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.

I’m More Afraid of Public Speaking than Dying!

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Written by guest blogger: Mark S. Caldwell

According to most studies, people’s number one fear is public speaking. Number two is death. Death is number two. Does that seem right? That means to the average person, if you have to go to a funeral, you’re better off in the casket than doing the eulogy.

– Jerry Seinfeld, 1993

From this simple joke started the urban legend about death and public speaking. The genesis of this, according to a discussion on toastmastersforum.com, comes from the 1977 “Book of Lists” citing results from a team of researchers from the polling firm Bruskin-Goldring, asking 3000 U.S. residents about their fears. That unscientific study found that forty-one percent of the respondents cited speaking in public as a major fear. As Chad Shultz indicated in this post, “People simply were asked for some fears off the top of their head, and more of them happened to mention public speaking than death.

According to the National Institute of Mental Health, as quoted by Statistic Brain,  the number of people with a diagnosed phobia is 6.3 million and seventy-four percent of the US Population has a fear of public speaking, or Glossophobia. Joshua W. Davies, a communications consultant at the LAM Institute, uses even different figures, saying an estimated 5.2 million Americans (aged 18 to 54) have a diagnosed form of social phobia that would might emerge when public speaking (see: Is there any real evidence that people are more afraid of public speaking than dying?). In other words, the connection between public speaking and death is just an urban legend.

Yet, for many of us, speaking at trial or performing at a NITA program produces great levels of anxiety. As humans we have that built-in mechanism of fear that makes us want to fight or run away. When we are asked to speak either at trial or at a NITA program, we can neither fight nor flee. We must stand there and speak. More importantly, our client cannot speak – we are there to speak on the client’s behalf. If you are part of that group who actually has glossophobia, or if you are simply nervous about doing your best for your client, what can you do?

Dr. June Johnson, President of Voice Power and a speech and communication coach, suggests, “Fear can make you nervous but nerves need not make you fearful. While fear is difficult to channel, nerves, when channeled into energy, can be a positive force bringing vitality and enthusiasm into your speech. All performers rely on nervous energy to enhance their performance. Control your fear rather than allowing it to control you.”

NITA has a cadre of extraordinary communications specialists who teach at our programs. They offer solid tips on things you can do to help reduce your anxiety. Some of those tips include:

1. Breathe. Making sure your brain has sufficient oxygen helps to reduce the stress response. When anxious or stressed the amygdala, a part of our mid-brain, releases large amounts of the stress hormone cortisol, as well as adrenaline. According to Nick Ortner, this sudden flood of hormones causes a series of physiological responses, including shutting down the creative center of the brain and increasing heart rate. Increasing the amount of oxygen helps to calm this release and helps you master the anxiety. (See, Public Speaking .) Before beginning, inhale deeply several times, using your full lung capacity instead of breathing high in your chest. In their book The Articulate Advocate (ISBN-13: 978-0-9796895-0-5), Brian Johnson and Marsha Hunter give great advice on using the “time warp” created by a faster heart rate to your advantage.

2. Exercise before you start. Similar to breathing, exercise helps clear your blood stream of the stress hormones and helps clears you head. There are countless tales of lawyers running up the stairs or doing push-ups in the restroom. According to Mary Ryan of the Porsche Group, exercise may help you channel your fear so it enhances your performance.

3. Talk to your audience – not at them. This includes making eye contact and using conversational language. As Tina Habas of Keating Wagner Polidori Free, P.C. in Denver suggests, “Simplify your language – don’t dumbify it.” You do not have to talk down to those in your audience. You do have to help them understand. Trials are not lectures, but a communication of your client’s story and the wrong done to them.

4. Do not worry about making mistakes. People appreciate your situation and will forgive you if you admit making an error. Ours is a nation of forgiveness. Celebrities and professional athletes sometimes do terrible things. Then they announce they are sorry, go into rehabilitation clinics, and return to the spotlight and a new contract. We still admire them. If you are honest enough to admit making a mistake or asking a bad question you will be given the benefit of the doubt.

5. Use notes appropriately. Except for those gifted with photographic memories most people need notes to guide them through trial. This does not mean you should allow fear to lock you into reading straight from your notes. Notes should be memory triggers that refresh your recollection. You should memorize the beginning of your opening statement and closing argument where eye contact is essential.

6. Be prepared, and practice. Extemporaneous speaking does not suggest a lack of preparation. A thorough understanding of the facts and laws allows you to speak not from a script but from your heart. The better you know your subject the less stress you will have and the more likely is becomes that you will master your fear. David Mann, communications consultant and actor, recommends you practice your trial speeches by speaking “out loud.” Practice in circumstances similar to what you will experience at trial – if you stand, practice standing, and if forced to sit, practice seated.

7. Get yourself into the right frame of mind. Starting before you are actually ready to begin ensures you are not truly confident. Silence can be a powerful tool that also helps you think about what you will say next as the listener considers what you just said. Mark Oates of the Chicago office of Baker & McKenzie uses silence in a purposeful way to add drama to specific points and to demonstrate control in the courtroom. Before you begin, say silently to yourself, ‘I’m ready – let’s do this now.’

iGeneration as Jurors

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Post written by guest blogger: Mark Caldwell

In his book Rewired: Understanding the iGeneration and the Way They Learn¹, Larry Rosen begins by quoting a twelve year old:

I absolutely hate school. They make me sit and listen as some old, stuffy teacher drones on and on about stuff from a book written like in the dark ages. We have to read pages of facts and then barf them up on tests that will make or break whether we get into a good college or not. Oh sure, they have pretty pictures on all the pages, but the book is so one-dimensional. Geesz, pictures? Don’t they know anything about video and what kids like to do?

How does a quote from a twelve year old affect us as trial lawyers? Despite the shrinking number of jury trials, we must recognize that in the very near future people from the iGeneration will be sitting as jurors in our cases. There are already cases where mistrials have been declared as a result of serving jurors doing online research (See In re Kaminsky, 2012 N.J. Super. Unpub. LEXIS 539 (Ch. Div. Mar. 12, 2012)). Likewise, a juror in an Orange County murder trial was dismissed after posting comments about the accused killer on Facebook, saying she’d like to get in contact with him after the case and making disparaging remarks about her colleagues on the panel (Link). When jury panels contain members of the iGeneration we will be forced to come to grips with a group who receives information and learns in ways differently than we are accustomed to.

Judges are now regularly instructing jurors against doing independent research or using social media to comment on trials. As trial lawyers, some of the responsibility lies with us. If we consider that the bulk of information presented at trial is aural, it is not hard to see how any juror could become bored with the presentation of evidence.

How can we overcome the issue of keeping jurors engaged in the presentation of evidence? There are a number of things we can do throughout the trial. Here are some ideas on ways to make your case more interesting to those in the jury panel.

1. Tell your client’s story. While not a new concept, the idea of storytelling is important to making a case memorable and engaging. Humans are literally “hard wired” to respond to stories. Preeminent authorities, such as Prof. James McElhaney², regularly counsel lawyers to tell the story of what happened to their client and show the wrong done to the client. This all begins in both jury selection, as you try to determine who does not relate to your client’s cause, and in opening statement. People are more engaged with a story than if you simply throw facts at them.

2. Make your direct more interesting. Jurors want to hear what facts witnesses have to say about the case. Our job is to make what they say something the jury wants to learn. This begins with letting the witness do “the heavy lifting” of presenting the facts – no leading questions. We need to break up testimony into digestible chunks of information by using Headnotes, or Transitional Introductions. Provide “souvenirs” of the testimony in the form of exhibits that support the story. Once we admit the exhibit (jurors have no interest in foundations) we must make it memorable and interesting by having the witness talk about it. We should try to get the witness out of the chair to become a teacher, through the use of demonstrative exhibits and demonstrations. In short, we need to do everything we can to create movement and interest during the examination.

3. Ensure your cross is surgical and focused. Judge Robert McGahey, Jr., of the Denver District Court, compares cross examination to the work of Zorro – “Get in, make your Z, and get out!” Your cross examinations should highlight where their witness agrees with your client’s story and then offer a few points that illustrate how the witness is either mistaken, biased, or wrong about the facts. Lengthy examinations that attempt to “beat the pulp” out of the witness do not necessarily do anything more than show you know the techniques of cross examination. The jury gets the point early in the process and you have no need to “show off.”

4. Make expert testimony count. Experts are there to help the trier of fact understand the evidence or determine a fact in issue (FRE 702). Often, both sides offer expert testimony to support their side of the case. Make your expert a teacher and star. Work with your witness to ensure the testimony is clear and persuasive. An expert’s opinion and basis often offer the temptation for jurors to investigate online. This means spending sufficient time building up both the reasons why the witness chose the methods used in reaching the opinion and why it is best. Likewise, make sure you close any openings of things the expert did not do in reaching an opinion and why.

5. Closing to make an impact. Too often, closing arguments are simply a repetition of the facts of the case. Do not insult the jury by telling them what they already know – highlight issues and argue why your client should win. This means you must make use of important exhibits, including “highlighting” important portions and quotes. Be interactive with the jury and explain important portions of the jury instructions. Show them how to complete the verdict form in favor of your client. Be their guide to righting the wrong done to your client (even if you are the defendant).

By recognizing the learning needs of your jury you can keep them engaged and avoid a one-dimensional process of presenting facts at trial.


[1] Larry D. Rosen, Rewired: Understanding the iGeneration and the Way they Learn, Palgrave Macmillan (2010) ISBN-10 – 0230614787.

[2] McElhaney, Trial Notebook, 4th Ed. (2005) ISBN – 978-1-59031-503-3.

TAKING BREAKS DURING A DEPOSITION

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Author: Mark S. Caldwell

You are taking the deposition of an important party witness. At the beginning of your deposition you and the witness discussed all of the commitments traditionally presented and made, including when you would take breaks and speaking with her attorney. The witness agreed with you about taking a break every hour. She agreed that if she needed a break before that point she would tell you. You discussed when she could speak with her lawyer. Finally, she agreed that if you have a question pending she would answer the question before taking the break. You have just asked a question and the defending lawyer announces they are taking a break. He and the witness get up and leave the room. What should you do?

  1. Make a record that the witness and counsel will be conferring while a question is pending before they leave the room.
  2. After they have left the room, make a record the witness and counsel have just left the room while a question is pending.
  3. Make your record and then call the judge or magistrate to ask for intervention.
  4. When they return ask the witness what was said during the break.
  5. Do nothing. When the witness returns ask your question again and get the answer or a response from counsel.

In their brand new 4th edition of The Effective Deposition, Peter Hoffman and David Malone discuss the importance of Set-Up and Commitments so the witness understands the deposition process and his rights and obligations. In Chapter 6.2, Malone and Hoffman suggest talking with the witness about breaks to “show the jury that this deposition was not a ‘third-degree’ interrogation.” They also suggest an instruction about talking to your attorney as a means of generating leverage so the witness will not attempt to speak with counsel before answering the tough question.

Hoffman and Malone then offer the caveat that a witness is going to take a break whether or not the deposing attorney gives the break instruction or not. The witness and opposing counsel will decide when the witness is too tired to go on, no matter what instruction you give. Like wise, the instruction regarding talking with counsel is trumped when it may be a matter of privilege. Although there is conflicting case law on even this matter points out NITA’s Executive Director John Baker citing a ruling in the tobacco class action cases where even matters of privilege were deemed waived for discussions while a question was pending.

Professor Louis Natalli, of Temple law school, says he does not give an instruction regarding breaks for the reasons discussed above. He prefers to follow the directions given by the court in the 1993 Pennsylvania case, Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa 1993). In that decision Judge Gawthrop provided guidelines for deposition conduct in the Eastern District of Pennsylvania, including a prohibition of any off the record conferences between the attorney and the witness during breaks or recesses, except to decide whether to assert a privilege.

Texas lawyer Mark Shoffner, of Andrews Kurth, LLP, in his article Be Careful On Break: Privilege and the Deposition Recess (http://www.dallasbar.org/content/be-careful-break-privilege-and-the-deposition-recess), talks about how other jurisdictions have dealt with conferring on breaks. In New Jersey, a federal court held the examining attorney was entitled to explore whether discussions during a break interfered with the fact-finding goal of the deposition process, see Chassen v. Fidelity Nat’l Title Ins. Co., 2010 WL 5865977 (D.N.J. July 21, 2010) aff’d 2011 WL 723128 (D.N.J. Jan. 13, 2011).

Other Federal Courts address conferring with the client through local rule. South Carolina’s rule prohibits conferences between counsel and deponents during breaks or recesses. The exception to the rule is to assert a privilege, make an objection or move for a protective order. The rule further requires that the lawyer who confers with the deponent then report the results of the conference on the record. The rule also permits the inquiring lawyer to ask questions about the conferences. D.S.C. L.R. 30.04.

Delaware’s local rule provides: “From the commencement until the conclusion of deposition questioning by an opposing party, including any recesses or continuances, counsel for the deponent shall not consult or confer with the deponent regarding the substance of the testimony already given or anticipated to be given, except for the purpose of conferring on whether to assert a privilege against testifying or on how to comply with a court order.” D. Del. L.R. 30.6.

Shoffner comments:

These out-of-state decisions and local rules are anathema to the principle that attorney-client communications for the purpose of seeking, obtaining, or providing legal advice are sacrosanct. However, the attorney-client privilege, like all privileges, is not absolute, and these jurisdictions have determined that excluding these conversations from the privilege altogether assists in the truth-finding mission of discovery.

In his blog, Drug and Device Law, Jim Beck comments in a post entitled Depositions – When Can You Talk To Your Own Witness? Beck offers five suggestions.

  1. If a question is pending any conference with the witness, except for matters of privilege, is asking for trouble;
  2. Taking a break during questioning for the sole purpose of talking with the client may cause problems. If the deponent testifies no coaching occurred you may avoid sanctions;
  3. Discussions over lunch or other breaks during the deposition that are taken for unrelated reasons may be viewed as acceptable. It again helps if the witness says no coaching occurred.;
  4. If there is an over night break discussions with the witness are likely to be allowed;
  5. If there are multi-day adjournments, with possible exceptions being in South Carolina and Delaware, conferences with the deponent are all right.

See, http://druganddevicelaw.blogspot.com/2011/02/depositions-when-can-you-talk-to-your.html.

Even if the reason for conferring with the witness is not a matter of privilege there are reasons for speaking with the witness during the deposition – confusion over a question, correcting mistakes, or instances of false or misleading answers. Certainly, matters of ethical responsibility should allow for a discussion with the client and be permissible. It still raises questions of witness credibility in the eyes of the deposing lawyer.

Commentators and some courts comment that the pendulum has swung too far in one direction with these limitations. Dennis Suplee and Diana Donaldson in their book, The Deposition Handbook (5th Ed. Aspen Publishers 2011) suggest the Hall decision may go too far in prohibiting conferences during normal breaks, lunch breaks, and overnight breaks (§6.11). In Colorado, Federal Magistrate Boyd Boland seems to have thought so, when he wrote in McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648 (D.Colo.2001):

I agree with the reasoning of In re Stratosphere and our local rule 30.1C that the truth finding function is adequately protected if deponents are prohibited from conferring with their counsel while a question is pending; other consultations, during periodic deposition breaks, luncheon and overnight recesses, and more prolonged recesses ordinarily are appropriate. McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. at 650.

Judge Boland reasoned further that to follow the Hall blanket order of all attorney deponent conferences once the deposition starts would lead to absurd results as follows:

The relief requested by the plaintiffs here is particularly inappropriate. It would have the effect of barring Mr. Zdeb from conferring with his counsel for the entire period between the sessions of his deposition, in this case several weeks. Taken to its logical extreme, the plaintiffs’ argument would bar consultation between a party and his lawyer from the time of his deposition through trial, because there might be “coaching” which would cause a party-witness to alter his deposition testimony at trial. That result is absurd. McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. at .650.

What should happen if counsel and the witness take a break when a question is pending? Make a record of the conference while a question is pending. When lawyer and deponent return, inquire about the subject of the conference. Ask if the deponent received coaching of any type during the meeting. Confirm that the question did not involve a matter of privilege. Ask the question again. If this occurs more than once, make sure you have made a good record and raise the issue with the judge or magistrate.

USING NOTES AT TRIAL

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Author: Mark S. Caldwell

Few lawyers can successfully try a case without the benefit of some form of notes. Notes can either be a crutch that robs the trial lawyer of spontaneity and persuasiveness or a tool that provides guidance and assurance.

The most common problem with the use of notes is a lawyer’s over-reliance on what he or she has written. This robs the examination, opening statement, jury questioning, or argument of spontaneity and persuasiveness. Worse, reading the written word aloud sounds unnatural and stilted because our brains process aural information in a different location than written information. Except for direct quotes that use specific language for a purpose or evidentiary foundations, the use of written questions should never occur at trial.

The best notes may be compared to refreshing recollection. They are there as triggers that spark our memory on specific topics. Notes are the checklist to ensure that all of the elements are covered.

Notes are as individual as finger prints – no two lawyers’ notes will look the same as we all have different memory triggers. Therefore there is no single model for the best type of notes to use at trial. Following are a list of generalized formats for your experimentation:

1. Initially write out your questions/statement to help organize your thinking and get a visual picture of what you are doing. With your presentation laid out as you want it to flow use your questions to create an outline. Use topics or phrases in place of the written questions;

2. Begin with an outline that organizes your thoughts in chronologic, topical, or relational format;

3. Write out the answers you hope a witness will give. You may even consider writing out the specific story your witness will tell once on the stand. In either case, follow up by distilling the information to outline topics.;

4. Use story boards or pictures that trigger your memory for each topic.;

5. Use the most comfortable of the above mentioned forms to craft an initial outline. Once you have organized the presentation create a chronologic list of headnotes/transitional phrases that divide the presentation into digestible pieces. The headnotes give you guidance but leave you free to craft language on the fly.

The bottom line is that you must find a system that best fits your own comfort zone and then consistently employ that system in everything you do at trial.

Notes should always be large enough that you can read them from several feet away. Consider using type that is large enough to read from two paces away from the lectern. Remember the graphic designer’s mantra, “white space is your friend” and don’t try to crowd too much information on a page. Consider separate pages for each topic. Use a typeface that you can easily read, for example Times Roman or Tahoma.

To make your notes even less of a crutch consider a process that has a headnote or transition for every five to eight questions. Everyone can ask that number of questions without the need of looking at notes for guidance. You can maintain eye contact and appear interested in the answers. It will aid in staying focused on the witness and make the examination appear to be conversational.

The most important part of the process is to experiment before you get to trial. Find out what works for you before you walk into court.

Q&A: Objections

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Question: Opposing counsel just introduced a document into evidence. She is now asking the witness to read a substantial portion of the document to the jury. Should you:

A:           Object on the basis of the information being “Asked and Answered – FRE 611(a)”;

B.            Object on the basis that the “Document speaks for itself – FRE 1007”;

C.:          Object on the basis of the witness’s answer being “Cumulative – FRE 403”;

D.           It depends on your judge and the circumstances.

Answer:

It really does depend on the trial judge (answer D).

While answer A regarding FRE 611(a) talks about the court exercising reasonable control over the mode and order or examining witnesses and presenting evidence so as to “(2) avoid wasting time,” many judges will not sustain an objection based upon Asked and Answered as the reason for keeping the witness from reading the document. Likewise, most judges will not sustain this objection unless the testimony sought to be elicited is overly repetitive (See, Bocchino and Sonenshein, A Practical Guide to Federal Evidence 10th Ed. NITA 2011, at pages26 and 27.)

There is not an actual objection about the Document Speaking for Itself. This is based upon a mistaken perception of Rule 1007 by suggesting this rule prohibits a witness from giving his or her opinion about the content of a document. Rule 1007 allows the proponent of a writing, recording, or written statement of the party against whom the evidence is offered to speak about the item. (See, Cole, “A Judge’s Answers on Evidence,” 38 Litigation 8 (Winter 2012) and Kimbler, “When Does a Document Speak for Itself” Judge James Kimbler’s Blog at http://lawtalk.blogspot.com/2010/10/when-does-document-speak-for-itself.html.

Probably the most likely objection to succeed is Cumulative, Rule 403. Under Rule 403 it would potentially be a waste of time or a needless presentation of cumulative evidence. However, this is a matter of judicial discretion so answer D is correct as it would depend upon your judge and the circumstances.

As a matter of tactics it might be most effective and efficient to have the witness talk about the content of the exhibit and then introduce the exhibit. At that point a few more questions that highlight the most relevant portions of the document would make it most persuasive to judge and jury. Simply reading the full document is neither persuasive nor a good use of everyone’s time. (See, A Practical Guide to Federal Evidence, supra pages 48 and 49 and “When Does a Document Speak for Itself” supra.)

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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