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Monthly Archives: October 2016

NITA Movie Review: When Testimony Is Forbidden

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Written by guest blogger Judge McGahey

i_confess_posterColorado Rule of Evidence 501 tells us that everyone can be called as a witness – except when they can’t be called, either by Constitution, statute, rules set out by the Colorado Supreme Court “or by the principles of the common law as they may be interpreted by the courts of the State of Colorado in light of reason and experience….” That’s pretty broad, isn’t it? We’re all familiar with the United States Constitution’s Fifth Amendment privilege against self- incrimination[1]. But there are other evidentiary privileges that impact trials and hearings every day. The one that made me think of this month’s movie is what was originally known as the priest-penitent privilege, whereby anything told to a priest as part of a religious confession cannot be testified to without the permission of the penitent[2].

That privilege is at the heart of I Confess (Warner Brothers, 1953), directed by Alfred Hitchcock, and starring Montgomery Clift[3], Karl Malden and Anne Baxter. The film is based on a 1902 French play that Hitchcock saw as a much younger man. Hitchcock was raised as a Roman Catholic but had long lapsed from the faith by the time he made I Confess[4]. It is very clear that in spite of his lapsed status, Hitchcock’s upbringing informed much of I Confess. The film was filmed in Quebec City, but that Canadian setting has little to do with the actual action of this movie, although it does provide some wonderfully evocative atmosphere and mood to the film[5].

Clift pays Father Logan, a Roman Catholic priest. Father Logan employs a German gardener, Keller, and his wife. Keller (O.E. Hasse) also works for a crooked lawyer named Villette. Villette is murdered and two girls see someone wearing a priest’s cassock leaving Villette’s house. In the confessional, Keller confesses to Father Logan that he, Keller, committed the murder, knowing that the priest cannot reveal that information. Inspector Larue (Malden) calls Father Logan in for questioning because of what the two girls saw and discovers a connection between Villette and Father Logan through the priest’s long-ago pre-seminary girlfriend (Baxter.) Father Logan adamantly refuses to discuss anything with Larue, who has the priest arrested and charged with murder. Father Logan, staunchly remaining silent, goes to trial in front of a jury. Because this is Hollywood, you can probably figure out how the trial ends, although Father Logan has one more priestly interaction with Keller in the film’s closing moments[6].

I Confess does not rank with Hitchcock’s greatest films; it doesn’t come close to Vertigo, Rear Window, or North by Northwest. But the interplay between religious dogma, evidentiary privilege, and the law’s stated quest for truth make it a fascinating movie to watch.

And we know that evidentiary privileges can have substantial impact on real-life cases. Recall the case from several years ago where two public defenders in Chicago, believing themselves bound by the attorney-client privilege, didn’t disclose that they knew who the actual killer was when another man was accused and convicted of murder. That wrongly convicted man served twenty-eight years in prison.

Make you think? I hope so.

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[1] The same right is guaranteed in Article II, Section 18 of the Colorado Constitution.
[2] This privilege is codified in C.R.S. 1973, section 13-90-107(1)(c) and is broader than the “traditional” idea of Roman Catholic confession. That section reads: “(c) A clergy member, minister, priest, or rabbi shall not be examined without both his or her consent and also the consent of the person making the confidential communication as to any confidential communication made to him or her in his or her professional capacity in the course of discipline expected by the religious body to which he or she belongs.
[3] Among many other great roles, Clift played the mentally challenged Rudolph Peterson in Judgement at Nuremberg.
[4] There is some evidence that Hitchcock had mass celebrated at his home, made a confession and received last rites near the time of his death in 1980. A funeral mass was celebrated after his death.
[5] Fr. Trent Fraser, my pastor at St. Michael and All Angels Episcopal Church, is a big fan if I Confess, not just because of the theological aspects of the film, but also because he’s Canadian.
[6] Mark Caldwell and I have used Willie’s initial interview with Harry in the hospital in a number of our ethics presentations.

Asked and Answered: Lawyers Without Borders’ Christina Storm and NITA Trustee Mike Ginsberg

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Promoting the rule of law in emerging democracies around the world is a core NITA Foundation value, and one way we act on it is when we aid our fellow legal nonprofits who share this vision. Lawyers Without Borders (LWOB) has “walked the walk, talked the talk” since day one of its founding in 2000, when trial lawyer Christina Storm was looking for ways to better use her skills to create a deep, sustained impact in her community and beyond. The pro bono opportunities she explored did not tap into her desire to serve in quite the way she envisioned, so she created that opportunity for herself by forming LWOB. Today, LWOB works with hundreds of lawyers who volunteer their expertise to pursue justice and support the rule of law on a global level. Since 2007, NITA has lent its support by providing volunteer faculty and/or teaching materials to LWOB training programs in Africa: Liberia earlier this year, Kenya next week, and Nigeria in November. Today, we honor the relationship we share with LWOB, and chat with its founder and executive director Christina Storm and NITA Trustee and LWOB booster Mike Ginsberg to learn more about how their paths crossed, where they’d been before, and in what direction they see themselves going in the future.

stormheadshotWhat is a typical work day like for you?
Christina Storm (CS): Oh, my gosh, I’m not sure there is a “typical” day—but I can tell you that a typical day is not complete unless there is one wonderful piece of news, an eventful occurrence and a drafting of what we call task memos—which define a research undertaking for a team of pro bono lawyers that will usually lay the foundation for some deliverable for one of our rule of law programs.

michaelginsbergMike Ginsberg (MG): I don’t have a typical work day, as I suspect is true for many trial lawyers. If I’m in town, I spend the first half hour of the day responding to overnight emails, then focus on the work that I’ve scheduled for the day—whether it’s drafting or editing documents (complaints, briefs, letters, memoranda) or preparing for a hearing, deposition, or trial. I am frequently interrupted by telephone calls and emails that require immediate attention. The best day for me is when I have few of those and I can sit, think, and write. Because I do a lot of teaching for NITA and other organizations, a part of most days includes working on program schedules, lecture notes, PowerPoint presentations, or arrangements relating to programs.

What were you doing professionally before you founded Lawyers Without Borders? What was the impetus for change?
CS: I was what I proudly call a country lawyer—I used to describe myself as the Marcus Welby of law. I serviced clients in a relatively small region of rural Connecticut, handling everything from transactional matters to criminal trials, appearing every conceivable tribunal from local administrative matters to state courts, federal agencies, and federal court.

What was the first moment you knew you were really onto something with LWOB and you knew it was actually going to work? (A moment I like to call a “nervous breakthrough.”)
CS: The morning after I created the website, I had dozens of hits to the site from around the world and a handful of queries, along with congratulations for starting the organization. I got a lot of folks saying: “I had the same idea, but you went and did it!” Mind you, all the actors in the sector thought it was a pretty bad idea and weren’t shy about telling me what they thought—but I knew what the website data and emails were telling me: I wasn’t the only lawyer wanting to give back.

What kinds of qualities or experiences, both personal and professional, do you think helped prepare you to found and grow an international service organization?
CS: I think probably the thing that was the real catalyst was having a very successful law practice that together with my husband’s law practice provided a very comfortable lifestyle for us—which led me to want to start giving back. The international aspect probably grew out of a lifelong interest in world travel.

So, how did LWOB’s association with NITA develop?
CS: A colleague introduced me to [NITA Trustee] Judge Ann Williams. At the time, he identified her as a woman whose aspirations and goals he thought matched my own, in terms of pro bono and giving back. It was Judge Williams who introduced me to NITA. [Note: We hope to feature Judge Williams in a future “Asked and Answered” column. Watch this space.]

Mike, what was your first experience with NITA?
MG: I attended a NITA program at Harvard Law School as a student. Then, a year later, I was asked to be a student performer for a NITA teacher training course taught by Judge Robert Keeton, one of the founders of NITA. In that program, I would perform a trial skill and then be critiqued by the “students” in Judge Keeton’s teacher training program. And then I would get to listen to Judge Keeton critique the teachers—and through them, my performance. Years later, I started teaching in Jones Day in-house programs and then moved on to public programs in Philadelphia, Boulder, and Pittsburgh.

And what about your association with LWOB? How did that happen?
MG: My law firm, Jones Day, was interested in supporting LWOB’s rule of law programs, and I was asked by our Firm Pro Bono Partner, Laura Tuell, to join the faculty for the trial training in Nairobi. That was in 2009.

If it’s possible to generalize, Christina, what are some of the hallmark differences between the justice system in the United States and those in the emerging democracies that LWOB serves?
CS: Hallmark differences—most important, we take for granted that our judicial system is transparent. Corruption is not in our lexicon.

I have to imagine these training programs in Africa and elsewhere around the world have a profound and lasting impact on the lawyers who attend them. Do any still keep in touch with you? Do you ever get feedback (even years hence) about how LWOB assistance and support changed their lives, as well as the lives of those they serve?
CS: The most rewarding part of having founded a sustaining organization is just that, you stick around long enough to see young interns, trainees, or associates become partners in law firms—and reach back out to you to say how important your role was in their professional development. It doesn’t get better than that.
On the “trainee” side of our work, we don’t often get to stay in a country for ten years—but we have done that in both Liberia and Kenya. One story involves one of our lawyers who I had asked to film court proceedings in Liberia so we could see first-hand some of the issues that we needed our programming to address. When he asked the court if he could film some of the proceedings for LWOB, the judge remarked that LWOB was a wonderful organization—that he had taken the training and it was one of the most valuable learning experiences of his life. He welcomed us into his courtroom and told all the lawyers there to do the same.
MG: Because I teach a number of programs for Jones Day every year (depositions, motions, expert witness, mini-trial, and negotiations) and have been doing that for twenty-two years, I see former attendees all the time. They do talk about what they learned in programs and how they are using the skills we taught. Because of the foresight of LWOB and Judge Williams, we have included teacher training in our Kenya programs and invited past attendees to train to teach with us. So, every year when I go back to Nairobi, I have the honor of teaching with former attendees. Anyone who has been a teacher, coach, or mentor takes pride in the success of their students, but there is a particular pride in watching those students taking on the role of the teacher and passing forward to new students the skills they have learned. I get to experience that pride every year in Kenya.

Can you talk a bit about the effect the Ebola crisis had on your work in West Africa?
CS: Ebola was the great teacher—in a millisecond, we saw how something as devastating as Ebola could unravel a justice system that had grown and improved exponentially in the last ten years. It stopped our own programming cold. But, as they say, out of every adversity comes some good—we developed eLearning, and our in-house team traveled to Liberia and trained small groups, relying on interactive digitized learning material we developed. We loaded laptops with the materials and supplemented them with workbooks and manuals. What we realized was that there was an element of hard-core sustainability that eLearning could achieve beyond the traditional in-person training.

What do you hope to bring to the legal profession?
CS: I hoped to provide my colleagues with an amazing and diverse array of ways to do pro bono work—to give back—that tapped into their skill sets, their interests, their time availabilities, or financial wherewithal.
MG: What we know is that legal representation and the quality of that representation can have profound impacts on people’s lives. In every NITA public program, we include slots for public service lawyers—lawyers who are chronically overworked, undercompensated, and often without training resources. At the last meeting that I chaired of the NITA Board of Trustees, I asked the Board to dedicate a portion of the funds of the NITA Foundation to support perpetually public service training, and the Board acted to commit those resources.

Speaking of “resources,” how would you spend a million dollars—professionally and personally?
CS: Did someone tell you I sometimes play the lottery in the hopes of creating a foundation to fund LWOB? Regretfully, a million dollars would not go far in my world. I would give some of it to my younger sister (also a lawyer) who will have three children in college soon—the cost of college has tripled since my own kids graduated. As for LWOB, I would make capital improvements to the computer system, so the two offices (Washington, D.C and Connecticut) could be in sync, would hire permanent staff for our UK and Kenya branches, and bank the rest to grow our fund that we use to take us to places doing work that at any given moment may seem very important to us but is not on the radar of major funders. That represents an important piece of our work—made possible by the pro bono contributions of volunteer lawyers.
MG: My friends know that I am passionate about NITA and the Pittsburgh Public Theater (for which I serve as the President of the Board of Trustees). I would increase my support of both organizations.

What one meeting changed your life?
CS: The meeting at Open Society Institute in our first or second year of operations, when an invitee to the meeting, an executive director of a well-funded NGO, said something along the lines of, my idea “would never take off—an organization founded on the generosity of lawyers wasn’t going to work” and that I “should cut my losses.” One thing most of those close to me recognize–never, never tell me something can’t be done—as soon as you do, you can be sure I’ll chart the course and do it.
Recognizing that possibly I had a life before LWOB: I was a precocious child who loved asking questions and exploring ideas—something that didn’t sit well with the rigidity of parochial educational models. I found myself too often being punished for my “interruptions” and “challenges” and was not put in the “bright” group. The fact that I was an Italian kid with a Jewish stepfather and a divorced mother didn’t help the impression the nuns had of me . . . until state-mandated exams were conducted schoolwide. I was called into a meeting with the principal and eighth-grade teacher, an imposing woman nearly six feet tall. Apparently, I scored #1 in the school. That turned my life around. The nun, hovering over me, said: “Miss Storm, exactly who do you think you’ve been fooling!” Oh, well, I was moved to the “smart” class, tracked for college, and my life became pretty beautiful after that. As you can imagine, I’m a big fan of national standardized tests.
MG: Given the amount of time I’ve devoted to teaching in the past two decades, I would have to say that being asked to teach in a Jones Day deposition program in Atlanta in 1994 is the one meeting that most changed my life.

What programs do you typically teach for NITA?
MG: I started and am the program director for the Pittsburgh Regional Building Trial Skills Program. Over the years, I have taught in dozens of public and public service trial programs and deposition programs. I also teach motions, experts, mini-trial, negotiations, and a program that [NITA faculty and author] Paul Zwier, from Emory, and I created called “Skills for the Supervising Lawyer.”

Why do you teach?
MG: I learn from every program I teach—from the participants and from the faculty. So, while I derive enjoyment from teaching, I also benefit from it professionally. In addition, as anyone who has witnessed the improvement of a student, I get an enormous amount of satisfaction in seeing the difference a week of skills development can make in the confidence and competence of a novice lawyer.

If you hadn’t gone into law, what career path do you think you might have taken instead?
MG: I would likely have been a teacher and/or swimming coach.

What book has had the greatest impact on you as a person?
CS: [David] McCullough’s John Adams. I feel a certain kinship to John Adams. Apart from us both being short and stout, I loved his long-term thinking, his willingness to lawyer for unpopular causes, his penchant for detail and hard work, and his passion for the law. While that’s of relatively recent vintage, ee cummings poetry—especially the words in one of his introductions—have motivated me for nearly fifty years now . . . you and I “are not for mostpeople . . . . Mostpeople have less in common with ourselves than the squarerootofminusone.”
MG: Many years ago in college, I read a biography of Judge Frank Minis Johnson by Robert F. Kennedy, Jr. Judge Johnson was a United States District Judge for the Middle District of Alabama in the heart of the Civil Rights era, and was instrumental in supporting the Civil Rights Movement from the federal bench. He was later appointed to the Fifth Circuit Court of Appeals and with the realignment of the Circuits, to the Eleventh Circuit. The biography demonstrated how a lawyer with courage could make a real difference in the lives of people in this country.

Where do you see yourself five years from now?
MG: I hope that I am fortunate to keep doing what I’m doing, representing clients, trying cases, and teaching in the U.S. and developing countries.
CS: That’s a question that is plaguing me these days. Many of my colleagues are starting to consider or implement retirement plans. I would like to see my successor in place five years from now, the mission of the organization and its attention to detail and commitment to creativity and innovation still a hallmark of the organization. I would hope to be playing some role at LWOB to ensure that the post-transition team continues and grows the vision—and maybe take a day off here and there.

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

Winning with Social Media: A Desktop Guide for Lawyers Using Social Media in Litigation and Trial

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Author and NITA faculty member Michelle Sherman’s latest book, Winning with Social Media: A Desktop Guide for Lawyers Using Social Media in Litigation and Trial, talks about the social media phenomenon that has become the  norm of today’s society. Now, social media also has an incredible impact in the legal arena.

