The Legal Advocate

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All posts by Mark S. Caldwell

About Mark S. Caldwell

Mark S. Caldwell is NITA's Director for Specialty Programs. In this role Mr. Caldwell designs, administers and serves as an instructor for programs in bankruptcy litigation, child advocacy, and tax litigation. Other programs included under the Specialty Programs banner include NITA's work with other organizations for co-sponsored programs and many of NITA's pro bono courses. His role in NITA's pro bono efforts includes serving as Program Director for many of NITA's courses for lawyers and advocates who represent under-served communities, including Native American lay advocates, legal services lawyers, lawyers and advocates who represent those living with disabilities and the elderly, lawyers and advocates who appear in cases involving children, and lawyers who work in public service positions. In addition to his involvement in these courses, Mr. Caldwell also serves as NITA's Program Director for the Basic Trial Skills and Deposition Programs in Colorado. He is also an instructor at many of NITA's Teacher Training Programs.

August Theme: A Guide to Crafting your Story in Court

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written by Mark Caldwell NITA’s Director of Resources

Remember how you saw the world before you went to law school? That view was far different from your view of the world today. Sometime in your first or second year of law school you began to think and speak as a lawyer. You ceased to see the world in multi-hues and it became black and white. This starkness allowed you to apply facts to the law and reach a legal conclusion. Think about your frame of mind when you first hear about a case – before you perform a legal analysis of the case and begin structuring your potential claims, defenses and motions. This is when you hear your client’s pure story of the events that occurred in a persuasive form. You are either persuaded to take up the client’s cause by that story, or you reject it because you are not persuaded.

Our training and experience in legal analysis is essential to building or defending a case. In getting ready for trial this process often hinders our ability to communicate persuasively and making a case memorable to judges, juries, and others we need to persuade. What we need to do as lawyers is to convert our legal analysis back to its purist form of story. It needs to have a clear beginning, middle, and ending. Parties and witnesses, including experts, need to be introduced as characters which illustrate a central conflict and offers a fair solution.

We sometime confuse case story with other advocacy concepts. Your case story is not just a theme – such as “A man’s word is his bond.” Too often we select a theme that resonates but fails to present the facts in a persuasive fashion. A case story is not the legal theory. For example, a child is neglected or dependent if: the child lacks proper care, through the actions or omissions of the parent. This may hint at a story, but it is not a very good one. Likewise, a case story is not just a tag line – “This is a story of a promise; a promise made and a promise broken.” Instead, think of your case story in the same way that historian Ian Toll describes writing about history as an “episodic narrative, picking key episodes to write about that, in their composite, provide an accurate portrait of what happened, without bogging down in too much minutiae….”

In crafting your own case story it may be helpful to think in the terms taught to fledgling authors. You can translate common components of good story writing to trial. Your case theme is akin to the Premise Line of a story. A Premise Line tells the listener, “What is your case about?” When properly conceived, your premise expresses your whole story in one or two neat sentences. Let me give you an example from the movies – A treasure-hunting archeologist races over the globe to find the legendary Lost Ark of the Covenant before Hitler’s minions can acquire and use it to supernaturally power the Nazi army. It is your “elevator speech” that defines your protagonist (your client), shows the antagonist (the opposing party), offers a sense of setting, conflict, and stakes, and hints how the action plays out. It is not what some think of as the “grabber” that starts your opening statement.

Next comes the Designing Principle or what lawyers may think of as the theme. This is what organizes your story as a whole and makes it hang together instead of a lose series of facts. Your Designing Principle suggests how and where you will begin your story – is it a chronology or a topic driven revelation of the facts that complete the legal elements.

Every story, including trial stories, has a Central Conflict that shows the harm done to your client. It also reveals the remedy or equitable solution that will make things fair and right.

Each case has parties and witnesses. These are the Characters who populate your case story. Some will be fully fleshed out individuals who you spend time accrediting while others will be flat characters who serve a purpose but do not need a full development to be credible. Here is a flat character example – the police officer who first arrived on the scene of a crime but did not conduct the full investigation. He is important to the story but not someone who defines the story.

Finally, you must understand and develop your Plot, or the factual theory of your case. These are the facts that fill in the elements to prove you have met the burden of the proof. Your organic plot must show that each event is causally connected; that each event must be essential (not facts that clutter with useless information); that is proportionate in its length and pacing; and has a sequence that has a unity and totality of effect. Your plot structure gives you the map on how you call witnesses, introduce exhibits, and have the story play out in a persuasive manner.

Changing your thinking from black and white legal theorist to storyteller brings color back to your cases, it makes the facts more memorable, provides a reason to feel good about the decision, and persuades in the way that maintains attention – just as story has done throughout history.

In Memory Of William L. Keating

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Bill KeatingColorado and NITA lost a great trial lawyer, teacher, and friend on January 1, 2015, with the passing of William L. Keating. Bill had that great combination of trial skills, humor, and humanity that made him both dangerous in the courtroom and a joy in the classroom. His skills as story teller brought his cases to life and his willingness to share mastering that process made him popular and respected as an advocacy teacher.

Keating was raised in Chicago, and earned a BA from the University of Michigan. Following his graduation, he and his wife, Mary, moved to Colorado so he could play for the Denver Broncos. After his playing days, he attended the University of Denver Sturm College of Law, earning his JD in 1971. Following graduation, he was a judicial clerk in the 10th Circuit for Honorable Robert McWilliams. He was a founding partner of Keating Wagner Polidori Free. For over forty years he dedicated his professional life to helping those in need. Keating was a past president of the Colorado Trial Lawyers and a member of the American College of Trial Lawyers, the International Association of Barristers, and the American Board of Trial Advocates. In 2002 he was honored by the Colorado Trial Lawyers Association with its Kenneth Norman Kripke Lifetime Achievement Award. In 2012, he received the Thompson G. Marsh Award from the University of Denver Sturm College of Law. The Marsh Award was presented for outstanding accomplishment throughout Keating’s career.

As trial lawyer, teacher, and mentor Bill Keating will be missed by his friends in the NITA family.

Fifty Shades of Advocacy

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I admit it. I was hoping I would draw you in with the title of this post. I toyed with how I could tie the popular book, Fifty Shades of Grey, into an article on advocacy. The more I considered it the more I recognized there probably was nothing I could truly connect. Then I realized the connection was the error that many lawyers make when stretching to put a theme to their case.

So much of the current literature on trials talks about telling a story. The literature is right. Trials should tell your client’s story, explain the wrong that was done, and suggest how to make things right. That is not always easy.

Cases where there is real human suffering offer vehicles that pull on sympathies and offer obvious means to ease the pain. But not every case provides facts that make for these well-crafted case stories. Putting the sizzle into a dispute between two large corporations that will keep the attention of a jury may take creativity. Turning thousands of exhibits into must-read story details can challenge anyone faced with these types of cases.

This post will not attempt to teach you how to create an engaging case story. There are books that do a far better job in far more space than we can devote in this short piece. For those who have not studied any of these texts, I recommend you review one or two of your own selected choices.

What I do hope to impart is the avoidance of shortcuts that employ another’s story, parable, or allegory.  Why? Why shouldn’t someone take a popular story and adapt it to their client’s case? Perhaps the most simplistic answer is because every case is unique and your client’s story deserves to stand on its own. More importantly, the facts of your case do tell a story and should show how your client has been injured. Even if the client is a huge corporation there are individuals involved who can humanize the events and turn paper damages into real injury.  By sharing actual facts in a story the jury can relate to common experiences. An actual story humanizes your client and builds your credibility.

Perhaps the most important reason to not rely upon the ideas of others is that your opponent is most likely as clever as you. The story you bend to fit your case can also be turned on you. There is almost nothing worse than having your words turned back on yourself. Telling the true story of what happened to your client is the most direct way of preventing words being turned around.

When it comes to trials – tell your own story.

 


We invite you to comment below with your thoughts on this post.

The Language of Experts

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Caldwell_MarkOn November 19th my wife suffered a hemorrhagic stroke when a vessel in her brain ripped open. She was rushed by ambulance and then helicopter to the city’s best trauma center and has been in the Intensive Care Unit ever since. I have spent each of the past twenty-four days at her side.

At first I tried to listen and understand as the medical professionals described what was happening. I tried to use my best direct examination techniques to find out the processes they were using to care for my wife. Gradually, I found myself, like Ibn Fadlan, the protagonist in Michael Crichton’s novel, Eaters of the Dead (later turned into the movie The 13th Warrior) learning the language of the ICU through listening. I found I could speak in their language, using acronyms and technical terms that I picked up through conversations and from overhearing the discussions between the doctors on my wife’s care team.

At the end of each day I would try to explain what I had learned and the nature of the care being provided to others interested in my wife’s health. Much to my consternation I found I had to stop and translate the terms that had been used during the day. Then, it hit me like a “cosmic whack on the side of the head.” I had fallen into the same trap that we talk to lawyers about examining expert witnesses. Instead of being clear and using terms and concepts all could understand I had reverted to the technical speak of the medical staff.

Learn from my mistake for the next time you examine an expert. You will have spent hours with the expert learning the language, discussing the nuances of her report, debating the opinions of the other side’s expert, and living with the science of the expert’s field. Like me, you will have mastered the language of the expertise.

Federal Rule of Evidence 702 provides the basis and reason for expert testimony.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

The operant words in this portion of the rule are will help the trier of fact to understand the evidence or to determine a fact at issue. If you and your expert are speaking in tongues you cannot possibly help the judge or jury understand a piece of evidence or determine a fact. You may know the acronym or term being used by your witness but do not presume everyone else has any idea of the meaning.

