The Legal Advocate

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

Monthly Archives: January 2014

NITA Faculty Member Louise A. LaMothe Selected as United States Magistrate Judge

Posted On By

LaMothe_Louise2The United States District Court for the Central District of California announces the selection of Louise A. LaMothe  as United States Magistrate Judge. Judge LaMothe, who was sworn in on January 10, will sit in Santa Barbara in the Court’s Western Division, filling the position vacated by former Magistrate Judge Rita C. Federman.

Prior to her selection as a Magistrate Judge, Judge LaMothe practiced as a professional  arbitrator  and  mediator, serving  on  the  panels  of  the  American Arbitration Association and the International Institute for Conflict Prevention and Resolution (CPR). She is a Fellow and Board member of the College of Commercial Arbitrators and a Fellow of the Chartered Institute of Arbitrators. She has been a longtime volunteer on the District Court’s Attorney Settlement Officer Panel. While in private practice as a litigator, she served twice as a Ninth Circuit Judicial Conference lawyer representative and was Chair of the American Bar Association Section of Litigation. She began her Los Angeles legal career at Irell & Manella, LLP, in 1974, where she became the firm’s first woman partner. She later practiced at Riordan & McKinzie and Bird Marella Boxer Wolpert & Matz before becoming a full-time neutral.

View the full press release here.

January 2014 Executive Director’s Letter: Applied Learning—at School; Experience and Learn—on Career Paths

Posted On By

We at NITA have been thinking hard about educating the trial lawyer and oral advocate. Law schools are focusing hard on teaching the student enough to be “ready to go” upon graduation. My question today is this:  “ready to go” . . . do what?

I thought hard about that question when I was teaching law school, too. A small seminar-style enrollment allowed me to design a class that suits the Academy—challenging students to read a lot, think hard, be able to discuss the principles, and reinforce this learning through quickly paced, unforgiving, but delightful class discussion amid lecturing. Their final paper—their approved topic, original research, a strong issue about the evolution of ADR, and excellent writing—cinched the academic challenge of leading them to master the legal substance of ADR and the principles of its practice. My students were receiving credit for a course in Alternative Dispute Resolution.  I targeted delivery of deep remembered learning, and they got it done. Fine.

My remaining challenge was to work application of those lessons into the course syllabus. As the Academy and the ABA recognize in the ongoing certification discussions, the smart law school provides students the chance to apply the course material in very class, even contracts.  Clearly, applying the learned principles of law and practice deepens both the understanding of the reasons behind the legal principles and how hard it is to deliver just results.  (If done within every course, it also raises the stakes on the student’s study of the course material to begin with.)  For my class, the puzzle was how to give them that chance to apply their “substance + process” learning and feel the processes at work. My answer? To pause after concluding the study of each ADR type (for us, arbitration, mediation, negotiation) and devote one entire class week to prepare and conduct a moot exercise. I more than filled their plate for a three-credit course: they worked really hard; they “got” the law and its reasons and processes.

Let us take an unpolarized hard look at what the question is around the current debates on “experiential learning,” the law school’s accreditation requirements, and every law school’s marketplace desire to declare its graduates “ready to go.”

We seem to suffer from a misnomer. “Applied learning” is the better term. Students arrive with no client/matter experience. They need chances to apply what they learn in each class subject, getting a feel for helping a client in that substantive area, and deepening their grasp of the why’s and wherefore’s of The Law.  By analogy, undergraduates are lucky to be supported with a unified program of learning, application, externships, and pre-career guidance and development.

Except for clinics in states where law students may appear in court on behalf of clients, however, this learning is different from experience. Experience comes from doing it for the stakes. Doing it to win for a client. Doing it case after case, year after year. We as a profession cannot shoe-horn that into the law school environment. The more you actually do it, the more experience you accumulate. The more you accumulate, the more you appreciate your mentors. (This is why we call our client work “practice”!) And, in today’s fast-paced and competitive practice environment, the more you seek mentors, the more you wish you could pause and deepen you mastery without having a client depending on you for an outcome. Actual experience, assuming you already have studied and mastered the requisite law curriculum, provides the solid framework on which to hang new lessons and better skills.

