The Legal Advocate

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Monthly Archives: October 2017

State v. Jackson, 5th Edition

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Written by Hon. Rebecca Sitterly, Laurence M. Rose, and Frank D. Rothschild, the fifth edition of State v. Jackson is a criminal file which delves into commercial arson. In this file, the State of Nita is up against Arthur Jackson and Sonia Peterson, claiming the two arranged with George Avery to destroy the Flinders Aluminum Fabrication Corporation plant by burning it. Avery died in the fire and the two defendants were charged with commercial arson. The case went to trial and resulted in a mistrial due to a hung jury. Sonia Peterson pled guilty to conspiracy to commit a felony and agreed to testify against Arthur Jackson. This file contains four witnesses for the State and the defense.

Retail Price: $38

Available in: Print and Epub

Navajo Nations/NITA Public Service Program

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This year, NITA worked with the Navajo Nations Department of Justice for a public service trial skills program, September 28-30 in Window Rock, New Mexico. During the three-day program, the attendees learned skills such as case analysis, opening and closing arguments, direct and cross examination, and more. NITA Program Directors JoAnne and Michael Roake led the program while working with both Katherine Belzowski and Gertrude Lee, of the Navajo Nations Department of Justice and the Navajo Nations Office of the Prosecutor. The program was originally slated for 32 participants but was able to accommodate and train 40 attorneys.

Program Director JoAnne Roake stated, “It was a wonderful experience and all appreciated the selflessness of this stellar faculty to drop everything and operate at full throttle. The gratitude of the participants was a rich reward to the faculty. Thanks also to Donielle (NITA Program Specialist) for brilliant support and coordination.”

JoAnne Roake said the program was a major success – with NITA faculty flying in from all over the country to teach in order to offer the very best experience to the participants.

Not only did the NITA Faculty truly enjoy the experience in Window Rock, but the attendees, as well as Katherine Belzowski, also had a great experience during the training. Attendee Barb Willeto stated, “I thoroughly enjoyed the training. It was work but so worth the effort!”

Likewise, Katherine Belzowski stated, “The NITA training provided an excellent opportunity for Navajo Bar practitioners to receive litigation training. The trainers did an amazing job engaging with the practitioners. Practitioners enjoyed the opportunity to receive feedback from seasoned litigators and walked away feeling they had improved their litigation skills.”

 

Monthly Theme: Law Schools Part Two

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The University of San Diego Law School – Experiential Advocacy Practicum

Written by NITA guest blogger Linda Lane

The University of San Diego Law School has just completed the first semester of the second year of its new, Experiential Advocacy Practicum course, a required first-year class where law students get to experience “learning by doing” in the context of a piece of litigation in the Fall semester and a transactional deal in the Spring.  The course has proven a success and comments from students that have completed the course include ones like the following:

“I am interning at a small civil litigation firm this summer…and have put many of the skills learned during the first semester of EAP to good use.  I have been conducting client interviews by myself and writing complaints based off those interviews.  They have also had me sift through numerous depositions for pertinent information and summarize them.  The background EAP provided made an enormous difference in the quality of my work and made what would have been a steep learning curve a smooth plateau.”

In the Fall, when students begin the course, they are immediately assigned the role of defense counsel or plaintiff’s counsel in a filed negligence case.  Students are issued NITA case materials in three installments, to mimic the way practicing attorneys receive case information during the life of a case.  Initially, students are presented with the complaint, answer, jury instructions, and newspaper articles regarding the event in question.  Midway through the course, the students are provided discovery responses, both to interrogatories and requests for documents.  Finally, at the end of the semester, students are given deposition transcripts from witnesses in the case.  The skills taught to the students and practiced by them in their small breakout sections include client interviews, depositions and oral advocacy through the presentation of a closing argument.  The students also practice informal but common legal communications by drafting email summaries of their tasks and findings to their law partners.

In the Spring, students are immersed in the world of transactional law and are tasked with negotiating a deal and creating a term sheet for that deal.  Students are assigned roles of buyer’s counsel or seller’s counsel, and they are given side-specific instructions from their fictional partner on the case as to what their tasks will be.  During the course of the semester, students conduct a client interview, engage in brainstorming and drafting sessions, and conduct a final negotiation of their deal with the other side’s counsel.  The end result is a term sheet drafted by the parties.

The Experiential Advocacy Practicum was designed, in part, as a response to the ABA’s new requirement that students graduate from law school with six (6) credits of experiential learning.  Students at USD School of Law now have two of these credits completed by the time they finish their first year of law school.  But, perhaps more importantly, this course is also a direct response to the cry of future employers that law students receive more practical skills training from the early days of their law school careers.  This course gives students invaluable insights in to the daily lives of a litigation attorney and a transactional attorney so that students can begin to articulate what area of law they are interested in and why –a critical skill during interviews where many times students do not have enough information to make an informed decision about what type of law interests them.

