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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.

Some Thoughts About Courtroom Technology

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Written by guest blogger Judge McGahey

I’ve been invited to share some thoughts about the use of courtroom technology. Let me start with a caveat: I didn’t use much of what is now considered “courtroom technology” when I was in practice, primarily because much of it didn’t exist. But I’ve watched a lot of trials as a judge, and I’ve seen courtroom technology used effectively or misused disastrously; I think that gives me some perspective that could be helpful. Put another way, from the technical side, I have no idea how courtroom technology “works.” But from the advocacy side, I absolutely have some ideas on how it “works.”

Question #1: Can You Make It Work? – Do you understand anything about how the technology operates? Do you know how to make the technology work in the courtroom? Have you investigated which of the multitude of presentation programs is most compatible with your practice? Have you looked into which program is easiest for you, as an individual, to actually use? Can you push the right switch, button, toggle, clicker, whatever, to actually make the exhibit appear where you want it to appear? Would you be better off with someone else in charge of the pushing? And even if you’ve answered these questions, have you actually practiced with the technology so that your use of it is seamless and smooth?

Question #2: Will It Work (In the Courtroom)? – You’ve picked your program and know what button to push. But now you need to figure out whether what you want to do will work in the courtroom where you need it to work. Every courtroom has its own peculiarities. Here in Denver, I preside in a courtroom located in an historic building that was built in 1932. But the acoustics are poor, the sound system is quirky, the sight lines aren’t great and the electrical wiring is old and slapdash. Heck, it’s hard just to find a wall socket that’s easy to access. If you’re going to use technology in my courtroom, you better set it up and make sure that it works, that everyone can hear what’s being said (if you have sound), and that the jurors (or the judge) can clearly see what’s on display. We’ll let you or your tech folks come over to the courtroom ahead of time and set up before trial starts; I don’t know a judge who won’t accommodate a request like this, if at all possible. And please remember to bring along what you need to make your setup function; I’ve had trials held up because someone didn’t have a long enough extensions cord or extra batteries.

Question #3: Does It Work (As Part of Your Case) – All of your best intentions about courtroom technology are pointless unless what you do with it makes your case more credible. A flashy or clever exhibit still has to have impact as an instrument of persuasion; it can’t just be an exercise in nifty graphics. I’ve seen lawyers do really clever and creative things using technology that left the jurors cold. I’ve also seen simple, black and white power point slides used in a closing argument to convince jurors to award a plaintiff more than the lawyer asked for, or to help convict someone of first-degree murder. Think hard about the most effective way to present your case. Are any of your exhibits dodgy so that the judge might not let them in? Does the judge expect you to show your presentation to opposing counsel before you use it? Will your jury be tech savvy or inclined to skepticism about a case using technology? Does your presentation match up with what you’re asking the jury to do? Does the technology overwhelm your argument? Does what you present reflect your client’s case or your ego?


I realize that what I’ve written is very basic. But even experienced lawyers get distracted by shiny objects like really neat presentation software and then forget about the basics that make a courtroom presentation successful. Never forget that your goal as a trial lawyer is a successful outcome for your client, not just impressing a jury with technical wizardry.
I’ll see you in court.

Immigration Relief For Unaccompanied Minors

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written by NITA guest blogger Losmin Jimenez

In recent years, the plight of unaccompanied minors seeking protection has garnered much attention in the United States. What does it mean for a child to be an “unaccompanied minor?” This blog post examines the definition of unaccompanied minor, root causes for child migration in the United States, and an overview of some common forms of immigration relief for unaccompanied minors. Given the complex nature of this topic, this blog post provides a brief starting point for a practitioner interested in learning more about this vulnerable population. Hopefully, it will inspire the reader to volunteer and provide pro bono representation to an unaccompanied minor.

An “unaccompanied minor” or “unaccompanied alien child” (“UAC”) as defined by U.S. immigration law is a child who “(A) has no lawful immigration status in the [U.S.]; (B) has not attained 18 years of age; and (C) with respect to whom— (i) there is no parent or legal guardian in the [U.S.]; or (ii) no parent or legal guardian in the [U.S.] is available to provide care and physical custody.”[1]

Between 2014 and 2016, 168,203 unaccompanied minors were apprehended by the U.S. Customs and Border Protection in the U.S.[2] While many reasons exist for why a child flees his or her country of origin, the vast majority of unaccompanied minors arriving in the U.S. are fleeing gang violence, gang recruitment, narco-traffickers, child abuse, or gender-based violence. Some children hope to reunify with a parent or family member in the U.S.[3] Although the children arriving in the U.S. are from many different countries, the top three countries of origin in fiscal years 2014, 2015, and 2016 were Honduras, Guatemala, and El Salvador.[4] Indeed, the top three countries of origin of unaccompanied minors seeking protection in the U.S.—countries sometimes referred to as the “Northern Triangle” countries— are some of the most violent countries in the world. Currently, El Salvador is the most deadly country in the world after Syria.[5] In 2013, “Honduras had the world’s highest murder rate for a non-war zone in 2013 with 79 homicides per 100,000 inhabitants.”[6] According to a recent report by Kids in Need of Defense (“KIND”), “[o]n average two women are murdered each day in Guatemala and the number of women murdered each year has more than tripled since 2000.”[7]

Obviously every child has a unique life story that determines his or her eligibility for immigration relief. However, under U.S. immigration law there are some common forms of relief practitioners see in this area such as special immigrant juvenile status, asylum, and the T nonimmigrant visa for survivors of human trafficking.

Respondents in immigration court have a right to be represented by an attorney in immigration court, at no expense to the government[8]; there is no right to appointed counsel in immigration proceedings, even if the Respondent is a child. Despite the complexities of immigration law, about 60 percent of unaccompanied minors in the U.S. have to face immigration court without a lawyer.[9] Unaccompanied minors with a lawyer are five times more likely to gain protection under U.S. immigration law, while only one in ten unaccompanied minors without attorneys win their cases.[10] Without a lawyer, unaccompanied minors do not have a meaningful opportunity to be heard and are in grave danger of being returned to the dangerous conditions they fled.[11]

Consider contacting your local immigration advocacy organization and taking a pro bono case. You will grow as an attorney professionally and personally, provide access to justice to a very vulnerable person, and have the chance to impact a child’s destiny.

[1] 6 U.S.C. §279 (g)(2).
[2] See U.S. Customs and Border Protection, available at (last visited May 13, 3017).
[3] See Center for Gender and Refugee Studies and Universidad Nacional de Lanus, Childhood and Migration in Central and North America: Causes, Policies, Practices, and Challenges, February 2015, pages iii, vi, vii, available at (last visited May 13, 2017).
[4] See U.S. Health and Human Services, Office of Refugee and Resettlement, Facts and Data, available at (last visited May 7, 2017).
[5] See Nina Lakhani, ‘We Fear Soldiers More Than Gangsters’: El Salvador’s ‘Iron Fist’ Policy Turns Deadly, The Guardian, Feb. 6, 2017, available at (last visited May 13, 2017).
[6] See Center for Gender and Refugee Studies and Universidad Nacional de Lanus, supra Note 3, at iii.
[7] See KIND, Neither Security nor Justice: Sexual and Gender-based Violence and Gang Violence in El Salvador, Honduras, and Guatemala, May 4, 2017, at 5, available at (last visited May 14, 2017).
[8] See Immigration and Nationality Act, § 240 (b)(4)(A).
[9] See Representation for Unaccompanied Children in Immigration Court, Transactional Records Access Clearinghouse (“TRAC”) at Syracuse University, available at (last visited on May 19, 2017); see also KIND Talking Points: Unaccompanied Children in the United States, available at (last visited on May 15, 2017).
[10] Id.
[11] Id.

Immigration Law: It Takes Effort to Be a Good Advocate

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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:

  • Have a theory of the case and make sure that your client understands the theory of the case and key elements you need to prove in order to win;
  • Think strategically about the order of your witnesses and if you decide not to call your client first, be prepare to defend that decision to the judge if you get push back;
  • Present adverse information early on and take control of that narrative rather than leave it to opposing counsel;
  • Organize the presentation of evidence to end on a high note;
  • Highlight crucial documentary evidence for the IJ during direct examination when the witness references something that is addressed in that evidence;
  • Role play with your client and witnesses so they know what to expect on cross examination; and
  • Prepare a written closing argument that highlights how you met your burden of proof and points the judge to particularly helpful cases.

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.

Enforcing Forum Selection Clauses in Euro-American Contractual Disputes

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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[1] 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[2]. 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[3]. The case involved an international towage contract for the transportation of an oilrig from Louisiana to Italy[4]. The contractual forum selection clause provided that any dispute would be litigated in the High Court of Justice in London, England[5]. 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[6]. The defendant moved to dismiss the case, claiming this was a breach of the contract’s forum selection clause[7]. 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[8]. 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.”[9] 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[10].

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[11]. 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.”[12] The Regulation is applicable to civil and commercial matters, with specific exceptions that are beyond the scope of this blog post[13]. Jurisdiction is initially placed in the court of the State where the defendant is domiciled[14]. 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[15]. 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[16]. 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[17].

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.”[18] 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[19]. 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[20]. 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[21]. Finally, the Convention provides for the general recognition of any judgment rendered by the selected court in any other jurisdiction[22].

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

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 Click here to read more articles co-authored by Professor Dale’s research assistants.

[1] “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,, (last visited Apr. 30, 2017).
[2] 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.
[3] M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972).
[4] Id. at 1.
[5] Id.
[6] Id.
[7] Id.
[8] Id. at 9.
[9] Id. at 10.
[10] See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991).
[11] A discussion about the European Union’s sources of law is beyond the scope of this blog post.
[12] See Council Regulation 44/2001, 2000 O.J. (L 12/1) (EC).
[13] Id. art. 1.
[14] 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.
[15] Council Regulation 44/2001, art. 23, 2000 O.J. (L 12/1) (EC).
[16] Id.
[17] Id.
[18] Id. art. 1.
[19] Id. art. 5.
[20] Id.
[21] Id. art 6.
[22] Id. art. 8; see also art. 9.

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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