The Legal Advocate

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Monthly Archives: September 2013

Movie Review: Judgment at Nuremberg

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JudgmentAtNuremberg
written by NITA Blogger Judge Robert McGahey

“THIS IS WHAT WE STAND FOR . . . .”

The film I’m writing about this month is long, more than three hours. It is not brightly colored, being shot in black and white. It is not the least bit funny, as it focuses on the greatest horror of modern times, the Holocaust. The film is 1961’s Judgment at Nuremberg and if you see no other movie that I’ve written about, please see this one. What it says about judges and lawyers and justice is profound and thought provoking.

It is 1948. World War II is over, and the victorious Allies are conducting trials of officials of Nazi Germany, prosecuting them for what have come to be called war crimes. The setting of Nuremberg is a fictional trial of four German judges, conducted by a panel of three American judges, headed by Judge Dan Haywood, played by Spencer Tracy. The military prosecutor is played by Richard Widmark, the defense lawyer by Maximilian Schell, and the primary defendant, Ernst Janning, by Bert Lancaster. Marlene Dietrich appears as the widow of a German general, and Judy Garland and Montgomery Clift are cast as victims of the German judges’ actions. The cast includes many other recognizable actors, including Martin Balsam (the jury foreman in 12 Angry Men), Werner Klemperer (later to be seen as Colonel Klink in Hogan’s Heroes), and a young but easily recognizable William Shatner. This truly all-star cast is superbly directed by Stanley Kramer.

As a film, Nuremberg is nothing short of brilliant. The actors are at the top of their games. Schell would win a Best Actor Oscar, the lowest-billed actor ever to do so. Tracy delivers his final verdict in one stunning, memorable eleven-minute take; it’s the clip we frequently use to end our ethics presentations at NITA programs. The rest of the cast brings the horror of what happened in Nazi Germany to agonizing reality.

This movie can be hard to watch, including as it does actual footage of concentration camps. While in our time Holocaust information – and images – are more broadly disseminated, it is probable that in 1961, when the movie came out, many people who saw the movie had not seen such footage. Shocking as it is to us, what must it have been like for them, especially a mere sixteen years after the end of World War II?

The movie pulls no punches, bringing into play the compromising attitudes of some American officials that the defendants should be punished lightly or not at all, since the Cold War was in full bloom and there were many who believed that we needed a strong German government to resist the Soviet Union. From the (literal) opening shot, Kramer forcefully rejects this attitude; one cannot miss his clear message that evil can never be accepted or ignored. Neither can the viewer ignore Kramer’s suggestion that Americans should not be sure that we occupy the moral high ground on such issues.

There are other important themes explored here that lawyers and judges must contemplate: Why is an independent judiciary important? What is the role of a judge in enforcing national policy? How far can a lawyer go in defending his client? Are certain actions acceptable if perceived as protecting the national interest? Do the victors in a war have the right to punish their enemies by creating laws after the fact? How does an international tribunal – or international law itself – gain legitimacy? Can the people of an entire nation be morally culpable for the actions of its leaders? And perhaps most importantly, what should an individual do when confronted with immoral, criminal behavior by his or her government? Kramer answers this last question in the final jail cell scene between Judge Haywood and Ernst Janning. Watching Tracy and Lancaster here is watching masters of their craft at the height of their powers.

Judgment at Nuremberg is powerfully written, brilliantly acted, and superbly directed. Even after more than fifty years, its message is timely and important. It is a hard movie to watch, but one that every thinking person, let alone every lawyer and every judge, should see – and spend time thinking about afterwards. Please watch it and do that thinking.

International Law Part Four: Common Law Influence in a Civilist Jurisdiction

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Written by Guest Blogger Kenneth Suria

In today’s legal structures, most nations follow one of two major systems law: the civil law and the common law. Civil law is generally codified, while the common law is not. This means that countries that follow the civil law system have comprehensive legal codes that specify all matters capable of being brought in court, including their procedures and applicable penalties. On the other hand, jurisdictions that follow the common law system do not possess a comprehensive compilation of rules and statistics since it is based mostly on judicial precedent. This system, however, does have some scattered statutes that may provide some guidelines, but it relies mostly on stare decisis, decisions in past cases .

While history allowed for the separate development of these systems, in modern times it has also permitted both systems to co-exist within the same jurisdiction. As a result, the legal system in some of these countries has become hybrid, referred to as a mixed jurisdiction. Professor Robin Evan Jones, in his article “Receptions of Law, Mixed Legal Systems and the Myth of the Genius of the Scots Private Law,” 114 L.Q.R. 228(1988), defined a mixed jurisdiction as “a legal system which to an extensive degree, exhibits characteristics of both the civilian and the English common law tradition.” Not surprisingly, jurisdictions with mixed legal systems exist within the United States. The State of Louisiana and the Commonwealth of Puerto Rico bear the honor of that distinction within the American system of jurisprudence. The former boasts the tradition of the French Napoleonic Code, while the latter features the Spanish Civil Code.

