The Legal Advocate

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Monthly Archives: July 2014

NITA Announces Award Winners for 2013 Teaching Year

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The National Institute for Trial Advocacy Awards recognize outstanding work by our family of Program Directors, Team Leaders, faculty, and staff. These people contribute to NITA by working on Public Programs, Custom Programs, and Public Service Programs. They are authors, teachers, and innovators.

NITA’s work in 2013 generated the largest number of nominations in some years, and the NITA Awards Committee struggled to make choices from an array of highly qualified NITA advocates. This year’s Awards Committee was comprised of Mark Caldwell (NITA staff and committee chair), John Baker (2012 Oliphant awardee), Barbara Barron (2012 Marshall awardee), Jim Gailey (2012 Keeton awardee), Nancy Vaidik (Program Director), and L.C. Wright (NITA Board). The committee considered all of the nominations and made its recommendations to Executive Director, Karen Lockwood, for her final selection.

The three awards—the Robert Keeton Award for NITA teaching, the Robert Oliphant Award for outstanding service to NITA, and the Prentice Marshall Faculty Award for the innovation—each are named after one of the pioneers of NITA who exemplified the nature of the specific award.

The recipients of the 2013 awards are:

Robert Keeton Award for Outstanding Service as a NITA Faculty Member (recognizing exceptional work as a NITA faculty member):

rubinowitz_benBen B. Rubinowitz, Partner, Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz. In considering his nomination, it was recognized that “Ben is a ‘best’ teacher and deserves the best teacher award.”  He began teaching early in his career, and has contributed to new and evolving methods, such as “drills” and the drill room. He lectures in the same persona that he presents to a jury—a consummate role model.

 

 

sher_beth Elizabeth J. Sher, Partner, Day Pitney LLP. Throughout comments nominating her, Beth’s lasting teaching contributions to NITA include accolades such as, “Beth has dedicated herself to teaching, program directing, and team leading.” “She is the consummate faculty member, always prepared and on time, willing and ably delivering lectures as well. She shares ideas, thinks carefully about the program and how to make it better.” “Collaborative, supportive, and—most importantly—a great teacher, she is always loved by participants.”

 

Robert Oliphant Award for Outstanding Service to NITA (recognizing service to NITA through program administration, volunteer service, and other participation that enhances NITA’s Mission):

toomey_danielDaniel E. Toomey, Duane Morris LLP. Paraphrasing from his nominations, “Dan has not limited his NITA service to being Program Director and Team Leader of the DC Trial Program. Rather, he has participated as faculty at many programs, including National, Southeast Regional, Building Trial Skills—Florida, Teacher Training at Harvard (under Urban Lester and Sandy Brook), Teacher Program at USF Law School (under Mike Kelly), DC Deposition (under Don Green and Dick Leighton), and Philadelphia Deposition (under Lou Natali and recently Hayes Hunt). He continues to regularly teach in the program he led for over 20 years, the Building Trial Skills: DC Program. In 2010, Dan was selected to the NITA Faculty for Belfast, Northern Ireland. Dan has also directed and been a faculty member on in-house programs during his almost 38 years of service to NITA. Dan continues as an ‘apostle’ for NITA through his instrumental work setting up the D.C. Advanced Trial Program and—just last month—the first off-shore public program, the San Juan, Puerto Rico Trial Skills program (with Ken Suria, Esq., of San Juan, P.R.).”

Prentice Marshall Faculty Award for the Development of Innovative Teaching Methods with NITA (recognizing creativity in program development or teaching methodology):

mccrystal_jamesJames L. McCrystal, Brzytwa, Quick & McCrystal LLC. Mr. McCrystal’s dedicated imagination and craft creating constant innovations in NITA’s Deposition Skills Programs have brought improvements to both program structure and teaching methods. His efforts in public service and assistance in leading newly created programs, most recently the San Juan Puerto Rico Trial program, demonstrate his creativity and service to the organization.

