The Legal Advocate

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

Category Archives: Articles

Monthly Theme: Examinations Part One

Posted On By

Using Smaller Questions to Make Points Bigger in Direct and Cross Examination

(First of Two-Part Series)

Written by NITA guest blogger, Michael R. Fontham

A common failing of lawyers in trial is the tendency to cede control to witnesses, whether on direct or cross-examination.  Lawyers give up control by asking general rather than specific questions.  It may seem paradoxical, but the best method to make big points in examining witnesses is through small questions, strung together to create mini-themes.  The techniques are different in direct versus cross, but the aims should be the same:  to emphasize the strongest points forming the central message of the attorney’s case.  Many lawyers fail to understand that controlling the testimony is essential to presenting a case theory in the most powerful way, which requires the use of specific questions.  This article will discuss techniques for using this approach in direct and cross-examination.


The bugaboo of lawyers on direct examination is the fear of leading.  Because they often have only a vague understanding of what constitutes a leading question, attorneys shy from the specific and resort to the general:  “Tell us what happened that day.”  The problem with this approach is that it places all the responsibility on the witness to provide an understandable portrayal, while emphasizing the points that the constitute the central massage of the case theory.  Most witnesses, even with extensive preparation, have difficulty remembering all the important points, placing them in the proper order, and describing them with the most effective detail.  Usually the witness forgets or jumbles the main points, misstates them altogether, or develops unimportant material.  A good direct examination requires that the attorney assume control of the examination, “leading” the witness through it in a manner that selects the important points for emphasis and directs the witness to develop the related facts.

To deal with the fear of leading, you must first place it in context.  Leading is not a mortal sin.  The objection to a “leading” question is simply an objection to form; the most that the judge can require you to do is restate the question in a non-leading manner.  Leading on direct happens often in every courtroom in America and often produces no objection at all.  So it is not a big deal, and certainly not big enough to drive you to give up control of your case presentation.  That said, it is much better not to lead, because leading shifts the focus from witness to lawyer and reduces the credibility and spontaneity of the factual descriptions.  Thus, the solution is to maintain control and yet avoid leading.

This “leads” to the question:  How do you avoid leading?  First, understand that a leading question is one in which the lawyer, rather than the witness, provides the pertinent information to the record.  Any question that can be answered with a “yes” is a leading question, because it simply asks the witness to affirm what the lawyer just said.  This is true despite the fact that the witness could answer “no”; the objection addresses the question, not the answer.  Conversely, a question that forces the witness to provide the pertinent information is non-leading.  A sure way to avoid leading is to start questions with “the five W’s or H”—”who, what, where, when, why, how.”  If you begin your questions with one of these words, the witness must provide pertinent information beyond what is contained in the question.  It thus is by definition non-leading.  Another form that is generally non-leading, which can be used to introduce a topic, begins with “To what extent….”

Even using the non-leading form, you can be quite specific in your questions.  When you want to emphasize facts, you should use closed-end questions that direct the witness to the specific parts of topics.  Limiting the scope of each individual question provides the best direction to the witness, allowing him or her to understand the exact point to be made in response, and permits the lawyer to direct the examination for the maximum persuasive impact.  The lawyer can control the ordering of points, which ensures that the listeners understand the context in which facts occurred.  Further, the attorney can determine what to emphasize through the development of facts.  Emphasis is generally achieved through development; the lawyer presents the entire “story,” but selects the most compelling points and emphasizes them by providing detail through more questions.  As the witness describes more detail about an important point, it seems to take on greater significance to listeners.  More open-ended questions can be used for unimportant material.

Examples of general versus specific questions:

Describe the man’s appearance. How tall was the man?

Describe his build.

What clothes was he wearing?

What color was his hair?

What color were his eyes?

Where was he standing?

[Assume the witness described a man running with a knife.]

What happened next?

In what direction did he run?

How was he holding the knife?

What did he do with the knife as he ran?

What, if anything, did he say as he ran with the knife?