The oversharing that happens on social networking sites can make or break a case. As Sherman delves into the ever-changing landscape of social media and technology, readers will get an inside look and become much more comfortable using social media in order to see how helpful evidence from these sites can be. You’ll discover how this modern form of evidence plays a key role in cases ranging from divorce and child custody to wrongful termination, and much more.

Furthermore, you’ll learn how to conduct informal discovery for getting social media discovery from the opposition, authenticate “ownership” of social media accounts and the incriminating posts made to them, use and monitor posts, and much more! In the 21st century nowadays, you cannot simply ignore social media, so if you don’t know how to use it or how it can benefit your case, then pick up Sherman’s book today and learn how you too can use social media to your advantage.

Retail Price: $60

Order Now: Print, Epub, Mobi

 

ASSOCIATE ATTORNEYS NEEDED

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ASSOCIATE ATTORNEYS NEEDED
November 3 – 5, 2016
JAMS
2 Embarcadero
Suite 1500
San Francisco, CA 94111

The National Institute for Trial Advocacy, NITA, is looking for first and second year associates from local law firms to act as Student Attorneys (based on a simple fact pattern which will be provided), playing the role of an attorney and a witness as though they were before a court and jury.

• Opportunity to polish your trial skills
• Monetary stipend of $150 ($50 per day)
• CLE credit given if you are an attorney
• Preparation materials will be emailed
• Full participation is preferred

The goal of the Teacher Training program participants is to learn or upgrade their teaching and critiquing skills. Participants in the program (who may be professors, partners in a law firm, or government attorneys), will critique the student attorneys’ presentations. After they critique the student attorneys, the program faculty will critique them. Each student attorney will be placed on a team and assigned to a specific section of participants and faculty.

If you are interested, please contact Christine McHugh at NITA, cmchugh@nita.org
Deadline to respond is October 28, 2016.

*Please note that full participation is required.
3:15pm – 5:45pm on Thursday, November 3, 2016
8:00am – 2:15pm on Friday, November 4, 2016
8:00am – 12:30pm on Saturday, November 5, 2016

A Tip of the Hat to the ISOB

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logo-isobEarlier this year, we told you that we received a generous grant from the International Society of Barristers (ISOB), which provided tuition assistance to enable public service lawyers from across the country to attend a NITA Trial Skills program of their choice.

A portion of that grant funds our annual Craig Spanenberg/John Liber Scholarship. We spoke with Moisés Ceja and Jerry Friedman, two Spanenberg/Liber recipients who, with ISOB support, each attended a NITA program last month. Here’s what they had to say about the experience.

The Building Trials Skills was invaluable. It helps hone skills that you tell yourself you need work on but usually absent is the forum to do so. I never took Trial Advocacy in law school. I felt like this was a semester course condensed into one week with more instructors than you can count, all ready to provide thoughtful feedback. I returned back to work with much more confidence in my trial advocacy skills. I will undoubtedly be applying for future NITA programs. Given that I work for a non-profit with limited means I hope to again be able to receive a scholarship through NITA.
Moisés Ceja
Oregon Law Center
Portland, Oregon

I am a new attorney without a war chest so finding funds to help develop my advocacy skills is always difficult. Brief CLE programs cannot offer the depth that NITA’s programs offer.

My practice is devoted to social justice issues. Currently, most of my cases prosecute civil rights claims against local, state, and federal government, such as two separate cases with clients who were kept in jail for more than 800 days each as pretrial detainees while the arresting police officers knew they were innocent. One of them was kept in solitary confinement for more than 14 months. This latter case is defended by four attorneys with close to 100 years of collective experience, far beyond the three years I’ve been in practice. The NITA program has accelerated my understanding of trial procedure far better than I could have understood spending equal time observing actual cases or fumbling through YouTube. NITA’s hands-on approach including critical feedback by experienced practitioners is simply invaluable.

I owe you a debt of gratitude.
Jerry Friedman
Law Office of Jerold D. Friedman
Cypress, Texas

We send our deepest appreciation to the ISOB for making these opportunities possible.

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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