The Legal Advocate

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All posts by Alli Keefe

Capital Area Private Defender Services – NITA Public Service Program

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On September 19 – 21, NITA teamed up with Capital Area Private Defender Services (CAPDS) for a public service trial skills program in Austin, TX. CAPDS is a joint venture non-profit organization dedicated to assisting indigent clients facing criminal charges. This public service program trained 36 attorneys and was led by NITA Program Director Michael Dale, who has taught at over 100 NITA programs throughout the years.

Deputy Director of CAPDS, Bradley Hargis, worked closely with NITA to put the program into motion and stated that CAPDS was very grateful to NITA for making the training possible.

Likewise, one attendee stated, “Great course! One of the faculty described it as Spring Training and I agree. I could do this once a year. The faculty were outstanding. Nobody was there to show off. They were honestly there to teach.”

Similarly, another attendee stated, “It was a great course and I learned a lot. It was really helpful practicing the skills in small groups. I always found the commentary/feedback from the faculty really helpful and important. I feel like I really improved my skills and learned the practical notes that were taught.”

 

Academy of Adoption & Assisted Reproduction – NITA Public Service Program

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On September 14 – 15, NITA had the opportunity to work with the Academy of Adoption & Assisted Reproduction (AAAA), for a public service program held at The Brown Palace in Denver, CO. This experiential program trained 120 attorneys by NITA Program Director JC Lore who did a series of lectures, demonstrations, and workshops for the attendees on skills such as direct/cross examination, case analysis, and taking/defending a deposition.

Attorney and AAAA Past-President, Colleen Quinn, worked closely with NITA to put the program into motion. At the conclusion, Quinn stated, “The NITA training provided by JC Lore was fantastic! In my 30 years as a trial attorney it was the best I have ever received. JC was entertaining, energetic and thoroughly knowledgeable. He delivered a day and a half of spot-on deposition and trial taking techniques that included a lot of trainee participation and  hands-on activities. In taking my first deposition after the NITA training, I felt so much more confident in my skill set. Thank you NITA and JC!”

A huge thank you to JC Lore for such a great program in this experiential format as NITA continues our training mission.

Monthly Theme: Storytelling Part Two

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Engaging the YouTube Attention Span

Written by NITA Program Director and guest blogger, David Mann

Ask yourself this: “When I see a video pop up on my social media feed – if the title has caught my attention and I’ve clicked play – how long do I give it before I click it off?”

I’ve asked this question to seminar audiences across the country, and the answer always seems to be “about ten seconds.” If it has engaged you, you’ll generally let it run to about 30 seconds before getting back to work. But if it still has your attention past 30 seconds, then past 60 seconds, there’s a really good chance you’ll find the time to watch that entire 13:42 video about something completely unrelated to anything you were thinking about prior to that moment.

That’s what I call the YouTube attention span, and we’re all subject to it now.

We expect – we demand – that whatever is being presented to us grabs our attention instantly and holds it. We “audition” the video clip, the speaker, the commercial…whatever it is. And yet when we present in court (and in most other professions that involve speaking) we tend to slog through a long background and history before getting to the main event. We load up that precious first few moments with technical detail, jargon, and abstract language. For some reason, we seem to believe cultural habits don’t come into the room when there are “serious” matters at hand. But nothing could be further from the truth.

How you organize your story is absolutely critical to it being engaging. What’s often frustrating for logic-minded attorneys is the fact that live delivery of a story needs to be decidedly non-logical in its organization. In other words, there’s no need to educate the fact finder about the history or background before getting to the point. You can do that later. Build your opening for engagement, not logic. Our brains don’t mind; we can be presented with well-designed, out-of-order story fragments and our brains will sort it all out into a clear picture. But the key is to make it well-designed. Have you watched Better Call Saul? Like its predecessor, Breaking Bad, part of its appeal is that you wonder what’s going on before it is made clear. That’s well-designed storytelling.

An opening statement is the purest storytelling you’ll do in court. The impressions made during the opening will last for the entire trial. When I’ve worked with attorneys on constructing and writing opening narratives for trial, I direct them to spend a lot of time on the overall construction: build the opening with the mindset of a performer, not a lecturer. That means paying attention to the pace and density of the material, not just the logic.

Here’s a quick overview of a shape I believe works well for getting a jury engaged and keeping them with you. Generally, a 20-25 minute opening can break down like this:

PART ONE: Establish the Players and Events – 5 minutes

  • Introduce characters so it is simple to know who to root for and against
  • Give a simple, streamlined version of the story
  • Introduce simple, common sense principle or theme
  • Establish simple version of the basic rules that were broken

PART TWO: Fill in the detail – 10-15 minutes

  • Give a longer, more detailed version of the story
  • Provide a more detailed background
  • Explain the details of the rules that were broken
  • Characterize opponent’s case

PART THREE: Make the Jury a Character – 5 minutes

  • Let the jury know they can make it right
  • Explain the details of the jury instructions
  • Give a context for damages

This is clearly a very general outline, and of course each case has its own unique features that will dictate the shape of the opening to a certain extent.