The highlight of USD’s Experiential Advocacy Practicum is the close involvement in the course of adjunct professors, local practicing litigators and business attorneys.  Throughout the semester, students break in to small groups of 8-12 to perform their tasks, whether this be the client interview, deposition, closing argument, negotiation, or drafting session.  Each small section is taught and led by an experienced lawyer specializing in that area of law.  Students rotate between different adjuncts for each small section meeting so that by the end of the year, they have been exposed to as many as seven practicing attorneys in this small section format. Adjunct professors for the course are meant to represent a variety of practices to expose students to possible careers in the law.  USD is fortunate enough to have a team of highly successful practicing attorneys teaching the students.  This team includes representatives from the public sector (Assistant U.S. Attorneys, District Attorneys, Public Defenders, City Attorneys), large international litigation firms, boutique specialty firms, solo practitioners, and in-house counsel.  These lawyers provide the students with structured critique and tips for improvement.  Moreover, these lawyers provide the students with an opportunity to network and learn about life in various careers after law school.

As we were designing the practicum, we knew we wanted to provide the students with a balanced, fictional case file which was simple enough to allow them, as junior law students, to sink their teeth in to the facts and not be overwhelmed by legal analysis, yet allow for a meaningful application of law to the facts of a specific case.  NITA case files presented this perfect balance.  We have been working directly with NITA’s publication department to modify negligence case files to present them to the students in our specific, desired way.  NITA allowed us to tailor the case file to our exact course needs and provided a platform for meaningful learning and doing by our students.  Although NITA is better known for its litigation case files, we were also able to utilize the platform from one of its rarer, transactional case files to update and modify the facts for our purposes.  True to form, NITA was a responsive and creative partner in this process.

[San Diego practitioner Linda Lane, a certified NITA faculty member, is the Annsley and George Strong Professor in Residence for Trial Advocacy at USD School of Law.  She designs and oversees the course as well as lectures to the students on various litigation-related topics. Lane is also overseeing the 26 small sections, led by experienced practitioners who, as adjunct professors, work with our students, in teams and individually, to teach these important practice skills.]

 

 

High Marks for Winning on Appeal

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Philadelphia appellate lawyer Howard J. Bashman recently reviewed Winning on Appeal: Better Briefs and Oral Argument, a longtime NITA classic whose third edition was released just in time for the new school year this fall.

In his article for The Legal Intelligencer, Mr. Bashman discusses his personal history with Winning on Appeal and why, twenty-five years after its initial release, the book remains one of the leading practical guides to effective appellate practice:

Because a party’s appellate brief(s) ­ordinarily play the most significant role in the outcome of any appeal, approximately two-thirds of the book is devoted to planning and executing a well-written and persuasive brief. The remainder of the book focuses on preparing for and delivering the oral argument of an appeal. If you think that you are someone who already knows all there is to know about these subjects, then you are probably most in need of what this book has to offer. And it almost goes without saying that if you realize your skills as an appellate advocate are still capable of improvement, which is certainly something that is true for all of us, then this book ­unquestionably can provide helpful guidance and assistance.

In addition to furnishing advice and ­suggestions from numerous federal and state appellate judges, including Pennsylvania’s own Chief Justice Thomas G. Saylor, the book also contains advice from numerous, highly regarded appellate attorneys. I can’t think of any other appellate practice guide where one would find advice from attorneys Paul D. Clement, Seth P. Waxman, Miguel A. Estrada, Kyle Duncan (recently ­nominated to the Fifth Circuit), Peter Keisler and Scott Keller, to name just a few.

The original Winning on Appeal was written in 1992 by the late Third Circuit Judge Ruggero Aldisert. This new edition was meticulously updated by Tessa L. Dysart, Assistant Director of Legal Writing and Associate Clinical Professor at Law at the University of Arizona James E. Rogers College of Law, and Judge Leslie H. Southwick of the U.S. Court of Appeals for the Fifth Circuit. It brings readers flush into the modern, twenty-first century courtroom, where technology is melded with appellate advocacy, and is replete with dozens of interviews with leading appeals judges and practitioners about the nuts and bolts of winning on appeal. NITA’s veritable who’s who of appellate advocacy in America features a Foreword penned by U.S. Supreme Court Associate Justice Samuel A. Alito, Jr.

