The Legal Advocate

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All posts by Alli Keefe

Catholic Legal Immigrant Network, Inc. – NITA Public Service Program

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Back in 2017, NITA teamed up with the Catholic Legal Immigrant Network, Inc. (CLINIC) for two public service programs – one in Boulder, CO and one in Chicago, IL. This year, NITA and CLINIC have teamed up once again – this time for a program in Boulder, CO and in Baltimore, MD. The Boulder program took place July 1 – 3, with the Baltimore program just a few months away.

This trial skills public service program was led by NITA Program Director Michelle Mendez, who also served as program director for NITA’s first public immigration program, back in May. At the conclusion of the public service program, Mendez stated, “In an immigration legal system suddenly devoid of prosecutorial discretion due to the Trump Administration’s broad enforcement priorities, immigrant advocates must be ready to litigate in a manner that protects due process and preserves the record. Through this training, NITA and CLINIC prepared these immigration advocates for these goals.”

Many of the participants of the CLINIC/NITA program were thrilled with the new skills they learned and eager to use them in their practice. One participant stated, “I have an individual hearing on an asylum case scheduled for July 16, 2018. I will definitely be using these skills for my direct examination and especially for closing argument!”

Likewise, another participant stated, “It was a phenomenal training. Thank you so much! I feel more confident in applying trial skills to my immigration cases.”

The next CLINIC/NITA public service program will be held in Baltimore, November 26 – 28.

Monthly Theme: Opening Statements Part Three

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Distilling Effective Rhetoric for Persuasive Opening Statements

Written by NITA guest blogger Sara Jacobson1

Opening statement is the first time a lawyer gets to lay their case out to the jury. It is the first impression you make, and the first impression the jury takes about your case. You want the jury to believe you, to understand you, to be moved by you such that when the introduction of evidence begins as the witnesses are called, they understand what the case is about and are, at least, amenable to your client’s perspective on the facts. In short, you want to persuade.

A good opening statement sets the context of the story of the case, such that when jurors receive pieces of evidence during the trial, they fit those bits of information as into the framework you built in your opening. But how best to persuade? Aristotle spoke of three types of persuasive appeal, and these three remain instructive to anyone preparing to open. We examine each in turn. They are:

    • Logos: persuasion through the logic of the argument.
    • Ethos: persuasion through the integrity of the person arguing.
    • Pathos: persuasion through the emotional connection of the argument, but at its most effective when the person arguing is as emotional in delivery as the argument itself.

First consider logos, the attempt to persuade through logic. Many traditional notions of opening statement, like speech structure, fit here. By giving the jury a logical structure to follow, you will better hold and keep their attention. The constructs of storytelling, always critical to effective opening statements, fit here as well. A story has distinct elements: exposition, an inciting incident, rising action, the turning point or climax of the story, falling action, and ultimately, resolution.2 Imagined then through the lens of opening statement, that structure might look like this:

  • EXPOSITION: brief introduction to background of events, scene, and parties;
  • INCITING INCIDENT: identification of the issues at stake and their relation to the people in the
    case;
  • RISING ACTION: narration of main action or conflict;
  • CLIMAX: turning point of the issue at question;
  • FALLING ACTION: discussion of any weaknesses; and
  • RESOLUTION: wrap-up of the speech and request for the verdict you’ll want at the end of the trial.3

Note that your brief introduction or exposition section should encapsulate the notion of primacy- that starting strong matters- and means that your introduction should include both a clear case theory and a theme that resonates.

Choice of case theory and theme also resonate with ethos, or persuasion through the ethical integrity of the speaker. You want the jurors to believe you and therefor to believe your side of the case. Ethos includes both speaker and speech, though, as for the jury to best believe you, your case theory must also have integrity. That means it needs an internally consistent narrative that also conforms to community notions of common sense. Put simply, the jurors need to be able to relate to it, which means you must consider the community to whom you are opening when shaping your message. Your theme is the value you associate your case theory with, and it, too, must work well within the integrity
of your approach in an opening. Of course, the notion of integrity means more than your message. It means you must comport yourself, both in opening and across the trial, as a person of good faith, hiding nothing, and embracing your case’s weaknesses as best you can, rather than ignoring them. Which leaves with perhaps the most important piece of the persuasive opening, the pathos or emotion in it. Jurors are motivated by the desire to do justice, to do good. In that quest, jurors can be moved to act by their emotions. To make an effective emotional appeal first, look for the humanity in your case, for the people driving the action. An opening with lasting impact centers around the people affected by the transaction, not on the pieces of paper themselves.4 Second, remember that effective delivery matters when it comes to emotional persuasion. Effective storytelling in an opening allows the lawyer to speak from the heart. For the jury to feel that impact, the lawyer should: deliver with passion, without relying on notes; ensure that the tone of their delivery matches the emotion in language of the speech; vary the emotion in the speech so it doesn’t stay in one place too long, and finally remember to use their whole selves including movement, gestures, eye contact, and pauses, to build drama into the
story.

