One of the primary initiatives of the NITA Foundation is to provide tuition assistance to legal staffers at public service agencies whose lean budgets often put specialized advocacy training out of reach. But thanks to the generous support of our donors throughout the country, it’s possible for public services lawyers to attend NITA’s advocacy programs so they can fine-tune their courtroom skills as a way to serve the greater good. That’s how I met Emily Cooper, who attended the Northwest Trial Skills (NWTS) program in Seattle this fall. She’s a staff attorney for Disability Rights Washington, which is a nonprofit agency working to protect the rights of people with disabilities in Washington State. Emily represented her office at NWTS through a scholarship underwritten by the NITA Foundation and recently talked to me about her experience.
What’s a typical day in the life of a public services lawyer like?
The only thing that is typical is the overwhelming and persistent need for competent, affordable legal representation. Given finite resources to respond to the demand, many legal aid providers are in the untenable position of figuring out who, out of the needy, actually receives our services (especially costly services like litigation). An analogy I often hear is that practicing as a public services lawyer can feel like drinking out of a firehose.
What legal problems do you help your clients resolve?
The vast majority of cases I work on relate to either discrimination or the abuse and neglect of individuals with disabilities. For example, I went to trial this past spring regarding a class of pretrial detainees who languished in solitary confinement for court-ordered mental health services that were unavailable due to the state’s lack of resources. Without timely receipt of these services, several of my clients died or suffered permanent reduction in their cognitive functioning. (Editor’s note: Click here to read more about this crisis and what Emily’s agency, Disability Rights Washington, is doing about it.)
How often are you in court?
Rarely, but it is increasing. My agency is unique its ability to access and obtain records. See, e.g., 42 U.S.C. § 15043(a)(2)(J)(ii) (providing agencies like Disability Rights Washington twenty-four hour access to records of individuals with disabilities who have died while in facilities). Because we are able to quickly obtain necessary documentation, I am able to quickly discern any underlying issues and try to resolve them with the entity as quickly as possible to prevent any future harm. However, since the latest recession, many governmental services have been reduced and so we are seeing more and more entities push back on reforms or plans of correction that have fiscal implications. So, I went from having no cases in active litigation to three federal class actions in less than a year.
What is the most challenging part of working with the population you serve?
The bias that they experience at every turn. The assumptions the public, the media, the legislature, and even other members of the legal profession regarding people with disabilities (in particular, people with mental illness) are astounding. Implicit bias is not only real, but disproportionately impacts the lives and rights of people with disabilities.
What do you enjoy the most about your work?
Winning. It’s not about ego; instead, a win for my client often means long-term systemic improvements that benefit a whole class of individuals. When you are able to secure such a victory for your client—which is usually about obtaining necessary services or being free from discrimination versus a monetary ruling—you feel a part of the larger social justice community. This feels particularly good when you think about how affirming such a ruling could feel to marginalized client[s] who, even years after the[ir] case is over and done, will remember that their rights are equally important and worth fighting for. They may even be able to use similar strategies and techniques to resolve similar issues on their own, thereby truly becoming actualized in their own agency and autonomy.
Is there a particular trial skill you thought you had down cold but realized at NWTS wasn’t quite there?
Oral argument. My grandmother said I could talk the bark off a tree, and I have a long history of feeling comfortable public speaking. However, I didn’t realize how quickly I spoke or how I expected my audience (judge or jury) to understand some of the context. One of the best pieces of feedback I got a NITA was “landing my point on the beach.” The analogy is that I get ideas that were partially formed as waves but, like waves, they overlapped and could be construed as indistinguishable. Taking time to slow down and using clear, short sentences has been beyond invaluable.
How do you think finessing your trial skills has an impact on your clients?
Absolutely. The key to successful advocacy is competent legal representation. I have always had the drive to ensure my client’s story is heard. Now I have the ability to ensure that story is persuasively told.
What surprised you about yourself when you were at NWTS? (A good surprise, or a suboptimal one—just something you were surprised to learn about yourself.)
You need to anticipate what the jury may assume compelled the actors to take one action or another and anchor, in advance, the narrative you want the jury to hear about the parties’ intentions. The jury may not limit their analysis to the facts presented at trial and instead fill in any gaps with their own reasoning. Part of being human is trying to understand or justify an action based on who you are or what you know to be true. A litigator’s job is to give that compelling narrative.
Who are your heroes?
The everyday people you don’t see but who are instrumental in supporting the leaders and innovators you do see and revere.
What’s the perfect day for you in Seattle? What do you do, where do you eat, what do you see?
A perfect day in Seattle would be spending time outside (forests, water, and mountains, oh my!), talking and laughing with dear friends and family, and eating food made by someone really passionate about cooking it.
What’s your motto?
Be open and curious, especially when you think you are right or even afraid. You may be surprised at what you learn.
Do you work for a public services agency and would like to apply for a NITA scholarship? Check out our scholarship information here. We’d love to support you in your commitment to public service.
