Written by guest blogger Judge McGahey
Finding a Christmas movie that has tie-ins with the law is no easy task. I mean, after Miracle on 34th Street, there’s not a lot to choose from. But after wracking my brain this weekend, I remembered one. And yes, the title of this review describes the plot!
The film is 1940’s Remember the Night, starring Fred MacMurray and Barbara Stanwyck and written by a man who would go on to direct some of the great screwball comedies, Preston Sturges. Although this movie’s plot will sound like every Christmas movie on Lifetime, I assure you that Remember the Night is much, much better than that!
MacMurray plays Jack Sargent, an assistant District Attorney in New York City, assigned to prosecute Lee Leander (Stanwyck) who’s accused of shoplifting a bracelet. Trial begins just before Christmas, and the ambitious Jack worries that he won’t be able to get a conviction from a jury full of the Christmas spirit. By use of some procedural manipulation, he gets the case continued until after the New Year, which means Lee will spend Christmas in jail. Bothered by this, Jack arranges for her to be bailed out, but through a series of misunderstandings, Lee ends up in Jack’s apartment, just as Jack is setting out to drive home to Indiana for Christmas with his family. It turns out that Lee is also from Indiana (what a coincidence!) so Jack offers to drive Lee to her mother’s house and drop her off.
After misadventures in Pennsylvania that involve trespass, a nasty justice of the peace and a flaming wastebasket, Jack gets Lee to her mother’s house – where mom very quickly kicks Lee out. Not surprisingly, Jack ends up taking Lee to his family Christmas and also not surprisingly, Jack and Lee fall in love. (Work with me here: it’s a Hollywood movie from 1940 – and it’s about Christmas!)
After the holiday, the two head back to the city, although Jack offers to help Lee jump bail in Canada; she refuses. When they get back to New York, the trial resumes, but the result is not what you might expect, given the frothy nature of the movie. Even though it’ll surprise you, I think you’ll like it!
I know what you’re thinking: when will I ever be able to watch this movie? Well, I have good news for you! It’s going to be shown on TCM this Friday, December 18th, at 11:30 p.m. Eastern time, and again on January 13, at 11:45 Eastern time. See if you can fit it into you holiday schedule!
May every one of our NITA family have a holiday season full of every good thing you could want!
 These two would go on to star in one of the greatest of all films noir, Double Indemnity, directed by Billy Wilder and released in 1944. I’ll be reviewing it sometime in the New Year.
 This is a real-life phenomenon. Ever wonder why so few cases go to trial right before Christmas? Lawyers hate presenting cases to juries during this time of year.
 Contrary to opinion, not every movie I review is so obscure that you can’t find it anywhere!
Here at NITA we want to congratulate J.C. Lore, who has been a faculty member with us since 2006 and has taught at many of our programs on trial skills and child advocacy, recently co-authored the latest edition of Modern Trial Advocacy: Analysis and Practice. This text is a must-read for attorneys and has been published for over two decades by NITA. Lore, who is also the director of Rutgers Law School’s Trial Advocacy Program, says this latest version also includes a chapter on using electronic visuals and technology accompanied by video tutorials. With its vast audience, NITA gives copies to participants at many programs, this latest edition is sure to be read and praised by many. Lore also says with the new video component, he believes this latest edition will reach a whole new audience, especially the visual learners, in a way that has not happened before.
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: 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: 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.
Readers will become enthralled with author Theresa Driscoll Moore’s latest case file, Watson v. Century Technologies, Inc., which begs the question, is this a case of age discrimination in the workplace or just an employee and her boss not seeing eye to eye? You can decide for yourself by reading this case in which businesswoman Sharon Watson is suddenly fired after being employed for over 25 years. She sees the employees, including her boss, are getting younger and younger. Was Sharon unjustly fired because of her age or was she just unable to adapt to the changing environment? By showcasing a full trial, readers and can decide based on the evidence presented by both sides what they believe the truth is behind Watson v. Century Technologies, Inc.
In this installment of “Asked and Answered,” The Legal Advocate’s series of interviews with NITA personalities, I’m talking with longtime faculty member Joleen Youngers. I first met the force of nature that is Joleen last year at the Northwest Building Trial Skills program in Seattle, where I watched her connect with attendees as she mentored them through the grueling demands of the program. Her deep courtroom know-how, together with her snappy wit, intellect, empathy, and considerable personal style, make her a dynamo you won’t soon forget.
How many years have you taught for NITA?
It’s all a delightful blur of places and people, but my best guess is about fifteen years.
How many NITA programs do you teach at a year, and where? Is there a particular program that’s dearest to your heart?
I routinely teach at the Pacific Trial Skills and Depositions programs in San Diego, and am a team leader and teach at the Northwest Building Trial Skills program in Seattle. I also go to private programs, public programs, and other places as invitations arrive and I am able to attend. But nearest and dearest has to be San Diego, where I have gone for many years. It is a family reunion of sorts when the faculty arrives.
Why do you teach?
I was a teacher before I was a lawyer and love the role. As a lawyer, I still teach—not only in NITA programs, but in front of juries. On a more selfish note, teaching trial skills keeps my skills sharp. That helps because so many cases of my cases settle and I do not spend a lot of time in front of a jury.
What is a typical day in the life of a New Mexico litigator like?
There is no typical day litigating in New Mexico. The state is small in population but large geographically, with a diverse and somewhat quirky population that is reflected in the legal community and those whom we serve. The following statement of former territorial Governor Lew Wallace rings true:
Every calculation based on experience elsewhere fails in New Mexico.
