The Legal Advocate

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Monthly Archives: April 2014

NITA Honors A First Generation Stalwart, Keith Roberts

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Keith E. Roberts, prior NITA Board Member and long-time faculty passed away on Mar. 15, 2014. Mr. Roberts was a beloved teacher of trial advocacy who gave generously of his time and talents to train other lawyers in the fine art of gentlemanly advocacy in the courtroom. A gifted trial lawyer himself, many had the privilege of having him for an instructor at our annual National Programs held here in Boulder as well as our Chicago based programs. Keith was the 1989 recipient of our The Honorable Robert E. Keeton Award for his Outstanding Service as a NITA Faculty Member and one of the true NITA giants. “A wonderful man, a great lawyer and an excellent teacher,” said NITA Board member, Professor Thomas Geraghty, he will be greatly missed.

“I had the privilege of having him for an instructor long ago, at the National Program in Boulder. Later I taught with him. Nice guy.” – recalls Mark Oates, a NITA faculty member.

NITA Program Director, Daniel Toomey reminiscences about Keith;

I remember teaching with Keith in the National in the late ’70s or early ’80s. As terrific a teacher as he was, his critiques were always gentle. I remember at lunch in the Kittridge Dining Hall, I noted how great it must have been for his son to be able to practice with him given the great teacher he was. “Not so fast,” Keith rejoined. He related the first trial his son co-tried with him before a judge he knew very well. 

At one point early in the trial, the court, annoyed, said to the plaintiffs’ counsel (Keith and his son), “Come to the bench!” As Keith’s son approached, the judge said, “Not you, just him (Keith).”
At this point, the judge said to Keith, “if you interrupt your son one more time, I’ll order you out of the courtroom!”

Keith said it was the last time he sought to instruct his son in court. By the way, his son won the case! 

NITA Welcomes Our Class of 2014 Next Generation Faculty

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Three Next Generation Faculty (NGF) members have been chosen from a dozen candidates. This year’s outstanding class of up and coming NITA faculty members are:

moniqueCarter

MONIQUE A. CARTER
San Diego County Public Defender

Legal Education
University of San Diego School of Law, J.D. received May 2005
Member of the California Bar
, 2005-Present
Institute of International & Comparative Law, Trinity College, Dublin, Ireland, Summer 2003

Honors & Activities
Mock Trial Tournament: 2nd Place Plaintiff Team Overall, 2004
Pro Bono Legal Advocates: Trained mediator for small claims court, 2003-2004
Moot Court Board Associate Member: Alumni Torts Competition semi-finalist, 2003

Prelegal Education
University of Nebraska-Lincoln, B.A. received 2001 with high distinction, Political Science
Minors, English, & International Affairs

Honors & Activities
Phi Beta Kappa
High Distinction (top 5%)
Dean’s Honor List, 1998-2001
Hubert & Louise Ostdeik Scholarship, 1999-2001
Virginia Haven & Smith Scholarship, 1998
Pi Sigma Alpha Vice President, 2001

Experience
San Diego County Public Defender, San Diego, CA. Attorney
Handle 140+ felony cases annually from start to finish. Negotiate cases with the dstrict attorney. Enter pleas on behalf of my clients. Write motions regarding constitutional violations or other legal matters that arise during the course of the case. Construct mitigation motions for post-conviction matters.  Attend numerous MCLE trainings annually. Conducted over 30 trials. (2005-Present)

Trial Highlights
The People v. Ryan W.: Utilized an accident reconstruction expert. The State charged two counts of assault with a deadly weapon (vehicle). The jury found not guilty on all counts.
The People v. Jeffrey H.: Retained and consulted with a gay and lesbian expert. The State charged various sex crimes. The jury hung on all counts. The case settled for one felony and 365 days custody on what started as a life case.
The People v. Sandy M.: Utilized a neurologist and biomechanics expert. The State charged child abuse with serious and violent allegations. Trial included direct and cross-examination of highly skilled experts. The jury hung. The case settled for a felony and credit for time served.

