The Legal Advocate

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

All posts by Kathy Behler

Welcome the Newest NITA Advocates

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NITA is proud to announce the 2017 2nd quarter recipients of the Advocate Designation. These designations are awarded to a person who has taken a well-rounded set of courses, proving they are serious about trial advocacy.

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  • Andre Hungerford | Hungerford Legal
  • Charles Shelton | Crone Hawxhurst LLP
  • Keevil Markham | Law Office of Keevil L. Markham
  • Maria Estanislao | Loventime Law LLC
  • Marilyn Phelps | Office of Marilyn Phelps
  • Christopher Nuneviller | Nuneviller Law
  • Tanya Broholm | Tanya Broholm Attorney at Law
  • Sam Wu | Law Office of Sam XJ Wu APC

If you have any questions on how you can receive the NITA Advocate or NITA Master Advocate Designation, please review the information on our Advocate Designations page, or email customerservice@nita.org.

Why You Should Start Thinking About Your Trial Technology Well Before Trial

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written my guest blogger and NITA faculty Wayne Stacey

Courtroom technology is not about slick presentations and overdone graphics. Courtroom technology is about helping jurors follow your story and remember the supporting exhibits. It is also about engaging each juror’s individual learning methods.

While we often focus on the usage of technology as we approach trial, the focus should begin much earlier. In today’s civil trials, key witnesses are often outside the trial-subpoena power of the court. That means the only way to present those witnesses’ testimony to the jury is through deposition playback.

Anyone who has sat through video playback knows that it can be brutally boring and difficult to follow, which means that the jury will likely miss the point and overlook important evidence. The jury sees witnesses questioned in the open-ended style common to depositions rather than the leading, cross-examination style common to trials. As a result, the jury is left with a meandering series of questions and long answers rather than a crisp cross-style trial presentation. And most damaging, the jury is left with no easy way to link the video testimony with the trial exhibits.

To solve this presentation problem, focus on creating the material for engaging video clips during the depositions. Consider yourself the director in a short movie. The witness is your actor, and the exhibits are your props.

Trial technicians bring your vision as director to life. They can sync video playback and exhibits in a split-screen view to create a visually engaging video. But more importantly, they can draw the jurors’ eyes to the key material through annotations. The example below shows how a good trial technician can link witness, exhibits, and annotations. The video playback in this example looks more like a live-witness presentation than typical video playback. The witness is shown in the upper left corner. The exhibit is shown simultaneously on the right side of the screen. The trial technician creates a callout over the exhibit—helping the jury understand the origins of the callout. And finally, the trial technician can annotate, in real time, the exact material corresponding to the witness’ testimony. This arrangement makes the story and the evidence easy for jurors to follow. Jurors are not required to flip through paper exhibit copies or search a screen for the relevant material.

This type of engaging video playback does not happen by accident. Trial technicians need guidance when selecting exhibit clips and annotating the clips. The deposing attorney must provide that guidance through carefully-crafted deposition questions. Rarely will courts allow a technician to clip or highlight exhibit material not clearly called out by the deposing attorney or the witness. Think about these questioning techniques as controlling the eyes of the witness, the trial technician, and the jurors. All of this must be set up in the deposition.

Three steps will guide trial technicians and the jury through typical exhibits. These techniques must be rolled out during the deposition to make them useful.