Thus, “experiential learning” is a misnomer for the problems we are trying to solve at the law school level. What we are talking about is applied learning for law students. Applied learning is the real issue in the ongoing the debates about ABA accreditation standards, a two- or three-year law school foundation, and defining the scope of the legal curriculum so that a graduate is “ready to go” start working for clients.  I take no position on the accreditation debates. I simply hypothesize that application of substance + process should occur in every law school course, with support from centers that coordinate and assure the students are getting their chance to apply.

We treasure and invest in our NITA contribution to the Academy.  Our intense work at NITA is to provide a real-life experience, for experienced practitioners who have more under their belt than law students, where they can return to solid and safe learning-by-doing. Repeatedly, as their experience lengthens.

Apply it in law school—try it on.  Experience it through, well, experience—and periodically seek to learn better ways in safe places.



Call for 2013 NITA Award Nominations

Posted On By

Those who teach for NITA are special people. NITA instructors are the crème de la crème of trial lawyers, judges, and law professors—with skills as both advocate and teacher. Just as professional sports chooses All-Star teams and the arts recognizes excellence through their mega-awards, NITA too recognizes its “best of the best.” Each year, NITA asks its “family” to nominate those who have been leaders during the previous year. NITA’s awards recognize Excellent in the Development of Teaching Techniques and Program Design (the Hon. Prentice H. Marshall Award), Outstanding Service in Instruction (the Robert E. Keeton Award), and Outstanding Service to NITA (the Robert E. Oliphant Award). Awards season is upon us, and NITA seeks nominations for these three designations.

The Hon. Prentice H. Marshall Faculty Award is for Development of Innovative Teaching Methods or Programs recognizing development of new ideas in how NITA teaches trial skills or in the creation of new courses. It is named for the late Prentice Marshall, one of the original teachers at the National Session and a fixture on the NITA faculty, who pioneered the efforts to support pro bono advocacy and teaching at major law firms and by the judiciary. Marshall helped develop NITA’s four-part teaching methodology.

The Hon. Robert E. Keeton Award is for Outstanding Service as a NITA Faculty Member and recognizes excellence in teaching. This award is named for Robert Keeton, one of the original teachers at the National Session and a longtime contributor to many programs. Judge Keeton authored one of the first texts on trial advocacy and served as NITA’s director from 1973 to 1976.

The Robert E. Oliphant award is for Outstanding Service to NITA in all areas, including program directorship, public service, writing, and support. It honors Professor Robert Oliphant, NITA’s first administrator, who has taught at the University of Minnesota and William Mitchell law schools for over 35 years. Recipients of this award demonstrate dedication to the NITA mission through instruction, program administration as a program director or as a team leader, and writing.

Members of this year’s awards committee are Chair Mark Caldwell, John Baker (2012 Oliphant Award recipient), Barbara Barron (2012 Marshall Award recipient), James Gailey (2012 Keaton Award recipient), the Hon. Nancy Vaidik, and L.C. Wright. This committee provides recommendations to NITA Executive Director Karen Lockwood for designating award winners.

Nominations are now open for each award. The deadline for submission of nominations is Friday, March 7, 2014. The committee asks that you complete a nomination form so it has sufficient information to consider each nominee. Emails that simply suggest a name do not do justice to the person you wish NITA to consider for recognition.  Committee members want to know what you know about your nominee and to understand your case for his or her deserving the award you name.

Each person who shares his or her time by writing or teaching for NITA is special. They honor NITA and the legal profession by donating time and expertise to all who attend our programs, read our texts, or use our case files. The Keaton, Marshall, and Oliphant Awards are NITA’s means of recognizing volunteers who have gone above and beyond in our mission to promote justice through effective and ethical advocacy, train and mentor lawyers to be competent and ethical advocates in pursuit of justice, and develop and teach trial advocacy skills to support and promote the effective and fair administration of justice. Please take the time to nominate a NITA colleague who you believe deserves special recognition as one of NITA’s best.

Click here for the nomination form and a list of previous recipients.