National Institute for Trial Advocacy, San Diego & San Francisco. Assistant Team Leader and Trial Skills Instructor, presenting lectures and demonstrations for specific aspects of a trial as needed. Assist Program Directors and Team Leaders during NITA programs in San Francisco and San Diego.  Critique and advise practicing attorneys on conducting a trial from start to finish. (2008-Present)

University of San Diego School of Law, San Diego, CA. Adjunct Professor
Critique and teach law students on various aspects of conducting a trial from start to finish. Prepare lectures and demonstrations for each targeted section of a trial from week to week. 2012 & 2014

 

AMY HANLEY
amyHanleyKansas Assistant Attorney General

Assistant Attorney General Amy Hanley is the lead prosecutor for capital crimes in the Criminal Division of the Office of Kansas Attorney General Derek Schmidt. Hanley prosecutes high-level crimes throughout the state of Kansas, including murder, sexual abuse of children, and possession and distribution of child pornography. She is cross-designated as a Special Assistant United States Attorney for the specific purpose of prosecuting online crimes against children.

Hanley earned the 2011 KCDAA Associate Member Prosecutor of the Year honor for her work in the courtroom and leadership in the legal community. She was lead prosecutor in State v. Kahler, an Osage County capital case in which the death penalty was imposed. She is a faculty instructor of the National Institute of Trial Advocacy (NITA) and regularly provides training to prosecutors and law enforcement, including the AG’s Call, KCDAA, KBI, KACE, HARCFL, and ICAC. Hanley coordinates the semi-annual meeting of Kansas capital prosecutors. She also serves as a voting member of the Kansas Sentencing Commission.

Hanley is an adjunct trial advocacy instructor at Washburn University Law School and coach of the Washburn Mock Trial team, leading a team to the regional finals in 2011. Hanley joined the Attorney General’s office in 2009 after seven years as First Assistant in the Office of the Saline County Attorney in Salina, Kansas.

A native of Lost Springs, Kansas, Hanley earned her J.D. from Drake University in Des Moines, Iowa, and a B.A. in Political Science from Kansas State University.

lindaLane

LINDA L. LANE
USD School of Law Trial Advocacy Professor and Practicing Lawyer

Linda Lane is a solo practitioner specializing in consumer product advisement.  She regularly provides consultation and advice to her clients regarding potential product liability exposure related to new or existing product lines. Since the U.S. Consumer Product Safety Commission approved the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), Ms. Lane has actively assisted many clients in ensuring that they are in compliance with the new, heightened regulatory requirements for consumer products.

Until Spring 2013, Ms. Lane was a litigation partner in the San Diego office of Morrison & Foerster, LLP.  Her practice focused on product liability litigation with an emphasis on consumer products and aviation defense.  She has successfully first-chaired jury trials to verdict and conducted several evidentiary arbitrations.  Ms. Lane has argued numerous dispositive motions in both state and federal courts and has taken and defended many depositions of parties, expert witnesses, and third parties.

In addition to her legal practice, Ms. Lane is the lead instructor for the Trial Advocacy Course at the University of San Diego School of Law.  Her passion for teaching was the reason for her departure from Morrison & Foerster, and she now hopes to dedicate more time to pursuing this path.

Ms. Lane is a member of the board of directors for the Legal Aid Society of San Diego. She was a lecturer and instructor at the University of San Diego’s Law School Post-Grad Oral Advocacy Skills Training Program (Fall 2012).  She is a certified NITA instructor and regularly teaches for NITA programs.  In 2009 and 2012, she received the Wiley W. Manuel Award for Pro Bono Legal Services from the State Bar of California.  Ms. Lane is recommended by Legal 500 U.S. in the area of “product liability and mass tort defense: consumer products.”

