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Monthly Archives: September 2014

Asked and Answered: Judge Robert McGahey

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written by NITA’s Legal Editor Marsi Buckmelter

Robert_McGaheyWe all know and love Denver District Court Judge Bob McGahey from his years of lively instruction at NITA programs (eighty-eight so far, with no sign of slowing down) and the legal movie reviews he writes for us here on The Legal Advocate. When we decided to kick off “Asked and Answered,” our new series of interviews with NITA personalities, Judge McGahey was the natural choice for our inaugural post. We hope you’ll enjoy getting to know him as much as we did.

What is a typical day in the life of a judge in Denver District Court like?
It depends (a good lawyer-like answer). We have three divisions in the Denver District Court: civil, criminal, and domestic. Depending on your assignment, [as judge] you could be in trials regularly (criminal), hearings regularly (domestic), or a mix of trials hearings and desk time (civil). Since I’m currently in a civil division, the last defines my day. Really and truly, I don’t have a standard daily routine, unless I’m in trial. Then I’m here at 8:15 a.m. to talk briefly with counsel before bringing the jury back at 8:30 and going on from there until 5:00 p.m. We take a fifteen- to twenty-minute break in the morning, another similar break in the afternoon, and an hour to an hour and a half for lunch depending on witness availability. It’s common for me to set matters of course during the lunch break so that we don’t lose trial time. All the time I’m on the bench, I multi-task: communicating with my staff via email or IM, looking at motions or other pleadings, fine-tuning orders, etc. I stop at 5:00 since I teach at the University of Denver School of Law three nights a week (Basic and Advanced Trial Practice and the Judicial Externship Seminar). I’m a member of several court-related committees as well as one at the law school. I have to work NITA programs and events into my schedule, but NITA is flexible about that. And I still try to get to my granddaughter’s school concerts, talent shows, and fun fairs!

What is the most challenging part of your work on the bench?
I’ve been a lawyer for almost forty years and have taught advocacy since the 1980s. I have high standards for advocates, given how the advocate’s performance affects the life of the client. I struggle with lawyers who come into court unprepared, who don’t know the law, who make the case about emotion rather than reason, and whose focus is on themselves rather than on the client’s case.

What changes in the Colorado judicial system would you most like to see?
I’d like to see an increase in judicial salaries, not just for my own selfish reasons but so that we can be sure to attract the best candidates for the bench. Our judicial selection and retention system is the best in the country, and Colorado has an outstanding group of judges, at all levels. But increasing salaries would make sure that the net is spread as widely as possible when it comes to picking judges.

What is the earliest recollection you have of realizing that being a member of the judiciary was something you’d be interested in and capable of?
I never thought I wanted to be a judge. But I practiced law for years with Bill DeMoulin, who was first my mentor and then my partner. After Bill became a district judge in Jefferson County, I would stop by and see him when I was in the courthouse and we would talk about life and the law. In one conversation, Bill said, “I see that there’s a judgeship opening up in Denver,” and I replied: “I saw that. I wonder who’ll get it?” His answer was, “Why not you?” Taken aback, I said, “I don’t think I want to be a judge.” Bill laughed and said, “What do you think we’ve been talking about for the last two years?” It dawned on me that Bill had been subtly moving me toward thinking about becoming a judge, and I began to consciously consider that as the next step in my career.

What was your first experience with NITA?
It’s far enough back that I can’t even remember the exact year, but sometime in the ’80s, Mark Caldwell [NITA Program Development and Resource Director] called me up and asked me to be a last-minute replacement for the Rocky Mountain Regional. Someone (and I can’t remember who) had recommended me. I agreed to do it and found the experience terrific. NITA became an important part of my life from then on.

Why do you teach?
The smart-aleck answer is: “Self-defense. The better I can train lawyers, the easier my job is.” The bigger answer is that I am devoted to trial advocacy and its value to people. I wanted to be a trial lawyer from age nine, which was when Perry Mason started on TV. I thought that was the coolest thing I ever saw, and I wanted to do it. I’ve been fortunate to be able to spend my adult life involved in the legal system, first as a lawyer, then as a judge, and I’ve been able to teach advocacy as well. The value of “advocacy” is profound. The word “advocate” comes from the Latin “ad-vo-cate,” which means “to be called to speak for.” How cool is that? Since I care about advocacy, I want to see it done properly, which is why I teach. Maudlin though it sounds, the people I teach will be practicing law after I’m dead. It’s important to me to know that the advocates who come after me will be doing the job right.

