written by NITA Guest Blogger and Faculty Erica Schommer
Immigration law is complex and removal defense cases are often difficult on both lawyers and our clients. The stakes are high—in some cases life or death—and in most cases, losing means at the very least separation from family, community, employment, and many other ties to the U.S. There is nothing quite like the jubilation of winning a removal case, but the flip side is devastating for our clients and for us as attorneys. So what can you do to improve the odds for your clients? Put some effort into your courtroom advocacy.
In the simplest terms, your job in immigration court is that of an advocate, “a person who assists, defends, pleads, or prosecutes for another.” Black’s Law Dictionary (10th ed. 2014) available at Westlaw BLACKS. However, since immigration court is administrative and has more relaxed rules of evidence, attorneys often underestimate the importance of trial advocacy. We are comfortable presenting entire cases in writing to USCIS or other agencies and focus on the minutia of the forms and supporting documents. Many attorneys consider the individual hearing to be the easy part and don’t approach is for what it is – a trial at which your client needs a zealous advocate.
One thing that I emphasize with my students is the importance of narrating your client’s story in a well-organized, logical way. This can be extremely difficult when you often have less than four hours to put on your entire case. For asylum cases, it is particularly challenging when clients have been persecuted by different parties for different reasons at different times in their lives. Part of your job as a good advocate is to figure out how to tell a complex story in a way that makes it easy for the judge and government counsel to follow. The next time you are preparing for trial, try to do the following:
Although there is no magic formula to win every case, training that includes simulations provides an excellent opportunity to get individualized feedback about how to become a better advocate in the courtroom.
As a clinical professor, I know the importance of teaching advocacy skills to law students who are preparing for their first court appearances. I was recently reminded of the importance of trial advocacy skills for all practitioners. Last month our clinic co-hosted a free training through EOIR’s Model Hearing Program, designed for volunteer pro bono attorneys. A wide range of practitioners attended, from law students to attorneys who have been licensed for over twenty years. The Immigration Judge who participated offered individualized feedback, which practicing lawyers rarely get, to each and every participant on his or her performance during the mock hearing. My take away was that all attorneys, regardless of years of practice, can always learn new techniques and improve our advocacy skills.
Different NGOs work with EOIR to sponsor Model Hearing Program trainings throughout the country. Those trainings always include mock hearings before an Immigration Judge and often have participation from a representative from DHS’s Office of Chief Counsel. NITA also offers advocacy courses specifically tailored for immigration court, which include substantive, individualized feedback to improve your skills as an advocate in the courtroom. With the stakes as high as they are, we owe it to our clients to embrace the role of zealous advocates in the courtroom and put at least as much effort into trial preparation as we do into our briefs and evidentiary submissions. The skills and confidence you will gain with pay off for both you and your clients.
written by NITA guest bloggers Anastasia Pellagrosi and Professor Michael J. Dale
Given the dramatic expansion in international commerce, the question often arises as to in what jurisdiction a resulting contractual dispute should be litigated or where a contracted arbitration should take place.
A typical fact pattern might involve a contractual dispute over the sale of goods between an American and a European corporation. For example, assume that there are a producer and a buyer, who are respectively located in Miami, Florida, and Rome, Italy, a member of the European Union. In 2015, the parties entered into a five-year contract, in which the producer promised to sell strawberries to the buyer for the price of $ 5.90 per box, payment to be made every third week of each month. The producer agreed to deliver the strawberries through a common carrier. The contract, known as a shipment contract, meant that the producer bore the risk of loss until strawberries were placed in the custody of the common carrier. After that, the risk of loss shifted to the buyer, who also paid delivery costs. When the shipment arrived at its destination, the buyer had twenty-one days to inspect the quality of the strawberries and reject them. The contract provided that any dispute, disagreement, or claim was to be litigated in the city of Berlin, Germany, a member of the European Union. In March 2017, the buyer started complaining about the quality of the strawberries. However, the buyer had never inspected the boxes, as required under the contract. In addition, the buyer also started complaining about having to pay for delivery costs. The buyer then suddenly stopped making delivery payments. In addition, the buyer unilaterally started making payments every first week of the month. Thus, it appears that the buyer materially breached the contract with the producer. The question, then, is, Will the dispute be litigated in the United States or in Europe?
