The Legal Advocate

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All posts by Alli Keefe

Thank You to the U.S. Department of State International Visitors

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NITA was pleased to welcome seven esteemed guests from seven different countries who are part of the U.S. Department of State International Visitor Leadership Program (IVLP), consisting of international advocates devoted to protecting women and children.

The group arrived at NITA’s headquarters in Boulder, CO on Wednesday, August 8th to meet with NITA Executive Director, Wendy McCormack, NITA Director of Programs, Michelle Rogness, and Member of the NITA Board of Trustees, John Baker. Boulder was one stop on the group’s tour which is a 3-week long professional exchange program.

According to Wendy McCormack, “NITA supports rule of law efforts globally so being able to meet with representatives from seven countries and hear first-hand the real issues they are tackling is imperative for how NITA moves forward with our international outreach and training worldwide. These visitors are really driving change in their country and that’s inspiring.”

Furthermore, one of the visitors was Ms. Yetunde Ajayi, Chief State Counsel at the Office of the Public Defender Lagos State Ministry of Justice. This is the second year in a row that NITA has worked with Ms. Ajayi to put together an international public service training program for the public defenders in Nigeria. This year, NITA won an ACLEA’s Best Award for the programming we did in Nigeria and we were so excited for the opportunity to meet Ms. Ajayi in person here at NITA.

In regards to the meeting, John Baker stated, “The Department of State International Visitors meeting reminded me of the critical need to fund NITA’s outreach to our Rule of Law colleagues in Central and South America. Spanish language programs need expanding. The need by these growing democracies is very real. The meeting was very eye opening and the visibility of our programming reputation is still vibrant and real.”

Thank you once again to the International Visitor Leadership Program, NITA was very grateful to be part of the tour and we look forward to continuing our international training efforts.

Monthly Theme: Opening Statements Part Six

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Opening Statements – The Opportunity to Tell Your Client’s Side of the Story: A 12-Step Guide (Part Two of Two)

Written by NITA guest blogger William Webb

Last week, we talked about the first six building blocks of opening statement.  This week, we will close out with the final six.  I want to start off this post with one of the most important.

  1. Use head notes effectively.

If you tell your story to the fact finder in one long, uninterrupted paragraph without any signposts as to where we are in the story, you will lose them.  Head notes are a great way of keeping everybody on the same path.  Shameless plug: I presented a webinar on NITA’s Studio 71 [link] that goes into more detail than you ever thought possible about the use of head notes in openings, closings, directs and crosses, and I commend it to you – if you learn to use head notes throughout your trial presentations you will improve your advocacy immeasurably.

A headnote is a short persuasive statement as to what is about to happen in the courtroom.  It alerts the listener that we’re shifting gears, but, more importantly, into which gear we’re shifting.  Even, “Meanwhile, back at the ranch” is a kind of head note, isn’t it?  It tells the reader that we’re now going to be shifting our perspective to a different location.

  1. Don’t argue.

At NITA, we’re fond of telling people not to argue in their opening statements.  But we don’t always say why this is to be avoided.  The reason is that in order to argue persuasively, the listener has to actively engage their consciousness to consider the merits of the argument.  And it’s too early for this.  We have not provided the jury with any reason to care about our arguments; they don’t even know what happened, or whose side they are on.

But if we’re telling a story instead, they will be engaged in taking in the events, and wondering what happens next.  So indulge them.  Tell them what happened next.  And then tell them what happened after that.  Lather.  Rinse.  Repeat.

By the time they have heard your entire, well-crafted story, they will be motivated to help you.  They will see the injustice that has befallen your client.  And they will say to themselves, consciously or otherwise, “how can I help?”  Having had their passions aroused, then is the time to argue.  But that comes much later, in closing argument.  For now, don’t argue.  It will literally fall on deaf ears.

  1. Don’t refer to the facts as your “story.”

As much as I love stories, and the concept of story, bear in mind that it has a negative connotation.  While stories themselves have great power to persuade, most people feel that a story is something that is made up, fictitious, and therefore, not “true,” in that things didn’t really happen that way.  So don’t refer to the facts you relay, and will elicit at trial, as a “story.”  You can refer to your opponent’s story as such, though.

  1. Include all elements you need to prove in your opening.

In some jurisdictions, your opponent may be entitled to a directed verdict after the opening statement, so be sure to touch on all elements to at least some degree so as to stave off this approach.  And you might even want to use head notes in order to alert the judge as to each element you’ve ticked off:

Now I want to talk about causation.  You are going to hear from Dr. James Yergler.  He is an orthopedic surgeon who operated on Ms. Johnson’s knee . . ..

  1. Use exhibits and other visual aids.

If you want the jury to remember something from your opening statement, show them something that reinforces the point.  The importance of doing so cannot be overemphasized.  Most of us are visual learners, and are unlikely to understand or remember something that is taught to us only orally.  Confucious said, “Tell me and I will forget, show me and I may remember; involve me and I will understand.”  So by showing the jury something, you involve them to a greater extent, and they will be more likely to remember it, and be persuaded by it.

