The Legal Advocate

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Category Archives: Executive Director Letters

September 2014 Executive Director’s Letter: Speaking of Bias in the Courtroom . . .

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Lockwood_KarenImplicit bias – the silent judgment-maker that we are not aware of in a jury, our courtroom, our witnesses, our judge, our selves.

On August 19, 2014, I presented a free NITA Webinar on how important it is for a trial lawyer to understand implicit bias. And to learn to recognize where it might lurk.

On November 7, 2014, NITA is presenting a full 90-minute CLE on this important subject, dealing directly with the question, “what does a lawyer do about implicit bias in the courtroom?” Join us at the Annual Convention of NAPABA – the National Asian Pacific American Bar Association. (NAPABA members, sign up now here.)

Why? This is a subject that, like NITA’s mission itself, directly affects the quality of justice. It affects “both sides of the courtroom.” To be clear, I am not talking about lawyers who litigate discrimination cases. I am talking about all of us – no matter the side, the practice, the claim, or the faith that we ourselves are unbiased.

Lawyers who seek a deep understanding of implicit bias will better represent their client, better handle the sometimes messy give-and-take of witness examination and credibility, and have a better shot at justice. Here is why:

  • Many of us are sure that we do not discriminate, we are fair. Good; so far as our behavior is concerned that is essential.
  • Some of us, further, are savvy to our own implicit biases. Those lawyers develop “stops” to check their judgments, decisions, and behavior in order to negate their biases. They are more ready for the courtroom.
  • Not a single one of us can erase the implicit biases we now own. They are our bear, looming behind us, making judgments for us that we are unaware of. (Some are good biases—embedded in the fight or flight center of our brains.) Many are destructive biases, changing perceptions, shortchanging objective judgment, instilling fear.

Since every human brain on earth relies on it to act quickly and “intuitively,” it follows that implicit bias joins all the players in the courtroom. Those of us who seek justice through advocacy are dealing with implicit bias throughout every witness examination, for example. Is the witness expressing a judgment, or recalling “events” changed by an unconscious reaction rooted in bias at the time of the event? Is implicit bias active in the discourse or conduct of counsel?

More to the point: a woman advocate wonders what underlies the behaviors and judgments directed her way. An African-American advocate in a North American courtroom sees some typical signs of bias and wonders how to deal with them. A witness is apparently confused by a racially biased perception, and the cross-examiner wonders whether to tread into the area, and how.

Of course, implicit bias is a topic much broader than “grouping” stereotypes: broader than gender, race, LGBT individuality, profession of religion, ethnicity, etc. But these visible and invisible differences among groupings of people are rife with stereotypes that predictably harm justice.

Reading more always raises our own awareness. And thus earns us some savvy thinking time as we consider ways to defuse negative implicit bias in the courtroom. You can start here: the first starts slow, using study testing implicit biases other than “grouping” stereotypes.

Impartial experts (expert conclusions on propensity for repeat offenses of sexual violence varied with whether prosecution or defense retained the expert )

DecisionQuest summary for ABA (implicit bias issues in jurors, counsel, judges).

Kang et. al article at UCLA (team of academics, scientists, researchers & federal judge seek ansers: “what if anything should we do about implicit bias in the courtroom”);

NITA free Webinar introducing the subject for trial lawyers (implicit bias in courtroom, “what and why / see it and address it”)

NAPABA Convention, Convergence of Bias and Reason on November 7, 2014 from 9:15am - 10:30am

Karen_ShortSig

 

 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

August 2014 Executive Director’s Letter. NITA Growth and Accomplishments: Excitement Expressed to “Headquarters”

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In July, I asked you what “real people” activities you were planning for August. While you are in the middle of enjoying those activities (and we’d like to hear about them ), I hope you will enjoy our news about happy developments here at Boulder “headquarters.” (We pay attention also to being “real people,” enjoying homemade barbecue—thank you, Gary Pope, our HR director—and grilled burgers in the Rocky Mountain sun, as you can see in the staff party photos.)

I am happy to receive a wonderful crescendo of nice comments and interested new members of our network. We are witnessing the continued growth of NITA and the spread of NITA enthusiasm. You are part of making that happen.