Use principles of logos to guide your structure. Use ethos to ensure that both your case theory and you speak with credible integrity. Use pathos to build emotional impact and effective delivery into your opening. Each will help you build the context of the narrative for the jurors, such that by the end of your opening they will be moved to fit the facts into the strong framework you built for them.


1 Director of Trial Advocacy Programs and Associate Professor, Temple University, Beasley School of Law
2 Ann Aubrey Hanson, 7-Step “Freytag’s Pyramid,” The Writing Itch, August 21, 2014. Available at: https://writingitch.com/2014/08/21/7-step-freytags-pyramid/
3 A similar version of this organization is found in Gerry Powell’s excellent piece on openings. Gerald R. Powell, Opening Statements: The Art of Storytelling, 31 Stetson L.Rev. 89, at 96-97 (2001). 4 Id.

 

 

National Disability Rights Network – NITA Public Service Program

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For several years, NITA and the National Disability Rights Network (NDRN) have partnered on public service training programs in order to help improve the skills of these advocates. NDRN is a nonprofit membership association for the 57 Protection and Advocacy system agencies (P&A), a system which was established in 1975 by federal statute specifically to  protect the legal and human rights of persons with disabilities.

This year, Program Director Cynthia Goode Works, led the NITA faculty team in a 2-day deposition skills program training 16 advocates. The program took place in Baltimore, MD. Goode Works has served as a faculty member at over 100 NITA programs and continues to be a part of the NDRN program year after year.

“For almost 20 years I have had the opportunity to teach for NITA. Teaching in the NDRN Public Service Program is the most rewarding and most meaningful program I have taught. Some of the advocates have physical and mental disabilities but all of their clients have disabilities. These advocates represent this most deserving populations with tenacity and dedication to ensuring they receive the best representation possible. I commend all of them for their commitment to excellence in their craft and profession,” stated Goode Works.

NITA is very grateful to have had the chance to join forces for another year with NDRN and we hope to continue our partnership for many years to come.

Monthly Theme: Opening Statements Part Two

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Objections in Openings

Written by NITA guest blogger Sara Jacobson1

The purpose of opening statements is to lay out your theory of the case and to preview what you believe the evidence will be, but rules still apply.2 While not codified in the formal Federal Rules of Evidence, there are limits to what lawyers can do in speeches. As with everything, you need to know where the boundaries are before you push them. Here are some of the things lawyers cannot do in opening statements.

    • ARGUE
      The main difference between opening statement and closing argument, is that in closing, lawyers are permitted to argue; whereas, in openings they cannot.3

      • THE OBJECTION: What makes something argument? If the lawyer is explaining what conclusions the jury should draw from facts or talking about what the evidence means, its impermissible argument in opening. Rhetorical questions are argumentative by their nature and should be avoided in opening. Comments on the viability of the approach taken by opposing counsel, qualifies as argument too.
      • THE RESPONSE: The most common response is to explain to the jury that everything the lawyer is talking about in opening is what they believe the evidence will be, and to thereafter use more of ‘the evidence will show’ phrasing than one generally would.
    • VOUCH
      Vouching comes in two common forms and is prohibited in both opening statements and closing arguments. An attorney is vouching when they offer an opinion on the ultimate guilt or liability at issue, or when they comment on the credibility of a witness.

      • THE OBJECTION: There are a number of cases across jurisdictions that note the prohibition against lawyers giving their opinion on the ultimate issue or on credibility.4 Both types of vouching were addressed by the Supreme Court in 1985 in U.S. v. Young.5 Young dealt with vouching by both sides in closing argument in a prosecution for fraud. The defense argued that “the [prosecution’s] statements have been made to poison your minds unfairly,” hinted that the prosecution withheld evidence, and added – while pointing at the prosecution table – “there’s not a person in this courtroom, including those sitting at this table who think Billy Young intended to defraud Apco.”6 Defense counsel also went on to claim that the defendant was “the only one … that has acted with honor and with integrity.”7 In rebuttal, the prosecutor responded, saying, “(w)ell, I was sitting there and I think he was …. If we are allowed to give our personal impressions since it was asked of me …. I don’t know what you call that, I call it fraud.”8 The prosecutor repeated the fraud claim multiple times during the closing. The Court rebuked both sides, citing ABA Standard for Criminal Justice 3-5.8(b)9 and noting, “(t)he kind of advocacy shown by this record has no place in the administration of justice and should neither be permitted nor rewarded.”10 Ultimately, although disproving of counsels’ conduct, the court found that the prosecutor’s comments were a fair, invited response and did not find sufficient plain error, absent contemporaneous objection, to overturn the conviction.
      • THE RESPONSE: If closing, if the argument is re-framed and couched either as what common sense tells the jury or as what the evidence has shown, vouching can be avoided. Take for example US v. Morris, where the 5th Circuit which drew that very distinction, finding that “an attorney properly may state, ‘I believe that the evidence has shown the defendant’s guilt,’ but… may not state, ‘I believe that the defendant is guilty.’ ”11 There are no good ways to re-frame or re-fit vouching in opening statements.