If you hadn’t gone into the law, what career path do you think you might’ve taken instead?
I was encouraged by some of my undergraduate professors to consider an academic career in political science, but that had very little appeal to me. My guilty secret is that I almost transferred to the NYU Film School before my junior year in college. I decided that while I was pretty sure I could be a good lawyer, I wasn’t sure I could make good movies.

You’re NITA’s resident movie buff, so we have to ask, what are your three favorite movies of all time? What do you like about them?
Being a lawyer, I’ll break this down into overall favorites and favorite law movies. My single favorite movie ever, the one I’d watch over and over if I could only watch one movie on an endless loop, would be The Searchers (1956.) The greatest western (the essential American genre) by the greatest American director, John Ford, it’s a stunning achievement in direction, cinematography, and acting, especially on the part of its star, John Wayne (don’t laugh; he should have won an Oscar!). The movie examines obsession, hatred, and racism and how those things corrode the soul. My next two favorites would be Duck Soup (1933), an anarchic, political, anti-war comedy starring the Marx Brothers (the funniest people who ever lived), and The Mark of Zorro (1940) because I love swashbuckler movies, especially this one, with the greatest onscreen swordfight ever! Favorite three legal movies: To Kill a Mockingbird (1962) (obviously), My Cousin Vinny (1992) (also obviously), and a tie for third between Judgment at Nuremberg (1961) and Anatomy of a Murder (1959.)

What book have you re-read the most in your life? Perhaps not necessarily a favorite book, but the one that keeps drawing you back into it?
Moby Dick, by Herman Melville. I’ve re-read it every four or five years since college—and not because it’s my “favorite” book.

What historical figures would you most like to have dinner with, and why?
Abraham Lincoln, the epitome of lawyerly grace under pressure, of compassion, and of character.
St. Thomas More, because he struggled with the how a lawyer’s devotion to the law clashed with his conscience.
John Ford, because he was a crotchety bastard, but a genius.
Pele, because I’m a soccer fan and he was the greatest player ever (at least before Messi.)

Who are your heroes?
Lincoln and St. Thomas More, for the reasons described above. But on a more personal level, my maternal grandparents, Peter and Diana Radulovic, who immigrated to the United States from Serbia to find a better life for themselves, their children, and their children’s children.

For what fault do you have the most tolerance?
Overestimation of one’s abilities. It’s OK to strive for something and fail. (Note: This does not apply to lawyers in my courtroom. To paraphrase Clint Eastwood, “A lawyer’s got to know his/her limitations.”)

What is your motto?
Illegitimi non carborundum.

Hear more from Judge McGahey with his recent movies reviews: “A Scourge That Is Always With Us,” “Inspired by a True Story? Well, Not So Much . . . .,” “Like A Knotted-Up Hose, or A Plate of Spaghetti,” or catch him presenting in last month’s webcast from NITA, now avilable OnDemand: “Bench Trials: What you say and what the judge hears.”

Hearsay, Part Four: Some 804 Exceptions

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NITA’s blog theme this September is Hearsay? Say What? Recognize It; Use the Rule at Trial.

At NITA programs, we train you to the daily thrill of advocating at trial. We ask you to perform constantly, using the rules of evidence. What about the evidence rules themselves? This month, we discuss one set of evidence rules that cannot be covered in the span of our intense performance programs: the substantive rules on hearsay. Each week, we describe the rule’s bounds and (in true NITA fashion) talk about your advocacy punch for that piece of evidence.

Hearsay, Part Four: Some 804 Exceptions

written by guest blogger and NITA Program Director Professor Frederick Moss 

Last time, I wrote about a few Rule 803 exceptions to the hearsay ban. Today, I address the Rule 804 exceptions.

The distinction between the 803 and 804 exceptions is simple: 804 exceptions do not apply unless the hearsay proponent shows that the declarant is unavailable to testify at trial. The drafters of FRE 804 felt (consistent with the common law) that these forms of hearsay should not be admitted unless there was a greater need for them because the declarant could not be examined about the statements at trial. (Whether this makes any sense is beyond the scope of my topic. Hint: I doubt it.)