 
The NITA family is filled with exceptional people who regularly do exceptional things. In 2014, we recognize these four special people for all they have done for NITA through the years.  We know they will continue to contribute, always in energetic and imaginative ways.         

Please join us in thanking them, and extend your congratulations.    

NITA Honors DC Faculty Member Daniel Grove

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groveDanielDaniel Grove, a NITA faculty member and prominent Washington, D.C. trial attorney, died on July 15, 2015 in Florida.  Daniel loved to teach the law and mentor young lawyers. He was an Adjunct Professor of law at Georgetown; taught at his alma mater, University of Virginia; and was the co-founder and Team Leader of the DC NITA Trial Advocacy Program at the Georgetown University Law Center for over 25 years, something that gave him great joy and earned the respect and affection of many. The program was founded in NITA’s early years and is one of the oldest continuous trial advocacy programs in the country. Daniel Groove, alongside other NITA faculty members such as Lester Urban, Lou Natale, and Dan Toomey ran the program over the years and evolved, not only the core NITA method in their work, but a large and loyal faculty, a unique way of working together and as some might say a “tribe” of sorts. That tribe of NITA trial lawyers’, for which Daniel Grove was a part, had a free penchant for arguing and teasing, for quick funny references, for repartee, and for being ones’ self when with friends. They helped found and grow the NITA spirit. We honor Dan’s vast contributions as a teacher, lawyer, mentor, and wit over the years.

July 2014 Executive Director’s Letter. What “Real People” Activities Are You Planning in August?

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Lockwood_Karen

Here are some terms popular now in legal blogs, the legal press, and other purveyors of lawyers’ tools to understand the business of our profession better. (No judgment here – my greatest obsession is to achieve such wisdom.)

  • Teaching Legal Theory / Thinking / Writing
  • Graduate Employment Rates
  • Big-Law / Public service/ Agency
  • Experiential
  • Partner / Senior Associate / Associate / Contract Attorney / Staff Attorney
  • Lead / Empower / Network
  • Mentor / Marketing / Connect
  • Manage / Schedule / Balance
  • Client Development / Promotion / Advancement
  • Goal / Measurement / Assessment

Pause!! Let August recharge your individuality with “real person” activities. Here are some to consider:

  • Swimming laps
  • Community softball (outside the law firm leagues)
  • Jogging groups that include strangers
  • Two weeks with tent, Coleman stove, and a roadmap
  • Practicing with a community choir
  • Walking with the purpose of meeting neighbors

OK, these are not too exciting. That’s why I am starting a contest to share good and better ideas. What are your best “do-able” ways to see different ways of life. To spend time with people who are simply not thinking of topics that keep your attention. To replenish the human in you. To hear and consider how other people are thinking, what they are worrying about, what news headlines are important to them, what they think about these times and their troubles.

In short, how will you use August to deepen your humanity? To broaden your capacity to know how people think who are not at all like you.

In this, you also find your greatest capacity to excel as a trial lawyer. We lawyers need to be real. We need to know how the jury’s gut and heart inform their judgment. What they fear. How they reason. We need to be in their world. Happily, these qualities of a great trial lawyer are acquired by knowing and grooming your own humanity.

So, every week in August include a bit of reality training! Share with us what you are going to do. You might win!

Karen_ShortSig

 

 

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

Witness Control, Part Five: Impeachment

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hathaway_nancywritten by guest blogger and NITA faculty member Nancy Hathaway 

New lawyers want to know how to prevent surprises. My answer is:  you cannot prepare away surprises at trial and you must prepare away surprises at trial. Nothing can stop a witness from suddenly forgetting or “forgetting.” But a comfort with the record makes those surprises manageable, even fun.

Once, I was litigating a temporary custody hearing in which a mother hid her children in an attic, sat on the inside steps armed with two kitchen knives, and refused to let the DCF worker and eight police officers into her home to remove her children. My theory of the case was that the mother never threatened her children with harm and overreacted to the police out of panic and fear. As I cross-examined the DCF worker, he went for it. He testified that the mother, from those inside steps, yelled, “If you come inside, I’m going to kill my children.”