Andrew Schepard to be Installed as the Max Schmertz Distinguished Professor of Law

Posted On By

Schepard_Andrew2reprinted from the Maurice A. Deane School of Law’s event page.

On February 5, 2014, the Maurice A. Deane School of Law at Hofstra University will hold a convocation to install Andrew Schepard, a NITA faculty member, as the Max Schmertz Distinguished Professor of Law. The Max Schmertz Distinguished Professorship, established in 1982, honors and perpetuates the memory of Max Schmertz, a business and political leader of the city of New Rochelle. It is funded by grants from the late Eric J. Schmertz, former Dean of the Hofstra School of Law, and Herbert Schmertz, vice president of Mobil Corporation. It supports a Distinguished Lecture Series in various legal disciplines.

Spotting a Leading Question: Not Always as Easy as It Seems

Posted On By

Written by guest bloggers Julia Sturgill and Professor Michael J. Dale*

Every lawyer can define a leading question. A leading question is a question that “suggests” the answer. As basic a text as the American Jurisprudence for Evidence defines  leading questions as “those which suggest to the witness the answer desired.” 81 Am. Jur. 2d Witnesses 716. The Florida Jurisprudence for Evidence, for example, has a similar definition, describing a leading question as “one that suggests or puts the desired answer into the mouth of the witness, or one that assumes the existence of material facts that have not been proved.” 24 Fla. Jur. 2d Evidence and Witnesses 862.

I.   Understanding What “Suggests” Means

There are at least two reasons why determining whether a question is leading is not as easy as it seems. The first reason involves the use of the word “suggests.” A question may be leading because the suggestion is based not just upon the words in the question, but also or even only upon the questioner’s demeanor, including facial expression, gestures, and tone of voice. The second reason involves the discretionary decision-making authority of the judge—meaning that a question is leading if the judge says it is. The judge’s decision may be based not only upon the words used but upon the questioner’s demeanor, which, of course cannot be detected from reading a transcript on appeal. How much of a hint is enough to “suggest” the answer is “surely” to some degree subjective.

The courts have almost primarily defined leading questions based upon the words used in the question as  where the questioner, in effect,  “puts words in the witness’s mouth so the testimony is really that of the questioner, and not the witness.” State v. Ward, 347 P.2d 865, 867 (Utah 1959). The court in Ward recognized that “this usually occurs in so framing a question that it assumes a fact to be true, or in reciting a fact and merely seeking affirmation from the witness, or in so phrasing the question as to suggest the desired answer.” Id. Thus, if the question describes a fact and asks whether the fact occurred, the question is to be considered leading because the natural inference is that the lawyer expects the witness to answer the question affirmatively. Id. On the other hand, in State v. White, the court stated that “[a] question is not leading where it directs the witness toward a specific matter to be addressed without suggesting an answer.” State v. White, 508 S.E.2d 253, 267 (N.C. 1998) (quoting State v. Burrus, 344 N.C. 79, 90, 472 S.E.2d 867, 875 (1996)).

There are reported decisions that do recognize that demeanor, or tone of voice,  can cause a question to be leading. The court in State v. Weese stated that the “particular form or phrasing of a question does not necessarily determine whether it is leading. A question may become leading if the interrogator’s tone of voice, emphasis on certain words, or nonverbal conduct suggests the desired response.” State v. Weese, 424 A.2d 705, 709 (Me. 1981). The court in State v. Barnes also stated a similar understating of how a question can become leading, holding that “[t]he tenor of the desired reply can be suggested in any number of ways, as, for example, by the form of the question, by emphasis on certain words, by the tone of the questioner or his non-verbal conduct, or by the inclusion of facts still in controversy.” State v. Barnes, 552 N.W.2d 857, 860 (Wis. Ct. App. 1996) (citing 4 Weinstein’s Federal Evidence § 611.06(2)(a)). Thus, courts have recognized several ways that a questioner can suggest the desired response, whether it be the form of the question, the tone of the questioner’s voice, the non-verbal conduct of the questioner, or the questioner’s emphasis on certain words. The essence of a leading question is that the question in any of a variety of ways suggests the answer sought by the questioner.