This blog post focuses on forum selection clauses and the two different approaches as interpreted in the American and European legal systems. Forum selection clauses have become extremely common in contractual agreements both internally in the United States and internationally. They allow parties to international contracts to choose the most desirable forum to litigate a dispute and the appropriate law to apply. The validity of forum selection clauses had been the subject of dispute for a long time in the United States, until the United States Supreme Court decided Bremen v. Zapata Off Shore. The case involved an international towage contract for the transportation of an oilrig from Louisiana to Italy. The contractual forum selection clause provided that any dispute would be litigated in the High Court of Justice in London, England. However, when the oilrig was damaged in the Gulf of Mexico during its transportation near Tampa, Florida, the plaintiff brought suit in admiralty in federal court in Florida. The defendant moved to dismiss the case, claiming this was a breach of the contract’s forum selection clause. The trial court denied the motion and the court of appeals affirmed. Both courts considered the forum selection clause as an attempt to oust the court’s jurisdiction. However, the United States Supreme Court granted certiorari and enforced the validity of the contract’s forum selection clause. More broadly, the Supreme Court stated that forum selection clauses are “prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances.” Even though the validity of forum selection clauses was first decided in an admiralty case, American courts including the Supreme Court have not hesitated to recognize them in other type of cases considering its teaching to be appropriate.
The European Union approaches forum selection clauses differently than the United States, but still recognizes their complete validity and enforceability. The primary source of law on forum selection clauses in the European Union is the Brussels Regulation N° 44/2001, which is binding on every State Member. The goal of the regulation is to ensure judicial cooperation, which is a necessary step to enhance the European market. In order to overcome the national differences among the Member States, the Regulation seeks to “unify the rules of conflict of jurisdiction in civil and commercial matters to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States.” The Regulation is applicable to civil and commercial matters, with specific exceptions that are beyond the scope of this blog post. Jurisdiction is initially placed in the court of the State where the defendant is domiciled. However, a specific provision as to “prorogation of jurisdiction,” which is jurisdiction conferred upon a judge by the consent of the parties, is provided for in Article 23 of the Regulation. Indeed, Article 23 provides for the possibility that parties domiciled in one of the Member States may elect a specific court or courts to have jurisdiction to hear a dispute, and such jurisdiction shall be exclusive unless otherwise agreed to by the parties. However, an agreement conferring exclusive jurisdiction can only be valid if it is in writing or evidenced by a writing, or in a form that accords with practices that the parties have established between themselves, or for agreements in a particular trade or commerce in a form widely known or regularly observed by the parties to the contract.
Both the United States and the European Union have signed the Convention of 30 June 2005 on Choice of Court Agreements, whose purpose is to promote international trade and ensure the effectiveness of forum selection clauses in international contracts. The Convention specifically applies to “exclusive choice of court agreements concluded in civil or commercial matters.” One of the basic principles of the Convention is that the court that the parties chose shall have jurisdiction, unless the contract itself is void according to the laws of the Contracting State. Also, the selected court has no power to deny its jurisdiction on the ground that another court would be more appropriate in trying the dispute. The Convention also provides obligations for any other Court that might be chosen by one of the parties in violation of the forum selection clause. In that event, the court is generally required to suspend or dismiss the case. Finally, the Convention provides for the general recognition of any judgment rendered by the selected court in any other jurisdiction.
So, what if a dispute arose in the hypothetical contractual agreement described above? It would be helpful to describe how this would work pragmatically. The forum selection clause in the contract specifies that should a dispute arise, any litigation would take place in Berlin, Germany. From the facts we have, we know that the buyer is unhappy with the quality of fruit it has been receiving, but never inspected the boxes as it was required to do under the contract terms. We also know that the buyer is unhappy with the provisions relating to the risk of loss, and stops making delivery payments. Finally, the buyer changes the payment schedules and starts payment in a different time of the month. From these facts, it is likely that the buyer has committed a material breach of contract and the producer will probably bring suit. Following the precedents established by the American courts, we know that the forum selection clause has prima facie validity, representing the free choice of the parties to the contract. Thus, both the United States Supreme Court precedent and the 30 June 2005 Convention on Choice of Courts Agreement apply to this transaction. More specifically, the Convention applies to exclusive choice of court agreements concluded in commercial and civil matter, given that the present matter is a commercial one. Therefore, as a matter of U.S. and European law, the producer should bring suit in Berlin or it would breach the forum selection clause contained in the contract. Moreover, the court in Berlin cannot refuse to try the case on the grounds that another court would be more appropriate, because the selection of the court was agreed to the parties.
Anastasia Pallagrosi is a graduate of Roma Tre University, Rome, Italy, and a 2017 dual-degree graduate at Nova Southeastern University College of Law, where she also served as a research assistant to Professor Michael J. Dale. She can be reached at firstname.lastname@example.org.
Michael J. Dale is a member of the faculty at Nova Southeastern University Shepard Broad College of Law. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. He can be reached at email@example.com. Click here to read more articles co-authored by Professor Dale’s research assistants.
 “Material breach is a significant enough substantial failure in the performance of a contract, as to give the affected party the right to sue for damages as well as release the aggrieved party from its obligations.” Black’s Law Dictionary, THE LAW DICTIONARY, http://thelawdictionary.org/significant/, (last visited Apr. 30, 2017).
 Michael E. Solimine, Forum-Selection Clauses and the Privatization of Procedure, 25 Cornell Int’l L.J. 51, 52 (1992). A discussion of enforcement of choice of law clauses in such international commercial contract disputes shall be discussed in a forthcoming NITA blog post.
 M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972).
 Id. at 1.
 Id. at 9.
 Id. at 10.
 See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991).
 A discussion about the European Union’s sources of law is beyond the scope of this blog post.
 See Council Regulation 44/2001, 2000 O.J. (L 12/1) (EC).
 Id. art. 1.
 Whereas the American concept of domicile is being in a place with the intent to reside there permanently, domicile in the civil law approach, followed by the Brussels Regulation, is referred to a person’s habitual or ordinary residency.
 Council Regulation 44/2001, art. 23, 2000 O.J. (L 12/1) (EC).
 Id. art. 1.
 Id. art. 5.
 Id. art 6.
 Id. art. 8; see also art. 9.
written by NITA guest blogger, the Honorable Nancy Vaidik. Judge Vadik is the co-author, alongside communications expert Rebecca Diaz-Bonilla, of NITA’s newest publication Point Well Made.
I prepare extensively for hearings. The clients of the attorneys who appear before me deserve it. Every time I hear an oral argument, I hold my breath to see if the lawyers are also prepared. Often times, they are not.
After years of practice and years on the bench, I know the hardest preparation involves drilling down to the essence of an argument. This drilling down is called theme creation. Themes are memorable, focused, and connect the argument to the judge. Good themes take work to develop. For example, when arguing that the plaintiff lacks standing, Bob Dylan’s quote, “If you ain’t got nothing, you got nothing to lose,” tells me what we are here to discuss and why you should win.
If there is a secret message to those who dare speak in a motion hearing or any other oral argument, it is “better bring a theme with you.”
Here are some simple steps to developing a theme:
1. Distill the argument into a one-line summary;
2. Find a creative way to word it;
3. Practice synonymous ways to repeat it so it doesn’t become stale.
Delivering a well-crafted theme forces the judge to remember. Delivering a well-crafted theme forces the judge to focus. Delivering a well-crafted theme instantly connects the judge to the argument. If you’re reading this and you want to start creating themes, welcome to the world of winning.
written by NITA guest blogger and Communication Expert Rebecca Diaz-Bonilla. Mrs. Diaz-Bonilla is the co-author, alongside the Honorable Nancy Vaidik, of NITA’s newest publication Point Well Made.
My clients know that eating humble pie before a motion generally prevents having to devour a hefty slice during the motion. I recently watched one of my clients deliver a motion so conversationally and confidently, I was dazzled. The Federal Court judge apparently agreed with me because he issued an enormous “I’m with you!” order that shot down the hopes of opposing counsel. It was a major victory.
The effortlessness was not effortless. This advocate spent hours with me practicing, developing his lead, thinking through creative phrasing, mapping out intricate argument trees, and rehearsing a battery of possible questions over and over and over again.
Sure, he started with huge mental horsepower (God-given) and natural advocacy talent (God-given), but he was not afraid to put himself out there and give his all. Most impressively, he asked for feedback. He hungered for constructive criticism, trusted my recommendations, and repaired the deficiencies.
It’s true that a less gifted lawyer would need to double the prep time to achieve the same result, but my client knew his strengths and knew specifically what he needed to practice to knock it out of the park. All advocates need to figure out their personal recipe for winning:
This combination: talent, practice, and humility will produce the right result. I see it every day when I coach talented lawyers who realize that practice and feedback is not for the remedial, it’s for the successful.
This month, NITA’s faculty will be talking about motions. Earlier in the month we heard from the Honorable Christina Habas. She gave us the advice on how to Offer Alternatives to the Court. Next up, was NITA faculty Andrew Schepard, the Max Schmertz Distinguished Professor of Law for Maurice A. Deane School of Law at Hofstra University. Professor Schepard discussed five guidelines for answering hard questions at oral argument on motions. Then we turned the discussion to Judge McGahey and his three simple rules to follow when filing motions. Now, it is time to hear from NITA program director, Carl Chamberlin, with Another Look at Answering the Court’s Questions in Motions Practice.
We’ve all been there. We’re cruising through our prepared argument at a motion hearing and all of a sudden the judge asks us a question. It may not seem good for our side. It may already be covered in our motion papers. Or it may not even appear to be on point. But failing to respond properly can frustrate the court and disserve our client. Questions from the bench provide insight into the judge’s thinking and opportunities to supply the court with the facts, law, and policy needed for a favorable ruling. And we make the most of these opportunities – and the best use of oral argument – by following three basic steps and avoiding one pitfall.
Be immediately responsive. Our first words after the court’s question should convey that we’re answering it. Otherwise, the court will be half listening to see if we’re answering and only half listening to the substance of our response. So if at all possible, start with “yes” or “no.” If you have to begin with “it depends,” promptly say what it depends upon. And if it’s not a yes or no question – e.g. “where are the allegations of intent” – your first words should still make clear you’re answering the question (e.g., “in paragraphs 3 and 4 of the complaint”). If the question asks “why,” your first word should be “because.”
Back it up. Next, provide support for your answer. If it’s a question about a fact, cite to the record. If it’s a question about case law, provide a case name and citation. If you have to explain your “yes” with a “yes, but…,” get to the point and provide your reasoning. The more specific, the more persuasive. So on important matters, rather than simply asserting “the cases indicate that a stay is allowed in this type of case,” be prepared to assert, “the Jones case, at 15 X.3d 467 as cited in our brief, holds that a pending lawsuit on the same facts requires an immediate stay of the proceedings.” And rather than just saying “Smith wasn’t the title holder when the dam broke,” add “you can find that in Crawford’s declaration at paragraph 3.” Although the specifics will be in your motion papers, your oral communication of details will make the judge’s job easier – and make it easier for the judge to rule in your client’s favor.
Segue to your strength. When I’m teaching a NITA motions program, I talk a lot about having your “anchor” — your best point of fact, law, policy or practicality to which you return if the hearing starts to drift off topic or heads in an unfavorable direction. Once you’re sure you’ve responded to the court’s question, return to what’s best for your case. Perhaps you can tell the court that it doesn’t have to reach the more troubling issue if it agrees with you on your main point. Maybe you can distinguish unhelpful case law or turn a fact that seems bad for your client into a positive, and then top it off with the public policy or equity that favors your client. Perhaps you can say your strongest argument is the one that deals with the “real issue” in the case.
Don’t bluff or misstate. And now for avoiding the pitfall. Never, ever, bluff or misstate the facts or the law in your zeal to persuade. Even if you can pull it off at the hearing, someone will eventually find out you were making things up and you’ll lose precious credibility. (And possibly violate your jurisdiction’s rules of professional conduct.) If you really don’t know the answer, say so, ask to submit your answer in writing by the end of the day, and segue to your strength. If you have to concede an unfavorable fact or law, do so, and then give the fact your best plausible spin or distinguish the law, and segue to your strength.
How do we do all of this on the fly at the hearing? We don’t. In preparing for the hearing, anticipate the questions the court might ask. What would you ask if you were the judge reading both sides’ briefs? And how will you respond? Providing responsive, supported, credible answers will go a long way toward successful motions practice.