The best way to conceive specific, closed‑end questions is to take your points and break them down.  Ask yourself:  If this happened, what are its necessary parts?  Create questions to ask for the necessary parts.  For example, assume a case in which a franchisee claims he was defrauded when induced to sign a franchise agreement for a computer products store.  A key attribute of the plaintiff’s case would be the representations made to induce the agreement (which were later not honored).  Many lawyers might be inclined to place the burden on the witness to describe the representations, with a question like the following:

Q. What representations did Mr. Jones make at the meeting?

To respond, the witness has to remember each representation, place them in the proper order, and describe their importance.  It is far better to do the work in advance for the witness, by breaking down the representations as follows:

  • What do they represent about training support for your salesmen?
  • What training did they promise for your computer repair person?
  • What did they represent about advertising support?
  • What representations did they make about account software?
  • How promptly did they say they would deliver inventory?

For each of these topics, the lawyer should create additional questions that permit the witness to develop the importance of the representation.   For instance, regarding the last point – delivery of inventory, the lawyer might ask:

Q.                How promptly did they say they would deliver inventory?
A.                They said it would be overnight or faster.
Q.                How did you expect the prompt delivery to affect your own need for a large inventory?
A.                We would not have to have a large inventory.  We could order for same or next day delivery.
Q.                How did you expect the prompt delivery to affect your profitability?
A.                We would avoid a big capital investment and could put money into attracting customers.
Q.                What impact would prompt delivery have on customer satisfaction?
A.                Customers want products right away.  If we didn’t have something in the store, we could get it quickly.


There are additional means of achieving emphasis:  showing the jury items from the factual picture, using demonstrative exhibits, and so on.  Using specific questions enhances these methods because the attorney can control exactly when and how they are presented.  They appear at the proper time and enhance the witness’s account.

[Michael R. Fontham is a member of the New Orleans law firm of Stone Pigman Walther Wittman L.L.C., engaging in a litigation practice. Mr. Fontham authored “Trial Technique and Evidence”, a text on trial advocacy and evidence published by NITA. He is also the author (with Michael Vitiello) of “Written and Oral Advocacy in Trial and Appellate Courts”, a treatise on brief writing, oral argument and legal research. He teaches evidence as an adjunct professor at the LSU Law Center and Tulane Law School.]

Law School Applications on the Upswing

Posted On By

The Washington Post attributes this past year’s uptick in law school applications to a “Trump bump” that has renewed recent college graduates’ interest in becoming lawyers:

In December, the [Law School Admission Council] reported that the number of applicants was up 12 percent and applications were up 15 percent over the same time last year. Those numbers held steady as of mid-January, according to more recent data.

In another indicator of the upward trend, nearly 28 percent more LSAT tests were administered in December 2017 than December 2016, as U.S. News and World Report noted last month.

. . .

“[President] Trump has had a galvanizing effect on may prospective students, both Democrat and Republican,” Dave Killoran, chief executive of the admissions consulting firm PowerScore, told U.S. News and World Report. “We see our students discussing specific policies far more frequently than in the past, and the depth of feeling they are expressing is greater than ever before.”

No matter where you lie on the political spectrum, this is good news for NITA.

Introducing NITA’s 2018 Next Generation Faculty Members

Posted On By

Congratulations to Annie Deets, Johanna Schonfield, and Nicholas Williams on their acceptance into NITA’s Next Generation Faculty Development Program.

About the Program

The Next Generation Faculty Development (NextGen) Program was established to help identify, recruit, and prepare attorneys to be the next generation of NITA faculty leaders and program directors. Each year we ask all NITA program directors to nominate individuals that they believe will help continue NITA’s legacy of passionate and talented faculty. In order to be nominated an attorney must be under the age of 45, have taught at one of our public programs, and/or have been identified in our teacher training programs as having the potential to be an outstanding faculty member.

Meet the NextGen Class of 2018

Annie Deets is a public defender in DeKalb County, Georgia, where she is part of a specialized Mental Health Division. Part of that role involves handling some of the most high-profile criminal cases in Atlanta. Annie greatly enjoys this position as it allows her to be an advocate for a vulnerable population.  She uses her work experience to teach at Emory University School of Law, where she teaches courses specific to mental health issues in the criminal justice system.

