We have spoken of women before . . .
In 2005-06, I served as President of the Women’s Bar Association of DC, the oldest continuous women’s bar in the US. We courageously led an “Initiative” on women in the law. The title was carefully chosen to achieve our goal, and it connotes volumes:
The entire DC legal community stepped up to the Initiative – 220 men and women – from all sectors of practice. We got them to exchange problems and diagnose causes over 16 hours of structured dialogue. We took it in stages — reducing ignorance, talking frankly, examining current measures to advance women, and admitting that those measures are not enough. Inclusive community discussions would be of even greater value today than in 2005.
Then we wrote up a host of measures to improve the advancement and retention of women in the law. What we wrote was what the DC legal community discerned, deplored, and developed in those 16 hours. You should read it. WBA-DC Initiative Report 2006. (See also WBA-DC reports 2007-10.) What was left is the doing.
I then placed with the New York Times – with great luck and the wonderful journalist Tim O’Brien – the framework for what became the Times’ extensive Sunday Lead Feature article on this subject – page one, above the centerfold. Up The Down Staircase (NYT Mar 19, 2006). I referred him to key leaders to interview, he found more, and the Times sent photographers around to shoot us on location. It was a big thing. It was important. And Tim O’Brien got it right.
Tim asked me this important question during the series of calls we had (to paraphrase): “So the profession of law, charged with doing justice and upholding the laws against discrimination, is discriminating? ” My answer: “No. Law firms are way beyond discrimination — this is about advancement and retention. Problems with advancement and retention are grounded in biases, not discrimination.” This is bigger, squishier, and harder to attack. This is about changing how the profession grows and matures its future leaders – how it gains the will to keep the 50% of law grads who are women, a population bleeding out the talent base when they quit. And of course the obstacles are compounded for women of color and others who don’t seem to look like the classic male U.S. lawyer of the past.
I set my alarm for 5 am that Sunday to hit the drug store for my copy of the Sunday Times. We had set a path forward for open dialogue and productive change – and the nation knew now.
We are repeating ourselves still . . .
Eleven years later, are we still arguing about this?
NITA takes action through even-handed coaching of every lawyer who wishes to improve trial skills. We routinely have many women along with men in our trial advocacy sessions. We see no distinction between the genders in the trial skills they bring with them, or the great gains they make with us. They exhibit ambitious, use drive, and blossom under the individual attention and coaching at NITA.
But courtrooms remain skewed. In the August 8 New York Times Op-Ed piece, Females Can Talk, Too, recently retired Judge Shira K. Scheindlin (SDNY) related a courtroom scene, still so common, of a lead trial lawyer (most often male) turning to his co-counsel (a woman lawyer) to learn how to answer the judge’s question. She knows the case and its nuances. The Judge’s judicial group recently tallied how many New York courtroom appearances in a 4-month period featured women as the primary speaker in open court. In the 2800 court appearances noted, only 20% of those for cases between private parties featured women lawyers. Among all the cases (thus including public sector and public interest practices), only 25% were led by women. See also this Law360 follow-up article.
The readers’ comments to Judge Scheindlin’s piece included many reflecting a rush to judgment – even intemperate — with facile “values”-based assertions. Among others, those that attack the talent and capabilities of women as a gender to practice trial law are wrong, as I have said above. Those that ponder the societal pressures on family raise a real issue that our DC Initiative pondered too; and yet the balance between satisfaction at one’s career weighed against the satisfaction at having singular childcare responsibilities is often unfairly skewed because of negative stereotypes and forestalled opportunities at work. See The Difference Difference Makes (Deborah L. Rhode for the ABA 2003). There is no reason why females as opposed to males should be predominantly downsizing their career ambition – including women trial lawyers.
The call to action . . .
Let’s stop doubting . We have lot of work already written on diversity in the law and women’s advancement. I have cited just some of the older articles in this post in order to make that point – this is not new knowledge.
Let’s stop attacking the messengers. Learn, share, integrate it into your reality, pass it on, and continuously pursue new better ways.
In offices and bar groups around the country, take up the problem of how the profession represses our promise, capacity, reach and influence by losing diverse talent.
