The Legal Advocate

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Monthly Archives: November 2016


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Written by guest blogger Judge McGahey

With November and the Veteran’s Day holiday upon us again, I thought I’d go back to movies about military justice for this month’s review. As always when I write on this topic, I confess to having never been in the military, so my knowledge of the process is limited[1]. We’ll start with a movie about a military rebel who was a real person, then we’ll talk about a fictional movie about a real issue, racism, that we still encounter in the justice system.

the_court-martial_of_billy_mitchellWilliam (“Billy”) Mitchell was an American Army officer who was an early and fierce proponent of the value of air power in war; he’s sometimes referred to as “the father of the U.S. Air Force.” At the end of World War I, Mitchell was in charge of all military air combat forces in Europe and was a highly regarded officer. After the war, he advocated strongly for a powerful air force, and he became embroiled in intra-service disputes between the Army and the Navy. Mitchell claimed that defense dollars would be better spent on airplanes than on battleships and, more radically, that bombers could sink battleships with little difficulty. Mitchell was a man who expressed his opinions in blunt terms – and publically. Those blunt and public statements eventually led to his being charged with insubordination and court martialed.

sergeant_rutledgeIn 1955, Warner Brothers released The Court-Martial of Billy Mitchell, which told a somewhat fictionalized version of Mitchell’s story. The film was directed by the great Otto Preminger, and one of America’s iconic leading men, Gary Cooper[2], was cast as Mitchell (which should give you an idea of how the story would go.) Other then or future A-list actors like Charles Bickford, Ralph Bellamy and Rod Stieger were in the cast, too[3]. The movie generally shows Mitchell as a prophet without honor, railroaded by politicians and generals who didn’t possess Mitchell’s vision of what was necessary to keep America’s military strong, perhaps not surprising, since the film was released at the height of the Cold War. The court-martial scenes are especially troubling for lawyers, since it’s clear that Mitchell will not get a fair trial and will only be acquitted if he gives up his public fight for air power. Mitchell will not do that and is, of course, convicted[4], but the ending of the film is intended to show the viewer that Mitchell was ultimately correct about air power and ultimately the winner of his fight.

We’ll next take a look at a John Ford[5] western, Sergeant Rutledge (Warner Brothers, 1960.) The movie centers around an African American cavalry trooper at a fort on the western frontier. The trooper, played by Woody Strode, is wrongfully accused murdering his commanding officer and of the rape and murder of the commanding officer’s daughter. Rutledge is eventually brought to trial before a panel of bigoted officers who will be happy to see him hang. A young officer, Lt. Cantrell (Jeffrey Hunter) is assigned to defend Rutledge and in spite of all the potential for a miscarriage of justice, succeeds in proving that Rutledge is not guilty. The movie’s structure is interesting, since it’s told in flashbacks, which reveal what really happened at any given point in the story.

The movie is, in my opinion, another attempt by Ford to examine issues of racism and prejudice in American society[6], while allowing Ford to tell a story in one of his favorite settings, a cavalry unit on the American frontier[7]. It’s interesting to note that Sergeant Rutledge was released the same year as To Kill a Mockingbird, which features a very similar basic plot – and is also a courtroom drama. Ford’s film is less focused and its trial scenes certainly are not as memorable; you’ll never confuse Lt. Cantrell with Atticus Finch. But the underlying concept of how racism can corrupt the process of seeking justice comes through clearly.

Sergeant Rutledge suffers from some flaws, including some plot turns that make no sense and generally weak performances from the two main actors. Strode was an ex-football player who’s acting is serviceable at best; it’s hard to wonder why Ford cast him instead of Sidney Poitier or Harry Belafonte, who were preferred by the studio. Hunter was a blue-eyed, square-jawed American hero type, who had an extremely checkered career. He had co-starred with John Wayne in Ford’s The Searchers, but really put a crimp in his career by choosing to play Jesus in King of Kings (1961). He ended his career making low-budget movies on Spain and Italy and died at age 42 after falling at his home and fracturing his skull.

The Court-Martial of Billy Mitchell and Sergeant Rutledge both remind us that the principles of justice, farness and due process of law belong in every American courtroom, be it a civilian courtroom or a military one. We are a nation founded on respect for the Rule of Law, and any reminder of that is worthwhile.


[1] I’d welcome it if any of you with JAG experience want to weigh in on my reviews of military justice movies. So, Mike Roake, Charlie Rose, Chris Behan: be my guest!
[2] See, for example: The Virginian, Sergeant York, The Westerner, Pride of the Yankees, For Whom the Bell Tolls, and most memorably, High Noon. Cooper was a two-time Oscar winner and one of the most popular movie stars ever.
[3] Future TV stars Jack Lord (Hawaii Five –O) and Peter Graves (Mission Impossible) appeared as well – as did Elizabeth Montgomery (Bewitched) in her first movie role.
[4] The actual court-martial board included future WW II commander Douglas MacArthur, who would later say that he voted to acquit Mitchell.
[5] I know Ford had his flaws, but he’s still the director of many of my favorite movies.
[6] The Searchers (1956) was much better at this. As I’ve said before, it’s my favorite movie.
[7] See Ford’s “Cavalry Trilogy”: Fort Apache (1948), She Wore a Yellow Ribbon (1949) and Rio Grande (1950).

Breaking News: Brendan Dassey to Be Released from Prison

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brendan_dasseyBrendan Dassey, one of the subjects of Netflix’s Making a Murderer documentary, has won another important legal battle, as he will be freed on his own recognizance during the appeal, which was filed by the Wisconsin Attorney General after a federal judge overturned Dassey’s conviction in August.

Earlier this year, The Legal Advocate spoke with two members of Dassey’s legal team—NITA Trustee Emeritus Tom Geraghty and the Bluhm Legal Clinic’s Steve Drizin—whom we congratulate once again as this incredible case continues to develop.

2016 Industry Icon Awards

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The 2016 Industry Icon Awards on November 16th in Philadelphia will showcase an elite group of honorees including NITA’s very own, Joanne Epps. Not only has Epps been a NITA faculty member for over 50 programs, but she is first and foremost the Provost & Executive Vice President of Temple University Beasley School of Law. NITA would like to congratulate Epps on this high achievement as an inductee in this year’s Business Hall of Fame Winners. For more information preceding the event please click here and read The Philadelphia Inquirer’s article on all event details.

Book Review: Alternatives to Litigation

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alternatives-to-litigationThe Verdict, the quarterly magazine of the Trial Lawyers Association of British Columbia, reviews NITA books from time to time. Today, we are delighted to share Michael Sporer’s review of Alternatives to Litigation, by NITA authors Andrea Doneff and Abraham Ordover, reprinted below with permission and in its entirety. Our thanks to the Trial Lawyers Association for their interest and support of NITA publications.

Alternatives to Litigation: Mediation, Arbitration, and the Art of Dispute Resolution
Third Edition

by Andrea Doneff and Abraham Ordover. 282 pp.
Published by the National Institute for Trial Advocacy

The phone would ring early in the morning, well before the office opened. The familiar voice would almost shout: “Fred Perry. Inter-City Claims. Do you still take cream in your coffee?” An instant later, the office door handle would be jostling impatiently and old Fred, barking about litigation costs or howling in agony about the plaintiff’s demand, was pushing his way through the door and trying to resolve the file.

Wily, diminutive Fred—a well-known insurance adjuster, now gone for some years—seldom paid trial dollars to settle a case, but he would pay a little more than he wanted in the early stages of a claim to avoid litigation costs and to get a matter settled. He often achieved that settlement with his friendly, if occasionally acerbic, pro-active approach. And Fred always brought a coffee.

He wasn’t the only one who would pay a visit. A manager from the local ICBC Claims Centre showed up unannounced at the law firm I was working at not long after I was called. Personal introduction. Handshake. Business card. Some warm words of wisdom. “Call any time.” And two very fair settlement offers on smaller injury files.

Sure, there were always hard lines that were taken and tough people to deal with. But it is different today: many insurance companies now look and behave and feel more like entrenched bureaucracies. Hardly anyone comes knocking on the door anymore, and personal visits are rare. While clients are still eager to resolve cases, plaintiffs’ lawyers have to be creative to find ways forward to resolution.

Books on trial strategy and biographies of great barristers are staples in any trial lawyer’s reading diet, but those who are looking to change direction and read something focused on resolution of cases outside the courtroom would be well-served to read Andrea Doneff and Abraham Ordover`s Alternatives to Litigation: Mediation, Arbitration, and the Art of Dispute Resolution, published by the National Institute for Trial Advocacy (NITA). The book, first published in 1993, is now in its third edition (2014) and contains new, valuable, updated discussions.

Alternatives to Litigation covers general information important to all legal conflict resolution, before going into specifics. One of the fundamental suggestions the authors make, sounding a little like the great Wyoming trial lawyer and advocacy teacher Gerry Spence, is that lawyers should start with themselves. Chapter two—“The Dynamics of Conflict”—advises lawyers to take specific on-line tests—the good ones are identified by the authors and easily accessible on the internet—to help lawyers gain insight into their own personalities, and learn how they approach conflict. The authors emphasize that this is an important starting point for lawyers who work day-to-day in litigation, where their clients require conflict resolution.
The book, as its title promises, covers a range of alternatives to litigation, and provides useful advice in relation to negotiation, arbitration, and mediation. Chapters seven through thirteen—the heart of the book—focus on mediation.

The authors note that some of the dynamics in mediation are typical to particular areas of law, and the differences between specific mediation environments are highlighted. Family law divorce mediation receives its own chapter[1], and personal injury and employment mediation also receive perceptive commentary. The book notes that in personal injury mediations, it is particularly difficult to break the more entrenched, positional mold of negotiating, which they say, is part of “the nature of this particular beast.” Strategies are suggested to help break an impasse, when both sides dig in.

One of the features of the book is that it helps lawyers understand what a mediator can do to help the settlement process, and how to work with a mediator more effectively at mediation. While the experienced, well-trained mediator might find little new in these pages, one exception could be the discussion on ethics. Like most NITA courses and publications, the book puts ethical questions front and centre, and in this case particularly so from the perspective of the mediator, dedicating a full chapter to ethical issues that can arise during the mediation process.

As always, there is room for a quibble or two. In its discussion of injury law mediation, the book is critical of unhelpful incentives said to arise from contingency fee agreements, suggesting that such fee structures can ostensibly provide barriers to appropriate settlements for plaintiffs. But one can find theoretical problems with any fee structure. And there is no doubt that a contingency fee also can be said to provide important incentives on plaintiff`s counsel to reach a fair settlement earlier rather than later, pushing down litigation costs, and keeping cases out of the courtroom. On the other hand, the hourly fees of defence lawyers who oppose injury claims could, theoretically, be argued to provide very different incentives—for example, to run a big trial or prolong a case—but as to those hourly fees of insurance defence lawyers and their incentives at personal injury mediation, the discussion is silent. Nor, perhaps should it go there—the professional obligation to act in the best interests of the client and not to prolong a case prevails. But the point is that contingency fees often receive disproportionately negative treatment, as they do here in this personal injury mediation discussion. These are, however, minor quibbles, that don`t distract from the effective overall presentation or the useful information that is provided throughout the book.

The book explains novel concepts like co-mediation, when more than one mediator might be helpful, and on-line mediation, to be used when it might be difficult to get all the parties together. In the latter case, a mediator can contact the parties—by phone, video conference, email, and a little shuttle diplomacy—to help bring a case to an end that all parties can accept.
Doneff and Ordover have years of experience working and teaching in this field. Most lawyers will find they have shared valuable insights in their recently updated book.

[1] Chapter Eleven, “Divorce Mediation,” is written by Patricia Siuta, President of American Mediators, LLC.

Federal Rules of Evidence with Cues and Signals for Good Objections, First Edition

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federalrulescuesIn Federal Rules of Evidence with Cues and Signals for Good Objections, First Edition, knowing the technical bases for objections is not so difficult because law school covers that. However, the difficulty lies in recognizing a good objection very quickly when your opponent puts a question to a witness or starts using a document. This handy guide identifies the cues to listen for when your opponent asks a question or the witness gives an answer. When you know the cues you can object rapidly and successfully.

Furthermore, this guide gives you details on every objection that has been recognized in federal courts and sorts out the high-payoff objections from those of lower priority for both oral testimony and exhibits. If you are looking to increase your knowledge and understanding of objections then look no further. This compact guide is perfect for you.

Retail Price: $35

Order Here in: Print, epub, or mobi

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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