II.         Misconception: Leading Questions are Yes or No Questions

A common misconception is that a leading question  is one which can be answered yes or no. “A leading question has been defined as one which suggests the desired response which  may frequently be answered ‘yes’ or ‘no.’ However, a question is not always considered leading merely because it may be answered yes or no.” State v. White, 508 S.E.2d 253, 267 (N.C. 1998) (quoting State v. Burrus, 472 S.E.2d 867, 875 (N.C. 1996)). In NITA training programs, this is often referred to as a “closed end” question. Malone and Hoffman, The Effective Deposition (NITA 4th ed. 2012) at § 5.1.

The Florida Supreme Court in Florida Motor Lines Corporation v. Barry stated that “[w]e have held that a leading question is one that points out the desired answer.” Florida Motor Lines Corp. v. Barry, 158 Fla. 123, 126, 27 So. 2d 753, 756 (Fla. 1946) (citing Coogler v. Rhodes, 21 So. 109 (Fla. 1897)). In Porter v. State, a Florida intermediate appellate court stated “[t]he proper signification of the expression is a suggestive question, one which suggests or puts the desired answer into the mouth of the witness . . . and that a leading question is one that points out the desired answer, and not merely one that calls for a simple affirmative or negative.” Porter v. State, 386 So.2d 1209, 1211 (Fla.3d DCA 1980) (quoting Coogler v. Rhodes, 21 So. 109, 110 (Fla. 1897). The court explained that “[t]he real meaning of this definition is that a question which suggests only the answer yes is leading; a question which suggests only the answer no is leading; but a question which may be answered either yes or no, and suggests neither answer as the correct one, is not leading.”  Porter v. State, 386 So.2d 1209, 1211 (Fla.3d DCA 1980).

Thus, the determinative factor is whether the question leads the witness to the desired answer by suggesting what the response should be, and not merely whether the question can be answered by a yes or a no. Some yes or no questions will be considered leading questions, and the factor which determines if they are leading is whether the suggestion of the answer is clear from the question asked or how it was asked. As mentioned above,  if the questioner recites a fact and is seeking affirmation from the witness, the question would be considered a leading question because the question clearly called for the affirmative response. State v. Ward, 347 P.2d 865, 867 (Utah 1959).

III.        When Leading Questions Are Permitted

Of course, under certain circumstances leading questions are permitted, Federal Rules of Evidence 611(c) state that “[l]eading questions should not be used on direct examination except as necessary to develop the witness’s testimony.” In addition, the Rule states that “[o]rdinarily the court should allow leading questions:  on cross-examination; and when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.” Fed. R. Evid. 611(c). Thus, Rule 611 allows for the use of leading questions during direct examination when (1) they are “necessary to develop the witness’s testimony” and (2) when the party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

The first situation where leading questions are permitted is when they are “necessary to develop the witness’s testimony.” Fed. R. Evid. 611(c). This occurs when the witness is unable, on his or her own, to provide the testimony necessary without, in effect, being pointed in the right direction, or when, without the use of leading questions, extracting such testimony would delay the court and waste time. Thus, the court has discretion to allow leading questions in such cases, but it requires the court to balance the suggestive nature of the questions against the cost of wasting time or losing the testimony of the witness. Around the country, local practice may refer to this process, referred to in the Rule as developing in the witness’s testimony, by the short hand reference to  “predicate,” “preliminary,” or “foundation.”

Leading questions are also common in situations where the witness is a minor. For instance, the court in United States v. Carey, allowed the prosecutor to asking leading questions to the twelve-year-old victim because the record revealed several times that the witness was nervous and the court previously recognized “that a victim-witness’s youth and nervousness can satisfy Rule 611’s necessity requirement.” United States v. Carey, 589 F.3d 187, 192 (5th Cir. 2009) (cited in Rotolo v. United States, 404 F.2d 316, 317 (5th Cir. 1968)).