The key to admissibility, therefore, is not only that the declaration meets the requirements of the specific exception but also showing that the declarant is “unavailable” as prescribed by Rule 804(a). All the circumstances that qualify as “unavailable” seem straightforward, but there is a hidden trap for the unwary here.

Assume one of your witnesses is scheduled for a serious operation and will be hospitalized during the trial. This appears to meet the definition of unavailability under 804(a)(4)—existing physical illness or infirmity—but not so fast. Rule 804(a)(5) says that when a declarant is deemed unavailable under 804(a)(2), (3), or (4), the proponent must also show that the proponent was unable by reasonable means to procure the declarant’s testimony.

Therefore, if a party knows a witness will be unavailable to testify at trial, the party must either preserve the witness’s testimony or show that it was unable to do so by any reasonable means before it can offer any of the witness’s hearsay statements via an 804 exception. Note that this requirement applies in criminal as well as civil trials.

As for the exceptions themselves, the most used is 804(b)(1): Former Testimony. This is how the deposition of the to-be-unavailable witness gets admitted under the federal rules. The tricky part of this exception is the “predecessor in interest” language. Courts differ over whom this covers. The conservative view is that the party who had the opportunity to examine the witness at the earlier proceeding is a predecessor in interest with the party against whom the testimony is now offered only if the two parties are in legal “privity” with each other. An example would be where the party facing the live testimony at the earlier proceeding was a business that was bought by the party now facing the former witness à la transcript. The former testimony is admissible in this situation. The party who bought the business is now stuck with the examination of the witness by its predecessor. The more liberal view—not supported by the language of the rule—is that the predecessor needs only to have had the same motive as successor to challenge the testimony at the earlier proceeding. Legal privity is not required.

Dying declarations are admitted per FRE 804(b)(2). These are rare, but be careful. Many state rules differ from the FRE. Some require the declarant to have died. The FRE does not. Some states restrict this exception to murder cases or to criminal trials. The FRE allows this exception only in murder and civil cases. In the murder case, necessity rules. In civil cases, who cares? It’s only money. Go figure.

Statements by witnesses that are against pecuniary and proprietary interest come in under 804(b)(3). Some states include statements against social interests—that is, statements that would tend to make the declarant the object of “hatred, ridicule, or disgrace,” to quote the Texas exception. The FRE does not. Examples of statements against “social” interests would be that the declarant had a venereal disease, was a convicted felon, or was a Republican while visiting an Irish bar in Boston.

FRE 804(b)(6) permits hearsay from an unavailable declarant to be admitted if the adverse party either caused or acquiesced in wrongdoing that cause the declarant to be unavailable. So, if you persuade your opponent’s prime witness to go on vacation during the trial, the witness’s hearsay statements of any kind can be admitted at trial. Some states do not have this Rule, but admit hearsay under the “forfeiture by wrongdoing” theory by court opinion.

Finally, the FRE has a “catch all” hearsay exception, Rule 807 (f.k.a. 803(24) and 804(b)(5)). Many states did not adopt this exception. Where it exists, proponents of hearsay that meet no exception or exemption can try to get it in by arguing that the circumstances in which the statement was made, by whom and to whom, and the purpose for which it was made, show it is as reliable as the recognized exceptions, that it is really, really important, and that “Justice,” fairness, and all that is good in this world demand that it be admitted. So, when all else fails, go for it under Rule 807. And, may Justice prevail.

September 2014 Executive Director’s Letter: Speaking of Bias in the Courtroom . . .

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Lockwood_KarenImplicit bias – the silent judgment-maker that we are not aware of in a jury, our courtroom, our witnesses, our judge, our selves.

On August 19, 2014, I presented a free NITA Webinar on how important it is for a trial lawyer to understand implicit bias. And to learn to recognize where it might lurk.

On November 7, 2014, NITA is presenting a full 90-minute CLE on this important subject, dealing directly with the question, “what does a lawyer do about implicit bias in the courtroom?” Join us at the Annual Convention of NAPABA – the National Asian Pacific American Bar Association. (NAPABA members, sign up now here.)