We thank you for keeping NITA top of mind when talking with your lawyer colleagues and friends, for checking in with our news and opportunities on nita.org and on Facebook. Those who know us well already experience what I call “NITA Love”—a devotion that lasts a lifetime, thanks to the transformation from experiencing a live program. Talk about that transformation and unique experience, wherever you are!

Here are some more things you can talk about.

  • 2014 Award for Outstanding Achievement in Programs, awarded by ACLEA for our 2013 innovations using pre-recorded lectures to allow more time learning in-person “by doing” and NITA-quality critiquing. Press Release 8-12-2014
  • Outstanding, newly designed Annual Report released in early June. We are in our second printing! It is fun, interactive, and packed with information tied by our overarching mission. 2013 Annual Report pdf version. Contact us for your personal copy, which you will be proud to show others.
  • Year-long growth in public program enrollments continues through the summer. Focus your friends and colleagues on September through December—spaces are filling, and it is very helpful to sign up early and have time to prepare! We are now expanding program attendance limits as they exceed the planned size, so encourage latecomers call us to try to get in.
  • Urgent sign-up programs: Boston Deposition, September 12-14; Seattle Trial, September 2-7; Complete Advocate (Minnesota), September 13-19; Hanley Advanced Trial (San Francisco), September 15-19.
  • The complete program list and links through December 2014, in chronological order, is at nita.org/programs. You can navigate to “view all programs” or click here to find the August-December list. NITA programs 2014 chron
  • Planning the program lineup for 2015. We announce it in early fall, and are working to continue our fresh and ready, high-quality standards for all programs across the nation. Stay tuned online.
  • “Global impact.” That is how we describe the work that we turn attention to outside the fifty states. We understand the tight connection between skilled advocacy in fair justice systems and the rule of law. More interest is coming in from countries in important regions on all continents. We regard all with great attention and engage where we will have impact.
  • Handsome array of eBooks. Taking our unique and intensely useful publications onto our eBookstore, we are proud of the facile and attractive offerings of these electronic versions for Kindle and Apple devices. You may purchase our print publications from the website as well. If you are linking with LexisNexis, you will find paths to the print publications directly from there as well.
  • NITA Awards! We couldn’t do it without our stellar, imaginative, and devoted faculty members. Among the many, we receive many nominations for our three annual awards. This year the awardees are Jim McCrystal (Cleveland), Ben Rubinowitz (New York), Beth Sher (New York), and Dan Toomey. Thank you again, Jim, Ben, Beth, and Dan for all that you do—it is done with great talent! In case you missed the Press Release, click here. NITA Award Winners!

A unique free webcast next Tuesday, August 19, will address an important subject to us all and one that matters to every lawyer in court: bias in the courtroom. It promises to be an interesting focus on a subject that is always at play but that is subtle enough to miss. I hope to see you there! Sign up here: Bias in the Courtroom: What and Why / See It and Address It.

Much of the news I gather here appears in greater detail on our blog pages. Notice that the home page of The Legal Advocate blog.nita.org/ shows “news columns” listed at the right side. The NITA Community column is particularly important for news that you wish to share with other faculty and NITA community members. Be sure to check there often—not all of those are emailed to you, so watch your favorite columns every week.

Finally—add your comments below. Hit the link, and share your good news and contributions with the NITA community. I would love to hear from you. (And remember—what are your “real people” refreshers this month?)

Karen_ShortSig

 

 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

July 2014 Executive Director’s Letter. What “Real People” Activities Are You Planning in August?

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Here are some terms popular now in legal blogs, the legal press, and other purveyors of lawyers’ tools to understand the business of our profession better. (No judgment here – my greatest obsession is to achieve such wisdom.)

  • Teaching Legal Theory / Thinking / Writing
  • Graduate Employment Rates
  • Big-Law / Public service/ Agency
  • Experiential
  • Partner / Senior Associate / Associate / Contract Attorney / Staff Attorney
  • Lead / Empower / Network
  • Mentor / Marketing / Connect
  • Manage / Schedule / Balance
  • Client Development / Promotion / Advancement
  • Goal / Measurement / Assessment

Pause!! Let August recharge your individuality with “real person” activities. Here are some to consider:

  • Swimming laps
  • Community softball (outside the law firm leagues)
  • Jogging groups that include strangers
  • Two weeks with tent, Coleman stove, and a roadmap
  • Practicing with a community choir
  • Walking with the purpose of meeting neighbors

OK, these are not too exciting. That’s why I am starting a contest to share good and better ideas. What are your best “do-able” ways to see different ways of life. To spend time with people who are simply not thinking of topics that keep your attention. To replenish the human in you. To hear and consider how other people are thinking, what they are worrying about, what news headlines are important to them, what they think about these times and their troubles.

