The Legal Advocate

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Monthly Archives: April 2016

Asked and Answered: Brent Newton

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ev.owaNext month, one of my favorite NITA authors, Brent E. Newton, will star in “Constitutionalizing” Your Objections in a Criminal Case, a studio71 webcast we’ll be filming at our headquarters in Boulder. (It’s free, by the way, so please register!) Brent has published three textbooks with NITA, and it’s his latest book, Trial Advocacy in Action: 20 Exercises to Sharpen Your Criminal Case Skills, that brought us together as author and editor. During the three months it took to prepare his manuscript for publication, Brent and I jabbered about lots of different things—the joy of being Irish, for example, and where we like to get Middle Eastern food in the DMV (Moby Dick House of Kabob for Brent, Lebanese Taverna for me); what we learned from Breaking Bad about how to poison someone; . . . and even, on occasion, matters related to Brent’s manuscript—but there was still a lot of territory we just didn’t cover. I proposed to Brent we make up for it in a round of “Asked and Answered.” Here it is.

In Trial Advocacy in Action, you crossed a realistic, complex federal prosecution with twenty classroom exercises that require students to analyze the case, at every step of the prosecution, through the lens of landmark U.S. Supreme Court cases. I was keen on the compelling fact pattern you devised, which involved a mentally disturbed American who becomes radicalized and poisons members of a Jewish temple during a Passover seder. When case file authors create a narrative that’s au courant and torn from the headlines, I think it makes for a lively classroom and a richly engaging, memorable learning experience for students. How did the idea of creating exercises around a single complex federal prosecution develop? Was there another narrative you had considered prior to choosing the homegrown terrorist, or were you well settled on it before you started?
When I was a public defender, I worked on several cases with terrorism-related charges filed against U.S.-born clients. I also worked on many death penalty cases during my career. Both of those types of cases typically involve compelling facts. When I started writing the book, I believed from the outset that the storyline had to involve themes from those two types of cases. The hypothetical in my book did not draw heavily from any particular case but, instead, is an amalgam of many of my prior cases, as well as some recent cases in the media.

Your fictitious defendant, Reginald McKay (a.k.a. Ahmed Hammami) wends his way through the federal court system, with student exercises focusing on McKay’s pretrial motions; continuing into jury selection, his trial, and sentencing; and concluding with postconviction motions. Given what you know about federal sentencing as the deputy staff director of the U.S. Sentencing Commission, what do you think would be a reasonable legal outcome for McKay?
I invoke the Fifth.

In 1993, you handled a capital case before the Supreme Court of the United States, which just happened to be the first case Justice Ruth Bader Ginsburg ruled on upon her appointment to the high court—and she took your side. What do you remember about the Notorious RBG from that day?
It was one of many Texas death penalty cases involving final appeals (with execution dates) that I handled in the early 1990s when I was a young lawyer. The 1990s were a very active time for death penalty appeals, in Texas and elsewhere. Justice Ginsburg had been appointed a month before, in August, but had not yet participated in any cases before then. It was during the Court’s summer recess, so the only types of cases that the Justices had to rule on were death penalty appeals involving motions for stays of execution. I had filed such a motion, along with a certiorari petition, for a client in Texas. During the previous month, Justice Ginsburg had not participated in other death penalty cases. The Court’s orders denying stays of execution in those cases had said, “Justice Ginsburg took no part in the consideration or decision.” In early September, the Court entered an order in my client’s case denying a stay of execution. Only Justices Blackmun and Stevens voted for the stay. The order in my client’s case didn’t say that Justice Ginsburg hadn’t participated in the decision. It was the first case where she actually had voted. Ten minutes after the first order came through the fax machine, a second order came. It said “corrected order.” The second order said that Justice Ginsburg joined Justices Blackmun and Stevens in voting for a stay of execution. My phone started ringing at that point—reporters from the New York Times, Washington Post, and National Law Journal were calling about Justice Ginsburg’s first case. As a twenty-five-year-old lawyer, I felt pretty overwhelmed.

It’s remarkable that you had a case before the Supreme Court at such a tender age. If you were only 25, you must have recently passed the bar and been practicing only a short time, no? Can you talk a bit about how young you were when that happened and what your trial by fire was like?