Time stood still.

I knew he was freestyling with the truth. I knew it because I had a DCF investigation report, an assessment report, a police report, and the DCF worker’s dictation, none of which mentioned this rather dramatic allegation. I knew it because I was prepared. It was time for Commit, Credit, Confront.

First, the Commit: “It’s your testimony that Ms. X yelled, ‘If you come inside, I’m going to kill my children’?” He answered yes, and looked a little nervous.

Second, the Credit. I started with the DCF investigation report. I took my sweet time.  “You’re required to make a report of the results of your investigation. Required by law.  Required as part of your job. You’re an investigator. You make these reports all the time.  In a way, this is your whole job, investigating and making investigation reports.  It’s important that those reports are accurate. That they contain all of the important information. Your supervisor relies on them. The District Attorney relies on them.  They’re not reports about store inventory or mileage.  They’re reports about the safety of children.  Decisions are made about whether children remain with their families, based on your investigation reports. Decisions are made about whether children are safe.  You investigate allegations that children are being abused or neglected. If there is an important piece of information about whether children are safe, you include it in your investigation reports.  If a parent threatened to kill her children, that is the sort of information that would be important to include in a DCF investigation report.”  Well, yes, yes, yes.

By the time I was done getting a series of yeses out of the witness, that document was the Holy Grail. Or, as I said when training public defenders in my home state of New Jersey, I had Bedazzled that report until it glittered. That report was now important, reliable, accurate—and flatly contradicted the witness’s lying testimony. But I’m getting ahead of myself.

Last, the Confrontation: I showed the investigation report to all counsel, asked to approach, and showed it to the witness. I asked the witness to identify the document. I then asked the witness to read through the document, and show me where it said that the mother had yelled, “If you come inside, I’m going to kill my children.” I told him to take his time. And I stepped back to wait. It wasn’t there. He had to testify that it wasn’t there.

I then went through this process with each of the remaining documents the witness had authored. By the end, I felt like Perry Mason and the witness looked like a liar.

When an adverse witness lies, you may not see it coming. But if you are prepared—you know your record and your impeachment choreography—you will know how to dismantle that witness’s credibility, and have fun doing so.

Witness Control, Part Four: An Excerpt from Effective Expert Testimony 3rd Edition

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Effective Expert Testimony 3d COVERThe following is an excerpt from NITA’s book Effective Expert Testimony, 3rd edition, written by David Malone and Paul J, Zwier. This book is available in print, ePub (iPad, Kobo, Nook, Sony) and Mobi (Kindle) formats.