In short, how will you use August to deepen your humanity? To broaden your capacity to know how people think who are not at all like you.

In this, you also find your greatest capacity to excel as a trial lawyer. We lawyers need to be real. We need to know how the jury’s gut and heart inform their judgment. What they fear. How they reason. We need to be in their world. Happily, these qualities of a great trial lawyer are acquired by knowing and grooming your own humanity.

So, every week in August include a bit of reality training! Share with us what you are going to do. You might win!

Karen_ShortSig

 

 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

June 2014 Executive Director’s Letter. Spring in Japan: NITA Continues Our Global Impact

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Lockwood_Karen

I bring you fresh greetings from our friends in Japan! Yesterday, I returned from NITA’s 2014 trip, where Mike Ginsberg, NITA’s Board Chairperson, and I taught a demonstration program on storytelling. Our schedule encompassed case analysis and storytelling, and direct and cross-examination.

NITA has visited Japan at the invitation of our exchange partner, PSIM, each year since at least 2008 to meet with law professors and to teach a NITA program. NITA shares a close friendship with our hosts and other legal education leaders of Japan. In this June 20 posting, I not only narrate NITA’s global impact in Japan, but also give a “shout out” to our marvelous hosts. Yoshiharu Matsuura Sensei, and Ikuo Sugawara Sensei, founded PSIM, and serve as professors of law at Nagoya University (Nagoya is the third largest city in Japan, lying just southwest of Tokyo). Akira Fujimoto Sensei, who succeeded Professor Suguwara as director of PSIM in 2014, is focused closely on experiential learning. Yoshiko Ohashi, PSIM’s very experienced staff professional, keeps all the trains (and planes) running on time, and exemplifies Japanese hospitality at its highest level. Our thanks go to each of you, and to your marvelous PSIM colleagues.

This year, our NITA-PSIM program involved twelve young lawyers in our intense trial training. A few of these fine advocates are recent graduates working in their apprenticeships for the bar requirements, and a number are already in practice. Working through interpreters, they with their dual familiarity with English, and we with embarrassingly no knowledge of Japanese, accomplished much in one day. They melded a courtesy and reserve appropriate to Japanese meetings with the kind of enthusiasm and explosive brilliance that rockets a NITA participant to new highs in advocacy. At the post-program party, several inquired about how to take a full program in the U.S. (we eagerly await their registration!), and all stayed to enjoy the team camaraderie that commands the room when the group completes a NITA program. We express our thanks for the hospitality of Ehime University’s Shikoku Law School, in Matsuyama.

The day before, I presented a lecture to PSIM member professors from around the country, gathered for this annual seminar. My topic was “Gaining Experience in Teaching Experientially: How Can Professors Connect Law School to Legal Practice?” Largely lecture-based to date, Japanese law schools are addressing issues similar to those seen by U.S. law schools – but the bar passage rate in Japan is about 25%. There seems not enough time to teach all of the substance needed for the bar, yet at the same time a need to move gradually from lectures as the norm to a more student-involving instructional method. Our two nation’s law school cultures are very distinct, reflecting our general cultures and practice. Yet we join our Japanese colleagues in asking, each for our own culture, what is the proper role of experiential education and how can we squeeze it into the course of study? My speech advocated that “applied” learning amid the doctrinal class syllabus allows the students to immediately apply a set of concepts known best by the theoretical professor. I argued that, as an adjunct professor, I have wanted to see the students “apply” the principles I teach right there, in class, while they are learning and while I still have them under my control. What better way could there be to guide them on what they have to absorb from the lectures and class discussions? What better way to convey the subtleties of the legal theory than when it becomes central to an issue that they must solve in a class “practice” lab? What better way to ask them to think in ways such that they come to own the legal principles, and to keep them interested in the area of practice? Applied learning in the doctrinal class, while the students still have the professor to guide them on substance of the law, is an optimal use of time.

The day after, leaders of the Japan Bar Federation were gracious in hosting me for a condensed and valuable discussion of their work in advancing advocacy. Thank you too, for your hospitality.

NITA’s global impact continues elsewhere this year. We will return to teach solicitor-advocates in Northern Ireland as a part of the Law Society’s support of court reform to allow such advocates to represent clients in cases of higher jurisdiction. We will return to Kenya to continue our multi-year Rule of Law program teaching prosecutors, defense lawyers, and judges. Kenyan faculty who teach alongside us have themselves taken the NITA program over the years. Other programs are in the works. NITA is exceedingly proud of our global impact, where we seek to help advance justice in ways that resound with the culture and maturity of the legal systems of selected countries.

And yes, spring in Japan is glorious, given the native Japanese cherry trees everywhere!

Thank you, and please come visit NITA! The National Program (at Boulder) starts on July 23 and is shaping up to be a large and exciting group! Alert your colleagues to enroll soon –

Karen_ShortSig

 

 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

May 2014 Executive Director’s Letter: CAPITAL in the Twenty-First Century

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How strongly armed is a person who can use savings, investments, and other assets to increase his individual income?  How well can anyone with access to useable capital make a difference in accelerating “family money” to create more security and earning power through inheritance? What is the mechanism by which capital shapes society, culture, and a nation’s future?  Is income just as important?

Most importantly, as capital gathers strength and income capacity increases, how do the two exert a force on society?  What is the position of citizens who have good earning power but little savings?   What is the power of citizens who have not only income, but also wealth?  Putting politics aside, how is a society shaped and changed by the relative forces of income and capital?  In short, how do the distribution of income and the distribution of wealth change over time, and what are the forces that work between them?

 Capital in the Twenty-First Century, the 2014 landmark book by Thomas Piketty, tackles these questions.  More credibly than can be expressed by a political tome or a philosophy or theoretical school of thought, Capital starts with data – big data from the 18th Century to 2010.  If you have wondered about the questions posed above, or mused about what political approach is advised, or even whether any political view is based in fact, this book will enthrall you.

I care deeply about the questions I pose, and so does NITA. Certainly, NITA focuses on “justice” rather than “capital” to bring to our society a greater chance to fulfill the promise of democracy.  But the convergence of NITA’s focus and the income/capital puzzle leaps out from Piketty’s results.  Please allow me to paraphrase knowing that I will err in both language and restatement of Piketty’s highly nuanced and consistent teachings:

  • Income distribution over time trends toward greater divergence between high earners and others, with increasing concentration of earning power in fewer people. This is not political; it is an event of economics.
  • Wealth distribution is much more powerful than income in separating the accumulation of wealth and the power to increase income. This divergence, clear from the longitudinal data is also a phenomenon of economics.
  • The interaction of these two phenomena will keep you thinking for as long as you need before opening Capital to read it for yourself.

Here is the good news: Piketty addresses what exists to create forces of convergence of economic power rather than further divergence of income and wealth distribution. One factor wins out above all others: Listen:

“The main forces for convergence are the diffusion of knowledge and investment in training and skills.” (at 21)

“The diffusion of knowledge is only partially natural and spontaneous. It also depends in large part on educational policies, access to training and to the acquisition of appropriate skills, and associated institutions.” (at 22)

NITA’s work is, indeed, working for such economic convergence. NITA’s work to strengthen access to justice is fundamentally important in providing those with lower income and less wealth to lead stable lives. We diffuse knowledge — We invest our entire efforts into training and skills.

And as we reach out to build greater skills in the profession, we specifically reach out to enroll also those who represent populations without either income or wealth, as well as those who can self-pay.

At NITA, we talk about this as Public Service – helping those who need access to justice by helping their lawyers increase knowledge and skills, and also helping those lawyers who do not have resources to come to NITA. We are an institution that is, in its DNA, helping to converge economic forces toward a strong and just society.

We need your help in this.

Stay tuned. This is a theme on which I will continue to share my thinking. And I welcome your thoughts. How can we access more resources ourselves, in order to increase our Public Service?

Karen_ShortSig

 

 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

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 Goal is 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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