  1. Introduce the exhibit properly: Often exhibits are introduced mechanically in a deposition, such as by introducing the document as Exhibit 1 and then explaining that Exhibit 1 is marked with Bates No. 743,231. The mechanical introduction is useful for record clarity, but it is not useful for the jury. For example, the exhibit number used in deposition frequently does not match the exhibit number used in trial. Jurors are unlikely to do any conversion between deposition exhibit number and trial exhibit number. And few jurors will connect with an exhibit’s bates number. This type of mechanical approach would rarely be used at trial.
    If the exhibit is one that the jury should see, remember, and understand, introduce it with the video playback in mind. Guide the witness in the deposition to the key identifying features of the document such as title, date, signature, etc. The trial technician can follow this guidance and highlight those identifying features for the jury during the video playback.
    In the example above, you would want to direct the witness to the company name, “Data Dynamics Corporation;” the document title, “Quarterly Income Statement;” and the time period, “For the Period July 17, 1987.”
  2. Guide the witness to the correct section of the exhibit: Once you have introduced the document to the deposition witness (and the jury), guide the witness to the correct section. Try to set the stage for the section that the witness (and eventually the jury) is seeing. Call out identifying material such as chapter headings, section titles, paragraphs, etc. The trial technician can highlight this material based on the deposing attorney’s questions.
    In the example above, you would guide the witness to the totals section that includes the “net sales” and “costs of sales” information.
  3. Guide the witness to the exact material that you want the jury to see: If you have done steps 1 and 2, the jury should be following your questions about the exhibit. They know what document you are asking questions about. They know the section you are focused on and how it fits into the whole exhibit. They are following the testimony and the visual presentation because the trial technician is guiding their eyes by highlighting material corresponding to your deposition questions. And with a final question, you guide the witness (and trial technician) to the exact material that you want the jurors to remember.
    In the example above, you would direct the deposition questions to the specific “gross profit” entries. The jury could forget everything else about the exhibit, but they should remember the approximately $400K in profits. They saw the number with their own eyes—because the trial technician highlighted it for them. They know where the number came from because you guided the witness (and the jurors) through the exhibit.

Courtroom technology does not make your story better. Technology’s role is to help you visually tell the story and help your jurors remember the evidence. The next time you are drafting your deposition outline for a deposition that could be played at trial, ask yourself what type of video are you creating. Are you creating something that the jurors can follow? Are you introducing evidence in a way that the jurors will visually follow? Or are you creating something destined to put everyone to sleep? Whatever you create, it starts with the questions you ask in the deposition. The conventional wisdom of asking open-ended deposition questions is not always the best solution.

July’s Monthly Theme On Technology: Same, Same But Different

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written by NITA guest blogger, Shannon Bales

In Thailand there is an expression – “Same, same but different” it has a wide variety of meanings but is basically used when tourists are shopping for souvenirs at booths that often written have the same goods. That elephant statue…It’s the same as the other one but “different”. In trial technology we encounter the same struggle with a nearly complete lack of differentiation. The exhibits placed on screen are uniformly presented in the same manner, using the same techniques, and the same yellow highlighting and provide little chance for the judge and jury to differentiate between who (visually) the plaintiff is and who the defendant is –, “same, same but different”.

A risk is decision maker confusion as judge and jury view a long list of documents that are so visually similar to previous, subsequent and opposing counsel’s exhibits that they can’t be distinguished from one another. The exhibits are a singular wall of yellow highlights that carry no weight or impact. Legal teams that don’t create interesting visuals of their exhibits are missing out on an opportunity to show some creativity, visually impress the jury, keep things interesting, and provide unique visual ques that decision makers can remember and give a common reference point to. We like to say, “If you highlight everything, you highlight nothing” and a good example of this is the document highlighted below which is very typical of most trial presentations. Typically, the lawyer starts by showing the “to and from”, and then “date and subject,” and then reading the body of the message. Put this document in line with all of the other exhibits being presented in the exact same way by both parties and you really have something that is not memorable at all – just a continuous wall of yellow highlighted documents.

There are many great trial presentation software tools available but there is a lack of variety in the tools and presentation options available. Nearly all of the software tools have highlighters, a circle, square and arrows. Yet even with these limited annotation options one can creaate a memorable and unique display of every exhibit that is shown, really anything but a wall of yellow. Wouldn’t it be great to see some “60 minutes” style document presentation options made right out of the box?

More often than not though, it is often the legal team that decides to not venture beyond the yellow wall. This is often due to the lawyer’s lack of comfort with the technology and uneasiness with handing over some potentially on-the-fly decisions about document annotation to a trial tech. This keeps many teams from releasing the complete creative range of visual options at trial. If you are working with a trial tech don’t be afraid to let them be a bit creative in working with exhibits. Lawyers with some level of discomfort with the technology or releasing a trial tech’s creative side could practice the night before and even pre-annotate documents so they know exactly what they are getting.

