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Monthly Archives: March 2017

NITA Movie Review: There Is Absolutely No Place In A Courtroom For Pride

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Written by guest blogger Judge McGahey

Having recently rotated out of a domestic relations division and back into a civil division, I thought that this month’s review ought to focus on a movie involving civil litigation – so naturally I picked A Civil Action (Buena Vista Pictures, 1998), another movie “based on a true story.” I’d forgotten some of what made the movie memorable, but after watching the whole film on YouTube, I remembered that the movie has much to recommend it, not the least how it shows the way that litigation can be stacked in favor of the party with the most resources – and how a lawyer’s “standing on principle” may not be the best resolution for the lawyer’s client.

Jon Travolta plays real-life lawyer, Jan Schlichtmann, who takes on a toxic tort case for clients living in Woburn, Massachusetts, a town with high rates of cancer, illness and even death that the clients – and eventually Schlichtmann – are caused by pollution of the town’s water supply by tanneries owned by corporate giants Beatrice Foods and W.R. Grace and Co. Schlichtmann, assisted by other lawyers, files a class action lawsuit, seeking a big dollar payout and an apology for his clients. But things go wrong, very wrong. The Defendants hire high-powered lawyers, especially Beatrice’s lawyer, Jerry Facher, played by Robert Duvall. It becomes obvious that Defendants’ lawyers have Schlichtmann and his cohorts seriously outgunned, both in their ability as lawyers and by the vastly superior monetary resources the Defendants can bring to bear. Schlichtmann and the other lawyers on the Plaintiffs’ side have to keep advancing costs to keep the case alive; the Plaintiffs’ lawyers mortgage their homes, cash out retirement accounts and borrow money, but it’s never enough. Schlichtmann and his clients get unfavorable rulings from the trial judge (John Lithgow) yet turn down a huge settlement offer. The Plaintiffs take the case to trial and the result isn’t what they either want or need. Schlichtmann ends up a broken man, in bankruptcy court.

A Civil Action is well-thought of. In the ABA’s 2008 list of Twenty Five Greatest Legal Movies, it’s ranked 22nd. In another ABA poll taken in 2015, it was voted one of the three best legal movies of the decade 1995 – 2004. Robert Duvall was nominated for a Best Supporting Actor Oscar; Marlon Brando turned down the part of Jerry Facher.

But the movie ultimately may make you uncomfortable. The justice is all on one side of the case; the financial muscle and resources are all on the other side. Schlichtmann goes into court and during the trial makes some fundamental errors in presentation and preparation. He wants to fight for principle and in doing so destroys himself and his fellow lawyers, while leaving his clients with little real relief. He focuses on a single, specific outcome and blindly pursues it without thinking through what will happen if that result is not achieved. In the end, he demonstrates the accuracy of something Facher says to a law school class, from which I took the title of this review: “Now the single greatest liability a lawyer can have is pride. Pride… Pride has lost more cases than lousy evidence, idiot witnesses and a hanging judge all put together. There is absolutely no place in a courtroom for pride.” I have told my students at DU Law School something similar for years.

Many of us have heard Mark Caldwell tell program participants that a lawyer must be the client’s voice. What goes on in a courtroom must always be about the litigants first and foremost. When lawyers – and judges – forget that and put their egos ahead of the just resolution of the case that needs deciding, the legal system fails us all.

Asked and Answered—Jason Young, NextGen Class of 2016

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James Thurber once observed, “The wit makes fun of other people; the satirist makes fun of the world; the humorist makes fun of himself.” In Jason Young, NITA has a humorist on its hands. Jason is also a member of NITA’s NextGen Class of 2016— and, as you’re about to discover, an advocate, colleague, teacher, and mentor of considerable humanity. Catch him at next month’s Rocky Mountain Trial Skills program, where he’ll joins other “Asked and Answered” interviewees Judge Bob McGahey and Judge Amy Hanley and many other top-notch faculty at our headquarters in Boulder. In the meantime, enjoy getting to know Jason in this week’s “Asked and Answered.” We certainly did.