In 1992, I both graduated from law school and became licensed at age twenty-four. After clerking for the Fifth Circuit for one year, I began to work for a federally funded nonprofit public defender organization that represented death row inmates in Texas. I hit the ground running in that job. Within the first few months, I had several clients with execution dates, including the one for whom Justice Ginsburg cast her first vote. I also wrote the certiorari petition granted by the Court in October 1993 in McFarland v. Collins. The Court ultimately reversed the judgment of the Fifth Circuit in that case in 1994. In one manner or another, I worked on seventy-seven death penalty cases in Texas in the early to mid–1990s.

You spent the summer of 2012 teaching an introductory course on the U.S. criminal justice system at the Seoul National University in South Korea and will be returning there to teach this coming summer. What reflexively comes to mind when you think of that experience?

My students there were some of the smartest, hardest-working, and kindest law students whom I’ve ever taught. I taught my course entirely in English, including a lengthy final exam. I assigned one of my NITA books, Practical Criminal Procedure, as the textbook. The students got together and translated that entire book (over 300 pages) into Korean in order to make it easier for students less proficient in English to understand the course material.

Tell me about your first experience with NITA. How did you come to join us?
I created a law school advocacy course, Criminal Litigation, at the University of Houston in 2003. I contacted NITA about publishing my course materials as a book. NITA agreed. Criminal Litigation is currently in its fourth edition.

What’s the biggest risk you’ve ever taken that’s paid off?
Leaving my career in Houston in 2009 (where I was an established defense attorney and law professor at the University of Houston) and moving to Washington, D.C., to work for the U.S. Sentencing Commission and teach at Georgetown and American Universities. I uprooted my wife and kids (then middle schoolers) in the process. It paid off for me and my family.

Who is your greatest mentor?
Fifth Circuit Judge Carolyn King, for whom I clerked in 1992–93.

Rumor has it you’re a major-league baseball fiend. What are some of the most memorable games you’ve been to?
I went to the two longest post-season games in MLB history—two eighteen-inning games, one in Houston in 2005 and the second in Washington, D.C., in 2014. Amazingly, the starting pitcher for the visiting teams in both cases was the same person, Tim Hudson. He played for the Braves in 2005 and the Giants in 2014. And the week before I went to the eighteen-inning game in D.C., I went to a Washington Nationals game (their last of the regular season) where the pitcher threw a no-hitter. The baseball gods smiled down on me that week.

Who would be in your fantasy baseball lineup?
Starting pitcher: Bob Feller. Closer: Mariano Rivera. Catcher: Johnny Bench. Outfielders: Babe Ruth, Roberto Clemente, and Hank Aaron. Infielders: Lou Gehrig, Jackie Robinson, Derek Jeter, and Brooks Robinson. Combination of offense, defense, and character.

What three things are vital to your day?
My family, intellectual stimulation (learning something new every day), and coming home to my dog.

Finally, why do you write for NITA?
I love NITA’s merging of legal theory and legal practice. No other publisher does it as well.

Register now to catch Brent Newton in action during his one-hour webcast on Friday, May 20. (Did we mention it’s free?)

Enjoy this interview? Find more of our “Asked and Answered” interview posts with NITA personalities here on The Legal Advocate.

State v. Diamond/State v. Doyle

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Diamond6th coverNITA’s State v. Diamond/State v. Doyle contains and interesting juxtaposition as author James H. Seckinger writes the case file with two different outcomes. The main plot focuses on a man and a woman (Mr. Diamond and Ms. Doyle) who are in an enclosed space when suddenly, shots are fired and one person dies at the scene while the other is charged with homicide. As this case is designed to be tried twice, one version depicts Mr. Diamond as the deceased while the other version depicts Ms. Doyle. Both versions contain the exact same facts with only one difference: the gender of the defendant and victim switches. The case file contains four witnesses for the State and two for the Defense as well as exhibits.

Retail Price: $38

Order now in Epub (ipad, Kobo, Nook, Sony) or Print.

Building a Better Mousetrap: Critical Skills in Child Advocacy Cases – s71LEC48

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In this webcast, Mike Dale addresses several issues that attorneys may face when trying a juvenile delinquency and dependency case. He provides practical and concrete tools in order to professionally present these cases that affect the lives of children, their parents, and our society. If you would like to view the webcast in its entirety click here to register for free.

 

Asked and Answered: Peter Weidman

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Peter WeidmanWhen NITA faculty Peter Weidman happened to mention to us that he’d just prevailed in a $2.45 million bankruptcy case in federal court last month, it was a nice little tickle to our antennae here at “Asked and Answered.” We suspected he’d make for a lively interview, and as you’ll see, he didn’t disappoint. Peter and his wife, Debra Banks Weidman, head up their own firm in Philadelphia, where Peter concentrates his practice on commercial litigation, employment law and litigation, and executive compensation—and teaches at NITA deposition and trial skills programs in Philadelphia every chance he gets. Read on to learn more about how a Ponzi scheme operates and what it took to win big at trial. Congratulations, Peter!

I’m not going to lie to you, Peter: when I read about your case, it was so complicated I literally had to sketch out a relationship chart just to grasp the rudimentaries. For our readers checking out this blog post during a quick break at work, how would you summarize the case in a snappy, thirty-second elevator pitch?
Sure, let me give it a try. Ira Pressman pretended to be in the business of buying and selling overstocked and damaged inventory that retailers can’t sell in the ordinary course—the sort of stuff that may end up in stores like Five Below or the Dollar Store. He would tell his victims that he had a seller and buyer of such inventory lined up, that the deal was “pre-sold,” and that if the person loaned his company the funds to make the purchase, he would split the profit with the person when the company received payment from the buyer in about ninety days. In fact, however, the underlying transactions were fictional, and instead of using the person’s money to buy inventory, he used it to repay earlier loans made on the same basis while siphoning off a portion for himself. Over the course of five years, the Ponzi scheme flourished and grew, and nearly $50 million in “deal loan” money flowed through the company in this manner. When the scheme ultimately collapsed, the company was forced into bankruptcy, and the victims of the scheme filed proofs of claim against the bankruptcy estate that totaled more than $8 million. Ira Pressman surrendered to federal criminal authorities, pleaded guilty to wire fraud and other crimes, and is now serving an eight-year sentence in a federal prison.

The bankruptcy trustee hired my firm and the firm of Banks & Banks as special litigation counsel to pursue a lawsuit against the accounting firm and its partners who provided services to Mr. Pressman and his company. These services included keeping the company’s books for three years, preparing tax returns for five years, and preparing compiled financial statements for three years. The books, tax returns, and compiled financial statements gave the false appearance of a healthy, growing company, when in fact the company was just a vehicle for the scheme, incurring ever-increasing amounts of fraudulent debt. Mr. Pressman showed some lenders the misleading tax returns and financial statements prepared by the defendants, allowing him to raise additional money and permitting the scheme to continue and grow.

We contended—and the jury concluded—that the accounting firm and two of its partners aided and abetted Mr. Pressman because they were “willfully blind” to mounting evidence of the Ponzi scheme. In addition to aiding and abetting, the jury found the accounting firm and three of its partners liable for negligence, breach of fiduciary duty, and deepening the company’s insolvency. The compensatory damages of $1.95 million awarded by the jury included the approved proofs of claim filed against the bankruptcy estate by “net losers” of the scheme, professional fees and expenses incurred by the estate, and the accounting fees paid by the company to the defendants. The jury also awarded just over $500,000 in punitive damages.

How was that? I guess it works if the elevator ride was a long one! [Note: It is—if we’re in the Burj Khalifa in Dubai!]

How many years did Pressman operate the Ponzi scheme without detection? What was the exact point that led to his downfall?
He operated the scheme for about five years before it collapsed. The downfall was caused because Ponzi schemes, by definition, must grow and expand in order to survive. The more money Mr. Pressman borrowed, the more he had to borrow from “new” lenders in order to repay the earlier loans with the interest he had promised. Eventually, he was unable to keep up and started defaulting on loan agreements and bouncing checks before being forced into bankruptcy and turning himself in.

I recall from reading about Bernie Madoff’s racket that early investors in a Ponzi scheme sometimes come out ahead, which helps propel and grow the scheme, and it’s the later investors who tend to lose their shirts. Is that what happened here? Were there any early winners whose success unwittingly led to later investors suffering huge losses?
Yes, that is correct. In a Ponzi scheme, there are “net winners” and “net losers.” Net winners are people who, in the aggregate, took more money out than they put in. Net losers are people who put more money in than they took out—and typically, the net losers in a Ponzi scheme invest late, shortly before the scheme collapses. In this case, the scheme collapsed in late 2010/early 2011. All of the net losers were people who invested in late 2009 and 2010.

Can you give me a range, from the least to the most, the plaintiffs lost in the Ponzi scheme?
The approved proofs of claim for the “net losers” range from about $50,000 to about $350,000, and total more than $2 million.

How long did you actively work on the case?
About five years. We were initially engaged shortly after the scheme collapsed by a group of Ponzi scheme victims. We were later approached by the bankruptcy trustee to represent her, and were formally engaged with bankruptcy court approval in the summer of 2012.

What was the greatest challenge of trying this case? What was the most important turning point of the case for you?
The greatest challenge was convincing the jury to look beyond Mr. Pressman and his wrongdoing, and to conclude that, as outrageous as his conduct was, and as much as he deserves to be in prison for what he did, he had help, and could not have committed the Ponzi scheme without this help.

$2.45 million is some mad cheddar. How many plaintiffs will share it, and how confident are you that the plaintiffs will receive their due?
Mad cheddar, huh? You’re making me hungry.

There is only one plaintiff—the bankruptcy trustee—but money that she recovers as a result of the verdict will be distributed, with bankruptcy court approval, to the people who have approved proofs of claim in the bankruptcy, primarily including the “net losers.” We intend to recover the entire amount of the verdict.

Did it surprise you to learn that fellow lawyers had been played by a Ponzi scheme?
Not really. Mr. Pressman was a non-practicing attorney himself. He was very persuasive, and his victims were mostly his close friends and colleagues, including some of his law school classmates.

Big litigations and trials are exhausting and demanding both professionally and personally. What practices or habits do you rely on to stay well, healthy, and happy?
I exercise regularly; play piano and guitar; spend as much time as possible with my wife, family, and good friends—and occasionally indulge in a glass of single malt Scotch.

This was a substantial victory for your client and, by extension, you. How do you like to celebrate a big win?
I guess we’re back to the Scotch again . . . .

Will we be seeing you teach at any NITA programs this year?
I certainly hope so. I normally teach the deposition and trial advocacy programs in Philadelphia in the fall.

Why do you teach for NITA?
I enjoy it. It’s fun—and I always learn something new, whether from fellow faculty members or from students. And I like the CLE credit!

How did you first come to associate with NITA?
I worked at the Defender Association of Philadelphia in the late 1980s. I was asked to teach for NITA in the early 2000s by former colleagues from the Defender’s office, Mary DeFusco and Phillipe Restrepo, who were running a NITA trial advocacy program.

What’s your motto?
I don’t have a motto . . . but I do believe that life is about relationships . . . professional relationships, like those I developed at the Defender Association years ago and at NITA . . . and personal relationships with family and friends. When those relationships are meaningful and in balance, I am happy and productive.

Enjoy this interview? Find more of our “Asked and Answered” interview posts with NITA personalities here on The Legal Advocate.

Requests for Public Service Applications

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Part of NITA’s mission is to provide high-quality training to all attorneys so they become effective and ethical advocates. Notice the emphasis on “all” attorneys. NITA training isn’t just for Big Law, and it isn’t just for rainmakers. We are dedicated to working with public service attorney groups to provide them with the same training that takes place in our public and custom programs.

We realize it’s unlikely that most public service organization can fully fund this type of training, so we’ve developed a reduced pricing structure that’s flexible enough to meet the budgetary needs of your office. The majority of these programs are Trial Skills or Deposition Skills—but again, we can be flexible to better meet your training needs. To qualify for this type of training under the reduced fee structure, your organization must meet the following public interest programming criteria:

  1. Attorneys or advocates who serve indigent or disadvantaged populations, including, but not limited to, child advocacy, death penalty defense, disability, domestic violence, criminal law areas, immigration, legal services matters, and tribal justice; and
  2. Public agency attorneys working in these areas are eligible automatically.

Agencies and organizations wishing to apply for our reduced fee public service programming must meet the criteria above and provide some level of funding to train their attorneys. We welcome the opportunity to work within an organization’s funding parameters and require a specific agreement that ensures everyone understands their responsibilities for the financial and staffing resources to make for a successful program.

If you’re interested in applying for a public service program for your organization, please complete this application and submit it to sales@nita.org. We look forward to working with you.

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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