  1. Involve the jury by showing them how they can help.

So if you want the fact finder to understand your case, you have to involve them.  How do we involve the jury?  Well, we can’t argue with them.  But we can involve the jury in the story-making process.  By telling them a compelling story, we can involve the jury in the story-making process itself.  If the jury’s emotions are engaged and aroused, the jurors will be motivated to provide the happiest ending they can.

So when you finish with your story, you can end your opening statement with a preview of the request you will make after the evidence has closed.  “Members of the jury, if the evidence is just as I’ve laid it our for you, I will ask you to return a significant verdict for the plaintiff.”

Now, time to call your first witness.

 

A Thank You to Karen Steinhauser

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NITA would like to express our gratitude and appreciation to Karen Steinhauser who finished up her third and final year as a co-program director for NITA’s National Session. Back in 2004, Steinhauser served as an Assistant Team Leader at the National Session and then in 2016, she began her first year as co-program director. Over the years, Steinhauser has been a faculty member with NITA on over 100 programs and we thank her for her dedication to NITA. The 2018 National Session concluded on August 2nd where Steinhauser led the team of NITA faculty alongside Co-Program Director Michael Washington. Washington will be service as the co-program director, along with a new program director who will be announced at a later date, for the National Session once again in 2019.

Monthly Theme: Opening Statements Part Five

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Opening Statements – The Opportunity to Tell Your Client’s Side of the Story: A 12-Step Guide (Part One of Two)

Written by NITA guest blogger William Webb

When we stand up to provide an opening statement, we want to tell the jury our version of our client’s story.  But, how do we tell a story?

Think back to a time when you knew nothing about your case.  You are leaning back in your chair, reading the newspaper, your feet on your desk, perhaps.  The silence is split by the sound of the telephone.  It’s a new client, claiming they have been wronged!  But how?  They explain, haltingly.  You probe with questions.  You hang up the phone, confused as to what the case is really about, or if there is one worth taking.

Over the course of the next months, you meet with the client, gather documents and talk to witnesses.  Finally, you have a sense of what the case is about.  If someone were to list each discrete fact that comprises your case, there would be 937 of them.  You are convinced of the rightness of your cause.  And so you prepare for your opening statement.  Is it OK to just spout the 937 facts, in no apparent order?  No, of course not.  But how does one marshal the facts into a cogent story that will persuade?  This blog post discusses the 12 steps to doing just that.

  1. Arm yourself with two tools: words and images

Your audience will be comprised of human beings.  (We’re starting with the basics here.)  If you are presenting a case to a judge or arbitrator, congratulations.  They are legally trained, and know that their livelihood depends on knowing what is going on in their cases.  They will pay attention, and will follow to the extent that they are able.  You can lead them to the water.  Jurors, on the other hand, do not suffer from the infirmity of a legally-trained mind, and have little incentive to pay attention to every word and follow every argument.  They have to be enticed to the water.  I am convinced that a jury trial boils down to a continuous struggle to capture and maintain the jury’s attention.

Once at the water, whether anybody slakes their thirst is up to you.  But the same technique works no matter your audience.  In my experience, the best way to engage someone’s attention is by telling them a story, not by appealing to their reason or intellect, without providing the proper context.

We also have a great tool available to us that you must use in every opening statement: the ability to reinforce our words with visual images.  These might come in the form of our body language and movement, a visual timeline, photographs, e-mails with call-outs of critical language, “the” gun, and whatever else we can do to hold the attention of the fact finder.

So, armed with these tools, let’s talk about using them to weave a story that will persuade the jury to act for your client.

  1. Decide what the story is.

This is often easier said than done.  You may need to dig a bit with your client in order to craft your opening statement, so that you can see what your story is.  Ask them what the case means to them.  How has their life or their business been affected by the events leading up to this lawsuit, or by the lawsuit itself?  Ask your client open ended questions, and get a conversation going.  Let the client lead the conversation as much as you can.

  1. Visit the scene.

Wherever the story took, or is taking, place, go there.  And it may have more than one location.  A plaintiff permanently injured in a serious accident may require several site visits.  Go to the intersection at the approximate time and anniversary date of the accident.  Go to her home to see how she deals with activities of daily living.  Go with him to work to see how his job has been affected.  Go with her to places she used to enjoy, but can no longer, and talk to her about her memories of teaching her daughter to play golf, of skiing with her son.  Only then can you begin to understand the story well enough to tell it.

  1. Select a point of view.

It is important to tell the story from your client’s point of view.  Don’t just tell an alternative story from the other side’s point of view.  That is simply re-telling your opponent’s story, which is not persuasive.  And this is especially important when your client is a corporate entity.  Even companies have stories, and we need to tell them.  But we also need to tell the story from their point of view.