A similar situation where leading questions are necessary is when there is an adult who has difficulty communicating or comprehending the questions being asked. For instance, in United States v. Rodriguez-Garcia, the court held that leading questions could be used because the witness did not speak English. United States v. Rodriguez-Garcia, 983 F.2d 1563, 1570 (10th Cir. 1993). The court recognized that under the Advisory Committee Notes of Rule 611(c), “leading question[s] may be asked of an adult witness with communication problems.” Id. (citing Advisory Committee Notes of Rule 611(c)).

Additionally, courts have permitted leading questions where the witness needed his recollection refreshed or if the questioner is unable to ask the question in a way that would not confuse the witness. For example, the court in United States v. McGovern recognized that leading questions may be permitted when the witness becomes unable to concentrate or disoriented, or when the witness misunderstands what the questioner is asking. United States v. McGovern, 499 F.2d 1140, 1142 (1st Cir. 1974).

Further, the court has permitted leading questions that pertain to facts that are not in controversy. For instance, the court in United States v. Costa recognized that leading questions are permitted to when they deal with such preliminary matters. United States v. Costa, 691 F.2d 1358, 1363 (11th Cir. 1982).

Thus, there are many different situations in which the court will permit the use of leading questions during direct examination that will be decided on a fact-specific,  case-by-case basis.

The second situation in which leading questions will be permitted is where the “party calls a hostile witness, an adverse party, or a witness identified with an adverse party.” Fed. R. Evid. 611(c). Originally, a witness had been automatically considered hostile if he or she was “an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.” Fed. R. Evid. 611(c)(2) Advisory Committee’s note. However, the sentence “witness identified with an adverse party” is to be read more broadly, enlarging the category of persons to whom it is possible to ask leading questions. Id. Thus, courts have allowed leading questions to be asked to a party’s employee because the witness  was  sufficiently identified with the adverse party. In Haney v. Mizell Memorial Hospital, the court held that leading questions should have been allowed because they were directed at a nurse who was an employee of the defendants. Haney v. Mizell Mem’l Hosp., 744 F.2d 1467, 1478 (11th Cir. 1984). Further, courts have recognized that an adverse party’s girlfriend was also sufficiently identified with the party to permit the use of leading questions on direct examination. United States v. Hicks, 748 F.2d 854, 859 (4th Cir. 1984).

IV.       In the Court’s Discretion: The Final Answer

It is important to note that “ruling on the admissibility of a leading question is in the sound discretion of the trial court, and these rulings are reversible only for an abuse of discretion.” State v. White, 508 S.E.2d 253, 267 (N.C. 1998) (quoting State v. Marlow, 432 S.E.2d 275, 282-83 (N.C. 1993)). The court in United States v.Hall affirmed that the court has “the discretion to allow or disallow leading questions of a witness identified with an adverse party, and once the district court ‘exercises his discretion in that regard, [the movant] must establish an abuse of discretion to obtain a reversal.’” United States v. Hall, 165 F.3d 1095, 1117 (7th Cir. 1999) (quoting United States v. O’Brien, 618 F.2d 1234, 1242 (7th Cir. 1980)). Thus, if the trial court determines leading questions should be permitted in the interest of justice, it has the discretion to make that decision because “the trial court is in a better position . . . to determine the emotional condition and forthrightness of the witness and the need for counsel to use leading questions to develop the witness’s testimony.” United States v. Goodlow, 105 F.3d 1203, 1207-08 (8th Cir.1997) (citation omitted).

Finally, recognizing the deference appellate courts give to trial court rulings on leading questions,  the First Circuit in United States v. McGovern held, “[o]n those and other occasions some degree of leading, skirting the fine line between stimulating an accurate memory and implanting a false one, may be allowed; because the circumstances vary from case to case, and because the trial judge is best situated to strike a practical and fair balance, he has extensive discretion over the phrasing of questions.” United States v. McGovern, 499 F.2d 1140, 1142 (1st Cir. 1974).

In conclusion, while the definition of a leading question is easy to state, it is important to remember that determining whether  a question is in fact leading  depends on the discretion of the trial court, which is determined on a case-by-case basis based both on the words used and the demeanor of the questioner.

*Julia Sturgill is a third-year student at Nova Southeastern University Law Center and research assistant to Professor Michael J. Dale.

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