In any given day, I may be arguing a motion in Santa Fe, meeting with a family that lost a loved one at the other end of the state, taking depositions, mediating a case, or any number of other activities.
What is the most challenging part of your work?
Simply put, time management.
How long is your commute between your Santa Fe and Las Cruces offices, and how often do you make it?
Zipping right along the Rio Grande corridor, with blue skies and broad vistas, the trip takes me four hours max. I try to avoid lengthy phone calls and use the drive to clear my mind. It provides a rare opportunity for quiet reflection or listening to loud music while singing off-key without embarrassment. I traverse my version of the Santa Fe Trail a couple of times each month.
What changes in the legal system would you most like to see?
I’d like to see more trials and fewer dispositive motions. So many lawyers spend so much time and resources on motions for summary judgment that then are either denied or appealed. I often think that cases would progress more quickly to resolution with less expense if they went to trial without all the pretrial motions.
What are your thoughts on image and power in the courtroom for women attorneys? In the late 1970s, “wardrobe engineer” John T. Molloy wrote Dress for Success and doomed generations of professional women to a dreary uniform of skirt suits, low pumps, minimal makeup, and hair buns that dialed their femininity down to zero—giving the impression that femininity was a liability in the workplace. You make no apology for being a woman in your manner of dress and grooming. What advice would you give to a young woman litigator hoping to strike the right note with a professional, but unmistakably feminine, image?
As NITA instructors, we often coach participants to find their own style of advocacy—that a style of advocacy that works for one of us may not work for another. The same applies to dress. Thankfully, things have lightened up for courtroom attire for women, allowing us to ditch the boxy suit and white shirt. My advice is women is to dress in a manner that makes them feel good, feel confident, and feel comfortable, but not in a manner that makes them seem vulnerable or awkward. For example, too high of a heel can make a woman look as if she is teetering, rather than firmly planted and strong. There’s a big difference between 4½” platform heels and a classic pump with a 2–3″ heel. It’s important that your clothes fit well so that you are not tugging at them, as you might with a gaping neckline or a shorter skirt. You need to be able to sit and stand with without self-consciousness. Also, get a good tailor. This applies to men as well. Make sure your sleeves are not too long—if they cover your hands you are limiting your gestures and diminishing one of your tools of persuasion.
That said, being put together in your appearance is part of your image. Avoid looking sloppy or looking ostentatious. If you are sloppy, you may send a message that you just don’t care that much or that you can’t get yourself together. If you wear large jewels and carry a flashy $3,000 handbag, you may evoke a negative response in jurors who think you are just too fancy to connect with them.
I certainly dress differently for trial than a day at the office or even a day of depositions. Being mindful of the forum is important, and being in court should convey a certain solemnity and respect, although you need not disappear into the background.
A final note: I often get asked to respond to the quandary of whether to wear pantyhose or not. Again, be mindful of the forum and the custom where you practice. The last thing you want to worry about is any adverse reactions to your dress when you should be worried about your case!
If you hadn’t gone into the law, what career path do you think you might’ve taken instead?
The answer to that question would depend on whether I could have any fantasy career or whether I had to make a living. A fantasy career would be in the arts, doing studio ceramics and sculpture. A more practical alternative likely would have been going from teaching in the public schools to teaching at the university level. But I am glad I went into the law. I love advocating for the little guy.
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?
Hmmm . . . you mean besides the Rule of Civil Procedure and the Rules of Evidence? They certainly keep drawing me back, but I assume you are asking for something more. This is a tough question. I love to read. I have diverse interests and really cannot pick any one book. I just can’t.
What historical figures would you most like to have dinner with, and why?
I’d like to have dinner with Thurgood Marshall because I’d love to hear firsthand about what it was like to argue Brown v. Board of Education and then how it was to decide landmark cases as a Supreme Court Justice. And then there is Mahatma Gandhi, with whom I would love to dine and would hope to soak up some of his wisdom and courage. Finally, dinner and drinks with Dorothy Parker and Oscar Wilde would be divine for pure entertainment.
Who are your heroes?
Ruth Bader Ginsberg—the Notorious RBG
My friend Maureen Sanders, a great New Mexico lawyer
My daughter, Allie
What did Breaking Bad get right about life in New Mexico?
Some of the good and a fair amount of the bad and ugly. I prefer to think of New Mexico by its self-proclaimed moniker: the Land of Enchantment.
What are your top three recommendations for visitors to Santa Fe to do, see, and eat?
I’m assuming you want three recommendations in each category, so here goes . . . .
Lots of old, old buildings—the sense of history permeates “The City Different”
The Sangre de Cristo Mountains and spotted hills of New Mexico
Tia Sophia’s for great red and green chile
Geronimo for fine dining
Santa Fe Wine & Chile Fiesta in late September
For what fault do you have the most tolerance?
Impatience. I suffer from a lack of patience and fear I become insufferable as a result. For that reason, I tolerate it well in others.
What are your passions outside the office?
Oh, so much to do, so little time . . . I love to cook, listen to music, read, spend time outdoors, and hang out with family and friends. Fairly pedestrian, I know, but these are the ingredients of a contented life for me.
What is your motto?
Never, never, never give up.
Like what you read here? Be sure to check out this “Asked and Answered” session with beloved NITA faculty member Judge Robert McGahey.