Why? This is a subject that, like NITA’s mission itself, directly affects the quality of justice. It affects “both sides of the courtroom.” To be clear, I am not talking about lawyers who litigate discrimination cases. I am talking about all of us – no matter the side, the practice, the claim, or the faith that we ourselves are unbiased.

Lawyers who seek a deep understanding of implicit bias will better represent their client, better handle the sometimes messy give-and-take of witness examination and credibility, and have a better shot at justice. Here is why:

  • Many of us are sure that we do not discriminate, we are fair. Good; so far as our behavior is concerned that is essential.
  • Some of us, further, are savvy to our own implicit biases. Those lawyers develop “stops” to check their judgments, decisions, and behavior in order to negate their biases. They are more ready for the courtroom.
  • Not a single one of us can erase the implicit biases we now own. They are our bear, looming behind us, making judgments for us that we are unaware of. (Some are good biases—embedded in the fight or flight center of our brains.) Many are destructive biases, changing perceptions, shortchanging objective judgment, instilling fear.

Since every human brain on earth relies on it to act quickly and “intuitively,” it follows that implicit bias joins all the players in the courtroom. Those of us who seek justice through advocacy are dealing with implicit bias throughout every witness examination, for example. Is the witness expressing a judgment, or recalling “events” changed by an unconscious reaction rooted in bias at the time of the event? Is implicit bias active in the discourse or conduct of counsel?

More to the point: a woman advocate wonders what underlies the behaviors and judgments directed her way. An African-American advocate in a North American courtroom sees some typical signs of bias and wonders how to deal with them. A witness is apparently confused by a racially biased perception, and the cross-examiner wonders whether to tread into the area, and how.

Of course, implicit bias is a topic much broader than “grouping” stereotypes: broader than gender, race, LGBT individuality, profession of religion, ethnicity, etc. But these visible and invisible differences among groupings of people are rife with stereotypes that predictably harm justice.

Reading more always raises our own awareness. And thus earns us some savvy thinking time as we consider ways to defuse negative implicit bias in the courtroom. You can start here: the first starts slow, using study testing implicit biases other than “grouping” stereotypes.

Impartial experts (expert conclusions on propensity for repeat offenses of sexual violence varied with whether prosecution or defense retained the expert )

DecisionQuest summary for ABA (implicit bias issues in jurors, counsel, judges).

Kang et. al article at UCLA (team of academics, scientists, researchers & federal judge seek ansers: “what if anything should we do about implicit bias in the courtroom”);

NITA free Webinar introducing the subject for trial lawyers (implicit bias in courtroom, “what and why / see it and address it”)

NAPABA Convention, Convergence of Bias and Reason on November 7, 2014 from 9:15am – 10:30am




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

NITA Movie Review: “A Scourge That Is Always With Us”

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Written by guest blogger Judge McGahey

mRay Rice.  Adrian Peterson. The issues of domestic violence and child abuse are at the forefront of the news once again, jumping into our consciousness because of high-profile cases involving NFL players. But violence like this is hardly a new phenomenon.  For this month’s film I’ve chosen a film from 1931, in black and white, in a foreign language, that is one of the most powerful cinematic statements – if not THE most powerful cinematic statement – about the horrors of child abduction and sexual assault on children.  It will chill you to the bone.

M is a German film released in 1931.  It was directed by Fritz Lang, one of the all-time great directors.[1] It was Lang’s first sound film.  Lang also wrote the script with his wife, Thea Von Harbou.  Of all his many movies, M was Lang’s favorite. He stated years later that the story came to him because Germany was plagued by a number of serial killers.  However, the subject matter of the movie was not one that the public was happy about.  When Lang announced that he would make a movie about this subject, he received death threats and his regular studio refused to allow the film to be made there.  Lang would eventually come to the United States after Hitler came to power and would make a number of remarkable films after moving here.

M tells the story of a mentally ill man who abducts, sexually assaults and kills children. We see the pursuit of the killer on two fronts.  There is the frantic search by the police authorities, led by Inspector Karl Lohmann. That search leads to a crackdown on the city’s criminal class and that crackdown in turn leads the criminal underground to begin its own parallel search, at the direction of a character known as The Safecracker. The criminals find the killer first and put him on trial before a kangaroo court made up of the criminal underground.  I won’t spoil the ending – but it will move you.

