Re-posted by NITA from Rutgers Today.
J.C. Lore is a NITA Faculty Member
CAMDEN — In court, representatives of the Office of Law Guardian and Office of Parental Representation are generally in opposition. This summer, J.C. Lore, a professor at the Rutgers School of Law–Camden, will unite the public interest lawyers that represent children and parents in the Garden State in their shared desire to improve courtroom performances.
“By raising the level of practice in public interest, it’s more likely to get just outcomes for all under the law. It’s important to help train trial lawyers who can advocate on behalf of the client,” says Lore, founding co-director of the Children’s Justice Clinic at Rutgers Law–Camden.
Funded through a federal grant from the New Jersey Judiciary’s Children In Court Improvement Committee, the program for approximately 160 combined lawyers from the New Jersey Office of the Public Defender in separate programs in Camden and Newark will feature national leaders in their fields and will focus on improving direct examination, cross-examination, closing argument, and direct and cross-examination of expert witnesses.
According to New Jersey Public Defender Joseph E. Krakora, the broader emphasis on trial advocacy will benefit all attorneys, regardless of their clientele or years of experience.
“All lawyers can benefit from these trial skills. Our mantra is that we are building the best Public Defender’s Office in the country. The better we do in court, the better we do for our clients, and that’s what it’s all about,” says Krakora.
“With J.C.’s help, we pulled faculty from across the country to teach trial advocacy to child welfare lawyers. To be trained by faculty of this caliber takes resources, and this grant allowed us to do that,” notes Lorraine Augostini, assistant public defender of the Office of Law Guardian.
Andrew Hartman, NITA author of The Six-Minute Marathon, was appointed by Gov. John Hickenlooper to serve as a district court judge in Boulder County, which is in the Twentieth Judicial District. Hartman will fill a vacancy that occurred as a result of the retirement of the Hon. Roxanne Bailin.
Hartman is currently an Adjunct Professor of Law and the Director of Experiential Education at the University of Colorado School of Law. He is also a partner at Gross Hartman LLC, where he focuses on intellectual property, advertising licensing, and litigation counseling.
Prior to his work at the University of Colorado School of Law, Hartman was General Counsel for Keen, Inc. Hartman was also a partner at Cooley LLP; a partner at Reed Smith; an associate at Brinks, Hofer, Glison and Lione; and an associate at Lord, Bissel and Brook.
Read more here.
When I teach at courses where children’s issues are the focus— dependency and neglect, divorce, etc.—one of the regular comments I hear is, “My judge doesn’t want opening statements,” or, alternately, “Why do we need to learn this? The judge already has the file.” These participants have a point —if your judge says no you should not give an opening.
Why do we continue to teach this skill at those programs? When openings are neither welcome nor part of the custom or particular culture of those tribunals it seems silly to waste time with these exercises. Actually, it’s not. Part of NITA’s mission is to “develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.” Done correctly, an opening statement will provide a framework for processing evidence for judge or jury. Even in trials to the court an effective opening will begin the process of telling the case story from the perspective of your client. It will lay out the wrong done and provide a means to “make things right.”
When the judge refuses your offer for an opening statement you may still have the opportunity to sow the seeds of your case theme and remedy. The setting may be different, but think about what you do in pre-trial conference or motion practice. When asked, “What’s this about?” you have the opportunity to open. Recognize your chance and establish your framework on how the judge should view the case. Then, facts presented at trial consistent with your framework will be more memorable. (See, Persuasion at Trial, National Legal Research Group, Inc. http://www.nlrg.com/our-services/jury-research-division/jury-research-publications/persuasion-at-trial-opening-statements/.)
But I am here to proselytize in favor of opening statements.
A number of years ago NITA offered a special program for children’s advocates appearing in Los Angeles. They have a special courthouse devoted just to cases involving children. It’s a vast complex with many courtrooms and a culture that grew over the years to exclude opening statements. Judges confronted with staggering caseloads simply wanted advocates to move the process along. These judges hear similar facts about the terrible treatment of children case after case after case. Suggesting they are “hard boiled” and immune to case stories is not far from wrong. As “the pros from Dover,” the NITA instructors ran the scheduled exercises on opening statement. We worked on beginning with a phrase that would grab the fact finder’s attention. We practiced introducing witnesses and what they would say to prove the elements of the case. We closed the openings with statements that spelled out what we expected the fact finder to do at the close of the evidence. The participants dutifully performed, but later that day told us we were wasting their time. Their judges would never allow such shenanigans. We pleaded, cajoled, and almost begged them to “try it—they’ll like it.”
Weeks later NITA received an email from one of the participants. The message related an experience of one of the participants. One morning the judge called this participant’s case. The judge sat there, working on papers, not even looking up. Our participant stood up and without prompting said, “Your honor. This is a case about a mother’s love. A love for alcohol. A love for cocaine.” Then she stopped and waited, hoping the judge would not scold her too much for her presumption. To her surprise, the judge stopped working, looked up, and said, “Thank you, counsel.” While short, the framework is clear. Facts presented through witnesses would now be viewed through the lens of this specific case theme. We had put a crack in that court’s custom of no openings. Hopefully, the judge now still allows these short statements that set the tone of each trial. The point here is your opening does not have to be more than a few well-crafted words.
Catherine “Kit” Petersen is an instructor at NITA’s joint family law advocacy program with the American Bar Association Section of Family Law. At this year’s program Kit encouraged participants to keep trying to convince the judge to allow an opening. Her recommendation to the group went as follows: Begin by asking the judge if you can offer a short opening statement. If rejected the next time ask if you can offer a five minute opening. Keep it up and by the time you reach two minutes the judge might just be fascinated enough to accept your offer and see if you truly can open in two minutes. And then—do it. We already know an effective opening can be offered in three short sentences. If you are well prepared, have an engaging hook, and absolutely stay within your promised time you may have a convert. Then, each time you appear before this judge do it again. Eventually, you will not only win over this judge but others as well. After all, who do judges have lunch with? Other judges. When word spreads that you offer valuable, concise, persuasive openings you will be able to open in each case.
