The Legal Advocate

A blog brought to you by the national institute for trial advocacy

All posts by Daniel McHugh

About Daniel McHugh

Daniel is the Director of Sales & Marketing at the National Institute for Trial Advocacy.

January 2014 Executive Director’s Letter: Applied Learning—at School; Experience and Learn—on Career Paths

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We at NITA have been thinking hard about educating the trial lawyer and oral advocate. Law schools are focusing hard on teaching the student enough to be “ready to go” upon graduation. My question today is this:  “ready to go” . . . do what?

I thought hard about that question when I was teaching law school, too. A small seminar-style enrollment allowed me to design a class that suits the Academy—challenging students to read a lot, think hard, be able to discuss the principles, and reinforce this learning through quickly paced, unforgiving, but delightful class discussion amid lecturing. Their final paper—their approved topic, original research, a strong issue about the evolution of ADR, and excellent writing—cinched the academic challenge of leading them to master the legal substance of ADR and the principles of its practice. My students were receiving credit for a course in Alternative Dispute Resolution.  I targeted delivery of deep remembered learning, and they got it done. Fine.

My remaining challenge was to work application of those lessons into the course syllabus. As the Academy and the ABA recognize in the ongoing certification discussions, the smart law school provides students the chance to apply the course material in very class, even contracts.  Clearly, applying the learned principles of law and practice deepens both the understanding of the reasons behind the legal principles and how hard it is to deliver just results.  (If done within every course, it also raises the stakes on the student’s study of the course material to begin with.)  For my class, the puzzle was how to give them that chance to apply their “substance + process” learning and feel the processes at work. My answer? To pause after concluding the study of each ADR type (for us, arbitration, mediation, negotiation) and devote one entire class week to prepare and conduct a moot exercise. I more than filled their plate for a three-credit course: they worked really hard; they “got” the law and its reasons and processes.

Let us take an unpolarized hard look at what the question is around the current debates on “experiential learning,” the law school’s accreditation requirements, and every law school’s marketplace desire to declare its graduates “ready to go.”

We seem to suffer from a misnomer. “Applied learning” is the better term. Students arrive with no client/matter experience. They need chances to apply what they learn in each class subject, getting a feel for helping a client in that substantive area, and deepening their grasp of the why’s and wherefore’s of The Law.  By analogy, undergraduates are lucky to be supported with a unified program of learning, application, externships, and pre-career guidance and development.

Except for clinics in states where law students may appear in court on behalf of clients, however, this learning is different from experience. Experience comes from doing it for the stakes. Doing it to win for a client. Doing it case after case, year after year. We as a profession cannot shoe-horn that into the law school environment. The more you actually do it, the more experience you accumulate. The more you accumulate, the more you appreciate your mentors. (This is why we call our client work “practice”!) And, in today’s fast-paced and competitive practice environment, the more you seek mentors, the more you wish you could pause and deepen you mastery without having a client depending on you for an outcome. Actual experience, assuming you already have studied and mastered the requisite law curriculum, provides the solid framework on which to hang new lessons and better skills.

Thus, “experiential learning” is a misnomer for the problems we are trying to solve at the law school level. What we are talking about is applied learning for law students. Applied learning is the real issue in the ongoing the debates about ABA accreditation standards, a two- or three-year law school foundation, and defining the scope of the legal curriculum so that a graduate is “ready to go” start working for clients.  I take no position on the accreditation debates. I simply hypothesize that application of substance + process should occur in every law school course, with support from centers that coordinate and assure the students are getting their chance to apply.

We treasure and invest in our NITA contribution to the Academy.  Our intense work at NITA is to provide a real-life experience, for experienced practitioners who have more under their belt than law students, where they can return to solid and safe learning-by-doing. Repeatedly, as their experience lengthens.

Apply it in law school—try it on.  Experience it through, well, experience—and periodically seek to learn better ways in safe places.

 

 

June 2013 Executive Director’s Letter: Summer at NITA

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We love our summer season, filled with more of our signature Public Programs than any other season. I just returned from visiting the Western Regional Trial Program in San Francisco – 56 fine lawyers working with a stellar faculty in ways that inspire confidence, participation, risks, and rewards. They try their NITA cases this weekend, and I wish I were there to see them!

It is a good time to think about how you can reach the promising young lawyers you know, and tell them about NITA.  They probably heard of us in law school from a NITA case file or treatise, or perhaps moot court. But until they entered practice, they could not imagine the difference our programs make in every lawyer’s comfort and effectiveness at trial or in deposition. Now they need to know about us!