The goal of Part One is simply to get the jury on board. They do not need to understand everything at this point – they need to be interested and curious in understanding everything as it comes up later. That is a different goal. Five minutes in speaking time is a little less than two written pages, assuming it’s 1.5 space in 12-point font. It’s really easy to look at those two blank pages and fill them up with everything you know about the case…but don’t do that. Imagine a jury with their fingers poised over the “stop” button on the video if they’re not interested after two paragraphs. Then get them to the next two paragraphs…and so on.

The goal of Part Two is to fill in all the detail they’re now hungry for. So do that, but still keep it economical. It isn’t necessary to try your entire case in the opening; just get the jury acclimated to the characters, events, and crucial details that will emerge in the rest of the trial. Again, it’s about making them interested and curious so they’ll see the rest of the trial through the correct lens.

Part Three is simply to articulate the purpose of their role and to empower them with the tools they’ll need to play that role.

We joke about the shrinking modern attention span caused by social media’s influence. To an extent, it’s true. But keep in mind that people always find time to pay attention for a long time if they’re intrigued. By using well-designed narrative structure, you can keep them intrigued on your side all the way to the verdict you want.


If you’d like a more in-depth look at story construction and delivery, take a look at my October 16 NITA webcast or join me for my intensive 2-day NITA program, “Make Your Case Story Engaging.” Participants use a real case file, which we build into an engaging narrative opening statement in two days. See the NITA website for details, dates set for April 18 – 19, 2019 in Washington, DC.

Asking Expert Witnesses for an Opinion ‘to a Reasonable Degree of Certainty’ Redux

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Written by NITA guest bloggers Iva Čechráková and Michael J. Dale

A question has recently arisen regarding the rationale or basis for the use of the phrase “to a reasonable degree of certainty” in California. The question was posed, based upon our June 20, 2018, blog post, Why Do Lawyers Ask Expert Witnesses For An Opinion “to a reasonable degree of medical certainty”? The answer appears to be similar to what we discovered in other jurisdictions: it is tradition.

Jeff L. Lewin in his article on the subject describes the evolution of the term and the process by which the phrase spread into other states from Illinois.1 Referring to, among others, courts in California, Lewin stated that “the appellate courts simply quoted or paraphrased the trial testimony, and such cases merely reflected that attorneys in the jurisdiction were using the phrase.”2 At another point, the author, making a comparison with courts in different states where the courts endorsed the use of this phrase, seems to have encouraged its use.3

The answer in California appears to be twofold. First, California is among the states that do not have a relevant statute incorporating the phrase. Second, research discloses no reported California case discussing the reason for the use of the phrase. Rather, a substantial body of California case law, like reported opinions in other jurisdictions, simply refers to the phrase without explanation.

 

Iva Čechráková is a graduate in law from Charles University, Prague, Czech Republic, and a dual degree graduate of Nova Southeastern University College of Law, where she was until recently a research assistant to Professor Michael J. Dale. She is currently working for the White and Case law firm in Prague and can be reached at ivacechrakova@gmail.com.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985. He teaches regularly for the National Institute for Trial Advocacy. He can be reached at dalem@nova.edu. If you’d like to know more Professor Dale, please read his “Asked and Answered” interview with The Legal Advocate here.

To read more articles by Professor Dale’s research assistants at Nova Southeastern, click here.


1 Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About “Reasonable Medical Certainty,” 57 Md. L. Rev. 380, 439–40 (1998).
2 Id.
3 Id.

Impeaching The Adverse Expert

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Written by NITA guest blogger, Prof. Jules Epstein

Rarely if ever will the cross-examining attorney know more about a subject than the expert witness being confronted.  Indeed, that is why discovery rules mandate pre-trial disclosure of expert reports – “They allow attorneys, not experts in the fields at issue, to prepare intelligently for trial and to solicit the views of other experts…”  Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 762 (7th Cir. 2010).  So a strategy of beating the expert at her own game is not a sure path to success; it may bore or otherwise lose the jury; and it risks letting the expert explain.

Nonetheless, an expert’s claims can be checked, challenged and undercut in a number of ways.  Beyond the impeachment methods available for all witnesses – inconsistent statements, dishonest character, contrary information [with experts, often via a learned treatise] – there are expert-specific lines of inquiry.  What is essential is that opposing counsel develop the list of potential attacks, test them pre-trial to ensure their applicability, and then organize the cross-examination to maximize their utility.

Let’s begin with the challenge to credentials.  Because the standard for qualifying an expert is exceptionally lax – according to one court, it is “whether the witness has  any reasonable pretension to specialized knowledge  on the subject under investigation” – the likelihood of exclusion is low.  But the proponent of the expert has engaged in permissible bolstering, and the qualifications voir dire offers the chance to take the witness down a notch or two in the eyes of jurors.