Contrast the previously shown yellow wall of highlighting with the sample below. To be sure, I’m not saying you should use all the colors of the rainbow but there are options to make your exhibit presentation more memorable. The use of color and colored shapes in the below example provide lawyers a method to focus the decision maker’s attention where they want it. For example: “the text in the blue box”, “the recipient is in the green highlight”, “the sender is circled in purple at the bottom of the page” all help the lawyer focus judge and jury attention where they want it to be.

Additionally, legal teams should consider how they can vary their presentation from time to time to keep viewers interested by not stacking endless slides or electronic exhibits in a row. Perhaps a board, document camera or other presentation method could be incorporated into your presentation strategy to break up the presentation and keep it interesting. For example, the document camera can be an impactful presentation tool if you make it appealing by incorporating hand movement, thick colored markers and emphasis on what you are trying to feature (i.e. scribble, underline, etc.).

In summary, don’t be the “same, same” as opposing counsel’s presentation – be different. Using color and varied annotations will help you keep viewer interest and provide a reference point for focus and recall. Familiarize yourself with the visual capabilities of your trial presentation software and add impact to every exhibit viewed in the courtroom. Get over your discomfort in working with trial presentation tools by pretreating the annotations (do them in advance) or practicing the night before.

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.

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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

June 2017 Executive Director’s Letter: Now You Know Us All . . . NITA “Central” Loves Working For You

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From January through April, I featured one staff department in each monthly post. This month rounds out those features. – and then draws back to see the assembled staff, putting grateful and humble words on the remarkable engine that these individuals become as we work together for you.

The NITA people featured this month are the ones who support all of the others you have met to date. The Business Services and Administration groups support every person in Programs, Publications, Sales & Marketing, and Finance. We also feature Claire Tompkins, who arrived after we featured her group in January.

There’s that pesky word, “Administration.” Don’t be fooled. These two groups are coaches, advocates, and communicators who contribute to the tone for our staff’s tremendous spirit of collaboration and quality. Said another way, these folks will make copies, answer a quick question, jump up to help with the sound system, or entertain and calm concerns, for all of our staff members and faculty. They lead by intelligence and strategic insight. They also lead with humility by modeling teamwork in their own behaviors. I salute these folks for all three of those reasons. Thanks to them and to all the staff, we remain focused on our corporate goals at the same time that our work is distributed among us. Everyone can lead; good ideas arise from every quarter; and we have each other’s backs — all regardless of rank.

This makes NITA “Central” a strong center of gravity for NITA’s nationwide teaching, bespoke published and broadcast content, and spontaneous creativity. You do it; we give you tools and back you up.
Please meet them below, in their own words.

Anna Gallegos

Business Support
Business support can be described as a jack of all trades. Being the first face people see at our headquarters, as well as the first voice they hear over the phone, I am able to subconsciously adapt to the subject, and thus I represent NITA on many different levels.

NITA is always growing and adapting to new technology, so it’s exciting to see how our methods drawn from or founders still mesh with new ideas. I love being able to connect with lawyers and to see firsthand how our programs make a difference in so many lives.  

Wendy McCormack

Associate Executive Director, Operations
I keep the trains moving, operationally on a day-to-day basis and also strategically look at short-term and long-term goals and objectives of the organization. We have a well-oiled machine. Of course we still have hiccups. I’m here to brainstorm and help problem-solve issues, create and implement ideas to be efficient and effective, and inspire our staff to push beyond what they think we are capable of. I’m a big promoter of taking risks and learning from them.

Advocacy! Helping lawyers become better advocates helps create better systems. Seeing our attendees grow in confidence over the course of program is phenomenal. Watching our staff raise the bar all the time with quality and innovation is fulfilling. The relationships and collaboration in our community are what makes us family. I enjoyed my interview on these values of NITA for “Asked and Answered”. I hope you will read it!

Vanessa Munzert

Lead Business Support
My focus at NITA is customer service, specifically internal customer service. In short, I help make it easier for the staff to do their work. I ensure NITA’s business and workflow needs are translated to our outside web and database designers so that we can develop useful tools. I spend most of my time developing and testing these tools, creating efficiencies within our systems and training and assisting staff. I also oversee our external customer service efforts and policies.

NITA’s exemplary staff and dedicated faculty collaborate to achieve NITA’s mission to promote justice through the highest quality training and materials. I love my job because I get to find ways for NITA to be better, faster and more efficient as we strive to achieve our goals. Our future lies in our ability to stay agile and sustain growth while remaining loyal to our mission and community.