Annie loves being a NITA faculty member because it allows her to continue developing her own advocacy and teaching skills. She believes that teaching others is a great responsibility, but after teaching at a NITA program she is inspired to fight harder and more effectively for her clients.

Annie’s teaching abilities are applauded by faculty members that have worked with her in NITA’s public programs as well as in the teacher training program she attended. The combination of her leadership skills, trial experience, and natural teaching abilities make her a rising star among NITA faculty.


Johanna Schonfield is currently a prosecutor for the Santa Cruz District Attorney’s Office. She handles homicide and gang related cases – specifically those with complex litigation, cold cases, retrials, and multi-defendant cases.  She is the current supervisor in the gang unit office and co-supervises the law clerk program. Johanna has tried over 40 cases throughout her career and only received one acquittal in a misdemeanor case at the start of her career.

Johanna’s impressive trial experience gives her the ability to provide participants with concrete advice to help improve their advocacy skills. A participant that she taught last year said that Johanna’s feedback was easy to understand and then apply to future presentations. Since NITA implements a learning-by-doing teaching style, this is an important skill for our faculty members to possess. Although it is tricky for Johanna to find time to teach amidst her busy trial schedule, she loves being able to see the attendees improve over the course of the program as they absorb the feedback they’ve been given.

Johanna is humbled to be nominated and chosen to be in the NextGen Program. She has had a passion for trial advocacy education since her days in law school where she had excellent teachers, many of whom were past and present NITA faculty members.


Nicholas Williams is a principal litigation attorney for the firm KesslerWilliams located in St. Louis, Missouri. The practice includes both state and federal criminal law, including death penalty work. He also puts his trial advocacy teaching skills to use as an adjunct faculty member at Emory University School of Law.

Nick is described by a variety of program directors as being approachable and willing to share his trial advocacy knowledge without being boastful. He believes that his eight years of trial experience gives him the knowledge to be a good faculty member, while his young age helps him relate well to attendees who have limited trial experience and are still developing their career paths. One of the attendees he taught believes that Nick is “a great instructor, perhaps the future of NITA given his age.”

One of the contributors to Nick’s teaching abilities is his passion for teaching for NITA. He enjoys being able to meet interesting people from across the country and teaching side-by-side with the distinguished faculty. Working with the other NITA faculty members affords him the opportunity to learn from their experience, both in practicing and teaching the law.


With these bright young attorneys we are excited for the future of NITA. If you are a program director and would like to nominate an individual for the NextGen Class of 2019 please contact the Director of Programs, Michelle Rogness, at




From the Director’s Desk: February 2018

Posted On By

I have a thirteen-year-old. Let me just repeat that for impact: I have a thirteen-year-old! Whether you have kids or not, we were all teenagers at some point. It’s an awkward time. Cole is a teenage boy in eighth grade and doesn’t know a life without a screen. Some call them iGen or Screenagers. I call him amazing. Yes, it’s true—he does most everything on his phone. Yet, he still has manners, he can talk to adults, and he does well in school.

I look at Cole and his classmates and think, “Someday, some of these kids will choose to be lawyers.” What does that world look like for them? What does law school look like in eight to ten years? What does continuing legal education look like post-law school in ten to fifteen years? How does NITA fit in?

First, as some of you have seen on social media (if you aren’t following NITA on Facebook, LinkedIn, and Twitter, you are missing out), I’ve engaged in a ten-city listening tour to kick off my tenure to ask our community some of these questions. How do we futureproof NITA? I’m sitting down with 100 people, and I know that’s not nearly enough. There are thousands of you across the globe who know NITA and who have incredible ideas about the future. I want to hear from you. Help us futureproof the best, most admired, 47-year-old, learning-by-doing advocacy training organization on the planet.

The second BIG thing, because our community is so amazing and we don’t have one place for us to congregate to network and learn, is we created one and it’s called NITAVision. We have incredibly talented faculty, alumni, future alumni, professional development specialists, partners, and public service attorneys all over the country and each and every one of you should be here. Add your voice; come see what the NITA buzz is all about. NITAVision 2018: Inspiring Justice Together September 16–18, 2018, downtown Denver. NITAVision combines thought leadership as we explore and discuss the future of legal education, learning-by-doing skills tasters, and the importance of volunteerism into an impactful two-day event that you won’t want to miss. Register today.

