The Legal Advocate

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

All posts by Karen M. Lockwood

About Karen M. Lockwood

Karen is the Executive Director at the National Institute for Trial Advocacy. Karen brings the insights and creativity rooted in serving corporate and business clients, first-chairing numerous jury and bench trials, and arguing appeals. Her specialty areas have included construction litigation, large disaster cases, multi-party commercial disputes involving all types of contracts, antitrust, trademark and copyright, and ADR.

September 2015 Executive Director’s Letter: Jurors Bring Implicit Biases With Them. Can They Be Fair?

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Lockwood_KarenI have questions about how to rethink empanelling juries in order to take account of new brain research. Over the last decade, brain research has established the immutable presence of “implicit bias” in every human brain on earth. Those biases influence our behaviors and judgments in ways that are unrecognizable to the person who owns the brain.

Without this research, we have used age-old techniques to empanel a jury. We question each juror about the ability to judge “fairly” (without bias). Yet a truthful answer to that commitment question is impossible as to implicit biases. By definition the juror does not recognize what biases are harbored in his brain.

Explicit bias in jurors is a topic well known to trial lawyers. We watch for it, and use peremptories. As to their invisible and real “attitudes,” we do what we can to discern what attitude they will likely have to our fact situation, our theory of the case, and our cast of players at trial. But what latitude do we have to address implicit bias? What latitude could we use if we had it?

We use little latitude for implicit bias. Typically we use our own presumptions about what observable characteristics and background to infer potential attitudes that a juror would bring to the case. What is the scope of the “observable” characteristics? It includes the most skeletal information about occupation, the observable individual characteristics such as color of skin, presumed ethnicity, and presented gender. And our own human brains (also necessarily incorporating our experiences as implicit biases) lack facts to use as we seek to make good and fair judgments about a juror.

Whether we have more latitude is untested, and unanswered.

Clearly this bears new thinking.

  • Can counsel use the voir dire process to discern implicit biases based on stereotypes of race, gender, national origin, LGBT differences, and more? How?
  • During trial, how can counsel recognize moments when implicit bias lurks, and use witness examination, and argument to negate the bad effects of implicit bias?

On the first question, lawyers and judges on our NITA Bias in the Courtroom panels this year have coalesced around one basic technique that is both procedurally possible, and potentially helpful if it has any effect at all. That technique is this: the judge can caution the jury, in the preliminary instructions before opening statements, to watch for and recognize their own assumptions and stereotypes in the course of listening to witness testimony. Beyond that, lawyers have to groom their own powers of perceiving the moments where implicit bias may exist, and find a way to alert the juror that such biases may influence his perceptions without his awareness.

On the second question, we are largely unpracticed at using voir dire to alert jurors to the inevitable existence of implicit bias. Further, alerting them in theory to the existence of implicit bias cannot be enough. The progress to be made is in developing techniques to ask for the jury’s commitment. To make use of the principle that when a person of good will recognizes that he is reacting from an implicit bias, he would more likely self-correct. Self-correction means that the implicit bias ends up not influencing his behavior.

I invite you to share your ideas on the following question: “In trials, when you know that implicit bias is likely to be cued, how can use opening, witness examination, closing, and instructions toward negating the power of implicit bias?”




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

August 2015 Executive Director’s Letter: Women Trial Lawyers – Brilliance Is Shining

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Because we are NITA, and because we enroll nearly comparable numbers of men and women across our live programs for trial skills and depositions, we know several things:

  • Lawyers who learn, practice, and perform at trial excel in advocacy without distinction among gender.
  • Lawyers care about using the best advocates, paying attention to the diversity of the advocates who appear at trial. And women are ready. They bring their commitment, a competitive spirit, and the drive to master their courtroom impact into our programs.
  • Women in First Chair at trial are vastly underrepresented. This need not be.

Marshalling the strength of this half of trial bar remains an unfulfilled imperative. Brilliance shines. But competition for first chair favors the incumbents. Bringing the balance, variety, talent, and credibility of a woman trial lawyer to the jury and judge requires that each of us stop. We read and learn where the career obstacles are. We coach the woman and champion for her, to overcome the obstacles. For the women you know, right there in your practice, do it personally. Whatever your gender.

1974. The vice-president for sales of a very large public company learns I am embarking on law school. “A woman! What do you want to do,” he says at the picnic. “Be a litigator? That is nearly impossible for a woman – grinding, long hours, tough world.” I believe him to be urging me by misdirection to follow that plan. If not, it doesn’t matter: I take the red alert to heart. (And from it, am indeed spurred on.)

1982. The three women partners at our DC firm of 90 lawyers gather the 15 women associates (we are a progressive firm) in the building lobby for lunch out. The elevators bring cab after cab of partners down, elbowing their way through our small throng. Glancing up to wonder about this crowd, this expression crosses their lips – or their faces. “Oh! Ooooohhh.” (Point made.)