Prior to joining Morrison & Foerster, Ms. Lane was an associate with Gray Cary Ware and Freidenrich LLP.  From 1999 to 2000, she was a judicial clerk for the Honorable Lewis T. Babcock, Chief Judge of the United States District Court of Colorado, Denver.  Ms. Lane is a native of San Diego and received her B.A. degree from the University of California, Irvine (1994), and her J.D. from the University of Colorado (Order of the Coif, 1998). During law school, she was the case note/comment editor for the University of Colorado Law Review.  She lives in San Diego with her husband and three young sons.

As members of the NGF Class of 2014, Monique, Amy, and Linda, will be trained and invited to teach at the geographically diverse NITA trial and deposition programs between January 1, 2014, and December 31, 2014, to gain more experience to NITA learning-by-doing teaching.

Movie Review: Laughton and Power and Dietrich—OH, My!

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witnessProsecutionwritten by guest blogger Judge McGahey

I am a serious Anglophile.  I love almost everything English (except the cuisine): English football (soccer), English television shows (Monty Python’s Flying Circus, Blackadder, Rumpole of the Bailey[1], Broadchurch), English fictional detectives (Sherlock Holmes, Lord Peter Whimsy, Tom Thorne.) And since American law is a direct descendant of the English Common Law, I’m enamoured (English spelling) of movies about the English legal process—even one made by a refugee Austrian director for an American studio.

Witness for the Prosecution (1957) was based on a hit play written by Agatha Christie, the famed mystery novelist. It stars Charles Laughton as Sir Wilfrid Robarts, a famous English barrister who’s asked to take on the defense of an American, Leonard Vole, played by Tyrone Power, who’s accused of killing an elderly widow for her money. The circumstantial evidence against Vole is extremely compelling, but Vole’s wife, Christine, played by Marlene Dietrich, provides Vole with an alibi.  Through a series of twists and turns, Christine is actually called as a witness for the prosecution (hence the title) and Sir Wilfrid must decide how to cross-examine her to prove Leonard’s innocence. (Believe me, the plot is much more convoluted than this!)

The courtroom scenes are some of the best ever filmed.  Laughton’s courtroom maneuvers are a delight to see; pay particular attention to his cross-examination of the victim’s servant. The courtroom setting at the Old Bailey is brilliantly recreated.

While the movie is dramatic and tension filled, here is also an element of humor in the film Part of the premise is that Sir Wilfrid is suffering from a heart condition and has been warned by his doctor not to exert himself.  He is being monitored by a nurse, Miss Plimsol, played by Laughton’s real-life wife, Elsa Lanchester.  Their interactions are hilarious. (For trivia fans, you may remember Elsa Lanchester as the frizzy-haired female lead in 1935’s Bride of Frankenstein.)

Witness for the Prosecution was directed by the great Billy Wilder, and Austrian Jew who fled to American when Hitler started marching across Europe.  Wilder was one of the greatest directors and writers in the history of Hollywood.  He directed or wrote (or both) films as diverse as the classic drama Sunset Boulevard (#16 on the AFI list of greatest films) and the equally classic comedy Some Like It Hot (#22 on the AFI list). Wilder’s brilliance can perhaps be understood by noting that he’s one of only five people to have won Academy Awards as producer, director, and screenwriter for the same film (1960’s The Apartment)  and that he directed fourteen different actors in performances that were nominated for Oscars.

Witness for the Prosecution was nominated for six Oscars including Best Picture, Best Director, Best Actor (Laughton), and Best Supporting Actress (Lanchester). Dietrich wasn’t nominated, but should have been. It didn’t win any Oscars, but that doesn’t detract from the movie’s brilliance both as pure entertainment and as a stunning example of why what happens in courtrooms drives so many wonderful movies. (Witness for the Prosecution is #6 on the ABA’s list of the 25 Greatest Legal Movies.)

And if all of that isn’t enough to pique your interest, then at the end of the movie, there was a voiceover asking the people who saw it in the theater not to reveal the film’s ending to anyone. Go watch Witness for the Prosecution and find out why. You’ll be glad you did!


[1] The incomparable and irascible Rumpole will be the subject of a future review, I promise!

Jury Selection Part 1: Voir Dire

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lindaLanewritten by guest blogger and NITA faculty member Linda Lane

How can you tell when a lawyer is lying?  His lips are moving.