In his blog post “What, no opening or closing? How can I win?,” Hugh Selby suggests that opening tells the bench whether or not the moving party knows what they are about. This is your first opportunity to plant the seeds of success. Who knows, you might actually get what you ask for!
Written by guest blogger Hugh Selby
Speaking with Power and Style: A Guide for Lawyers and Law Students, by Steven Wisotsky, is a new NITA publication and ebook. 498 pages include detailed chapter contents, bibliography, and index.
Just days ago the Federal Administration beamed around the world a message warning of a heightened threat of a terrorist attack. That message was read by a young woman who spoke too fast.
Speaking too quickly is just one of a number of problems so often ignored, but so easily fixed, by new and old advocates. The author of this convenient, easy-to-read book has collected useful information from many sources (all neatly collected at the end of the chapters, and in a long bibliography) so that only stubbornness or indifference stands between a speaking problem today and a solution tomorrow.
There’s so much information that anyone can find more to agree with than to disagree. There are many apt, crisp examples of the good, the bad, and the ugly. Professor Wisotsky won my heart with his warnings about the abuse of PowerPoint presentations. Sadly his comments will not change the habits of the many who rush to use PowerPoint when they could do much better with well-crafted, well-delivered, stand-alone talk.
I was also attracted by his pointing out that the sound of words is important. Words must be both seen and heard. Just as the seeing is influenced by the headings, the paragraph content and connectors, the page layout, the font, and the font size, so too the hearing responds to the speed, the tone, the loudness, and the mix of the sounds.
I was less attracted—indeed, I ought to be up front and say that I disagree with the author—on some matters. For example, while he would say and write, ‘A prosecutor must disclose…he or she has that duty,’ I have abandoned that approach for, ‘A prosecutor must disclose….they have that duty.’
The author also directs speakers to ‘have your opening line committed to memory.’ With respect I disagree. Early in the book Professor Wisotsky points out the need to know an audience’s needs and wants. It’s my experience that the best opening line reflects the atmospherics of the moment—a point memorably illustrated by Martin Luther King’s ‘I have a dream’ speech.
My dream, an easier one than King’s, is that more lawyers, when speaking in public, be that in courts or elsewhere, will speak clearly, succinctly, logically, slowly, and with pauses, capturing and keeping the attention of their audience. I think that Professor Wisotsky shares that hope even when, as all of us do, he lets it go for just a moment. About the midpoint of this otherwise closely referenced, keeping-to-the-high-ground text, there is this sentence: ‘Because language is contagious, trite phrases and even non-words tend to catch on…’. I laughed; so will you.
In the last two blog posts, I discussed the reasons behind giving admonitions and suggested the following admonitions as good one to start off with:
1. Full Name
2. Prior depositions and trial testimony
3. The oath
4. The transcript
I’ll now give you a few more admonitions to give, in order to make sure that the witness has all the information s/he needs to give a clear deposition.
6. Estimates v. Guess
Let the witness know that you are entitled to any estimate s/he is able to provide. But, you do not want the witness to guess. For this admonition to work, you have to explain the difference between an estimate and a guess to the witness. We have all been in deposition where the lawyer uses the length of the conference room table to illustrate the difference between an estimate and a guess. Since I have heard this example thousands of times, I’m going to suggest a different example you may want to use.
“Mr./Ms. ____ (witness) I’m entitled to your best estimate, in this deposition. But, I don’t want you to guess. Just to make sure that we are on the same page, I’m going to give you an example about what the difference is between a guess and an estimate. If I were to ask you how much money you have in your pocket, while you may not know the exact number, you may be able to estimate roughly how much money you have in your pocket. This is because you probably put the money in your pocket yourself and have a good idea about how much money you took out of the bank and how much you spent, leaving a certain amount in your pocket. So, that would be an estimate. But, if I were to ask you how much money I have in my pocket, because you haven’t seen my wallet, anything you say would be a pure guess. Since you haven’t seen the contents of my wallet you have no point of reference and anything you say about what I have in my pocket, would be a guess. Do you understand the distinction?”
Let the witness know that s/he is entitled to take breaks as needed. You are not there to torture them and force them to be uncomfortable. You are there to facilitate an orderly process. Let the witness know that s/he can take a break at any time as long as there is no question pending. If there is a question to which an answer is needed, s/he can take a break after answering that question. This further reiterates that you do actually care about the witness’ comfort and well being.
8. Medications/drugs and ability to testify
You need to know if the witness has taken any medication or drugs which would hamper his/her ability to testify. I usually tell witnesses that this question is standard and that it is being asked of every witness who gets deposed. That way, you are making sure that the witness knows that s/he is not being singled out. If the answer is no, great. If the answer is yes, you have to dig down deeper to find out what they took and how it may impact the process. You certainly don’t want to take a deposition and have a witness change his/her testimony later because you didn’t give this admonition. Make sure you close the door and lock it.
9. Last two questions
The last two questions I ask are these:
a. Is there any reason why your deposition should not go forward today?
b. Do you have any questions about the deposition process?
Now that you have given all the proper admonitions, you have made the witness feel more comfortable, and because the person now knows the rules, you have made sure that your client’s rights are being protected. This will help you sleep better at night, provided you properly prepare for the deposition and make sure that you cover all the bases. But that’s another blog post.
To download your deposition admonition cheat sheet, click on the link below.
Read previous posts in this series here:
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