1994. We six women partners in a prominent boutique firm of 90 lawyers gather our 25 women associates for a chat in the gorgeous windowed conference room: 250⁰ river views, and beers in a bucket. “Let’s think about how we can get together regularly, support each other and champion each other.” There is little interest. Why? They do not see a reason. Rather, the risk of labelling themselves as unique amid their male associates warns them off. (“Oh. Oooooohhh.” Our turn, different angle.)

2005. Across the country, the broad culture around women in law remains silent, symptomatic of the 1995 days. The playful urges, the purposeful championing of women – it has gone away, perhaps thought unnecessary, likely unpopular. And, thus, certainly risky.

So, in 2006, we at the WBA in DC convened 220 lawyers to talk engage in finding solutions. For 16 hours over 4 monthly sessions, managing partners and bar leaders eagerly exchanged the frustrations and the ideas around elevating the talent and success of women lawyers. The WBA’s published report covered Women in Law Firms (Creating Pathways to Success, May 2006). Silence ended. Continuing reports covered Women of Color (Creating Pathways to Success for All Women, May 2008), and Women Corporate Counsel (Navigating the Corporate Matrix, May 2010)

Focusing on women trial lawyers, is it better now? An important new research report was just released by the ABA Commission on Women in the Profession. First Chairs at Trial – More Women Need Seats at the Table (ABA Commission on Women, June 2015).

This report, an empirical study of cases filed in the U.S. District Court for the Northern District of Illinois, displays the substantial disparity of women as lead counsel as against women in the profession. It depicts types of cases in which women are more present, and less. Best practices are laid out for law firms, clients, judges, law schools, and women lawyers themselves.

In 2005, DRI also convened a task force to address women at trial. [A Career in the Courtroom: A Different Model of Success of Women Who Try Cases (DRI Women’s Committee, trial lawyer study (Defense Research Institute Task Force on Women Who Try Cases, 2005)]

These reports – and others like them from the Utah Women’s Bar and elsewhere, integrate the puzzles of the practice environment, the pressures that women face, the systems and structures of the practice, and the importance of fixing the imbalance of women in trials. Those are the starting points for understanding the factors at play, rather than relying on personal opinion. I commend them for reading.

And I advocate that we all pursue excellent trials by opening the access to first chair for the best trial lawyers – without leaving behind the women, lawyers of color, and lawyers in other groups that deal with culturally maintained stereotypes. Indeed, bringing forward that talent requires positive action.




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

July 2015 Executive Director’s Letter: NITA’s Annual Report, A Happy Glance Back, New Things Ahead

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We look back every year to count our programs, the people we reach, the faculty we thank, the public service program impact, and the liveliness of our famous publications both bound and digital. I am proud to say, “we are so proud!”

Please, now, click here to enjoy our visual, colorful 2014 Annual Report. I explain how we carry this forward in 2015.

  1. For publicly enrolled programs, in 2014, 924 NITA faculty trained 1863 attendees at 65 publicly enrolled programs, plus 37 who took on-line programs. Lawyers from all 50 states attended, plus 5 continents. We continue to train and deepen our faculty bench. Send us referrals to the best trial lawyers in your region!
  2. For custom programs, including those exclusively for public service attorneys, in 2014 NITA trained 3241 attorneys, 19% of whom are in public service practices. We continually expand our custom offerings based on the client’s objectives, and invest in continuing our public service work.
  3. For video content, studio71 is exploding. In 2014, on-line integrated learning tools were selected by 8235 lawyers, from 384 presentations available, amounting to 4376 hours viewed. Our video library is strong and growing. Our signature new trial and deposition lectures and demonstration are coming online. These streaming tools mirror the high quality and intensity of NITA’s programs, and are elected for certain programs as bonus tools.
  4. For publications, our famed and unique case file collection grows and updates, targeting new types of disputes, factual scenarios that mirror our online culture, and more. In 2014, we report 144 active case files. We have many more case files than you would have heard of – you should use more of the gems in the collection. Pick them to make your class or program new and unique. Email Jennifer Schneider.
  5. You can’t say “publications” without saying “eBooks too” for our NITA treatises, guides, and more. In 2014, 70 of our non-case file titles were available in eBook format. These collections expand annually. Check back twice a year with the semi-annual catalogue, or online any time. NITA pubs: unique, practical, organized for quick reference, the best balance in a case file.
  6. The NITA Foundation gave 107 scholarships in 2014 – making a big difference to that many lawyers. But 201 applicants left an almost 50% shortfall in the scholarship funds available. We aim to increase our donations from $144,935 in 2014 to over $200,000. Please help here. Our Giving Voice online newsletter will inspire and explain.

I would love to hear from you. Email me, call my office. There is nothing more important to NITA than you, our faculty, attendees, admirers, supporters and friends. Spread the word in your regions, to your friends!