Gary Pope

HR Manager
I see three distinct facets to my work with NITA.
1) Strategic Partner: Aligning HR business objectives with the overall NITA mission and the strategic business plan.
2) Employee Advocate: Building employee ownership of the organization by fostering organizational culture and climate.
3) Change Champion: Emphasizing the NITA mission, vision, core values, goals, and action plans.

I believe in NITA’s mission and what we do to help the adversarial system work better so that ultimately, justice is served. I get enormous satisfaction by helping to attract, retain, and develop our employees into great “owners” and leaders.

Mike Sisk,

Director, Business Services
As Director of Business Services, I oversee our IT, Customer Service, Office and the NITA Education Center.  I pride myself on being a hands-on working manager, giving our faculty and staff all the tools they need to do their jobs efficiently and effectively.

I see NITA in a period of transition related to incorporating technology, and inserting on-demand Studio 71 lectures/demos into our programs to supplement the invaluable live presentations. It involves using courtroom presentation technology to give our participants all the tools necessary to tell the full story of their cases and provide the most effective learning environment. I also see NITA continuing to evolve with smaller specialized programming either by location or specialty.  In addition, now and extending into in the future, I see world-class faculty that mentor our participants into great, competent, skilled advocates for their clients and organizations. I see NITA evolve as publisher from printed textbooks/case files to E-publications and on-demand printing. Knowing that I help facilitate this on a daily basis and am involved in the evolution of our brand and product is an honor.

Claire Tompkins,

Program Administrative Assistant
My role is to help the Program Specialists with whatever they might need so that their programs run smoothly. My specialties are applying for Continuing Legal Education and doing the post-program CLE processing, drafting emails for the faculty and participants, and deciphering the faculty members’ reimbursements. The Programs Department is a tight-knit group and I love being a part of a team where we work hard but can also be friends.

I started at NITA just about 4 months ago and I knew from the moment I interviewed I was going to love it here. I asked the NITA staff who interviewed me what they liked best about working here and they all said essentially the same thing, “it’s a great place because everyone cares about what we do and with that common goal we work as a cohesive team.” It is fantastic to be part of a non-profit where people get excited about what we are doing and what we could do in the future. I think we will keep creating interesting programs in new places with new topics to engage attorneys across the country. By increasing our participants we will be able to offer more public service programs and provide Continuing Legal Education to attorneys who may not be able to afford it otherwise.

In one breath, this post extends my deepest thanks to every single member of our staff — each important, each valued. Valued by each other, and valued by our NITA network. Thank you..

Please lift your phone and say hello to our folks. You and they together make NITA what we are as we gaze together, forward, into our next 50 years.

Karen_ShortSig

 

 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

NITA Movie Review: Greedy Cousins, A Fight for Autonomy, and a Really Big Rabbit

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Written by guest blogger Judge McGahey

Sometimes we forget all the areas where trial lawyers work. In Denver, where I am, our stand-alone Probate Court handle cases as varied as mental health proceedings and estate matters. This month we’ll focus on films that fall within that court’s purview. I’ve deliberately chosen to leave out movies that I’ve written about before, like Miracle on 34th Street (where Santa Claus goes on trial for “lunacy”) as well as movies featuring really crazy people (like Psycho.) Instead, I’ve picked a black comedy about an inheritance battle, a drama about a fight over competency, and a wonderful movie about a man whose best friend is a six-foot three-and-a-half inch tall invisible rabbit.

The Wrong Box (1966, Columbia Pictures) is a British comedy that centers on the attempts of two scallywags to collect the proceeds of a tontine. A tontine was a sort of investment scheme used in the past. The members of a tontine placed a certain sum of money in an account, with the last surviving member inheriting the entire amount, plus years of interest, far off in the future (hopefully.) The winner’s relatives, of course, stood to profit thereafter. The potential for mischief should be obvious.

In the movie, the last two potential survivors who could inherit the tontine are Masterman Finsbury (played by a true giant of British acting, Sir Ralph Richardson) and his brother Joseph (played by the almost-as great Sir John Mills.) Joseph has two scheming nephews (Peter Cook and Dudley Moore) who want to eliminate Masterman so that Joseph gets the proceeds of the tontine, followed (in short order) by the two nephews. Masterman’s only heir is his somewhat dim grandson, Michael (played by Michael Kane.) To describe the plot of this film would take more pages than these reviews are supposed to cover, but it involves (among other things) several murder plots, a train wreck, a misidentified corpse, a corpse stashed in a barrel, a corpse stashed in a piano, the mis-delivery of coffins — and a love story between Michael and Joseph’s prim and proper, but Victorian-ly repressed niece, (Nannette Newman.)

I’ve always found The Wrong Box hilarious and I think you will, too. It shows, in a farcical way, the ends to which people will go to secure what they believe to be their rightful inheritance. Courts and lawyers handling estate matters with real-life fights like this all the time.

Next, I present Nuts (1987, Warner Brothers), starring Barbara Streisand as Claudia Draper, a call girl who kills a client, according to her, in self-defense. Because of her erratic behavior, Claudia is confined at Bellevue, where she is examined by a psychiatrist, Dr. Morrison (Eli Wallach), who believes Claudia is incompetent to stand trial. Her parents (Karl Malden, Maureen Stapleton), fearful of a scandal, support this finding, because it would allow their daughter to be tucked away quietly in a mental institution. The parents hire a lawyer for their daughter, but the lawyer is in league with the parents and the psychiatrist. But at a competency hearing, Claudia strikes a blow for herself (literally) and the judge appoints a public defender, Aaron Levinsky (Richard Dreyfuss) to represent her. Claudia insists that she has a right to decide her fate, and that whatever mental illness she may have doesn’t deprive her of that right. The courtroom scenes are jarring and the end result of Claudia’s fight is never sure.

Nuts has several aspects that make it worth watching for those of us in “the system.” For lawyers, there’s the issue of how you interact with a client who even her own counsel describes as “a real pain in the ass.” For judges, there’s the fine line between the right of a defendant to make their own decisions and whether someone is actually so mentally ill that they cannot make decisions for themselves. And, throughout the film, there’s the philosophical question of whether or when the law should require that someone be treated for mental illness if that person doesn’t want to be treated or doesn’t believe they should be[1]. These are important questions not just for the law, but for society as a whole.

And last, but definitely not least, we come to Harvey (1950, Universal) a wonderful comedy starring James Stewart as Elwood P. Dowd, a kind and gentle man, whose best friend is a pooka – an Irish spirit, in Elwood’s case is a six-foot three-and-a-half inch tall[2] invisible rabbit named Harvey. Of course, no one else can see Harvey and because Elwood likes to take more than a few drinks, spending much of his time at Charlie’s, Elwood’s (and Harvey’s) favorite local bar. His strait-laced relatives are sure that Elwood is both an alcoholic and certifiably crazy. Elwood is also perceived as an embarrassment to his family, who are convinced that he affects their social position and even the ability of his niece to marry well. An attempt is made to have Dowd committed, even enlisting the help of the local judge, but the attempt goes awry, as these things do in Hollywood. The head of the sanatorium proposes treatment with a secret formula that will keep Elwood from ever seeing Harvey again. I won’t spoil the ending for you, but rest assured that Elwood does not end up as “just a normal human being.”

Harvey is simply a warm, sympathetic portrait of a man who is either harmless eccentric or someone who’s mentally ill – or both. Stewart was nominated for Best Actor and Josephine Hull, who played Elwood’s frazzled sister Veta, won the Oscar for Best Supporting Actress Oscar[3]. The movie shows up a lot on TV and is one you shouldn’t miss. It’s also suitable for watching by and with kids, which neither The Wrong Box nor Nuts is.

Kudos to those who labor in the probate, estate and mental health fields!

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[1] Many judges have been faced with the issue of involuntary medication of persons receiving treatment in state facilities. Colorado’s statute can be found at C.R.S 1973, Section 26-65-118.
[1] The script always refers to Harvey as being 6’3-1/2” tall, but Stewart, who was 6’4” played it as if Harvey were 6’8” tall, so Stewart was always looking up to talk to Harvey.
[1] Ms. Hull appeared in another movie about slightly doty old folks in 1944’s Arsenic and Old Lace.

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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