How did you first meet “Auntie NITA”?
Former [Denver District Court] Judge Tina Habas (simply known at present as “The Habas”) and current [Colorado Eighteenth Judicial District Court] Judge Steve Collins had been encouraging me to get involved for a few years. I think they were both just secretly looking for a way to spend more time with me.

Where did your year of traveling and teaching for NITA take you?

I got to teach at programs in Chicago, New York City, San Francisco, Dallas, and of course Boulder (the mothership). I would have loved to teach at additional programs, but I could not get anyone to take me . . . which is a recurring theme in my life.

What was the most interesting thing you experienced in 2016 as a result of being NextGen faculty?

I have always, oddly, been obsessed with the JFK assassination—even as a kid. My parents gave me a set of the original newspapers from November 22, 1963; they are framed and hanging in my dining room. I even tracked down the exact same rifle Oswald used (6.5x52mm Carcano Model 91/38, built in 1940 at its factory in Terni, Italy) just to see if I could get three shots off in under nine seconds. So, when I was given the opportunity to teach at the LSCO [Legal Services Corporation] program at the UNT Dallas College of Law, I jumped at the opportunity. Much to my surprise, when I arrived I learned that the law school was moving into the old Dallas Municipal Building where Oswald was held after the assassination, all the iconic photos of him were taken, and where he was assassinated by Jack Ruby in the parking garage.

I learned that the cell Oswald was being held in would be moved down to the first floor and preserved, but I was dying to see it in its original state. I mercilessly begged our program director Professor Cheryl Wattley (and any staff member I could chase down . . . administrators, the poor guy emptying the trash, etc.) to get me into the building. I was informed that it was a construction area and I could not get in; I was told I would need a hard hat . . . I promptly offered to buy three. My begging was without any semblance of self-respect or dignity, but to no avail. However, I was assured by Professor Wattley that I would be invited back to see it once the move was complete. . . but based on my annoying and single-minded obsession, I can only assume that she deleted any record of me the instant I left Dallas.

What surprised you during this year of back-to-back teaching?
I had taught the Boulder trial skills program for several years prior to getting this opportunity, so I had a good grasp of how things were done. But, seeing how things were done differently (in varying degrees) at other programs was eye opening. When you teach that many programs that close together, you really get to see what concepts work well and what ones may be more challenging. For instance, I always thought using participants own phones to record their performances would be a simpler and easier way to go. However, when we did it at one of the programs it was surprisingly difficult. A lot of participants did not have enough memory on their phones, would borrow someone else’s phone, get to video review and realize they did not know the password, have to go back, etc. That is just one simple example of many. Seeing different approaches to the NITA programs was educational and worth its weight in gold.

What is one piece of advice you might offer to this year’s incoming NextGen class?
Take every opportunity you are given and go in with an open mind. Also, if you get to go to Dallas don’t pester Professor Wattley incessantly to see Oswald’s cell . . . she has enough to worry about.

You have an academic background in history and kinesiology, which rather begs the question: what career path might you have taken besides the law? And why did you end up choosing the law?
I always wanted to be a doctor. History has always fascinated me and I majored in the subject out of personal interest, but I was also pre-med. Once I realized all the pre-med requirements went toward a kinesiology degree, I said to myself, “Well, if I have to take all the classes anyway, I may as well have something to show for it.” I spent every break in college working in surgery at a hospital in Colorado Springs; I got to watch every surgery imaginable, carry severed limbs to the pathologist, etc. But, my grades were not good enough to get into medical school and I realized that I suck at science (small problem). I got into grad school for kinesiology with the intent of trying to get into medical school afterward.

