The Legal Advocate

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ABA/NITA San Diego 2018

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written by guest blogger Mark Drummond

“This Monday I tried my first jury trial. After 15 minutes, the jury returned a verdict in favor of my client. This training contributed to my level of confidence, efficiency and to my client and her three children having a roof over their heads.”

-Letter from attorney with Legal Aid of Central Texas received June, 1996

For nearly a quarter of a century, the Section of Litigation of the American Bar Association and the National Institute for Trial Advocacy have partnered to provide no cost advocacy training for attorneys who provide legal services for those in need.  The Section funds the program and provides meals for the participants along with a reception in honor of them and the work they do every day.  NITA provides the training materials and the trainers.

This year’s training was held May 17-19 at the University of San Diego School of Law. Fourteen veteran NITA trainers worked with twenty-seven attorneys from legal services agencies throughout California for this intensive workshop.  Using the NITA method, the attorneys performed advocacy skills and received constructive critique, including video review of their performances.  There are many people to thank—

Past NITA San Diego Program Director Professor Allen Snyder for his assistance in securing space for the training in the law school.  Law school staff members Stacee Groff and Don Poe for their assistance throughout the program. We could not have had better, or more gracious, hosts.

ABA staff liaison, Monica Anchando, who reached out to agencies throughout California and made everything runs seamlessly.

Veteran NITA trainers Monique Carter, Amy Hoffman, Linda Lane, Danielle Hickman, Sadaf Hane,  Jaclyn Pampel, Lori Temko,  Sandy McAdoo, Gregg McClain,  Jaymes Sanford,  Richard Gates,  Andrew Haden and Judge Chris Whitten who freely shared their experience and expertise.

And last, but not least, the participants themselves who arrived receptive to the process and willing to put themselves on the line, in front of us and their peers.  These trainings only work if they work—and they worked.  It was our pleasure to work with them.

Mark Drummond, Program Director

Regional P&A Advocacy – A NITA Public Service Program

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On April 24 – 26, a group of NITA faculty went to Frankfort, KY for a public service program for 24 attorneys – all from a variety of organizations such as Disability Rights of Pennsylvania, Kentucky Legal Aid, Disability Rights of Ohio, and more. The program was led by Jayme Cassidy, who began teaching with NITA in 2004.

At the conclusion of the program, Cassidy stated, “It was a pleasure designing this program and working with the Prosecution and Advocacy attorneys. These passionate lawyers come from various backgrounds both personally and professionally. They came together with a common goal to learn how to represent their vulnerable clients more effectively. One performance at a time, these advocates dedicated themselves to elevating their lawyering skills using the NITA method. It was rewarding for the entire team to witness significant improvement each performance!”

Not only did Cassidy find the program to be rewarding, but the participants as well found that they learned a great deal during the three-day program.

“I received great guidance regarding my oral advocacy skills, and I felt comfortable with my peers and advisors . The documents were thoughtfully made for the program. This was well-structured, organized, and I would take a course like this again,” stated one participant.

Overall, the participants felt the opportunity to practice their skills in front of a knowledgeable team of faculty was very beneficial and appreciated the feedback.

Congratulations to Judge L. Felipe Restrepo, Mark Caldwell, and Spencer Pahlke – 2018 Award Receipents

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NITA’s Executive Director Wendy McCormack attended the Educating Advocates Conference at Stetson University College of Law where many NITA folks were award recipients. A huge congratulations to Judge L. Felipe Restrepo, Mark Caldwell, and Spencer Pahlke on their awards.

Judge L. Felipe Restrepo, who became a NITA faculty member many  years ago and continues to teach at many of our public programs, received The Cornerstone Award which recognizes exceptional members of the advocacy teaching community who work tirelessly to create learning opportunities across the profession.

Similarly, Mark Caldwell, who is the Curriculum Project Manager here at NITA and has been a program director on countless programs over the years, received the Lifetime Achievement Award for excellence in advocacy – from teaching to representing clients, this Caldwell exemplifies the legal profession’s commitment to furthering the art, science, and skill of advocacy instruction.

Likewise, Spencer Pahlke, who has taken many NITA programs over the years, received the  Edward D. Ohlbaum Professionalism Award, for the ethical teaching of an entire generation of advocates – whose life and practice display sterling character and unquestioned integrity.

Asked and Answered—Isaiah Gross

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If you’ve ever tuned into one of our monthly webcasts, then you’ve seen Isaiah Gross, the man in the “Asked and Answered” hot seat today. Isaiah is one of the stars of the new intro that opens our studio71 webcasts. During production of the video (which we filmed during the National Session in Boulder last summer), he was so thoughtful and charming that we suspected he’d make for an interesting interview on the blog. Isaiah practices general civil and criminal litigation at Pence and MacMillan in Laramie, Wyoming, where, as you’ll discover, he came into the law field by taking the road less traveled. We’re grateful NITA HQ was a stop along his way.