As you think about who can improve her or his career through NITA work, here are some things you might consider:

  • Who are the up-and-coming lawyers in your sphere that are ready for this singular Public Program experience?
  • Who around you would find the successes of the Public Program to be the spark to reignite their ambition?
  • Who among your firm-trained lawyers is ready for super-achievement gained by striking out beyond the firm’s program?  To experiment without risk in front of non-firm faculty, and beyond the sanctity of relationships with firm colleagues?
  • Who in your city would embrace the chance to “up the game” – someone on a past trial team, an adversary with raw talent to tame, a bar association member, a friend?

As Executive Director, I can confirm what I had thought to be true:  the in-house programs, whether NITA’s Custom programs for firms, or the firm’s own program, work well in tandem with a larger NITA training strategy.  Before coming to this position, I had helped my global firm design one of the first in-house academies.  I knew that the incisive NITA training across the appropriate associate class was magical for the firm.  I knew, at the same time, that the firm’s upcoming stars (those who would be taking trial witnesses, and would likely lead future trial teams) extended their learning and solidified their strength by going from their firm academy to a NITA a Public Program.

Why?  Risk. The Public Program allows – actually encourages – high risk learning. The lawyer tries something one would never experiment with on a client matter – or before the firm’s partner/teachers in an academy. Try it once.  Get a critique. Then try it differently. The lawyer can take wild risks trying his style, following her instincts, attempting a risky cross, closing with a novel approach.  Trying and receiving critiques is the core of the NITA Public Programs. Moreover, in the Public Program, colleagues taking the course are strangers at the beginning but teammates by the end.

Calculated risk, trained instincts, mastery of examination processes, repeated practice runs with critiques, and teaming to crack the theme of the case. The Public Program confers a special maturity. It fits both the lawyer groomed in firm academies, and the lawyer who learned through actual practice.  Our faculty individualizes their teaching. They pack more learning into a few days than can be imagined, and our participants take unimaginable risks, achieving big rewards.

Think ahead to help your colleagues plan.  Whether summer or early fall, get the word out that the programs are filling. Summer – 14 programs around the country from June 24 through September. www.nita.org/Shop#programs

NITA Board Member Named Managing Partner

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Rubinowitz_BenThe New York law firm of Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz has announced that Ben Rubinowitz has been elected Managing Partner of the firm.  Throughout his 30-year legal career Ben has made his mark as a leading trial lawyer, teacher, and leader.  He is a member of NITA’s Board of Trustees and is Co-Program Director for this year’s National Session.

Rubinowitz is a member of the exclusive Inner Circle of Advocates, The International Academy of Trial Lawyers, a Director of the New York State Trial Lawyers Association and a Past President of the American Board of Trial Advocates. Most recently he was named Best Lawyers’ 2013 New York City Personal Injury Litigation-Plaintiffs “Lawyer of the Year”.  GGCSMB&R was also named by U.S. News and Best Lawyers® the 2013 Law Firm of the Year, Personal Injury Litigation-Plaintiffs.

In addition to his trial work Ben teaches trial advocacy as an adjunct at Hofstra University School of Law and Benjamin N. Cardozo School of Law.  He also continues to teach in NITA programs across the country.

Congratulations, Ben, from the entire NITA community.

NITA Wins Rich Media Impact Award

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BOULDER, CO — April 29, 2013: The National Institute for Trial Advocacy (NITA) was named the winner of the Rich Media Impact Award in the category of Innovation.  The winners were announced at Sonic Foundry’s annual Unleash Conference in Madison, Wisconsin,  and the awards ceremony can be viewed on-demand at www.sonicfoundry.com/finalists2013.

“This year’s awards program was the most competitive to date. Customers in education, government, and the enterprise are increasingly becoming aware of the distinct advantage of using video to communicate, save money, and increase productivity,” said Rob Lipps, executive vice president of Sonic Foundry.

NITA is widely known for its in-person, learning-by-doing training programs for attorneys.  NITA pioneered that model over forty years ago and winning this award shows that the organization is as dedicated as ever to continued innovation.  Using Sonic Foundry’s Mediasite System, NITA is now able to incorporate recorded content into live programming which allows participants to perform and receive faculty feedback twice as often as they would in a program without the video content.

The Mediasite system also offers attorneys the option of participating in a learning-by-doing program online, without incurring the costs of travel and time away from the office.