The killer is played by Peter Lorre in his first starring role.  If you only know Lorre from his slightly silly performances in low-budget horror films of the ‘60’s, his acting here will be a revelation.  The anguish of a crazed and obsessed killer is palpable. Watching him during the trial, one can almost feel sorry for him.  Almost.

M is filled with images that will disturb and even shock you – but given the time of its making, we see nothing explicit or even very direct. Rather than battering us with the kind of graphic images easily available to us today on the internet and television, Lang instead conveys fear, terror, obsession and loathing by carefully crafted images that leave everything to our imaginations. The power of Lang’s visual language is such that I have seen people weep or cry out in shock or fear while watching M.

Yes, this movie is 83 years old.  Yes, it’s in black and white.  Yes, it’s in German with subtitles. None of that matters. Watching it will be powerful and unforgettable experience for you. M reminds us that violence against our fellow beings is a scourge that is always with us and is, sadly, nothing new. Every one of us in the legal system sees this every day, no matter where we are: sex assaults on children in criminal, sexual harassment suits in civil, protection orders in domestic, D&N’s in juvenile, abuse of the elderly in probate. The maltreatment of human beings by other human beings is a constant thread in our work. But our knowledge of that sad, frightening thread should remind us that we, as a society can do better.

And we must do better.

[1] Among other movies, Lang also directed Metropolis, a silent film about a future society and its relationship to robots, found on every list of movie classics and a must for all sci-fi fans.

NITA Congratulates The 2014 NAPABA “BU40” Awardees

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Every year the National Asian Pacific American Bar Association (NAPABA) selects a small group of attorneys to receive the Best Lawyers Under 40 Award (“BU40”). The BU40 Awards recognize talented individuals in the Asian Pacific American (APA) legal community under the age of 40 who have achieved prominence and distinction in their respective fields while demonstrating a strong commitment to the community at relatively early stages in their careers.

NITA congratulates the 21 “BU40″ for 2014. The 2014 class continues the BU40 legacy of excellence and leadership in both the legal and APA communities. Their accomplishments include: founding their own law firms, trying and winning major cases, representing Fortune 100 companies, combatting human trafficking, and advocating to protect the civil rights of APAs.

NITA, for NAPABA members, is presenting a session entitled “Convergence of Bias and Reason: How Not to Ignore Implicit Bias in the Courtroom” at the 2014 NAPABA Convention in Scottsdale (sign-up for the Friday, Novemer 7th 9:15 am session). We hope then to congratulate these 21 Awardees in person:

  • Angela F. Chan, Asian American Advancing Justice – Asian Law Caucus
  • Jennifer Chang, American Civil Liberties Union
  • Samuel Go, Office of Immigration Litigation, U.S. Department of Justice
  • Chris Hope, Cassels Brock & Blackwell LLP
  • Teddy Kapur, Pachulski Stang Ziehl & Jones
  • Miriam Kim, Munger, Tolles & Olson
  • Jannie Lau, InterDigital, Inc.
  • Rachel Lee, EMC Corporation
  • Adeel Mangi, Patterson Belknap Webb & Tyler LLP
  • Vasu Muthyala, O’Melveny & Myers LLP
  • Erica Smith-Klocek, Morgan, Lewis & Bockius LLP
  • Kalpana Srinivasan, Susman Godfrey
  • Ivy Suriyopas, Asian American Legal Defense and Education Fund
  • Erica J. Suter, Law Offices of Erica J. Suter, LLC
  • Quyen Ta, Keker & Van Nest LLP
  • Angelina Tsu, Zions Bancorporation
  • Krishna Veeraraghavan, Sullivan & Cromwell: Technology Finance and Mergers & Acquisition Group
  • Bryan Wong, Hamre, Schumann, Mueller & Larson, P.C.
  • Michele Wong, Microsoft Corporation
  • Gregory Wu, Shook, Hardy & Bacon LLP
  • Dawn Yamane Hewett, Arnold & Porter LLP

See you in Scottsdale November 7 for NAPABA!

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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