In the qualifications arena, the following subjects are key to any cross-examiner’s checklist:

  • Limited practical experience
  • Missing credentials (g., a lack of Board certification)
  • Inflated credentials

This last point warrants amplification.  An expert may be a member, or even an official, of a “professional” organization – but investigation may reveal that membership comes from an application and a fee, and not based on any performance standard or testing.  For an extreme example, see The Emperor of Junk Science Forensics Has Died,  (last visited September 23, 2018).

Related to the problem of credentials, at least as to the weight of the expert’s testimony, is that of bias.  Bias comes in many forms, some going to the witness’ credentials and others to the shaping of the actual opinion(s), with admittedly some overlap.  In the bias area, the following subjects warrant exploration:

  • Fees (assuming the fee paid to the opponent’s expert is disproportionate to that paid for the party’s own expert)
  • The relationship of this witness to counsel, as when this witness has been used repeatedly by the same counsel or law firm
  • What Stephen Lubet has denominated “positional bias,” the loyalty of the witness to a particular side or the witness’ willingness to only find one [the same] conclusion over a range of cases (See Lubet, MODERN TRIAL ADVOCACY, §8.6.4.3.)

There are at least two other forms of subconscious biasing that must be evaluated, although developing a cross on either may be difficult.   The first arises merely by virtue of who hired the expert, as research has shown that there is a phenomenon of “adversarial bias” where experts begin to align their expectations and conclusions dependent on which party hired them.  As elaborated in one research paper, “working for one side in an adversarial case causes some experts’ opinions to drift toward the party retaining their services, even on ostensibly objective instruments and procedures…”  Adversarial Allegiance Among Expert Witnesses, (last visited September 23, 2018).

And the second?  It arises from “domain irrelevant information,” and occurs when an expert is given information extraneous to the task but impactful on the ‘lens’ through which the expert views the evidence.  Telling a fingerprint expert that the suspect confessed offers no useful information in how to compare two prints but has been shown to affect judgment in cases where the prints are ambiguous or unclear.  See, e.g. Dror et al, Cognitive Bias and Its Impact on Expert Witnesses and the Court, (last visited September 23, 2018).  This may be shown by demonstrating what the expert was asked [or “told”] to look for; and then have the expert concede that certain information provided is not part of the normal decision-making process in the particular discipline.

Making the opposing expert yours is a critical part of any cross.  The opposing expert may be willing to validate your expert’s

  • credentials
  • methodology
  • sources of data
  • conclusions at least in part

Making the expert one’s own is desirable and should precede any attack.   But attack is often the primary focus of the cross-examination.  A preliminary topic may be to show the limits of the discipline, even where it has survived a challenge under Frye, Daubert, or 702 principles.  Here, questioning may track the admissibility criteria of Daubert.  Questioning may highlight any of the following:

  • Testability (or the lack thereof)
  • Peer Review/Publication (again, the lack thereof)
  • Error Rate (here, the lack of one, or a problematic error rate)
  • Existence of Standards (again, the lack of standards from examiner to examiner)
  • General Acceptance (again, the lack thereof or substantial challenges to the theory or method)

Beyond an attack on the discipline are several potential ones on the expert’s approach and conclusions.  One such attack is premised on assumptions.  Where the adverse expert’s conclusions are premised on certain assumptions, a skillful cross can begin with an agreement that the quality of the opinion depends on the correctness of the assumptions.  Here, the list of potential cross-examination points includes:

  • the danger for experts of relying on assumptions
  • assumptions made in this case
  • the concession that if the assumed facts are wrong then the opinion might be wrong as well

Where a pre-trial deposition has occurred, counsel may already have secured the concession that under a different factual scenario – i.e.¸ where the assumptions are different – the conclusion changes and becomes one favorable to the cross-examiner.

Another area for inquiry may be dubbed the “more” category.  Here, the cross-examination focuses on the limits imposed on the expert, whether due to finances, time or the inadequacy of the materials to be reviewed or the testing options available.  Questions may focus on:

  • More data would have been better because…
  • More tests would have been better because

Finally, the expert may be pressed on what the evidence does not show.  By way of example, a fingerprint expert will have to concede, in most cases, that how, why or when a latent print was left at a crime scene is unknown.  Such concessions may dovetail with the expert having to agree that the evidence could have been left in a manner consistent with the cross-examiner’s theory of the case.

Will every one of these challenges be available in a particular case?  The answer is almost certainly “no.”  But unless each case is screened against these criteria, the cross-examiner may be missing essential grounds for undercutting the opposing expert.

 

Professor Jules Epstein is Director of Advocacy Programs at Temple University in Philadelphia, PA.

 

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.

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  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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