Connect with us. Communicate with us. Collaborate with us. Change with us.

Wendy's Signature




Wendy McCormack
Executive Director
National Institute For Trial Advocacy

Service of Process Outside the United States Updated: Water Splash and its Progeny

Posted On By

written by NITA guest blogger Tereza Horáková

On May 22, 2017, one year after publication of our blog post[1] on how to serve process outside the United States, the United States Supreme Court resolved a conflict among the lower courts concerning an important practical service question: Does the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter the Hague Convention) prohibit service by mail under Article 10(a)? In Water Splash, Inc. v. Menon, the Supreme Court held that the Hague Convention indeed does not prohibit service by postal channels[2]. This note provides a brief analysis of the Supreme Court decision and an overview of the case law that followed.

Water Splash, Inc. sued its former employee, Tara Menon, in a state court in Texas, alleging that Ms. Menon had begun working for a competitor while still employed with Water Splash, Inc. Ms. Menon resided in Canada at the time, and Water Splash, Inc. effectuated service by mail after obtaining permission to do so from the trial court. Eventually, the trial court entered a default judgment for Water Splash, Inc. due to Ms. Menon’s refusal to answer or otherwise enter an appearance. Ms. Menon moved to set aside the default judgment, arguing that she had not been properly served. The trial court denied Ms. Menon’s motion, only to be overturned on appeal. After the Texas Supreme Court denied discretionary review, the United States Supreme Court granted certiorari to resolve a broader conflict among lower courts turning on the interpretation of the Hague Convention.

The Supreme Court first analyzed the key language of Article 10(a) of the Hague Convention, which states that “[p]rovided the State of destination does not object, the present Convention shall not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad.” Ms. Menon argued that because subsection (a) uses the word “send” as opposed to expressly referring to service as in subsections (b) and (c) of Article 10, this textual difference implies that sending documents through postal channels does not equal service. The Supreme Court rejected this argument as having no foundation in the text of the treaty or anywhere else.

First, the Supreme Court noted that the scope of the Hague Convention is limited to service of documents and Ms. Menon’s interpretation would render Article 10(a) meaningless, which goes against fundamental principles of contract interpretation. Second, treaty interpretation must consider the context in which a particular treaty provision is used. The structural placement of Article 10(a) strongly suggests that it pertains to service of process, considering that the immediately following subsections (b) and (c) expressly refer to “service of judicial documents.” Last, the Supreme Court considered extratextual sources shedding light on the meaning of Article 10(a). The Hague Convention’s drafting history, the views of the Executive, and the views of many other signatory countries such as Canada, Italy, and United Kingdom all concluded that the Hague Convention allows service via postal channels.

However, the Supreme Court’s unanimous decision authored by Justice Alito also cautioned that neither does the Hague Convention affirmatively authorize it[3]. In fact, the Hague Convention permits service by mail only if two conditions are met: 1) the receiving state has not objected to service by mail, and 2) service by mail is authorized under otherwise-applicable law[4]. For affirmative authorization of service by mail and any requirements as to how that service is to be accomplished, one must look to the law of the forum in which the suit is filed[5].

Several courts have already cited Water Splash and utilized its holding. For example, the technical differentiation between permission and affirmative authorization under the Hague Convention proved fatal to the plaintiff in Fed. Ins. Co. v. Cessna Aircraft Co[6]. In that case, the plaintiff argued that it properly served the defendant by international mail pursuant to Fed.R.Civ.P. 4(f)(1) and (2). Rule 4(f)(1) provides for service by an internationally agreed means of service, “such as those authorized by the Hague Convention” (emphasis added). However, Water Splash held that the Hague Convention does not affirmatively authorize service by postal channels, but merely permits it only if the otherwise-applicable law authorizes it. Accordingly, the district court held that plaintiff had not effectuated service under Rule 4(f)(1), because the plaintiff served the defendant by means not authorized by the Hague Convention, but merely permitted by it[7]. The district court then analyzed whether the plaintiff served the defendant under Rule 4(f)(2), which applies there is no internationally agreed means, or an international agreement allows but does not specify other means (as here under the Hague Convention); however, the plaintiff failed to comply with the requirements of Rule 4(f)(2) as well.