Make your expert a teacher. While there is no need to make each person as authoritative as the witness, you do want to help them appreciate the evidence. When a unique term is used, ask the witness to help everyone understand the meaning. When using charts, diagrams or other visual representations ask for clarification and specifics. Inquire what something suggests in interpretation. Make use of that wonderful question “Why?”.  Most of all, do not flood the judge and jury with information that does not directly lead to a better understanding of the story of your case. Ask your witness to make comparisons to everyday occurrences that anyone may have experienced.

By being a thoughtful inquisitor you can truly help the trier of fact better understand the evidence or determine a fact. Having learned this lesson in a most memorable way, I can assure you it is worth the time to think through the translation of terms and concepts so people relate to the information you and your expert are sharing.

Helping Your Witness Look Mahvelous

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One of the characters Billy Crystal created when he was on Saturday Night Live was Fernando[1].  Fernando’s catch phrase was, Darling, I got to tell you something. And I don’t say this to everybody. You look mahvelous. Absolutely mahvelous. You know, my dear, my father used to say to me, Nando, don’t be a schnook. It’s not how you feel, its how you look. It is better to look good than to feel good[2].

Except for some professional witnesses such as police officers, child protection workers, others who regularly appear in court, and experts, most people who take the stand are anxious and, often, uncomfortable.  As trial lawyers one of our most important tasks is to help our witnesses be successful. So how do we make our witnesses look “mahvelous”?

One way is through the use of exhibits. Steve Lubet tells us in Modern Trial Advocacy, “[Y]ou can enhance the effectiveness of almost any witness by illustrating the testimony with charts, photographs, maps, models, drawings, computer simulations, and other visual aids[3]. As a society we are accustomed to receiving a substantial amount of information visually. By utilizing visual images and physical objects we enhance the memorability of the information attached to those images and things.

Making the information more memorable is one benefit of using exhibits. Another benefit is changing the focus from all eyes on the witness to the exhibit–it helps the witness relax. And, by transforming the witness into a teacher with props and aids, you alter his or her perception of being “on stage.” The witness now has something to do with their hands and has the ability to stand and move around in the courtroom.

Take a look at our selected vignette from Frank Rothschild’s NITA video program, 31 Ways to Winning Advocacy: the scene shows a direct examination where the lawyer asks the witness to use an exhibit. Things rapidly go south the moment the witness stands up. What do we learn from this examination that we can use to prevent problems the next time our witness is testifying and using an exhibit?

The first lesson actually comes before your witness ever takes the stand. Witness preparation, even if it only comes from a few minutes in the hallway before a trial starts, is critical to successful direct examinations.  This is especially true when it comes to working with exhibits. Practicing with exhibits or demonstrative aids is key to a great exam. Explain the purpose of the exhibit, why it is important to the case, how the witness can use the exhibit to help tell the story, and where in the examination you will introduce and use the exhibit. Begin with a rehearsal of the foundation. Let the witness know the importance of answering these questions. Because the persuasive foundation (relevance) portion is as important as the legal foundation, you should also practice those questions and provide an explanation of why you are asking them – even if the exhibit is stipulated into evidence. Next come the questions where you actually use the exhibit. Remember, even though the exhibit is in evidence, it only becomes important if the fact finder thinks it is important. Practice with the witness until he or she is comfortable with the process.

In the next step you become a traffic cop – it is your job to direct the witness’ movement. The video shows what happens when you fail to tell the witness where to stand. Your job is to determine the best line of sight so the fact finder is able to see the exhibit and the witness. Tell the witness exactly where to stand. Be polite and respectful. The witness and fact finder will appreciate your control. Except when writing, make sure the witness does not turn his or her back to the fact finder when speaking, pointing, or demonstrating. In this way the witness becomes a teacher. Witnesses who speak while facing the exhibit have their voice get lost in the same way your elementary school teacher’s voice was lost when they talked while writing on the blackboard.

Step Three continues in your direction. When you ask the witness to place marks on a map, photo, or diagram, be specific. Unlike our friend in the video, give explicit directions on what you want the witness to do, e.g. Please put a two inch black X at the place you were standing at the time of the accident. The witness will appreciate your instructions and the fact finder will find the exhibit more compelling.

The final reminder for lawyers in most jurisdictions and in most courtrooms is, once the exhibit is received into evidence it is no longer your exhibit. It now belongs to the court and is part of the record. You cannot alter evidence once it is received. Therefore, consider using a copy or an overlay for your alterations that you then admit as a second exhibit once the testimony is complete.

Using firm but respectful and polite methods of witness control will help your witness feel empowered. More importantly, in the eyes of the jury, to use Billy Crystal’s words, they will look “mahvelous.”

 


[1] Billy Crystal as Fernando interviews New York Yankees owner George Steinbrenner in a skit from “A Comedy Salute To Baseball” — part of NBC’s All-Star Game programming in 1985. https://www.youtube.com/watch?v=ygs-4GfqPcM&feature=related

 

[2] Paul Shafer and Billy Crystal, You Look Marvelous, December 14, 1999.  Universal Special Products. © 2000 Universal Records.

[3] Lubet, Modern Trial Advocacy (4th Ed. NITA 2009), at 72.

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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