a team, assign roles, give assignments, design a budget, and prepare a litigation plan for the hearing.  They were then instructed to present their plan to the client for approval and feedback. Critique and commentary was given to the teams throughout the process.

The participants also listed their learning goals at the beginning of the program: client management, delegation (specifically, trusting subordinates), delivering negative feedback, prioritizing effectively, and tools for managing big cases and multiple cases.  These personal goals were very much in line with the firm’s goals for the program, with two telling exceptions: Fish & Richardson also wanted attendees to improve on-time reporting and budget-savvy case management.  Kaydee noted that the next iteration of the program will include an introductory presentation by partners on the best case management practices they use, which participants will then incorporate in the handling of the case study.

The panel concluded with Judge Lucas presenting a glimpse of the delegation portion of the Supervisory Skills program she teaches for NITA, in which she focuses on the skill of active listening.  Judge Lucas described why people find it a difficult skill and described the tenets of active listening, including her rules for active listening when receiving assignments:

  • Hold all questions
  • Restate what you’ve been told
  • Restate until the other person confirms your understanding
  • Only then should you ask questions

 

This article was written by NITA’s Associate Executive Director of Programs, Terre Rushton, for PDC Linkletter. Find out more on PDC here: http://www.pdclegal.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.
Feature Products

Follow

Get every new post on this blog delivered to your Inbox.

Join other followers: