The Legal Advocate

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Asked and Answered: Flinders v. Mismo Authors and Faculty, Frank Rothschild and Rebecca Sitterly

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One of the best things about life at NITA is getting to know the authors who write our books and instructors who teach our programs. It’s not just that they’re the crème de la crème of trial lawyers, judges, and law professors in the United States. (They’re definitely that.) But what’s more—as you discover in the half-second it takes to establish a genuine rapport with them—is that they’re also lively conversationalists who’ll make you laugh your head off while they’re giving you a helping hand. Here to prove the point are Rebecca Sitterly and Frank Rothschild, NITA alumni who will once again combine their might to team-teach their (in)famous case file, Flinders v. Mismo, next month at the 25th annual Los Angeles Trial Skills program.

How did you begin your close association with NITA?

Frank RothschildFrank: It all started in the late ‘70s when I took the three-week National Program in Boulder. It was a life-changing event and inspired me no only to become a trial lawyer, but also to come back some day as one of the faculty to pass along what had been so willingly and lovingly shared with me.

 

 

Rebecca Sitterly

Rebecca: I married into it. Way back then, I got married to a NITA teacher who was gung-ho, and he brought me on board in Albuquerque.

 

 

How did you two become acquainted?

Rebecca: Through that same program in Albuquerque, Frank was coming in each year as the team leader. Obviously, he was my hero. What a terrific teacher! So I slowly ingratiated myself until, when he ended up needing a substitute for his Assistant Team Leader, he had me fill in. It worked.

Frank: When I first ran a team at the NITA Regional in Albuquerque, Rebecca was one of the local faculty that I met and immediately taken with. My eye was always on the lookout back then for women who were not only great trial lawyers but also fabulous teachers, and Rebecca fit both bills.

How did the fact pattern for Flinders come about?

Frank: Flinders traces its origins way back in the ‘70s to early NITA stalwart Abe Ordover, who wrote the original file. As with all NITA case files, they have to be updated from time to time, and when the time came to do so with Flinders, Abe was no longer interested in the task so Rebecca, Lonny Rose, and I took over. People have been arguing over whether George Avery was a “torch” or not for many decades.

Rebecca: Abe Ordover put together the basic plot line. I called him when he was living in San Diego to find out what had happened in the “real” case. He said there was no real case, and the whole story came out of his mind.

I know NITA case files are well balanced and, based on the evidence, either side can win. But do you ever secretly root for one side to win over the other? Do you have a sentimental favorite?

Rebecca: I’ve gone back and forth over the years with Flinders. Some years I feel a lot of sympathy for poor old Art Jackson being victimized by that awful insurance company. Then other years, I am totally out of patience with Art and his lyin’ and cheatin’ and I’m pulling for him to get a comeuppance. But it comes out about even over the years. As to other NITA files, it just depends . . . . I like it if there’s a character I can feel empathy with.

Frank: As in real life, most NITA cases create a gut sense of which side should win, but the question is whether it can be proven or whether the element of sympathy can be outweighed by the evidence. There’s never been a doubt in my mind that the Flinders fire was no accident but was deliberately set, but proving it is quite another thing—plus who has sympathy for a big corporate insurance company.

In your years of teaching Flinders, both separately and together, has there ever been a standout moment on trial day at a NITA Trial Skills program when an attendee used evidence in a memorable way you hadn’t thought of or took some other a creative angle that surprised you? Is there some program moment you’ve never forgotten?

Rebecca: In the L.A. program, when Josh Karton was running a communications session, he brought a blind lawyer to the front of the room. Josh asked the lawyer what challenges he faced in the courtroom that were made more difficult by blindness, and the lawyer answered that he most of all wished he could “see” the faces of the jurors during voir dire and during the trial. Josh did an exercise with him in which he engaged in a talking-seeing voir dire with jurors, followed then by an opening statement. The whole room, myself included, was just sitting there in tears at the power of his presentation and what he was able to do to “see” the jurors, then touch their hearts in opening.

Frank: For me it was the start of a closing argument where the lawyer was emulating most of what we had been preaching as to how to begin such a presentation. He had a short, snappy theme statement and was able to ably analogize it to the case at hand, but it could be considered offensive. He started off:

“Whoever smelt it, dealt it. That’s right, when I was growing up and a bunch of us were standing around talking and someone complained that someone had farted, we knew who it was.”

All who heard this were rolling around on the floor laughing hysterically. We told the student that no matter how you were able to tie up your grabber theme to the case, you simply can’t be talking farts to a jury.

Why do you teach and write for NITA?

Frank: For me it’s always been about giving back. My life was so profoundly influenced by taking the NITA course and the amazing trial lawyers and judges who taught me, I want to turn others onto trial work the same way I had been turned on.

Rebecca: Somebody told me it would keep me young. We’ll see.

Complete this sentence: When I’m not working on all things lawyerly, you can find me …

Frank: Surfing Hanalei at The Bowl, making stained glass windows, or working on our farm.

Rebecca: On an ambulance. I took a career detour a few years ago after Hurricane Katrina and went to nursing school and worked in critical care. While doing that, I worked on getting my paramedic license, and now I’ve been a medic for two years. I’m working as a nurse–medic on a rural ambulance service with a talented, rowdy, boisterous crew that are just unbeatable. So, ambulance crew at night, law office by day. Such incredible good fortune to have found a way to deal with my addiction to adrenaline.

Care to join Rebecca, Frank, and a whole constellation of other NITA all-stars while fulfilling your New Year’s resolution to become a force to be reckoned with in the courtroom? Sign up now to save your spot. And when you’re done, be sure to check out these “Asked and Answered” sessions with beloved NITA faculty members Joleen Youngers and Judge Robert McGahey.

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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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