“Our goal is to increase our distance learning capabilities to include even more online programming on different topics. Mediasite for me means innovation. It gives us the freedom to try new things and reach more attorneys nationwide. Our online program via Mediasite will only get bigger from here, and we’re looking forward to experimenting with more online courses and webcast series in 2013,” said Wendy Velez, NITA’s Associate Executive Director of Operations, who accepted the award in Madison.

About the National Institute for Trial Advocacy (NITA):
NITA is a 501(c)(3) charitable organization, consisting of a dedicated team of professors, judges, and practicing lawyers who believe that skilled and ethical advocacy is a critical component of legal professionalism and all systems of dispute resolution that seek justice.

About Sonic Foundry®, Inc.
Sonic Foundry (NASDAQ: SOFO) is the trusted market leader for enterprise webcasting solutions, providing video content management and distribution for education, business, and government. Powered by the patented Mediasite webcasting platform and webcast services of Mediasite Events, the company empowers people to advance how they share knowledge online, using video webcasts to bridge time and distance, enhance learning outcomes, and improve performance.

Ghost Writing An Expert’s Report: Is it Ethical to Do So*

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On December 1, 2010 several Amendments to Federal Rule of Civil Procedure 26 went into effect. The Amendments, which were approved by the United States Supreme Court and allowed to go into effect by the Congress, included changes that limit the discovery of drafts of expert reports. The Amendments focus on four matters: narrowing the areas of disclosure related to expert reports, expanding work product protection to drafts of expert reports, establishing a new work product protection for attorney – expert communications, and making clearer which testifying experts are required to submit expert reports.

With drafts of expert reports no longer being discoverable and certain communications between the testifying expert and counsel being subject to work product protection, what is to stop the lawyer from preparing a draft of the expert report and forwarding it to the expert?  A brief internet search will demonstrates that ghost writing expert reports is not uncommon. In fact, the 1993 Amendment Advisory Committee Note recognizes the role of the lawyer in assisting the expert in preparing the report. The Note states that Rule 26 “does not preclude counsel from providing assistance to experts in preparing the reports, and indeed, with experts such as automobile mechanics, this assistance may be needed.” Parenthetically, it would be interesting to learn whether the reference to auto mechanics as experts had anything to do with the role of Marissa Tomei in the 1992 Movie, “My Uncle Vinny”.

It is therefore clear that lawyers may—and do—assist experts in preparing their reports. But is it ever unethical for the lawyer to assist in the preparation of an expert report? The answer may lie in a comparison with the ethical standards for witness preparation.

In order to answer this question, however, it is first important to understand the changes made in the 2010 Amendments regarding expert reports. Fed. R. Civ. P 26 (b) (4) provides that draft reports recorded in any form are protected from disclosure. Communications in whatever form between the lawyer and the person required to submit the report, are protected from disclosure. Three exceptions are communications relating to compensation to the witness for the study or testimony, the identity of facts provided by the lawyer to the expert to be used in forming opinions, and assumptions provided by the lawyer to the expert for the same purpose.

Second, it is important to understand the obvious possible harmful effects of ghost writing the report, whether ethical or not, may have on the merits of the case. Should it be learned at trial that the expert report was written in whole or in large part by the lawyer, the expert’s credibility, as well as that of the lawyer, may be damaged. In the worst case scenario, the report will be excluded and the expert disqualified.

Given that the draft report is now protected from discovery, it is more likely that the lawyer’s participation in the preparation of the expert report will continue and arguably less likely that unethical participation, should there be any, will be uncovered. So what are the ethical requirements? The most obvious ethical boundary is found in Model Rule 3.4 which provides that a lawyer may not “falsify evidence, counsel or assist a witness to testify falsely…” Nor may the lawyer “offer an inducement to a witness to testify falsely…”. In addition, Model Rule 8.4 provides that a lawyer may not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation”. Thus, just as a lawyer may not cross these ethical lines in witness preparation, the lawyer may not do so in working with an expert in the preparation of the expert’s report. An excellent article describing the ways in which a lawyer may cross the line in the general context of witness preparation is “The Ethics of Witness Preparation” by Professor Richard C. Wydick, 17 Cardozo L. Rev. 1 (1995). Also to be taken into  consideration are Principles of Professionalism promulgated by several Bars. For example, Colorado’s principals say, 4.2 We will scrupulously refrain from making misleading statements of law or fact, whether by omission, inference, or implication.12

 

Written by Michael J. Dale, Professor of Law, Nova Southeastern University Law Center and Co-Program Director NITA Florida Deposition Program

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 Goal is 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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