The Legal Advocate

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Monthly Archives: September 2015

NITA Case File: Dixon v. Providential Life Insurance Company, 6th Edition

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By Frank D. Rothschild and Edward R. Stein

Judge John Dixon’s dead body was found on the floor of his home office with a gunshot wound to the head, his favorite shotgun by his side. His wife, the plaintiff, demands that Providential Life Insurance Company pay on the $1 million life insurance policy taken out by Judge Dixon shortly before his death, but Providential refuses, citing the suicide provision of the policy. The medical examiner, Dixon’s personal physician, determined the death was accidental, but Providential claims the medical examiner’s conclusion was tainted by his friendship with the judge and a hasty investigation, and that Dixon’s death was, in fact, a suicide. But what would cause a seemingly happy, well-respected judge to kill himself? Was Judge Dixon the churchgoing social conservative that his public persona suggested? Did his shotgun accidentally discharge while he, an experienced hunter and gun owner, was cleaning it in a darkened room – or was he troubled by a secret that was about to be exposed and made suicide seem like his only way out?

The student’s skills will be tested with this well-balanced file bringing in equal number of verdicts for both the plaintiff and the defense. There are four witnesses for the plaintiff and four for the defendant, including experts on both sides. Dixon v. Providential Life Insurance Company has a courtroom technology focus and includes electronic evidence in the form of photographs, diagrams, documents, emails, text messages, and a Facebook post on an interactive “microsite.” It includes a CD with a PowerPoint show of all exhibits, treatment of many of the exhibits, jury instructions, verdict form, and special impeachment slides that include video clips and scrolling transcripts. The Sixth Edition is based on the original case file by James H. Seckinger, as updated and upgraded by Edward R. Stein and Frank D. Rothschild.

Law professors may request the teaching notes for this publication by emailing ReviewCopy@lexisnexis.com.

$35 | Order Now At: www.lexisnexis.com

September 2015 Executive Director’s Letter: Jurors Bring Implicit Biases With Them. Can They Be Fair?

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Lockwood_KarenI have questions about how to rethink empanelling juries in order to take account of new brain research. Over the last decade, brain research has established the immutable presence of “implicit bias” in every human brain on earth. Those biases influence our behaviors and judgments in ways that are unrecognizable to the person who owns the brain.

Without this research, we have used age-old techniques to empanel a jury. We question each juror about the ability to judge “fairly” (without bias). Yet a truthful answer to that commitment question is impossible as to implicit biases. By definition the juror does not recognize what biases are harbored in his brain.

Explicit bias in jurors is a topic well known to trial lawyers. We watch for it, and use peremptories. As to their invisible and real “attitudes,” we do what we can to discern what attitude they will likely have to our fact situation, our theory of the case, and our cast of players at trial. But what latitude do we have to address implicit bias? What latitude could we use if we had it?

We use little latitude for implicit bias. Typically we use our own presumptions about what observable characteristics and background to infer potential attitudes that a juror would bring to the case. What is the scope of the “observable” characteristics? It includes the most skeletal information about occupation, the observable individual characteristics such as color of skin, presumed ethnicity, and presented gender. And our own human brains (also necessarily incorporating our experiences as implicit biases) lack facts to use as we seek to make good and fair judgments about a juror.

Whether we have more latitude is untested, and unanswered.

Clearly this bears new thinking.

  • Can counsel use the voir dire process to discern implicit biases based on stereotypes of race, gender, national origin, LGBT differences, and more? How?
  • During trial, how can counsel recognize moments when implicit bias lurks, and use witness examination, and argument to negate the bad effects of implicit bias?

On the first question, lawyers and judges on our NITA Bias in the Courtroom panels this year have coalesced around one basic technique that is both procedurally possible, and potentially helpful if it has any effect at all. That technique is this: the judge can caution the jury, in the preliminary instructions before opening statements, to watch for and recognize their own assumptions and stereotypes in the course of listening to witness testimony. Beyond that, lawyers have to groom their own powers of perceiving the moments where implicit bias may exist, and find a way to alert the juror that such biases may influence his perceptions without his awareness.