Recognize that this will take time and real work. Our efforts must not cease if numbers don’t seem to change in a New York minute (or to modernize it, in an Online essay). Rather, we must work together to discern the implicit bias, resist its influence, and uproot its patterns, firm-by-firm.
Everyone likes a list; here is my start —
If you have trouble imagining initiatives, let me know. For example, put women in court no matter how much you yearn to stand up yourself. Be there with her – so she too has someone to consult during her argument and to pull her documents. So she can emerge proud that she did well AND that you saw her do so!
While you are taking that course of action —
Your implicit biases are your own personal set, and you won’t ever be rid of them. But you can learn to recognize the “bias moments” that seem to cue a harmful bias in you. If you can see that, you can refuse to be sullied by it. I know; I work every day to find and counteract mine.
Tell me what you are doing. This is core to NITA’s mission to extend justice to all populations, through training of a profession across all sectors. By teaching the art of advocacy to every type of advocate.
Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy
written by NITA guest blogger David Mann
Everyone knows the best story wins. But what exactly constitutes a good story? We all know it’s important to have a good guy and bad guy, and we know it’s important to frame things in light of common sense violations of rules or principles. We know we need an interesting protagonist who is easy to identify with. But we also know we can do all that and still have a story fall flat and consequently lose an otherwise solid case.
So what’s the secret ingredient to making a story come to life for the jury and leading them to take action? For winning cases in which I’ve constructed the opening, we’ve grabbed the jury immediately with vivid visual language that is active rather than passive. Here’s what I mean. Consider the wording in this sentence from an opening:
“Paramedic Miller’s lack of attention on the scene of Plaintiff Dan Gerson’s cardiac arrest was in violation of the laws of the commonwealth of Virginia. His actions were the cause of Mr. Gerson’s death, and the evidence will show that.”
Information is provided and a strong point is being made. But it’s not visual and it’s not active. It’s impossible for a jury to imagine the scene from that description, and the whole thing is in the passive verb tense, making it seem distant and unimportant. It has a certain legal-sounding formality to it that is at odds with the general culture’s insistence on approachable, plain language. Further complicating things is the fact that the story is displaced into the future, when we’ll presumably hear and see evidence that will tell the story. While it is of course necessary to use legal references and refer to upcoming evidence, don’t do it at the expense of moving the story forward. Establish an active, vivid story before asking the jury to focus on the evidence you’ll be providing and the legal conclusions you will be drawing – all at a later date. The later addition of evidence should serve to flesh out the images they’ve already begun to form in their mind from your well-crafted opening story. You’ve got one shot to do it. If you don’t succeed in planting that story in their imaginations, you might never get them invested.
The description of the paramedic and Mr. Gerson above is the type of sentence that makes up the majority of the first drafts of opening statements I see. We then work the story through several revisions to make it come to life. Look at the difference in this way of depicting the same story:
“Dan Gerson collapses in his chair and his niece calls 911. Within two minutes the police arrive and begin administering CPR. Six minutes later, the paramedics arrive but Paramedic Miller orders the police to stop CPR. Because of the Defendant’s actions, Dan Gerson is dead.”
The second approach is a story. It is told in action language a jury can visualize. The first passage describes the events from a distance: Defendant’s “lack of attention…was a violation of…” and his “actions were the cause of…” The second passage tells it in the present, one image at a time: Plaintiff “collapses,” Police “arrive,” and then Defendant “orders the police to stop.” All actions, all parts of a story that is unfolding in our minds as we hear it.
These are subtle yet powerful ways of making a story come to life. So remember:
For lawyers who have spent their professional lifetime working with careful, formal legal language, this may seem counter-intuitive. But it’s critical for engaging the ordinary people in the jury. When the story comes to life, they’ll respond by taking action.
About the Author
David Mann specializes in persuasive presentation skills and storytelling. A theater artist for over three decades, David now trains attorneys and business professionals how to use performance and storytelling techniques to win. He has taught with NITA for the past five years and has served as Program Director for NITA’s Persuasive Power in the Courtroom communication programs since 2015.
written by NITA guest blogger Doris Cheng
On August 11, 2017, NITA completed its fifth advanced trial advocacy skills training in the Caribbean with the National Center for State Courts (NCSC) as part of the Caribbean Basin Security Initiative (CBSI). One of the goals of CBSI is to increase public safety and security through improving the rule of law. NITA has been considered the expert in international advocacy training and a proud partner with NCSC in the CBSI efforts.