In Moore v. Toyota Motor Corp[8]., the defendant was not properly served because the plaintiff did not comply with the second prong of the test for service by mail under the Hague Convention—i.e., that service by mail is authorized by otherwise-applicable law. Specifically, the plaintiff attempted to serve the defendant in Japan by regular international mail via United States Postal Service without a proof of delivery on the recipient. However, no provision of the Federal Rules of Civil Procedure affirmatively authorizes service in a foreign country by regular mail without a proof of delivery. Therefore, the district court found that the plaintiff failed to properly serve the defendant.

In a similar case, In Re LLS Am., LLC[9], the plaintiff served the defendant via the clerk of court, who certified “that a copy of the Summons and Complaint was mailed by international registered mail with Returned Receipt for International Mail” to both defendants. This method of service is affirmatively authorized under Fed.R.Civ.P. 4(f)(2)(C)(ii) and, therefore, the district court found that the plaintiff properly served the defendant via postal channels under the Hague Convention.

In conclusion, the Supreme Court has made clear that the Hague Convention does not prohibit service of process by mail. However, as the progeny of Water Splash has shown, one must be cautious to comply with the two-prong test for service of process under the Hague Convention as set out in Water Splash.

Tereza Horáková is an attorney in Miami, where she practices commercial litigation, probate administration and litigation, and estate planning. Ms. Horáková graduated from Nova Southeastern University, College of Law, and Charles University Faculty of Law in Prague, Czech Republic. While at Nova, Ms. Horáková was a research assistant to Professor Michael J. Dale, whom she thanks for his review of this article. She can be reached at

[1] “Service of Process Outside the United States: A Basic Overview,” by Tereza Horáková and Michael J. Dale, posted on March 23, 2016. Available at
[2] While the Hague Convention does not define the term postal channels, the case law generally construes the term to mean postal mail, such as the United States Postal Service. However, the Hague Convention does not define what type of mail qualifies as use of postal channels. A Special Commission of the Convention stated in 2003 that service through private courier is the equivalent of service through postal channels (see Conclusions and Recommendations Adopted by the Special Commission on the Practical Operation of the Hague Apostille, Evidence and Service Conventions, at ¶ 56 (Oct. 28–Nov. 4, 2003)).
[3] Justice Gorsuch took no part in the consideration or decision of the case.
[4] The countries that have objected to the service of process via postal channels include, among others, the Czech Republic, Germany, and Argentina.
[5] Brockmeyer v. May, 383 F.3d 798, 803–04 (9th Cir. 2004) (“Article 10(a) does not itself affirmatively authorize international mail service. It merely provides that the Hague Convention “shall not interfere with” the “freedom” to use postal channels if the “State of destination” does not object to their use. As the Rapporteur for the Convention wrote in explaining Article 10(a), “It should be stressed that in permitting the utilization of postal channels, . . . the draft convention did not intend to pass on the validity of this mode of transmission under the law of the forum state: in order for the postal channel to be utilized, it is necessary that it be authorized by the law of the forum state.”)). The Supreme Court cited Brockmeyer in Water Splash, 137 S. Ct. at 1513 (2017).
[6] Fed. Ins. Co. v. Cessna Aircraft Co., 2017 WL 2905576 (D. Kan. July 7, 2017).
[7] The United States District Court for the District of New Jersey has reached the same conclusion in an unpublished opinion in Trzaska v. L’Oreal USA, Inc., 2017 WL 6337185 (D.N.J. Dec. 12, 2017), where the plaintiff unsuccessfully attempted to effectuate service under Rule 4(f)(1) by mailing a copy of the summons and complaint by way of the United States Postal Service’s “Priority Mail Express International.”
[8] Moore v. Toyota Motor Corp., 2017 WL 5257050 (E.D. La. Nov. 13, 2017).
[9] In Re LLS Am., LLC, 2017 WL 3013260 (E.D. Wash. July 14, 2017).

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.
Feature Products


Get every new post on this blog delivered to your Inbox.

Join other followers: