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Monthly Archives: August 2016

Effective Deposition Defense Rules, Third Edition

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Eff Depo Def Rules, 3d, coverAuthors David M. Malone and Ryan Malone address common questions and problems associated with the defense of depositions in this third edition of Effective Deposition Defense Rules. This rules book is intended to provide a quick and ready practical reference to issues and answers for busy trial lawyers. It presents accessible, practical, and common-sense ways to deal with situations that arise as attorneys and witnesses work their way through the pretrial deposition process. This new edition also includes updated material on the specific issues presented by video-recorded depositions.

Retail Price: $39

Order Here: Print, epub, or mobi

Breaking: Federal Court Overturns Dassey Conviction

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The Associated Press is reporting this afternoon that a federal court in Wisconsin has overturned the conviction of Brendan Dassey, the young man accused of helping his uncle, Steven Avery, murder a woman over ten years ago. Avery was the subject of Making a Murderer, a high-profile Netflix documentary series released in late 2015.

Earlier this year, The Legal Advocate spoke with two members of Dassey’s legal team—NITA Trustee Tom Geraghty and the Bluhm Legal Clinic’s Steve Drizin—whom we congratulate for this remarkable victory.

NITA’s Imprint on Midlevel and Newer Practitioners: The Only Thing Better than the Experience Is the People

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Jayme_3 (3)(1)written by NITA guest blogger, Jayme M. Cassidy

True talent is understanding that dedication towards improvement of advocacy skills is necessary at every stage of our career. The NITA Program encompasses talent ranging from the most seasoned faculty member to the neophyte law firm associate. Also, in the mix, you encounter the driven, focused, equidistant attorney seeking the platform to advance her or his career to the next level.

As part of my Next Generation experience, I was privileged to join the faculty at the National Trial Program. The faculty team included professors, judges, and practicing lawyers. At the conclusion of the nine-day demonstration and performance boot camp style program, I was curious. What was the participant take away? Did NITA actually have an impact? I engaged a few participants post program. Their thoughts are persuasive and humbling.

Adding Confidence to Commitment and Ability
Rebecca Mastel is a second year associate at Felser, P.C. in Denver. Rebecca was an engaging and insightful participant who gave great thought to her presentation. She came into the program with very specific goals. “My decision to attend NITA stemmed from the desire to assure both my supervising attorney and myself that I had the aptitude to competently chair a full trial from beginning to end.” In speaking directly about the training process Rebecca added, “The faculty at NITA did not pull punches – yes, there was encouragement, but not at the expense of specific, detailed advice. I got to practice or relearn half-forgotten trial practice skills that have been buried since mock trial in law school. The number one thing I learned at the NITA National Program was how to be a persuasive advocate when there is no backspace button.”

Bottom line, Rebecca felt that her goal was attained, “What I got out of NITA was the ability to both think and speak on my feet, under pressure, with confidence and organization…. and I can competently chair a trial.” “I cannot thank the faculty at NITA enough for everything they taught me.”

On behalf of all the faculty, Rebecca, thank you for your hard work and participation. You are going to be a super 1st chair!

Fine Tuning Talent Via Performance On an Innocuous Stage
Gregarious and poised, midlevel associate, Peter J. McCaffrey, of Franklin D. Azar & Associates worked diligently throughout the program to refine his advocacy and trial skills.

Peter recognized that NITA is beyond the ordinary course that attorneys take for CLE credits. He shared his view on enrolling in the program, “This was the first time that I felt really lucky to be in a program and learning from such great attorneys. The quality of teaching is what sets the program apart.”

NITA’s learning-by-doing teaching philosophy is designed to provide support from both faculty and participants. Peter’s thoughts on the method, “If I tried something in front of the group and it didn’t work it wasn’t the end of the world. I just tried something different next time. It helps you figure out how to think on your feet better.”

The courtroom is the attorney’s version of Carnegie Hall. Similar to the music masters who practice to perfect their performance on the Carnegie Hall stage, attorneys who attend NITA programs perform and demonstrate noticeable development daily. Peter’s astute personality observed, “I also think it is amazing how much everyone improved over the course of the week. I definitely saw some of my fellow group members take some huge strides.”

Pete, you also gave an encore worthy performance!

The Take Away
The combination of various skill levels, legal practice areas, and yes, personalities lends itself for a unique and dynamic experience when set within the framework of NITA’s learning-by-doing teaching philosophy.

One of our more intellectual participants, Britton Davis, an associate at Cooley LLP stated with decisiveness, “…the only thing better than the experience were the people.”

That’s a fabulous theme Britt and I could not agree more. Thank you to all the participants for allowing NITA to cultivate your talent!

Jayme Kennedy is a member of the NITA Class of 2016 Next Generation faculty. Read more about Jayme here.

Asked and Answered: Michael Johnson

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micheal_johnsonNext month features my favorite work week of the year: I will take a week off from editing and writing to serve as “concierge” to the program director, faculty, and attendees at our Building Trial Skills: Seattle program. It’s always the most edifying experience: meeting and supporting others so they may do what they came to Seattle to do, whether it be to learn or to teach; observing the blossoming of confidence, excitement, and determination in attendees as they grow as advocates; and even watching them bring to life the narrative and conflict of the interesting case files the Publications Department produces. All this happens under the steady leadership of the Seattle program’s director, Michael Johnson. He’s one of my favorite NITA people and, as you will learn, has led a fascinating professional life in pursuit of social justice. To become a better advocate under the mentorship of someone with Michael’s deep history and experience is a rare treat indeed. Read on.

While you were a Senior Trial Attorney with the Criminal Section of the Department of Justice Civil Rights Division, you led the federal investigation of the Greensboro Massacre in North Carolina in 1979. What was that incident, and what was your involvement in the investigation?
I led a team of attorneys and FBI agents in that investigation for four years starting two days after the incident occurred on November 3, 1979, and continuing until I left the Civil Rights Division and joined the staff of the United States Attorney’s Office in Little Rock in January 1984.

I could write a book about that experience, and perhaps one day I will. Elizabeth Wheaton wrote one years ago, Code Name Greenkil: The 1979 Greensboro Massacre, in which I am mentioned a few times. Unfortunately, when she interviewed me for the book, I could not share with her information that took place in the grand jury because of the secrecy provisions of the Federal Rules of Criminal Procedure applicable to grand jury investigations.

The incident has a very complicated background interweaving issues and allegations of social and economic injustice, racism, labor union activity, and murder.

An organization involved in labor organizing and promotion of racial and social justice began active anti-Klan activities in North Carolina. After a confrontation with the Klan in rural North Carolina, the group planned an anti-Klan rally in Greensboro. As the rally participants were gathering, members of the Klan and American Nazi Party drove through in a caravan. Words were exchanged, followed by gunfire.

Five demonstrators were killed and many injured. The Klan and Nazi members fled, but one vehicle of them was apprehended by police before it could escape.

The Klan and Nazi members claimed that they fired in self-defense. Both the Klan/Nazi members and the anti-Klan demonstrators made allegations that law enforcement was involved through infiltrators and informants.

Given the loss of life and complicated competing allegations, the investigation not only had to be impartial, but had to be clearly understood by the public, the law enforcement agencies, and the parties involved as thorough, fair, and impartial.

When you think back to that experience now, what are the first things that come to mind for you?
The most abiding memory is dealing with the people: the incredible sadness of interviewing people who had lost loved ones and having to press them for details and, at times, challenge the accuracy of their accounts; and, alternatively, interviewing people whose hatred of me because I was a civil rights attorney was palpable and who I knew would prefer to harm me if they thought they could get away with it rather than talk to me.

The federal grand jury was impaneled for over six months. Can you talk about the challenges, as a prosecutor, of getting so many jurors willing and able to devote half a year of their lives to hearing the case?
The actual selection of the grand jurors was done by the Court for the Eastern District of North Carolina. It is an impartial process, and, as a prosecutor, I had no role in the determination of who was on the grand jury.

The grand jurors were a diverse group that brought with them the competing biases and notions that existed in the community from which they came. It was very complicated to dig through the biases and preconceived notions.

Actual neutrality and the perception of neutrality were critical components for the system to work, and for the community to accept the outcome of the grand jury as fair and just. That could not have happened by showing favoritism to any side, including law enforcement, and could not have happened had the grand jurors not had a total commitment to doing what they believed to be the just and right thing. The grand jurors understood and accepted that the facts were what they were and would lead to that right and just decision, not how they felt about the participants or the viewpoint the competing groups expressed.

In the end, a number of members of the Klan and American Nazi party were indicted for interference with the civil rights of the demonstrators under a legal theory that I devised for the case. The actions of the demonstrators were viewed by the grand jury as acts of self-defense.

You’ve lived and worked in Cape Town, South Africa. What were you doing there? How did that opportunity arise?
My sojourn to South Africa was a terrific personal and professional experience.

The opportunity arose through a combination of events. In the early 1990s, the Department of Justice partnered with the Department of State to provide legal assistance to emerging countries. The concept is that a viable, functioning judicial system is essential to creating and maintaining a democracy.

Because I had a long background in the effective and successful use of the United States version of the criminal racketeering law, in 2003, the Department of Justice (DOJ) asked me to accept an assignment as Legal Advisor to the Republic of South Africa to assist that country with the implementation of its version of a racketeering law. South Africa had only recently emerged from apartheid and become a full participatory democracy.

South Africa had a sophisticated economy and first-world infrastructure, but, in a sense, was a victim of its own success—it was an attractive venue for organized crime that wanted a foothold in the African market: crime figures could live well, infrastructure was adequate, access to the country was ample with major airports and sea ports, and there was a vast labor pool desperate for money because unemployment was around 44 percent. To help combat the problem of organized crime, the United States had assisted the South Africans in adopting a version of our racketeering law. Of course, creating the law was a long way from enabling law enforcement and prosecutors to effective utilize the tool.

It was also important to DOJ in asking me to take the assignment that I had an extensive background in designing and teaching courses. I had worked with the DOJ Advocacy Institute, law school, and, of course, NITA.

I was tasked with working with prosecutors and investigators in a specially designed unit of the South African Prosecution Services to teach them the concepts of racketeering as well as investigative techniques. By the time I was asked to accept the assignment, an initial design for the program had been completed and funding authorized for six months. However, the goals set for the program could not be achieved with the program designed—those who designed it simply didn’t know what they didn’t know—so my first task became understanding the South African justice system and redesigning the racketeering program to achieve the goals that had been identified.

After I redesigned the program, I lived in South Africa for nearly a year, and returned to South Africa frequently from 2003 through 2011 to continue implementation of the use of the racketeering concept to attack organized crime. It became apparent that it was essential to orient the judiciary about the concept as well, so eventually I also designed a program for trial and appellate judges, including justices of the Constitutional Court (like our Supreme Court). In all, two-thirds of the sitting judges in South Africa attended one of the seminars.

The work and experience was fascinating. So was the life experience of living such a distinctively different culture and getting to know the people with whom I worked so well. South Africa has a very diverse population, with all of the cultural nuances that exist in the United States. I also got to fulfill an aspiration. One of my long-term pastimes is photography. I had always aspired to go on a photo safari in Africa to experience the includable animals in their natural habitat. Every opportunity I could fit in around work found me headed to the bush. I traveled to Krueger National Park mostly, but also to Namibia, Botswana, Lesotho, Swaziland, Zimbabwe, and the Seychelles Islands. I have thousands of photos.

Of the many cities I visited, Cape Town was by far the most interesting. I think of it as the Seattle of Africa. It has a temperate climate, diverse population, and is dominated by the sea and its own unique mountain (Table Mountain).

What did you most enjoy about being a federal prosecutor?
One of the luxuries of being a federal prosecutor is the enormous discretion that you have. Since my “client” was society at large, to a great extent, I did not have to pursue a prosecution without personal belief that I was doing the right thing, and that the people involved should be held responsible for their conduct. As I see it, the ethical challenge for a prosecutor is the responsibility to pursue a matter regardless of the person/people involved. The decision to prosecute is not about whether you think a person is “bad” or “good,” or whether they are disliked or liked by the public: regardless of who the person is, the decision to prosecute is about the facts, wherever they lead.

At least that is how I always felt about the work I did, whether it was prosecuting police brutality and racially motivated violence while I was with the Civil Rights Division, or public corruption and other forms of white-collar crime that was the mainstay of my work when I was with the United States Attorney’s Office.

What advice to would you give to a pre-law college student interested in pursuing a legal career in public service? Is it still possible to work toward social justice as a lawyer without having your efforts hamstrung by massive educational loans?
The best advice I can give is to follow your heart. You will not become monetarily wealthy by being a public servant. The reward for the work one does as a public servant is much different.

I have no idea what to suggest as to the massive debt issue that so many students now have as they emerge from college and law school. I faced the same situation when I was in school. I funded my education through the money I made while working, plus scholarships, plus student loans. I received an excellent education at the public universities in the State of Washington, including a superb legal education at the University of Washington, which was and is among the top-tier law schools in the country. Those schools were very affordable for me as an in-state resident, so while I was broke and in debt when I graduated, my debt load was not nearly like the debt load so many students seem to have upon graduation today.

Why do you teach?
I enjoy helping to empower people to reach their potential.

There is a distinct difference between being a litigator and being a teacher. To be a good litigator, one has to have a good intact sense of self. As a litigator, your goal is to persuade people to your client’s point of view. As a teacher, you have to have an even stronger intact sense of self, because the focal point of teaching isn’t about you—rather, it is about giving what you have to someone else in a way in which they can receive it, become empowered by it, and use it. Teaching is about giving in creative ways. The reward is the empowerment of another.

If you hadn’t gone into the law, what career path do you think you might’ve taken instead?
I have been very blessed to have the career that I have had and the experiences my career has provided to me.

While I have never seriously considered another career choice, your question is interesting. As part of the introduction at many NITA programs, we often ask the participants to answer the following question as part of the introduction of themselves [to the group]: “If time, talent, and money were not considerations, what would you do with your life?” It is a great way to enliven the participants, begin to establish some personal connections with them, and encourage them to think about issues and litigation from a broader perspective.

I have answered the question myself any number of times. Usually my answer is that either I would be a professional golfer or a photojournalist working for National Geographic so that I could experience incredible places and capture the essence of the experience in remarkable photos. I do play golf, but my talent is more imaginary than real (“I love golf more than golf loves me.”). I also enjoy photography. I’ve had some fantastic opportunities to photograph extraordinary events, places, and people. For example, while I was in South Africa, I went on about fifty photo safaris to experience the wildlife in natural habitat.

What books are on your bedside table right now?
I am reading Dark Star Safari: Overland from Cairo to Cape Town written by Paul Theroux. The book is a recount of Theroux’s overland sojourn across Africa in 2002. Theroux had been a Peace Corp volunteer and had lived and worked in Africa in the late 1960s. The book is not a tourist journal—it is an insightful reflection of the social, political, and life challenges of the people in each country through which he trekked, and the changes, or lack of them, in the thirty-plus years since he had lived there. The book was a gift from a NITA colleague new to the NITA teaching family with whom I worked when I was a Team Leader for the Building Trial Skills Program in Dallas. She and I discovered that we had both lived and worked in Africa and enjoyed sharing some of the stories of our own experiences.

Mostly, I read non-fiction works about a variety of topics. Occasionally, I enliven the reading selection with fictional works, usually recommended by friends. Two fictional stories that I have read this year were by Donna Tartt—The Secret History and The Goldfinch, both of which were recommended by my good friend and NITA colleague MaryJo Barr, who is co-director of the Building Trial Skills Program in San Diego.

When was the last time you traveled somewhere new, and what did you do while there?
In May of this year, my wife and I traveled to France and Poland. While I have traveled extensively to many incredible places in the world, I haven’t spent much time in Continental Europe other than three trips to Italy. The trip was fabulous adventure with lots of excitement and pleasure. It also had elements of overwhelming sober reflection, as we visited both the D-Day beaches and Auschwitz.

Most of the time in France was visiting Paris. It was the first time for both of us. Paris is truly a remarkable city, and we had a remarkable experience. We have friends who traveled to Paris often and gave us great insight about how to explore and experience the city (“Don’t try to do too much, but take the time to relax and enjoy the people and the experience of being there.”).

The trip to Normandy provided the entirely different experience than Paris. We visited the D-Day landing sites, museums, and the American Cemetery with a small tour group. It was incredible. The D-Day invasion is an extraordinary historical event that molded world history. So much sacrifice, but so essential for humanity. It is hard to fathom the scale of the operation, the phenomenal bravery and, of course, sacrifice of those involved. I thought I knew a fair amount about the invasion before we went on the tour, but I learned so much more in one day. After we returned home, I read D-Day: June 6, 1944: The Climactic Battle of World War II by Stephen Ambrose.

The final aspect of the trip was Poland, which I suspect would not be on many people’s travel list. For us, however, it was the impetus for the trip. I was there to conduct a NITA-style training at the University of Silesia in Southern Poland at the request of the University of Arkansas at Little Rock School of Law. It was very much a hybrid program because I had thirty-five participants and was the only faculty. The participants included sitting judges, practitioners, and post-graduate law students who were seeking the equivalent of a Master or Doctor of Law degree. Fortunately, they all spoke English, because I have no Polish language skills. I think the participants found the course very challenging, as our judicial system varies greatly from theirs, but they had a great attitude and a good deal of energy. We had a lot of fun exploring and practicing trial skills for an American-style trial.

My wife and I took time while in Poland to experience some of the country. We visited Krakow, which is a truly charming and delightful city. The old part of the city where we stayed is dominated by the castle, which was the home of the kings of Poland for centuries; the Vistula River, which traverses the heart of the city; and the city square, which continues to be the center of much of the city’s cultural activity.

Finally, we visited Auschwitz. It was only a short distance from the University where I taught. For those who have been, you know that there are virtually no words than can express the experience. For us, the combination of visiting both the D-Day sites and Auschwitz during the same trip made each a more poignant experience.

What are you terrible at?
There are too many things to list. I am very passionate about things, so I would like to learn to be more patient.

If you had to live somewhere else, where would you live, and why?

Seattle. I currently live in Arkansas, but I am not a native Arkansan. I grew up in the State of Washington and attended both college and law school in the state (Washington State for undergrad, and University of Washington for law school). I have always considered Washington “home,” so I think about going “home.”

I have been fortunate to travel many places in the world. The more I experience, the more I appreciate how terrific Seattle is—the environment, the ocean, the mountains, the smell of a pine forest, and, of course, the diversity and congeniality of the people.

Who are your heroes?
I will mention just three.

Nelson Mandela, who embodied such great personal character and true forgiveness in his pursuit of freedom for himself and his countrymen, and for his skill in governance to lead his ethnically diverse and divided country of South Africa to freedom and greater tolerance.

John F. Kennedy, who overcame the anti-Catholic rhetoric of the late 1950s to become President of the United States and inspire generations to view service to our country and fellow men and women as aspirations to which we all should strive.

Joe Bartkowski, an over-the-road truck driver for a now-defunct freight company called REA. No one who reads this will know who he is. It is a common notion in America that people boast that they are “self-made.” No matter how much talent a person has, or how much he/she has endured, or how much hard work he/she has done, I suspect that all of us could and should point to someone in our life who selflessly aided or guided us when we needed it the most. Mr. Bartkowski was a total stranger when he reached his hand out to me after my summer job had been cancelled, I was homeless, and desperate to make enough money to return to college.

Michael will be joined at Building Trial Skills: Seattle September 7–11 by NITA faculty Joleen Youngers, whom we spoke with here.

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

Trending: Life Imitates Case Files, Part II

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stantonCaseFileA couple weeks ago, we told you about a lawsuit involving pool floats that sounded straight out of a NITA case file. Well, here we go again, with a news report about someone in the beauty pageant world suing for defamation—or as it’s called here at NITA, Stanton v. Armstrong.

Miss Florida Lost Her Crown; Now She Wants $15M

What’s next, litigants of the world? A real estate ripoff involving retirees in the wine country? A baseball fan getting dinged with a souvenir bat? Dairy cows being poisoned by energy extraction near the farm?

We wouldn’t be surprised.

After all, #nitadiditfirst.

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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