With regard to Puerto Rico, despite the traditional notions of civil law’s distinct approach to total reliance on codes and statutes, due to the American influence of case-by-case analysis and the law school training of the Socratic method, common law analysis has become an important analytical tool in civilist decisions under the Civil Code. For instance, in deciding cases, judges initially focus on the language of a particular statute, its meaning, and the legislators’ intent. However, modern judges use a quasi-common law approach, in that they also look to past cases for consistency in the interpretation of sections of the Civil Code or other relevant statutes.

Another indirect aspect of common law influence civilist jurisprudence states is the prevalence of federal law. For instance, the U.S. Constitution’s Supremacy Clause makes clear that all United States laws, statutes, and treaties are the supreme law of the land. This means that the federal government, in exercising powers enumerated in the Constitution, must prevail over any conflicting or inconsistent state excessive power. In this regard, the Supreme Court of the United States held that the Supremacy Clause applies to Puerto Rico in P.R. Department of Consumer Affairs v. Isla Petroleum Corporation, et al., 485 U.S. 495 (1988). The effect of this type of decision caused a subtle yet unintentional acceptance of federal law as part of the civilist system. The rationale is simple because federal matters necessarily use the stare decisis doctrine in the interpretation of the U.S. Constitution and other federal statutes. Therefore, the next logical next step is to use the same analysis used by federal courts locally in the interpretation of local statutes.

To conclude, federalism has helped the common law influence the manner in which judges in a civilist jurisdiction analyze and enforce the law.

Judge Carol Brosnahan To Be Honored as a Woman Jurist of Distinction

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On September 25, Judge Carol Brosnahan and Judge Winifred Smith will be honored as Women Jurists of Distinction by the Women Lawyers of Alameda County in California. We at NITA are pleased to personally salute Judge Brosnahan on these honors.

The Brosnahan family has been important to NITA for many years. The judge’s husband, leading trial lawyer and senior partner James J. Brosnahan of Morrison & Foerster, is a highly respected leader in our NITA community. He has served continuously as a long-time trustee and emeritus trustee, a leading and active faculty member, and member of the NITA Advocates Society. The family has been generous in supporting NITA and its missions to improve justice through teaching the art of advocacy, domestically and in certain international venues.

As detailed in various news features and articles, Judge Brosnahan turned to a legal career “almost by accident” fifty-seven years ago, when women were not accepted at Harvard Business School. But Harvard Law had begun to admit women, and Carol joined a class of 500—she being just one of nine women. She thus launched her career in a challenging profession that was then a man’s world.

In the early days, Judge Brosnahan exhibited her likely future success by working hard, and remained prepared to walk through doors as they gradually opened to her. Appointed to the Alameda County bench in 1979, she continues an active caseload carrying 100 to 150 cases. Her judicial leadership is admired in the community. For example, in September 2012, she chose a sentence for a single father administered by electronic monitoring rather than incarceration—a thoughtful choice that apparently takes account of destructive risk to his children from incarceration.

As the senior woman jurist on the Alameda County Court, Judge Brosnahan serves as mentor and role model among women lawyers, particularly recognizing its dedicated public defenders and district attorneys. With its Annual Judges’ Dinner and Silent Auction, the Women Lawyers of Alameda County recognize her importance to the profession, the bench, and women lawyers. The reception and silent auction at The Faculty Club at UC Berkeley begins at 6:00 p.m., followed by dinner and the panel discussion. Click here for more information on the event.

September 2013 Executive Director’s Letter: NITA – Nationwide and Ambassadorial Too

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Karen M. Lockwood

Karen M. Lockwood

NITA has entered the fall with great excitement over new opportunities. We are seeing new international connections in keeping with this month’s theme, as well as exciting new program projects, and renewed vigor across the country in capturing the full power of NITA’s landmark trial teaching techniques for more “students” of advocacy. Our publications and our programs are strong and their impact is ever growing.

We paused to bid farewell to our Terre Rushton, longtime NITA fan, superb NITA teacher, and just-retired Associate Executive Director of Programs. The many bases Terre covered are now covered on several levels, with Wendy Velez leading operations on both the programs and publications sides. Our programs operations are in the hands of Assistant Directors of Programs Megan Melich (public) and Michelle Rogness (custom) and the program specialists across the staff. Our legal and educational content creation, customization, and initiative are led by Mark Caldwell and me, with special acknowledgement of our incoming Director of Publications, attorney Jennifer Schneider. Of course, our star-quality group of Program Directors across the NITA network do the inspired pedagogical work with each year’s curriculum of each program – public and custom alike. We work closely with them, and look forward to new NITA faculty initiatives that I am currently assembling among that group. Please reach out to me, Wendy, and our programs and publications staff in your work with NITA!