This recent NITA advocacy skills program provided training to the Port of Spain Prosecutor’s Office led by the Director of Public Prosecution Roger Gaspar. NITA Program Director Doris Cheng, L.C. Wright, Cynthia Goode Works, Hon. Matthew Williams, and Kimberly Moore conducted a three day program focusing on lay and expert witness examinations, opening statement and closing arguments in a complex murder case. The case materials were challenging and parallel the types of cases that Caribbean prosecutors regularly encounter. This is the first of two advocacy skills programs for the Office of Public Prosecution in Port of Spain, Trinidad.
Before the program started, NITA faculty had the opportunity to visit the trial courts and observe bail hearings conducted by local Justice Gillian Lucky, who was enthusiastic about the use of different trial techniques and audio-visual demonstrations. Program Director Doris Cheng commented, “We had an inspiring exchange of modern day trial skills techniques with high skilled prosecutors. The persuasive techniques that NITA has been teaching since 1971 continue to be relevant in all adversarial justice systems.” At the end of the program, DPP Roger Gaspar, who also teaches trial advocacy at the law school, expressed his pleasure with training provided by NITA and NCSC. The exercises brought out the verve and vigor of the prosecutors, who enjoyed testing their arguments against one another. A number of the prosecutors exclaimed their excitement about learning different approaches to witness examinations.
NITA’s learning-by-doing style has been incredibly successful in the Caribbean. The first NITA training in the Caribbean was held in Antigua in July of 2015. Prosecutors from Antigua & Barbuda, Barbados, Dominica, Grenada, and St. Vincent & Grenadines attended the three-day workshops. After the program, the judges remarked that the advocates’ courtroom presentations were much improved with the training. NCSC next invited NITA to reprise the program for the prosecutors in Jamaica and then in the Bahamas.
NITA returns to Port of Spain, Trinidad to work with the remaining thirty prosecutors in September, which will mark NITA’s third trip to Port of Spain. In addition to training the prosecutors, NITA delivered advocacy training to the Legal Aid defense attorneys earlier this year in January.
NITA author Michelle Sherman recently wrote an article about the nexus of “fake news” and impaneled jurors for the CEBblog, a legal news portal for California’s Continuing Education of the Bar.
In Don’t Let Fake News Cynicism Get in the Way of Your Social Media Evidence, Sherman describes how the definition of “fake news” has changed in recent years to mean “any news story that’s viewed as critical of the federal government or elected officials,” and that this phenomenon is affecting the conduct of trials:
“This cynicism has gained traction and is likely already bleeding into the courtroom through impaneled jurors who are more skeptical of evidence presented at trial. This makes it even more important that lawyers think early on about how to authenticate their documentary evidence.”
Sherman then describes four steps you must perform to help dispel jurors’ skepticism as to the authenticity of the social media posts you enter into evidence.
Learn more about using social media evidence at trial by tuning into Michelle Sherman’s free webcast, Winning with Social Media: A to Z, and reading her book, Winning with Social Media: A Desktop Guide for Lawyers Using Social Media in Litigation and Trial.
In NITA’s civil case file, Flinders Aluminum Fabrication Company v. Mismo Fire Insurance Company, 10th Edition, Flinders Aluminum Fabrication Company burned to the ground on the night of November 16. An employee, George Avery died inside the building during the fire. Plaintiff Jackson, the sole stockholder of the company, has filed a civil action lawsuit to recover damages owed from the policy issued by defendant Mismo Fire Insurance Company.
This file was written by Hon. Rebecca Sitterly, Laurence M. Rose, and Frank D. Rothschild. All three authors have taught many NITA programs over the years and are skilled in the art of advocacy.
A companion criminal case file, State v. Jackson, involves the charge of arson against Arthur Jackson. Both case files are NITA classics that have been updated in 2017.
Free teaching notes are available to instructors by request! For NITA’s “Asked and Answered” with Hon. Rebecca Sitterly and Frank D. Rothschild, two of the case file’s authors, check out the link to the NITA blog article here.
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