Control Techniques for the “Run-On” Witness

  1. Repeat the Question
    Where a witness expands an answer to a tightly constructed, single fact, short question, one way to reassert control is to repeat the exact same question. The effect in the courtroom is really quite amazing because this technique points out to the jurors that the witness really is not playing fair—the question did not call for a further explanation. For example, if the cross-examiner asks, “Dr. Done, no epidemiological studies connect Bendectin to birth defects?”, and Dr. Done volunteers, “No, but that doesn’t matter because I have developed additional methodologies for analyzing the existing data, which I think are quite effective,” simply then say, “Dr. Done, no studies connect Bendectin to birth defects?” If the expert runs on again, the jurors will see his avoidance as advocacy and discount his credibility. And if Dr. Done runs on again, you can start to take the gloves off some more.
  2. Use a “Reverse Repeat”
    The reverse repeat sometimes surprises the witness into answering shortly and directly. Do not interrupt because it appears rude and suggests you are afraid of what Dr. Done has to say. Even though it is difficult, it is probably better to wait until the witness finishes answering, unless the answer is unfairly prejudicial and inadmissible. After the expert has finished, use a “reverse repeat”: “Wait, now, Dr. Done, are you saying that there are epidemiological studies that show a statistically significant correlation between Bendectin and birth defects?” Note also that the language of the reverse repeat is more specific and defined than the global terms used in the initial question. You have, in effect, raised the bar through this question. To defend his position now, the expert needs not just to identify “studies that connect” the original question, but “epidemiological studies” that “show a statistically significant correlation.” So in the initial global question, you try to exclude the universe of studies; in the reverse repeat question, you force the expert witness to identify a very specific type of study you know does not exist. The result of his denial in response to the reverse repeat is that the trier of fact assumes there are no “studies that connect,” just as you wanted to prove with your initial question. A further example may clarify this point of rhetorical art. The question is, “There are no good violinists from New Jersey,” and the witness waffles, “Well, I have certainly seen and heard a number of quite competent violinists as I traveled through New Jersey and other northeastern states.” You then ask the reverse repeat, “Doctor, are you saying that there are violinists born and trained in New Jersey who have won international acclaim for their musicianship and who have gone on to become first violinists with the symphony orchestra in any major American city?” You know there are no such people because you have added qualifications that your research revealed no one possesses, just as you knew there were no “statistically significant epidemiological studies.” If the reverse repeat is simply a repetition in a different syntax, it will receive the same unwanted answer; it must add qualifications, which seem fair and relevant to the jurors and, at the same time, force the witness to give the answer you want.
  3. Cross-Examine the Witness with Your Eyes
    Another technique to gain and maintain control is to pause and look the witness in the eye from “center stage” before starting the examination. This focuses the attention of the courtroom on the witness and impliedly says, “I dare you to look me in the eye and lie.” Second, if you take a position center stage and the witness must look you in the eye, then the witness cannot look at the jurors without appearing to be avoiding you. This may make the witness forget she is trying to persuade the jurors as she focuses instead on you, the source of the attack. Third, intense eye contact with the witness will give you more clues that the witness may not be going along with the question. If the witness starts to shake her head, to look at her lawyer, or to flip through her report, then you can see you are about to lose her. At that point, it is better to withdraw the question, so the witness will not have the chance to debate your point, than to plow ahead and face the possible harmful answer.
  4. Other Control Techniques
    If the witness still persists in volunteering, you might decide it is necessary to take on the witness even further. One technique is to raise your hand before you start the question, take a few steps toward the witness (where allowed), and preface your question by saying: “Now, ma’am, stay with me on this. Try to give me a ‘yes’ or ‘no’ here, OK? Will you do that?” (The “ma’am” works well for one of the authors, who can be an “aw, shucks” kind of guy, but does not work at all for the other. The “ma’am” may be too Jimmy Stewart for some attorneys who should instead just use “Dr. Smith.”) Then proceed right to your next question. Or counsel might try to play “Let’s Make a Deal”: “Dr. Smith, I’ll make a deal with you. First, you answer my question, and then you can explain whatever you want in addition.” Of course, if the witness accepts that invitation to insert additional information, be careful to avoid the “deer in the headlights” look. Do not position yourself in a way that forces you to look at her while she is answering. If you believe the jurors have already figured out that she has become an advocate and does not deserve your full attention, you might go back to your notes and flip through them, or look at your watch and show some impatience, or even, in the most extreme cases, turn half away from the witness, look at the clock, and then turn back when she is finished, saying, “Are you done? OK, now let’s get back to the facts.”
    Another control technique is to preface the question with a statement that describes the purpose of cross-examination. For example, you might say: “Now, Dr. Smith, you understand your lawyer has already had a chance to ask you all the questions he thought you needed to answer on direct, so would you just listen to my question and answer it,” or, “When I’m done, your lawyer can go back and ask you more questions, but now you need to listen to my question and try to answer me.”
  5. Do Not Go to the Judge Too Early, if at All
    Most experienced trial lawyers say they never ask the judge for help. They are concerned that if they ask, they may not get it, or they are afraid that asking for help shows they lost control of the witness; or they are afraid of looking whiny or like a crybaby (“Judge, make her answer my question”). If, however, you have been patient and reasonable, there may be no need to make the request because the judge will jump in and tell the witness to answer the question that has been asked. In any event, seek the court’s help infrequently and only when the answer you seek is necessary to allow you to continue with other portions of your cross.
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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