The international scene opened NITA’s September with the NITA/Law Society of Northern Ireland program titled Advanced Advocacy for Solicitors. Four NITA teachers from the U.S. and a larger very talented faculty in Northern Ireland were led by “our own” Fiona Donnelly (confessing here that Fiona actually belongs to Northern Ireland in every marvelous way!). Joining the Irish solicitors – private, public defense, and prosecutorial – were participants from Scotland and faculty from Australia via England. After five days, mastery of two full case files, and robust trials before Irish judges in Belfast’s beautiful Queen’s Bench courtrooms, the solicitors and faculty celebrated with a robust and witty closing ceremony. The magic of this program has now reached a third of the solicitors barred in Northern Ireland, where the bar is working closely on rules that would permit Solicitors advocacy rights in certain courts that protect critical rights and concerns of everyday citizens. We salute and thank the Law Society, and admire Northern Ireland for its many programs of dispute resolution, peacekeeping, and advocacy training. Quickly following that program is the four-day Scotland program with the Society of Barristers, which ended just last week.

Our bloggers’ posts on the advocate’s respect for international differences in judicial proceedings are more than an academic subject for NITA. NITA is in many countries where the culture and governance model are inherited from very different roots than the English common law system. For years, NITA has extended ambassadorial hands to lawyers in other countries who work to vindicate justice and strengthen the rule of law. Here is a list of where NITA has been found since January 2012:

1/12 Macedonia Teacher Training
4/12 Ghana – donation of textbooks
7/12 Micronesia Legal Services
8/12 Kenya Advocacy Training Program
9/12 Belfast Advanced Advocacy for Solicitors
10/12 Kosrae Attorney General Office Trial Skills
11/12 Japan (as an honored visitor in exchanges on cutting-edge thinking on advocacy for justice)
11/12 Dublin Advanced Advocacy NITA Teacher Training Programme
3/13 Belfast Public Prosecution Service
3/13 Albania Basic Trial Skills
6/13 Japan
8/13 Kenya Advocacy Training Program
9/13 Belfast Advanced Advocacy for Solicitors
9/13 Scotland Solicitors & Solicitor Advocates

We seek to continue this work, and have numerous opportunities to join with law societies or bar associations in other nations as we look forward. With resources, whether donated or co-sponsored, NITA can serve its mission elsewhere than our home nation, and our bloggers illustrate some of the talents that we pull together to do so.

Looking forward to an exciting fall with you,

Karen_ShortSig

Karen M. Lockwood, Esq.
President & Executive Director
National Institute for Trial Advocacy

International Law Part Three: Adversarial System in Mexico and Latin America

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Osorio_FrankWritten by guest blogger: Frank Suriel Osorio Hernández

Over the last twenty-five years, the penal judicial system in Latin America has undergone an almost complete transformation in all areas, including the discovery process and in litigation at the trial level; such reform is almost complete. Most of Latin America received its judicial system from the Spanish influence, which had, at its core, the inquisitorial system developed in the Middle Ages. Many of the legal principles that were established during colonial times more than 300 years ago are still quite evident to this day. These principles, which were originally part of the Catholic Church, became part of both the legal and the judicial systems. This Spanish system has been the most authoritative, and the most rigid, of all the procedural systems in Latin America.

The classic mixed procedural system that was developed from the French Revolution was adopted by most of Latin America, after each respective country declared its independence and became a sovereign state. The classic mixed system was intended to create a bridge between the adversarial system and the inquisitorial system, with procedures found in both legal systems.

The classic mixed code was borne out of the Napoleonic Code, the French Criminal Code, and the French Revolution. These three events gave birth to a new legal and judicial system that would seek as its purpose a compromise between the inquisitorial system and an adversarial system. This system achieved this goal by creating legal process that consisted of two main areas: 1) a stage of investigation or inquiry and 2) a stage of due process.

In an effort to obtain uniformity, the inquiry process was codified. Although investigation and inquiry were part of the new legal process and the judicial system, these codes were also rigid because the inquiry and investigation by the state were kept private, with little to no possibility to build a defense. Again, the focus was on enforcing the law, finding the criminals, and bringing about a quick punishment, with the same rules being applied equally. Currently, Latin America, and specifically Mexico, is changing its legal system; the idea of due process is the hope of the criminal procedure and the judicial system. When a case goes to trial, the goals of the entire legal system must be that the process would ensure the right of defense of the accused and that crimes would be prosecuted. The system would, hopefully, be able to guarantee both the right to punish one side and the right of “jus libertatis,” which is the right to defense of the accused on the other.

Fortunately, there has been significant steps through Latin America to reform its criminal process. For example, the first phase of reforms (First Generation) was the Code of Cordoba Argentina in 1970. Other major changes include Costa Rica in 1973, which came into force in 1975, known as First Generation Code and adopted the oral proceedings as a part of its procedure. The second phase is termed as Second Generation Code, which are the most current codes in Latin America. These were influenced by the project that generated the Iberoamerican Institute of Procedural Law, the Criminal Procedure Code model for Latin America, in the nineties. Finally, the most recent generation of change in codes has been in the governments of Chile, Colombia, and Mexico. In particular, Mexico, since 2008, has reformed thirteen criminal procedural state codes, and the deadline for the thirty-one states and the federal district to enact reform is 2016.

This process of change has been challenging for Latin America, but it is taking on the challenge and giving the task importance it deserves. Although we are not experts in the field of creating a perfect procedure, Mexico is trying to create a unique criminal system and is learning from other Latin American countries, Europe, and common law countries.

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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