There are other, obvious, things that lawyers cannot do in opening, which are also prohibited in closing argument. Lawyers cannot ask the jury to put themselves in the shoes of either party to the case, violating what is sometimes referred to as the ‘golden rule,’ and they cannot misstate either the evidence or the law. While in opening, presumably lawyers would not be misstating the evidence so much as approaching it aspirationally, but know that that approach, too has its consequences. Come closing argument one’s opponent can call out any failure to deliver on the promises of the opening. Finally, prosecutors cannot imply in any way in opening that a criminal defendant will put on a case or might testify, as that violates the defendant’s 5th Amendment right to remain silent.12

Objections don’t frequently occur in opening statement, but is important to know where the lines lie, if nothing else, than to be able to call out your opponent if they break the rules.


1 Sara Jacobson is the Director of Trial Advocacy Programs and Associate Professor, Temple University, Beasley School of Law
2 U.S. v. Zielie, 734 F.2d 1447 (11th Cir. 1984).
3 Id. And see U.S. v. Hershenow, 680 F.2d 847 (1st Cir. 1982). “… (A) court is always free to stop argument if it occurs….”
4 See: U.S. v. Jones¸468 F.3d 704 (10th Cir. 2006); Byrd v. Collins, 209 F.3d 486 (6th Cir. 2000); U.S. v. Thornton, 197 F.3d 241 (7th Cir. 1999); U.S. v. Dispoz-O-Plastics, Inc., 172 F.3d 275 (3rd Cir. 1999); U.S. v. Loayza, 107 F.3d 257 257 (4th Cir. 1997).
5 U.S. v. Young, 470 U.S. 1 (1985).
6 Young at 4-5.
7 Id, at 5.
8 Id, at 5.
9 “[i]t is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” ABA Standards for Criminal Justice 3-5.8(b)(2d ed. 1980.
10 Young at 9.
11 U.S. v. Morris, 568 F.Supp. 396, 402 (5th Cir. 1978)(internal citations omitted).
12 Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).

 

Colorado County Attorneys – NITA Public Service Program

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NITA had the opportunity this year to partner with the Colorado County Attorneys for a public service program. The program took place June 7 – 8 in Grand Junction, CO as part of the Colorado County Attorney’s Annual Conference. Over 40 Colorado County attorneys were in attendance for the trial skills program led by NITA Program Director Tom Swett who had great things to say about the program.

“With a great team of experienced NITA volunteer-faculty, we provided focused trial skills training to Colorado county attorneys who often don’t have the resources or time to get skills coaching on how to be better advocates to protect children in dependency and neglect cases. The catch – we only had eight hours to teach and practice case analysis, direct and cross-examination, impeachment, and exhibits. The NITA training was offered as part of the Colorado County Attorney’s Association annual meeting so we only had a day’s worth of time to do what normally is taught in three days. So, instead of 45-minute lectures, we have mini-lectures and demonstrations (5 minutes at the beginning of each session) and used the majority of our time to have the attorneys practice these skills and receive individual feedback from F. Stephen Collins, Judge Robert McGahey, John Watson, Judge D. Brett Woods, and myself. With tight schedules and budgets, it takes extra creativity and dedicated volunteers to make this work. Luckily, since NITA’s start in 1971, it has had 47 years to nurture the collegiality and relationships so that attorneys jump at the chance to volunteer their time and talent to help continue this tradition for the next generation of attorneys,” stated Swett.

Likewise, Assistant County Attorney Rebecca Wiggins, who first reached out to NITA for this program opportunity, said that each faculty member was great and the program received very positive feedback.

One attendee stated, “The learning-by-doing method was outstanding, and the faculty did a good job of pointing out various areas of improvement with each student so everyone could benefit.”

NITA will be doing a follow-up program this fall with the Colorado County Attorneys and we hope to continue this great partnership for the future. Thanks again to NITA’s outstanding faculty members!

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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