If you have attended a NITA program, you know that there are a number of different fact patterns developed in order to practice trial skills.  One such case is Jamie Taylor v. Pinnacle Packaging Products, an employment case involving allegations of quid pro quo treatment.  The case boils down to “he said/she said” recollections by various witnesses as to whether John Hamilton asked his subordinate, Jamie Taylor, out on dates, only to be refused.  Ultimately, of course, Jamie Taylor was fired, and the rest is hypothetical history.

So, if we are representing Pinnacle Packaging, we need to tell its story.  Its story involves its founding, several decades ago, and how it gainfully employs people, and has done so for quite some time.  21 years ago, it hired John Hamilton on a probationary basis.  Mr. Hamilton worked his way up the ladder and ultimately became the operations manager, etc.  One day, Mr. Hamilton received an application by a Jamie Taylor . . .  and we’re off to the races.

Notice how that point of view invites the jury to see the case from your client’s point of view, something that is expressly forbidden by the Golden Rule, which says that you can’t ask the jury to put themselves in your client’s position.  But there is no rule against telling a story so effectively that it paints an unmistakable picture in the jurors’ minds.  Well done; the jury will “see” the case in their mind’s eye, meaning that they will have subconsciously put themselves in your client’s position, just the vantage from which you want them to view the trial.

  1. Build your story, brick by brick.

Remember that the fact finder has no idea what the story is before the case is called.  If we want to persuade, we have to explain the story as we go along.  We cannot assume or hope that the jury is going to be able to understand the case and the factual nuances to the story – we have to express them.  Remember, you have been to the scene; they have not.  You have been to your client’s bakery; they have not.  You have spoken with the experts; they have not.  So you need to build your story like a house.  We can’t start building the second floor until we have finished the first floor, and we can begin work on the first floor until the foundation has been poured, etc.

So, when you are crafting your story, think about the tools the jury is going to need in order to understand how the story unfolds.  List these tools out, and make sure to give them to jury – before they need them.

For example, one of the factors the jury in the Taylor case is going to weigh is whether she was capable of doing the job.  Well, in order to understand that, it will be necessary for the jury to understand that Jamie Taylor is but a wee lass and that the job involves some heavy lifting.  It’s one thing to say this – “the job requires some heavy lifting.”  But, this statement is not terribly memorable, and therefore not persuasive.  What if a juror sneezes or is distracted at the exact point when you utter those words?  They have not been persuaded.  But, what if we carried on our story begun above:

Members of the jury: You might not know this, but there are companies whose sole role in our economy is packaging.  Pinnacle is one of those companies.  Other businesses send unpackaged products in huge crates, and Pinnacle opens the crates, and takes the things out.  Working on assembly lines, Pinnacle’s employees take these products and put them in boxes, and then they seal them up.  Sometimes these smaller boxes are put together into larger boxes, too.  This is what a packaging company does, and this is what Pinnacle does.  It makes money by quickly, and carefully, packing products. Sometimes these products are light.  But often, they are quite heavy, requiring strength to pack the boxes.

Now, the jury knows that the company stays in business by ensuring that its employees are strong and work efficiently.  The jury is now ready to hear about how Jamie Taylor did not measure up.

  1. Tell the story chronologically.

This should go without saying, but don’t skip around when telling your story.  Lawyers do this when they remember that they forgot to tell the jury something critical to their understanding and so they have to backtrack a bit and provide some more critical information.  It’s better to pepper this information throughout the story in a logical buildup.

Sometimes, in order to do this, there may be several tracks to convey.  “Meanwhile, back at the ranch . . ..”  You may consider helping the jury by talking about events taking place in one location while standing to the right of the podium, and moving to the left when you’re talking about something going on at another location.  But, to the extent possible, keep it chronological.  It’s how we have been trained to understand story, The Curious Case of Benjamin Button notwithstanding.

Next week, we will finish up the building blocks to a persuasive opening statement.

 

 

 

 

 

 

NITA and Lawyers Without Borders Go to Kenya for a Public Service International Program

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NITA and Lawyers Without Borders (LWOB) joined forces and ventured to Kenya for a public service international program, held July 23 – 27 at the Kenya School of Monetary Studies. Judge Ann Williams served as NITA’s Program Director, leading a group of 17 faculty members who trained 80 attorneys in Kenya on Trial Advocacy and Prevention of Terrorism Act.


After the 5-day training concluded, NITA Faculty Shareema Abel stated, “All I can say is wow! Kenya was nothing short of amazing. The trainees were engaged and the Kenyan Institute trainers embraced the NITA method. I feel so blessed to have been chosen for such an awesome opportunity. It drove home how much we have here in the States and how important it is to advocate for others. I was there to teach, and in turn I was taught so much!”

Ms. Abel also said she had the pleasure of teaching the NITA method, alongside NITA Faculty Mike Ginsburg, to the LWOB faculty and the Kenyan institute trainees whom all worked together to train the group of attorneys.

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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