The Legal Advocate

A blog brought to you by the national institute for trial advocacy

Monthly Archives: July 2017

Welcome the Newest NITA Advocates

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NITA is proud to announce the 2017 2nd quarter recipients of the Advocate Designation. These designations are awarded to a person who has taken a well-rounded set of courses, proving they are serious about trial advocacy.

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  • Andre Hungerford | Hungerford Legal
  • Charles Shelton | Crone Hawxhurst LLP
  • Keevil Markham | Law Office of Keevil L. Markham
  • Maria Estanislao | Loventime Law LLC
  • Marilyn Phelps | Office of Marilyn Phelps
  • Christopher Nuneviller | Nuneviller Law
  • Tanya Broholm | Tanya Broholm Attorney at Law
  • Sam Wu | Law Office of Sam XJ Wu APC

If you have any questions on how you can receive the NITA Advocate or NITA Master Advocate Designation, please review the information on our Advocate Designations page, or email customerservice@nita.org.

July 2017 Executive Director’s Letter: Humanity, Lawyering, The Best Kinds of Wishes

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Lockwood_KarenEven with all the judicial words carefully chosen and deeply scrutinized for their wisdom in written opinions, the flags marking the character of any lawyer or judge are the ones said outside crafted rulings and precedential cases. This is not a political statement – it is one of humanity.

Chief Justice John Roberts Jr.’s recent reflection illustrates the impact of this humanity. Each lawyer, whether or not the leading Justice in the land, sets the object and tone of true justice by the words and action expressed publicly. If those words are true as the North Star and delivered with some art, they will make a difference every day in your communities, offices, and courts.

Here, then, are the markings of the ideal advocates. This is the passage from Justice Roberts’ commencement speech to his son’s school of middle-years boys.

“From time to time in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice. I hope that you will suffer betrayal because that will teach you the importance of loyalty. Sorry to say, but I hope you will be lonely from time to time so that you don’t take friends for granted. I wish you bad luck, again, from time to time so that you will be conscious of the role of chance in life and understand that your success is not completely deserved and that the failure of others is not completely deserved either … I hope you’ll be ignored so you know the importance of listening to others, and I hope you will have just enough pain to learn compassion. Whether I wish these things or not, they’re going to happen. And whether you benefit from them or not will depend upon your ability to see the message in your misfortunes.” Chief Justice John Roberts, Jr., June 3, 2017.

I too hope for these blessings of adversity for every lawyer and would-be lawyer. I count on them in every NITA attendee, and honor the ability of lawyers to rise above personal hardship and to learn. I honor their dedication to remembering, long after they can claim “success,” that feeling of struggling.

Speaking of struggling, the residents across the nation who seek consistent safety, shelter, and the “luck” of a predictable life know more about compassion than most of us will ever learn. In The Legal Advocate’s recent blogposts, you have read about some of the public service programs NITA presents, with at significant investment of its own resources. We thrill to serve these advocates who push justice forward against many odds.

And so, you may ask, in my ED Letters introducing our staff (January-June 2017), why have I not mentioned the “public service staff.” Simple — “They are Us.” We all serve NITA’s public service mission alongside our regular programs to bring the best NITA program-learning to every advocate who wishes to enroll. A public service program is no different in its quality of learning. But it is an extra measure. We are proud. We thrill to offer it. And we are thankful every day that we can do so, thanks to you.

Have a reflective and inspiring summer’s pause!

Karen_ShortSig

 

 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

New Mexico Public Defenders/NITA Public Service Program

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This year, NITA joined forces with New Mexico Law Office of the Public Defender for a public service trial skills program, June 8-9 in Albuquerque. During the intensive two-day program, the public defenders learned skills such as opening and closing statements, direct and cross examination, and exhibits. With a “drills-style” and NITA’s tried and true “learning-by-doing”, attendees were able to enhance their trial skills in this customized two-day program. NITA Program Director and Attorney Mary Jo Barr worked with Metro Division Managing Attorney Patricia Anders at the New Mexico Law Office of the Public Defender, to make sure the program schedule was customized to fit the needs of the public defenders.

“I loved this course. It was a very effective in helping boost my trial skills. I especially like that the course helps improve individuals from whatever their current skill may be,” stated one attendee. NITA programs cater to various skills levels which can often create a wide range of attendees.

Likewise, one attendee stated, “This was very helpful. I do not have much trial experience, and it was very useful to get some guidance on being an effective trial advocate. I appreciated the opportunity to practice in front of people, even when I felt uncomfortable.” NITA’s learning-by-doing method calls for many opportunities in which attendees practice a skill and then are able to receive immediate feedback and critiques. This approach means many chances to be on your feet and practicing.

Not only did the public defenders share their successes of the program, but Program Director Mary Jo Barr also felt the course very worthwhile. “Public Service is the noblest good – we hear it so often is has become a platitude. Working with the public defenders of the State of New Mexico at the NITA trial skills program and the difference between talking about public service and doing public service could not have been more obvious or rewarding. It may be a platitude to say it these days but it remains righteous to do it.”

Why You Should Start Thinking About Your Trial Technology Well Before Trial

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written my guest blogger and NITA faculty Wayne Stacey

Courtroom technology is not about slick presentations and overdone graphics. Courtroom technology is about helping jurors follow your story and remember the supporting exhibits. It is also about engaging each juror’s individual learning methods.

While we often focus on the usage of technology as we approach trial, the focus should begin much earlier. In today’s civil trials, key witnesses are often outside the trial-subpoena power of the court. That means the only way to present those witnesses’ testimony to the jury is through deposition playback.

Anyone who has sat through video playback knows that it can be brutally boring and difficult to follow, which means that the jury will likely miss the point and overlook important evidence. The jury sees witnesses questioned in the open-ended style common to depositions rather than the leading, cross-examination style common to trials. As a result, the jury is left with a meandering series of questions and long answers rather than a crisp cross-style trial presentation. And most damaging, the jury is left with no easy way to link the video testimony with the trial exhibits.

To solve this presentation problem, focus on creating the material for engaging video clips during the depositions. Consider yourself the director in a short movie. The witness is your actor, and the exhibits are your props.

Trial technicians bring your vision as director to life. They can sync video playback and exhibits in a split-screen view to create a visually engaging video. But more importantly, they can draw the jurors’ eyes to the key material through annotations. The example below shows how a good trial technician can link witness, exhibits, and annotations. The video playback in this example looks more like a live-witness presentation than typical video playback. The witness is shown in the upper left corner. The exhibit is shown simultaneously on the right side of the screen. The trial technician creates a callout over the exhibit—helping the jury understand the origins of the callout. And finally, the trial technician can annotate, in real time, the exact material corresponding to the witness’ testimony. This arrangement makes the story and the evidence easy for jurors to follow. Jurors are not required to flip through paper exhibit copies or search a screen for the relevant material.

This type of engaging video playback does not happen by accident. Trial technicians need guidance when selecting exhibit clips and annotating the clips. The deposing attorney must provide that guidance through carefully-crafted deposition questions. Rarely will courts allow a technician to clip or highlight exhibit material not clearly called out by the deposing attorney or the witness. Think about these questioning techniques as controlling the eyes of the witness, the trial technician, and the jurors. All of this must be set up in the deposition.

Three steps will guide trial technicians and the jury through typical exhibits. These techniques must be rolled out during the deposition to make them useful.

  1. Introduce the exhibit properly: Often exhibits are introduced mechanically in a deposition, such as by introducing the document as Exhibit 1 and then explaining that Exhibit 1 is marked with Bates No. 743,231. The mechanical introduction is useful for record clarity, but it is not useful for the jury. For example, the exhibit number used in deposition frequently does not match the exhibit number used in trial. Jurors are unlikely to do any conversion between deposition exhibit number and trial exhibit number. And few jurors will connect with an exhibit’s bates number. This type of mechanical approach would rarely be used at trial.
    If the exhibit is one that the jury should see, remember, and understand, introduce it with the video playback in mind. Guide the witness in the deposition to the key identifying features of the document such as title, date, signature, etc. The trial technician can follow this guidance and highlight those identifying features for the jury during the video playback.
    In the example above, you would want to direct the witness to the company name, “Data Dynamics Corporation;” the document title, “Quarterly Income Statement;” and the time period, “For the Period July 17, 1987.”
  2. Guide the witness to the correct section of the exhibit: Once you have introduced the document to the deposition witness (and the jury), guide the witness to the correct section. Try to set the stage for the section that the witness (and eventually the jury) is seeing. Call out identifying material such as chapter headings, section titles, paragraphs, etc. The trial technician can highlight this material based on the deposing attorney’s questions.
    In the example above, you would guide the witness to the totals section that includes the “net sales” and “costs of sales” information.
  3. Guide the witness to the exact material that you want the jury to see: If you have done steps 1 and 2, the jury should be following your questions about the exhibit. They know what document you are asking questions about. They know the section you are focused on and how it fits into the whole exhibit. They are following the testimony and the visual presentation because the trial technician is guiding their eyes by highlighting material corresponding to your deposition questions. And with a final question, you guide the witness (and trial technician) to the exact material that you want the jurors to remember.
    In the example above, you would direct the deposition questions to the specific “gross profit” entries. The jury could forget everything else about the exhibit, but they should remember the approximately $400K in profits. They saw the number with their own eyes—because the trial technician highlighted it for them. They know where the number came from because you guided the witness (and the jurors) through the exhibit.

Courtroom technology does not make your story better. Technology’s role is to help you visually tell the story and help your jurors remember the evidence. The next time you are drafting your deposition outline for a deposition that could be played at trial, ask yourself what type of video are you creating. Are you creating something that the jurors can follow? Are you introducing evidence in a way that the jurors will visually follow? Or are you creating something destined to put everyone to sleep? Whatever you create, it starts with the questions you ask in the deposition. The conventional wisdom of asking open-ended deposition questions is not always the best solution.

The Evolving Deposition

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NITA Faculty and Attorney Reuben Guttman co-wrote an article for Law 360, The Evolving Deposition. Guttman mentions NITA’s Deposition Skills: Seattle program in which he states, “practicing lawyers are trained in the skills of taking and defending the modern day deposition. Students are therefore counseled against making speaking objections, and an entire session is held on coping with obstreperous counsel.” To read the full article and learn about how depositions have evolved over the years, click here. Congratulations Reuben and thank you for being a proponent of NITA!

*Please note – when clicking the link you may have to register to read the entire article. However, if you do a Google search: The Evolving Deposition Law 360 and click the first link, you can view the article in its entirety without registering.

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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