What kind of work do you do at Pence and MacMillan?
I practice general civil and criminal litigation.

How did you first hear about the trial skills trainings we do at NITA?
My boss attended NITA as a young attorney and said it was a game changer for him. He told me if I want to be a trial lawyer, I need to do it right, and NITA is the best resource.

What bad habits did you have that your training at the National Session helped you break?
My verbal ticks were terrible. Turns out I used to say “ok” after every answer given on direct exam. It was pretty embarrassing when I watched the videos. I also used a pen in my hand as a crutch whenever I was on my feet in court.

What’s your favorite thing about the work you do?
The clients and the attorneys I get to work with. This job is hard and you need clients you enjoy, and you need partners to rally around you when you need help.

You held a number of interesting jobs as a young adult before you went to law school. Can you share a bit about them?
I am a lucky guy. I have always had great jobs, and I think they all prepared me to be a lawyer.

In my early 20’s, I worked my way through college as a wildland firefighter working for the Black Hills National Forest and the Wyoming Hotshots. The Forest Service paid me to ride in helicopters, wield a chainsaw, and hike our National Forests. I was a pretty good gig, and it taught me the value of a hard day’s work. As it turns out, that is applicable to being a good lawyer.

After college, I chased a girl to Jackson Hole, Wyoming, and became a whitewater raft guide. I caught the girl in Jackson, but then quickly released her back into the wild to roam free. Girl or no girl, I found a home in Jackson for the next six years. In the summers, I would guide five whitewater trips a day, five days a week. Each trip I had between eight and sixteen new passengers on my raft, and I would provide a safety speak, get to know the people, and hopefully build rapport with them by the end of the trip. Now, when I look at a jury pool, I just imagine they are passengers on my raft. I focus on helping them through the uncomfortable and sometimes confusing trial process, just like I would with clients on the river.

During my time in Jackson Hole, I also worked as a social worker. I worked with adjudicated teenage boys at a wilderness therapy program. I led the boys on ten- to thirty-five-day backpacking and backcountry skiing trips across the Tetons. Our boys were often products of poverty, abuse, and neglect. They taught me the value of empathy and patience. The boys taught me that life is hard, and being kind to those who may have never experience true kindness can very powerful. I try to carry those lessons with me in my practice.

What would you do with a million dollars?
Pay off my student loans, buy a cabin in an undisclosed location, and send my parents to Hawaii.

What movie can you watch over and over without ever getting tired of?
The Big Lebowski. “The Dude abides.”

If you could have dinner with any four famous people, living or deceased, whom would you choose?
The Highwaymen.

What song makes you nostalgic?
“Piano Man” by Billy Joel. I have no idea why. I don’t play the piano.

What bores you?
Watching regular season baseball on television. Who has time to watch that?

Where’s your happy place?
My happy place is on a river with my dog, some good friends, and a fly rod.

Lightening round questions. Coffee or tea?
Coffee. It’s the lifeblood that has fueled every great American.

iPhone or Android?
iPhone.

Sunrise or sunset?
Sunrise. I gotta earn those.

Popcorn or candy?
Popcorn.

Spring or autumn?
Autumn. Spring is referred to as “mud season” in Wyoming.

And finally, what is your motto?
“Leave it better than when you found it.”

If you haven’t checked out any of our free webcasts yet, why not check out our tips and tricks on hearsay next week or direct examination in June, or peruse the topics in our archives? While you’re at it, you can find more of our Asked and Answered interviews with NITA personalities here on The Legal Advocate.

Hearsay Monthly Blog Theme: Part One

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The Business Records Exception to Hearsay and the Admissibility of Underlying Scientific Evidence Contained in the Record

written by NITA guest bloggers Marina Tous Clots and Michael J. Dale – article originally published to The Legal Advocate on March 9, 2016

Everyone is familiar with the business records exception to hearsay contained in the Federal Rules of Evidence (FRE) and in corresponding state rules of evidence. And everyone knows that not everything contained in the business record comes into evidence pursuant to that exception. The most obvious exception to the business record exception is hearsay within the business record. However, for the hearsay within the document to come into evidence, the statement itself must be relevant, and then there must be a separate exception to hearsay or a non-hearsay purpose for the underlying statement within the business record.

But what if the business record itself or the record within the record contains scientific information? For example, suppose in a tort, employment, or child welfare case, a party wishes to put into evidence scientific tests where somebody’s substance abuse is at issue or to put into evidence a business record that contains within it a scientific test. Suppose the test is a hair follicle or a urinalysis test.

This blog post discusses why the scientific information may pass the business records exception yet may still be subject to other evidentiary concerns like relevance and probative weight.

Step One
The evidentiary starting point is FRE 801(c), which defines hearsay as “a statement that: 1) the declarant does not make while testifying at the current trial or hearing; and 2) a party offers in evidence to prove the truth of the matter asserted in the statement.”

Under this definition, there is no room for doubt that scientific tests introduced to prove or disprove someone’s use of drugs fall within the definition of hearsay.

Step Two

The next and equally obvious point of evidentiary reference is the business record exception to hearsay. FRE 803(6) permits the introduction of business records, including scientific facts, regardless of whether the declarant is available as a witness. The elements of this exception, as we know, are:

  • the record was made and kept in the course of regularly conducted business activity;
  • the record is one that is routinely made and kept in the business’s usual practice;
  • the record was made at or near the time of the event that it records;
  • the record was made by a person with knowledge or from information transmitted by a person with knowledge; and
  • the proponent does not show a lack of trustworthiness in relation to the source of the information or the method of preparation.

All these conditions are shown by the testimony of a qualified witness or a certification that complies with FRE 902(11). Assuming that the proponent of the scientific tests can prove all of these elements, the business record exception will be met and the tests will overcome a hearsay objection.

However, even if the documents fall within the business record exception, the entire document will not necessarily be admitted into evidence. Again, as we know, business records oftentimes describe both the personal knowledge of employees and things told to employees by third parties.

Step Three
The third level of analysis occurs in situations where an out-of-court statement that falls within the business record exception contains another out-of-court declaration from a person other than the one who wrote the purported evidence. This is what we commonly refer to as hearsay within the business record or hearsay within hearsay. An example of hearsay within the business record would be a hair follicle or urinalysis test taken by an independent drug-testing agency and relied upon by a doctor when drafting her medical report.

FRE 805 states that hearsay within the business record is not excluded from evidence if each part of the combined statements conforms with an exception to the rule against hearsay. This means the tests must satisfy an independent hearsay exception or non-hearsay test and they must be found to be independently relevant.

Relevance and Probative Weight
To illustrate this matter, it is useful to take a closer look at what the results of our example—hair follicle or urinalysis tests—tell us. These tests analyze organic samples for traces of drugs. Depending on the tissue or fluid used, the tests can determine whether there are existing traces of drugs for a specified period of time. In the case of urinalysis, the tests show the use of drugs for a period of time prior to the taking of the test, depending on the drug. For hair follicle testing, it is generally accepted to be longer, between six to twelve months of prior drug use. However, nothing on the face of the test explains any of this. The business record exception neither explains the relevance of the test nor whether it is accurate

Thus, the relevance problem is twofold: 1) What does the test show? In other words, what is its relevance? and 2) Was the test properly administered? If so, are the results accurate?

Independent Relevancy
FRE 401 provides that “[e]vidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”

The issue here is that generally, nothing on the face of drug test explains its significance, or what it proves. Therefore, one could think that there could be a potential objection regarding the relevance of the test.

However, it is generally accepted that FRE 401 is an evidentiary starting point and that there are very few things that are kept out by this rule. Even if nothing on the face of the test explains exactly what the results mean, courts generally accept them into evidence so that their significance can be explained at a later stage.

Once we have established that the underlying scientific tests within the record would be deemed independently relevant, the results would only show that during the period of time covered by the test, the person had taken drugs. The results do not specifically indicate the amount or frequency in which the drugs were taken. Nor do they show that the test was properly administered.

Probative Value: The Significance and Accuracy of the Results
The last and perhaps most significant issue is this: even if the underlying scientific tests eventually get admitted into evidence, their significance and accuracy can still be challenged. Thus, a qualified witness should testify on direct examination as to the proper administration of the test and the test’s meaning and accuracy. There are, in turn, at least two obvious ways in which to attack the underlying scientific evidence: 1) deposing the person who carried out the tests or a qualified witness to show inadequacies in the way the tests were carried out, and 2) offering an expert witness’s testimony to challenge the findings introduced on direct examination.

Conclusion
An exhibit may only be admitted into evidence after a full evidentiary foundation is established. Oftentimes we are faced with business records that contain underlying scientific evidence. In the case of hair follicle or urinalysis tests, nothing on the face of the test explains the relevance of the test nor whether it is accurate. In those instances, the question arises as to whether those underlying scientific tests are admissible into evidence. The answer is that the tests must independently be found to be relevant and then they must satisfy an independent hearsay exception or non-hearsay test. If the tests satisfy these requirements, they will come into evidence. Once the tests are admitted into evidence, they can still by attacked by deposing the qualified witness or by offering an expert witness’s testimony to challenge the accuracy of the results.

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Marina Tous Clots is a Spanish attorney, a graduate of the University of Barcelona, and a dual-degree law student at Nova Southeastern University in Fort Lauderdale, Florida. She is a research assistant for Professor Michael J. Dale. She can be reached at m.tousclots@gmail.com.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. 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. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

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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