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

Doris Cheng Inducted as Fellow of ATL, Speaks for Her Class

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Cheng_DorisOur own Doris Cheng, NITA-San Francisco faculty leader, was inducted as a Fellow of the American College of Trial Lawyers in June. Honored at ACTL’s June 2015 Spring Meeting in Key Biscayne, Doris was further selected to accept the honor on behalf of the 82 new Fellows in her class. She was spectacular. Her speaking photo delivers the framework for the punch of her words. Her words reflect the devotion needed to achieve ACTL’s mission, and NITA’s mission as well:

“If you will please indulge me because I do miss my father, I have a collection of his poetry that I translated from Chinese to English. He wrote this in 1997 when he had been diagnosed with cancer. We were visiting China in [his home town] Gualing, and he wrote:

‘The weary sun looks down at the sycamore tree.
Sweet Agmontis burst open in greeting.
Behold the mountains and river and climb the crooked path.
Without realizing it you have reached the cliff of the immortals.’

“That is what I wish for all of us, that we shall reach that cliff to change history, to right all the wrongs in the world, and immortalize it for the people who come behind us. As you look to your left and you look to your right, you must see what I see: a ripple of hope that the strength of this organization will never surrender the fight to protect the right to a just, equal and democratic society.”

NITA, too, is defined by the community of our mission. Looking across our faculty and alumni, seeing the ripple of hope that the NITA teachings, and the effectiveness of our learners, will press forward into our courts. It will work in all sides of a case, on all types of matters, in all levels of courts. It will never allow mediocrity in advocacy to weaken the role of justice, thus “protecting the right to a just, equal, and democratic society.”

Congratulations, Doris. Hands together to your fellow inductees. We salute our friendship with the College through the fit between our missions and the dedication of our communities of advocates. And we are proud of all of NITA’s faculty Fellows of ACTL.

The American College of Trial Lawyers is among the top honorary societies for lawyers in the country. It’s been around for sixty-five years, and membership is by invitation only. There is an intense vetting process, and the membership cannot exceed 1% of the total lawyer population of any state.

NITA is the preeminent provider to lawyers of greater advocacy skills. Learned the hard way by performance before unique NITA faculty, skills are acquired through nuanced critiques and practice. NITA faculty are selected from among the finest trial lawyers, advocates, judges, and law professors, for their combined mastery of advocacyr teaching.

March 2015 Executive Director’s Letter: NITA Is Unique, Once Again

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Lockwood_KarenLet’s talk about webinars.

You and I see many invitations to commercial webinars in our inbox.  Some introduce a topic you know little about.  Some give you an introduction to a person or company.  Many are fairly elementary, such as “how to use twitter as a marketing tool.” Others are orientations – like our lawyers’ old friend,  AmJur, purposed to enumerate a large number of topics within a broad field.  An example would be “educating participants about the various types and stages of whistle-blower claims” (in 90 minutes).  In general most webinars that pop into your inbox are tangentially related to something in your zone of interests.  What do you do?  Save them for after-hours to delete or sample.

They are ubiquitous.

Ours are different. Here at NITA our method is to help lawyers in direct and immediate ways, giving you a menu of choices. So too for our NITA webcasts.

  • We run live webcasts. Monthly.
  • They are audio-visual.  You watch the speaker deliver, or be interviewed – on camera in real time.
  • You also watch our speaker’s slides at the same time as you see her gesturing, smiling, exclaiming, or showing you the point.
  • Our topics are small slices of trial advocacy. They sit alongside – but are different from – the advocacy skills you practice in our in-person programs.
  • Our speakers are masters of their topic.  You will see some NITA faculty plus guest speakers who know well the thin-slice of the advocacy topic at hand.
  • And you can ask the speaker questions in real time.

If you miss a live webcast, you will find it recorded (free these days) and ready for you to view online, on demand, just as it was broadcast live. (Sorry you can’t ask the speaker questions unless you go live.)

These are not elementary or orienting types of teaching. Like all NITA offerings, we create them as another way to learn.  Some examples? You can focus for the hour on a detailed lecture and practitioner’s advice about Rule 30(b)(6) depositions, presented by the authors of our NITA’s master book on the subject – The Effective Deposition.  You can engage in a field of expertise through our studio interview of one of the nation’s foremost forensic psychiatrists, thinking through your work with such experts in consulting and trial settings.

Whatever topic you choose from our menu of prior NITA webcasts, you will engage specifically, deeply, and clearly.

Oh yes, we do end each NITA webcast with a reminder of how our live programs help you.  In our live programs, YOU are doing the speaking, gesturing, smiling, and showing as if to the judge or jury.  Guided, critiqued, taught, reinforced. You grow.

Don’t let this knowledge escape your attention.

  • Live NITA webcasts? Watch your email or check the upcoming schedule online.
  • Miss a NITA webcasts that you would like?  View it on demand, recorded live, audio-visual, slides, and all.

Visit NITA’s studio71 library now.




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

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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