Mr. Bashman is a nationally known appellate lawyer who represents clients before the Third Circuit and Pennsylvania appellate courts. How Appealing, his wrapup of appellate news from around the nation, appears daily on Above the Law.

Note: Mr. Bashman was an advance reviewer of Winning on Appeal, and his praise appears in the book. The authors and NITA are grateful for his interest in and support of Winning on Appeal.

Evidence Presentation Obligations – Courts Move Towards Basic Technical Skills Competence

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October “Trial Technology Series” written by NITA guest blogger, Shannon Bales

The vast majority of courtroom technology problems can be placed firmly in the hands of legal teams that have not recognized their responsibility to the court to prepare their equipment and practice their skills in advance. Many of the issues are completely avoidable and courts have begun to recognize it for what it is – technical incompetence or simply poor preparation. The same attorneys likely practice and perfect their openings, closings, crosses and arguments in advance – why should technology be ignored?

Some courts have begun to post rules for the use of technology in the courtroom which they call “Evidence Presentation Obligations”.  While the below is a sample from the Eastern District of California, this same language has begun to show up across the country in other courthouses. As you read through it think to yourself how bad is it that courts have to tell attorneys they need to know how to use their own equipment:

Evidence Presentation Obligations

  • Parties who intend to present evidence electronically via the Court’s electronic evidence presentation systems must be familiar with the systems prior to the hearing/trial.  No court/jury time will be provided during court proceedings to allow the parties to troubleshoot issues with the parties’ equipment or the equipment in the courtroom.  If a party is unfamiliar with the Court’s systems, they are strongly encouraged to attend an orientation with the Court’s IT representative prior to the hearing/trial (see procedures below).  The Court will not tolerate any delays during any proceedings caused by a party’s unfamiliarity with the Court’s systems or by the failure of a party’s equipment.  The parties will be required to present their cases without the aid of the electronic evidence presentation systems in the event that the systems are unavailable due to the party’s unfamiliarity, due to equipment failure or due to any other “technology” delays.
  • In addition to familiarizing themselves with the Court’s electronic evidence presentation systems in advance of the hearing/trial, the parties must familiarize themselves with their own equipment and how to connect their own equipment with the Court’s systems prior to the hearing/trial.  Specifically, the parties should be familiar with:
  • Adjusting the refresh rate on their computer (to 60 Hz)
  • Adjusting the resolution on their computer (to 1024×768)
  • In Fresno: Switching the display on their computer to send video to the Court’s A/V system (the Court uses the Extron DSC 301 HD compliant scaler and XTP R (& T) HDMI systems at the attorney tables and the Extron DVS 605 compliant scaler and XTP R (&T) HDMI systems at the lectern).
  • In Sacramento: Switching the display on their computer to send video to the Court’s A/V system (the Court uses the Extron RGB580 xi interface at both attorney tables and lectern location.

Making the physical connections between the electronic evidence presentation systems and their equipment.  The parties are responsible for providing any cable adapters required to connect to their equipment to the Court’s systems. For example, to display content from an iPad to the Court’s systems, the parties must provide their own iPad-to-VGA or iPad-to-HDMI adapter.   Please note that the Court’s staff cannot work on and/or provide support for any non?court equipment.

Electronic Evidence Presentation Systems Orientation

Any party wishing to familiarize themselves with the Court’s electronic evidence presentation systems are strongly encouraged to set up an orientation session with the Court’s IT staff.

To do so, please contact the courtroom deputy at least three (3) weeks before your trial or hearing.  The courtroom deputy will coordinate with the Court’s IT representative to schedule a convenient time to conduct the orientation.

Parties who attend an electronic evidence presentation systems orientation should bring the equipment they will use to connect to the systems as well as samples of the content they intend to present at the trial/hearing through the systems.

There are three “obligations” that stand out within these guidelines. The first point is simply ridiculous. Who goes to court not knowing how to use their own equipment and connect to a courtroom presentation system for the first time without testing? Apparently, it occurs often enough to be written down as a guideline that is used throughout the country.

  1. Parties should know how to use their own equipment. “…parties must familiarize themselves with their own equipment and how to connect their own equipment with the Court’s systems…”
  2. The court does not like delays due to technology issues. “The Court will not tolerate any delays during any proceedings caused by a party’s unfamiliarity with the Court’s systems or by the failure of a party’s equipment.”
  3. The court will provide you an advanced opportunity to test and QC that you should avail yourself of. “Any party wishing to familiarize themselves with the Court’s electronic evidence presentation systems are strongly encouraged to set up an orientation session with the Court’s IT staff. To do so, please contact the courtroom deputy at least three (3) weeks before your trial or hearing.”

Courts are clearly becoming frustrated by the lack of attention being paid by legal teams in this area. It is clear that many courtroom problems would never occur if legal teams took these points to heart whenever they intend to use technology in the courtroom. Moreover, the issues addressed in the “Evidence Presentation Obligations” don’t allude to some overly technically complex barrier to trial technology being implemented but to (1) Technical competency issues and (2) Basic preparation being ignored.

A few tips based on the “Evidence Presentation Obligations” above:

  • Test using the equipment you intend to use in the courtroom (and not any other piece of equipment like a similar model your partner has). Test your equipment to see if you encounter any technical issues. For example, does it connect to the courtroom monitors and audio? Fix your technical issues here rather than in front of judge and jury.
  • While your laptop will likely adjust to the resolution of the courtroom, you should know how to change the resolution on your laptop (typically right click on your computer desktop and select “display settings” but it can be different depending on your computer).
  • At the equipment test, test the exhibits and presentations you intend to use with a sample exhibit and presentation, as well as audio and video if you intend to play a clip. This will give you an idea as to how your exhibits will look and sound on screen. What is the audio level? Does the font size work adequately for the courtroom? Many attorneys are surprised to find out that the presentation created in their home office does not look the same as in court. This is usually due to resolution and aspect ratio issues that come from going from your high-resolution office (nearly all laptops are “high resolution”) to the low-resolution of a courtroom.
  • Note: In the above “obligations “the courtroom specifies the resolution to use (1024×768). Test your exhibits in the resolution that they will be presented in to make sure they look right.
  • Notice if the courtroom has square (4:3 aspect ratio) or rectangle (16:9 aspect ratio) presentation system. This can help you tailor your presentation for the courtroom by using the same aspect ratio. This is a bit more advanced but if your exhibits are coming out egg shaped rather than square and you’ve tested far enough out you should be able to get the help you need.
  • Thoroughly test presentations (such as those made in PowerPoint) on the laptop they will be presented on to make sure they work and are not corrupt. Keep animation and fancy transitions to a minimum or not at all – in the courtroom this is just one more thing to go wrong.
  • Do not rely on a single thumb drive for your exhibit and presentation transfer. Many lawyers in a rush improperly eject thumb drives thereby corrupting their entire set of documents and presentations they intend to use. Take the extra minute to open the file once transferred to make sure it works, email a copy to yourself, copy it to the laptop used for presentation.
  • When connecting to a courtroom system it should be with your computer completely shut off and any cables attached between your laptop and the courtroom system. Then start your computer (the same way every time) and check to see if everything is showing up on the monitors as expected.
  • Setup your equipment as early as you can get into the courtroom and perform a quick test to make sure everything is working. Put up an image, check the resolution and play a sound if relevant.
  • Have a backup plan for anything you plan to present in case things go wrong. Most professional trial techs (vendor or inhouse) spend considerable time creating a “backup plan” whether it is print outs of exhibits or another laptop with a copy of everything you plan to present (but preferably both).

Anecdotally, from discussions with courtroom IT staff more than 50% of courtroom technical issues would have never occurred simply by testing in advance. Not availing yourself of advanced testing and training is playing with fire and opens you up to potentially embarrassing criticism in open court. It is truly a missed opportunity if you do not test in advance when the court makes it available because the court is giving ample opportunity to test and correct any technical deficiencies you might have.

. Getting your trial technology house in order is not as difficult as it might seem. There are plentiful consultant options to support cases at trial or with the right commitment law firms and attorneys can do it themselves. The court is no place to stumble and bumble through foreseeable and entirely preventable problems – and why would you for that matter? Be careful of “trial by fire” and inserting unnecessary risk into your trial or arbitration by using the appropriate equipment, software tools and adequately trained people for the job. Test, retest and practice your trial technology setup and presentation prior to trial – preferably using the equipment to be used at trial and on the equipment it will be played on (i.e. – in the courtroom using your presentation laptop). Last and maybe most important practice failure and have a backup plan – print out presentations, have a backup laptop or thumb drive with your materials on it.

The views expressed herein are those of the author(s) and not necessarily the views of FTI Consulting, Inc., its management, its subsidiaries, its affiliates, or its other professionals.

FTI Consulting, Inc., including its subsidiaries and affiliates, is a consulting firm and is not a certified public accounting firm or a law firm.

This article was written by:
Shannon Lex Bales
Managing Director, Trial Technology Consulting FTI
UCLA Paralegal Trial Technology Program Instructor
Trial Technology Author
UN War Crimes Tribunal Legal Technology Advisor
Legaltech Award: Most Innovative Use of Technology During a Trial 2009
Email Shannon at: Shannon.Bales@FTIConsulting.com

 

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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