Have you heard that one?  Chances are good that so has your jury!

Ours is an uphill battle, especially at the early stage of voir dire.  In a juror’s eyes, you are the one that is perhaps single-handedly responsible for plucking her out of her happy existence and putting her in this courtroom.  She received her jury summons weeks ago.  She has been dreading this day.  She has arranged coverage for other areas of her life.  She may have even tried to post-pone it once, or twice.  There are at least a dozen places that she should be instead of this courtroom.  You are interrupting her life.  You are an inconvenience.  And she doesn’t trust you.  She has heard the lawyer jokes.

Your job as the attorney conducting voir dire is to begin the process of dissuading your jury of their preconceived notions of attorneys and becoming their trusted guide through the trial.

This begins at voir dire.  Truly, this begins the moment they first see you.  Even if it’s in the parking lot before trial.  They will watch how you treat others.  They will watch how you treat the Court and its staff.  They will especially watch how you treat them and their fellow jurors in voir dire.  As soon as they are in the jury box, it is “us” and “them.”  They have an instant bond with their fellow jurors and you are separate, you are “them.”  You must treat each one with respect—even those that you know you will challenge and be rid of.  Maybe, especially those. The rest will have witnessed it and will remain in the box.

Voir dire is an amazing opportunity to interact with the jury, before the trial, on a personal level.  As such, you need to take full advantage of it.  You need to be human. You need to look at them, in the eye.  You need to respect them.  You need to be kind (but not syrupy, disingenuous).  You need to listen when they talk.  You need to pay attention to them.  You need to be interested in them.  You need to call them by name.  You will be asking them to trust you in this trial and you must give them grounds to do so.

You need to show appropriate sympathy when they tell you why they cannot serve on this jury.  Your potential juror’s mother died of a heart attack earlier this year and he doesn’t think he can be fair in evaluating a malpractice claim based on the prescription of a cardiac drug.  First, acknowledge his response and express appropriate sympathy for his loss, give thanks for his openness and honesty.  Only then, try to note, through appropriate questions, how your case differs.

Of course you also should do all of the things we are taught about voir dire:  artfully weave in your trial themes; choose words that spin your case the way you want it spun; de-select those jurors who seem pre-disposed against you, your client, or the facts; identify leaders and followers.  But, possibly the most important lesson of voir dire—and the one most easily forgotten when we are stressed, being watched by our client or senior partners, and on the eve of what might be the most important week(s) of your client’s business or your career—is to take time to be kind and show respect.  

Linda Lane is a USD School of Law Trial Advocacy Professor and solo Practicing Lawyer specializing in consumer product advisement.  She regularly provides consultation and advice to her clients regarding potential product liability exposure related to new or existing product lines. Since the U.S. Consumer Product Safety Commission approved the Consumer Product Safety Improvement Act of 2008 (CPSIA), Ms. Lane has actively assisted many clients in ensuring that they are in compliance with the new, heightened regulatory requirements for consumer products. 

NITA Board Member Michael A. Kelly named Trial Lawyer of the Year

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Kelly_MikeRe-posted by NITA from the University of California Hastings College of the Law

NITA’s very own Michael A. Kelly has been recognized with the highest honor a California trial lawyer can receive. The   CAL-ABOTA Trial Lawyer of the Year is awarded annually to a recipient who exhibits the best traits of a trial lawyer: excellence in advocacy; a distinguished career; and a reputation for civility, ethics, and fair play.

Beginning in 1962, the American Board of Trial Advocates (ABOTA) National Executive Committee decided to select an outstanding California lawyer to honor on an annual basis. Kelly’s selection was made by representatives from California’s eight ABOTA chapters, each of whom had nominated an individual for consideration.

The criteria for the award requires that the nominee 1) be an excellent advocate; 2) have a distinguished career; 3) have a superb reputation of civility, ethics, and fair play; and 4)  have participated in one or more outstanding trial results.

Read more on this outstanding accomplishment here.

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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