On the second question, we are largely unpracticed at using voir dire to alert jurors to the inevitable existence of implicit bias. Further, alerting them in theory to the existence of implicit bias cannot be enough. The progress to be made is in developing techniques to ask for the jury’s commitment. To make use of the principle that when a person of good will recognizes that he is reacting from an implicit bias, he would more likely self-correct. Self-correction means that the implicit bias ends up not influencing his behavior.

I invite you to share your ideas on the following question: “In trials, when you know that implicit bias is likely to be cued, how can use opening, witness examination, closing, and instructions toward negating the power of implicit bias?”

Karen_ShortSig

 

 

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

NITA Movie Review: Go for the Jugular

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Written by guest blogger Judge McGahey

kramerVsKramerThat line, from 1979’s Kramer v. Kramer, unfortunately still defines the way too many parents — and their lawyers – think that custody cases have to be pursued.[1] It’s not the only thing I find troubling about this movie. But in spite of those issues, Kramer v. Kramer remains a touchstone of legal movies in general and legal movies about divorce in particular.

The two Kramers are Ted (Dustin Hoffman) and Joanna (Meryl Streep.) They live a comfortable life in New York City with their son, Billy. Ted is consumed by his job and his interactions with Billy are spotty at best. Joanna decides she must leave to find herself and Ted becomes an unwilling single parent. Over time, he and Billy figure things out and their relationship becomes positive and healthy. After an 18 month absence, Joanna returns, wants Billy with her and an ugly courtroom battle ensues, with the lawyers for each parent savaging the other parent. The judge, apparently relying on the even-then outmoded “tender years doctrine,” awards Billy’s custody to Joanna. But this being Hollywood, things don’t end there.

Kramer v. Kramer was much lauded, both in its own time and still. The film won the Oscar for Best Picture, Best Director and Best Adapted Screenplay. Hoffman won the Oscar for Best Actor and Streep for Best Supporting Actress. It was number 16 in the ABA’s “25 Greatest Legal Movies” in 2008 and was again lauded by the ABA Journal article “100 Years of Law at The Movies” in the August, 2015 issue. Contemporary critics praised the portrayal of a father as a positive single parent.

But there are also things about Kramer v. Kramer that are difficult to like from a legal perspective. The courtroom scenes, with their brutality and character assassination, emphasize the worst kind of custody proceeding. The judge’s actions and ultimate decision were ridiculous even in 1979. Indeed, the New York Times interviewed several family court judges right after the movie was released in 1979; they were unsparing in their criticism of the legal aspects of the movie.[2] These outdated legal principles can make the movie feel archaic. But the showing of a positive single father was, at least for the movies, a new thing and one that makes the film praiseworthy.

The ugly custody fight still exists, however, as any family court judge, magistrate, or lawyer can attest. We wish those cases didn’t plague us, but they do. In that regard, Kramer v. Kramer helps us remember that there is still work to be done to make the entire process less painful for both parents and children.

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[1] I’ll use the word “custody” in this review, in spite of the fact that many states, including Colorado, now refer to “allocation of parental responsibilities” or some other similar term.  Why and how such terms as “custody” and “visitation” have been replaced in the law is an interesting topic, but not one that I can deal with in a movie review.

[2] “Child Custody: Jurists Weigh Film vs. Life,” New York Times, December 21, 1979.

NITA Publication: Trial Advocacy in Action

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By Brent Newton

tiralAdvInActionWhat do you get when you cross a hypothetical, fact-intensive mock trial case file with nearly two dozen leading U.S. Supreme Court decisions in the field of criminal procedure? You get Trial Advocacy in Action: 20 Exercises to Sharpen Your Criminal Case Skills, by Brent E. Newton, a unique hybrid text that merges a realistic complex federal prosecution with real high-court decisions.

Defendant Reginald McKay, a mentally disturbed American who became a “home-grown” Islamic terrorist, poisoned members of a Jewish temple during Passover seder. After one of the poisoned congregants died, the Feds got a lucky break thanks to an eyewitness and modern computer forensics and quickly built a death penalty case against McKay. Newton’s case file, United States v. McKay, is built around the tragic story of McKay and his victims and includes twenty advocacy exercises from all major stages of a criminal case.

Retail Price: $45

Order Now in: ePub (iPad, Kobo, Nook, Sony), Mobi (Kindle) or Print

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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