It always fascinates me to talk to people who knew they wanted to be a lawyer, or even more specifically a judge, when they were small children. I was not that guy; I never even met a lawyer until college. I only became interested in law school during my junior year of college when one of the surgeons put me in touch with his daughter who was an investigator with the Public Defender’s Office . . . and I was hooked (by the career path, not by the surgeon’s daughter). A week after I got into the graduate program for kinesiology, I found out that I got into law school. I figured being done in three years, instead of getting a master’s degree and trying for med school in two, was a more sensible way to go. Based on my aptitude for science, it could not have worked out better. A lot more people are likely alive today because I chose to pursue law instead of medicine.

What are the first websites you look at in the morning?
Wall Street Journal and The Economist. Who am I kidding . . . I look at Yahoo. My wife reads The Economist. I prefer books with pictures where I don’t need to sound out the big words.

What book have you re-read the most in your life? Perhaps not necessarily a favorite book, but one that keeps drawing you back into it?
On The Road, by Jack Kerouac. It just speaks to me differently every time I pick it up. The “journey” of life certainly has a different meaning for me at forty than it did at twenty. Despite the fact that the words do not change, my interpretation of their meaning does and it always fascinates me how looking at the same thing through a different “lens” can greatly change one’s interpretation.

If you had to live somewhere else, where would it be, and why?
Borrowing from the theme above, I would live “on the road.” I try to take a solo cross-country motorcycle trip every summer to clear my head; last year I rode through sixteen states. Each time I go, the harder it is to come back. I always seek out offbeat things to amuse myself and detach from the practice of law for a week or two. In the last couple of years, I’ve gone to the alien museum in Roswell, New Mexico; ridden the Extraterrestrial Highway by Area 51 in Nevada; had lunch at the Little A’Le’Inn; stopped at a haunted Clown Motel in Tonopah, Nevada; had a snake bite me on the leg at a cemetery in Aurora, Texas when I was walking through looking for the headstone of an alien that was supposedly buried there in 1897 (there is an official State of Texas plaque at the site commemorating the event); participated in an all-night ghost hunt at the Waverly Hills Sanatorium in Louisville, Kentucky; ghost-hunted at the St. James Hotel in Cimarron, New Mexico; visited the “Mothman” in Point Pleasant, West Virginia; watched the movie Fargo on a pit stop in . . . Fargo, North Dakota; and many more as I zig zagged my way across the country. I am sure I would get tired of it at some point . . .or not . . . .

If you were on death row (because you didn’t hire a NITA trial lawyer, obviously), what would your final meal be?
Either a well-prepared filet mignon . . . or Chipotle. I’m a pretty simple guy, so I would probably land on Chipotle. In addition, I generally eat so much at Chipotle that I wish for death anyway . . . so it makes sense.

What terribly music do you sing along to in the car when no one else can hear you? (Ok, I’ll go first: Kelly Clarkson.) (I know.)
I like a wide range of music, with the exception of country music or jazz. I don’t get either one. I’ve been known to belt out “MMMBop,” by Hanson . . . that is one catchy tune. [Ed.: Brave admission, Jason.] But, my favorite all time band is Tool (or any other Maynard spinoff). I’ve got fourth row tickets to a show in April . . . I am beyond excited.

What is your motto?
I approach my job with humility and a sense of humor. I realize the law is something I do, but now who I “am.” My legal career has afforded me a lot of great opportunities, but I have also had to deal with a lot of serious cases. I tried my first murder case when I was twenty-seven and went on to try several other life sentence cases since that time. I once had to look a sixteen-year-old kid in the eye and tell him he was going to die in prison and there was absolutely nothing I could do to stop it. After eight years as a Public Defender, I transitioned into civil litigation where I have tried cases ranging from a few thousand dollars to seven figures. After dealing with all the stress and trauma involved with serious criminal cases, I found that civil lawyers tend to take themselves far too seriously. Overall, as a profession, I find we all tend to take ourselves far too seriously. We have important work to do, and it is important to respect the craft. But, I also bear in mind that fighting over money in a personal injury case is not the saving the world.

On a personal note, my wife was diagnosed with stage four lymphoma in January 2015. Months in the hospital, surgeries, chemo, baldness, etc. She was fortunate to make it through and is in remission . . . only to be diagnosed with leukemia a year later. The leukemia is also treatable, and we consider ourselves to be lucky. We all have to deal with tragedy and serious issues in our personal lives; we cannot forget how important life is outside of the law. Our lives changed drastically overnight, and that can happen to any of us at any time. As I held my wife’s hand while she vomited from the chemo at two in the morning, I certainly was not thinking, “I wish I spent more time at the office.”

So, here is my motto: “The law is important, but it is not everything. Don’t take yourself too seriously.”

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

The National Institute for Trial Advocacy and Hughes Hubbard Announce Collaboration on Guide for Federal Court Trial Lawyers

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Boulder, Colo. and New York, March 15, 2017 – The National Institute for Trial Advocacy (NITA) and Hughes Hubbard & Reed LLP are pleased to announce that they are collaborating on the publication of a new guide for federal court trial lawyers.

Entitled “Playing To Win: Appellate Preservation for Trial Lawyers in Federal Court,” the guide will be co-authored by Hughes Hubbard lawyers Robb Patryk, Ross Lipman and Jonathan Misk and will address appellate preservation rules, techniques and case law applicable to every stage of trial.

The guide will be offered free of charge as a courtesy to trial lawyers on NITA’s and Hughes Hubbard’s websites and their respective social media platforms. The targeted publication date is May 15, 2017.

About The National Institute for Trial Advocacy
The National Institute for Trial Advocacy (NITA) is the nation’s leading provider of legal advocacy skills training. A 501(c)(3) not-for-profit organization based in Boulder, Colorado, NITA pioneered the legal skills learning-by-doing methodology over 40 years ago and has since remained the ultimate standard in continuing legal education. For more information, visit nita.org.

About Hughes Hubbard & Reed
Hughes Hubbard is a New York City-based international law firm that offers clients results-focused legal services and a collaborative approach across a broad range of practices. Hughes Hubbard was founded in 1888 by the distinguished jurist and statesman Charles Evans Hughes and is renowned for its trial and appellate practice in complex cases, including litigation involving issues related to product liability and toxic torts, antitrust and competition, corporate reorganization, international arbitration, and patent and intellectual property. For more information, visit hugheshubbard.com.

Book Review by David L. Kwass: Jury Trials Outside In

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David L. Kwass, Partner at Saltz Mongeluzzi Barrett & Bendesky PC, has recently reviewed the NITA published book by author Melissa M. Gomez, PhD, Jury Trials Outside In. Below is his review:

Jury Trials Outside In is a rare entry into the literature of jury trial analysis that is at once accessible and thought provoking, at once practical and theoretical. Whether explaining the theory of proactive interference, plumbing the mysteries of smiling jurors, or teaching us why phone numbers have 7 digits, Dr. Gomez’s concise tome offers powerful insights backed by memorable examples.

She answers questions about which trial lawyers on both sides of the “v” wonder and debate: Do jurors care about following rules or fairness? Can appeals to common sense backfire? How do I recognize thought leaders on my jury panel? Does the Sumo technique of yobi modoshi have an analog in modern trial practice?

Throughout this entertaining work, Dr. Gomez never loses track of her central theme, that the science of jury psychology can help us communicate more effectively with jurors. My advice? Buy the book and mark it up while reading. You’ll come back to it time and again, and be very glad you did.

Asked and Answered—Judge Amy Hanley

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Between announcing the incoming Class of 2017 faculty and our interview with Jayme Cassidy, it would seem The Legal Advocate has NextGen on the brain lately. Because of its importance to NITA’s continuity and growth, today we’re talking with Amy Hanley, another standout “graduate” of the program. “Amy is one of my favorite new NITA stars,” says Mark Caldwell, Program Development and Resource Director at NITA. “She brings creativity, steadfast adherence to the NITA teaching format, high energy, and compassion to any classroom.” Amy brings a lot to NITA, and we’re fortunate to have her onboard as faculty. She’s a keeper.

How did you first meet “Auntie NITA”?
I was “discovered” in Hays, Kansas, by Mark Caldwell at the Kansas NITA Public Service Program. Judge Bill Ossmann had invited me to join him in Hays to teach prosecutors and public defenders. I had no idea what NITA was, but I prepared a presentation on closing argument and headed west. At that program, I met Mark and another NITA character by the name of Tom Swett. I followed their lead and must have done all right because I earned myself an invitation to teach in Colorado the next year. [Note: She’ll be back in Colorado next month to teach at the Rocky Mountain Trial Skills program.]

You were selected as a member of NITA’s NextGen Class of 2014. How did that year-long experience change your life?
The NextGen program added a missing layer of flavor to my professional life. My role as an advocate (I tried criminal cases in my former life) was much richer after flying all over the country to teach with lawyers/judges/professors from every area of the law. I learned much more than I taught. NextGen travel also introduced me to some of my now close personal friends.

You recently took the Seventh District bench in Lawrence, Kansas. What is the earliest recollection you have of realizing that being a member of the judiciary was something you’d be interested in and capable of?
About three weeks before I submitted my application—no joke. This stage in my career was completely unplanned. I was told that a judge in my district was about to retire. I had never considered it before, but the timing was right and I immediately knew I was ready to take that step.

Who has been your greatest mentor?
I would not have gone into trial work without the influence of my two mock trial team coaches at Drake Law School, Mark Godwin and Steve Foritano. Those guys are the real deal—über-talented trial dogs, but modest, with a sharp sense of humor.

Why do you teach?
For me, watching a student win a trial was more rewarding than winning one of my own.

What is the biggest risk you’ve taken that paid off?
I always say yes when I’m asked to do something I think I might not be able to do. Personal growth is the payoff.

If you hadn’t gone into the law, what career path do you think you might have taken instead?
When my sister and I were young, we’d play school. I was always the teacher, “Miss Suzy Sunshine.”

How do you unwind in your off-hours?
Always one of these three: cooking, traveling, or shopping. On Saturday morning, I’m usually in my kitchen making a big brunch; Saturday afternoon, I’m at Nordstrom. If we have more than three free days in a row, John and I are on a plane.

What has been the most memorable meal of your life?
NITA sent me to Tokyo to teach. My first night there I had eight courses of sushi and sake at a restaurant that was 147 years old. It was divine!

If you could witness any event in history, what would you choose, and why?
Jury deliberations during the OJ Simpson trial. I’m intrigued by the secrecy of what happens during all jury deliberations, but I would love to have seen the details of that verdict unfold.

Judge Amy, the time has come for you to lip-sync for your life. What song are you going to sing?
Lost in Emotion, by Lisa Lisa & Cult Jam while wearing tight-rolled jeans.

What is your motto?
You have to learn the rules of the game. And then you have to play better than anyone else.

Coffee or tea?
Strong coffee, please. I have Swedish roots.

iPhone or Android?
iPhone despite my husband’s attempts to make us an Android couple.

Cats or dogs?
Three crazy rescue cats live at the House of Hanley.

Popcorn or candy?
Popcorn. Salt is life!

Introvert or extrovert?
Nobody ever believes me when I say this, but I am so very introverted.

Sunrise or sunset?
The best stories from NITA City unfold after sunset.

Classical or jazz?
I’m not cool or pretentious enough to be a connoisseur of either.

Rain or shine?
I love the mystery and intrigue of the rain. I’d choose Seattle over Florida any day. [Note: Catch Amy at our Seattle Trial Skills program in July.]

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

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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