One of the best things about life at NITA is getting to know the authors who write our books and instructors who teach our programs. It’s not just that they’re the crème de la crème of trial lawyers, judges, and law professors in the United States. (They’re definitely that.) But what’s more—as you discover in the half-second it takes to establish a genuine rapport with them—is that they’re also lively conversationalists who’ll make you laugh your head off while they’re giving you a helping hand. Here to prove the point are Rebecca Sitterly and Frank Rothschild, NITA alumni who will once again combine their might to team-teach their (in)famous case file, Flinders v. Mismo, next month at the 25th annual Los Angeles Trial Skills program.
How did you begin your close association with NITA?
Frank: It all started in the late ‘70s when I took the three-week National Program in Boulder. It was a life-changing event and inspired me no only to become a trial lawyer, but also to come back some day as one of the faculty to pass along what had been so willingly and lovingly shared with me.
Rebecca: I married into it. Way back then, I got married to a NITA teacher who was gung-ho, and he brought me on board in Albuquerque.
How did you two become acquainted?
Rebecca: Through that same program in Albuquerque, Frank was coming in each year as the team leader. Obviously, he was my hero. What a terrific teacher! So I slowly ingratiated myself until, when he ended up needing a substitute for his Assistant Team Leader, he had me fill in. It worked.
Frank: When I first ran a team at the NITA Regional in Albuquerque, Rebecca was one of the local faculty that I met and immediately taken with. My eye was always on the lookout back then for women who were not only great trial lawyers but also fabulous teachers, and Rebecca fit both bills.
How did the fact pattern for Flinders come about?
Frank: Flinders traces its origins way back in the ‘70s to early NITA stalwart Abe Ordover, who wrote the original file. As with all NITA case files, they have to be updated from time to time, and when the time came to do so with Flinders, Abe was no longer interested in the task so Rebecca, Lonny Rose, and I took over. People have been arguing over whether George Avery was a “torch” or not for many decades.
Rebecca: Abe Ordover put together the basic plot line. I called him when he was living in San Diego to find out what had happened in the “real” case. He said there was no real case, and the whole story came out of his mind.
I know NITA case files are well balanced and, based on the evidence, either side can win. But do you ever secretly root for one side to win over the other? Do you have a sentimental favorite?
Rebecca: I’ve gone back and forth over the years with Flinders. Some years I feel a lot of sympathy for poor old Art Jackson being victimized by that awful insurance company. Then other years, I am totally out of patience with Art and his lyin’ and cheatin’ and I’m pulling for him to get a comeuppance. But it comes out about even over the years. As to other NITA files, it just depends . . . . I like it if there’s a character I can feel empathy with.
Frank: As in real life, most NITA cases create a gut sense of which side should win, but the question is whether it can be proven or whether the element of sympathy can be outweighed by the evidence. There’s never been a doubt in my mind that the Flinders fire was no accident but was deliberately set, but proving it is quite another thing—plus who has sympathy for a big corporate insurance company.
In your years of teaching Flinders, both separately and together, has there ever been a standout moment on trial day at a NITA Trial Skills program when an attendee used evidence in a memorable way you hadn’t thought of or took some other a creative angle that surprised you? Is there some program moment you’ve never forgotten?
Rebecca: In the L.A. program, when Josh Karton was running a communications session, he brought a blind lawyer to the front of the room. Josh asked the lawyer what challenges he faced in the courtroom that were made more difficult by blindness, and the lawyer answered that he most of all wished he could “see” the faces of the jurors during voir dire and during the trial. Josh did an exercise with him in which he engaged in a talking-seeing voir dire with jurors, followed then by an opening statement. The whole room, myself included, was just sitting there in tears at the power of his presentation and what he was able to do to “see” the jurors, then touch their hearts in opening.
Frank: For me it was the start of a closing argument where the lawyer was emulating most of what we had been preaching as to how to begin such a presentation. He had a short, snappy theme statement and was able to ably analogize it to the case at hand, but it could be considered offensive. He started off:
“Whoever smelt it, dealt it. That’s right, when I was growing up and a bunch of us were standing around talking and someone complained that someone had farted, we knew who it was.”
All who heard this were rolling around on the floor laughing hysterically. We told the student that no matter how you were able to tie up your grabber theme to the case, you simply can’t be talking farts to a jury.
Why do you teach and write for NITA?
Frank: For me it’s always been about giving back. My life was so profoundly influenced by taking the NITA course and the amazing trial lawyers and judges who taught me, I want to turn others onto trial work the same way I had been turned on.
Rebecca: Somebody told me it would keep me young. We’ll see.
Complete this sentence: When I’m not working on all things lawyerly, you can find me …
Frank: Surfing Hanalei at The Bowl, making stained glass windows, or working on our farm.
Rebecca: On an ambulance. I took a career detour a few years ago after Hurricane Katrina and went to nursing school and worked in critical care. While doing that, I worked on getting my paramedic license, and now I’ve been a medic for two years. I’m working as a nurse–medic on a rural ambulance service with a talented, rowdy, boisterous crew that are just unbeatable. So, ambulance crew at night, law office by day. Such incredible good fortune to have found a way to deal with my addiction to adrenaline.
Care to join Rebecca, Frank, and a whole constellation of other NITA all-stars while fulfilling your New Year’s resolution to become a force to be reckoned with in the courtroom? Sign up now to save your spot. And when you’re done, be sure to check out these “Asked and Answered” sessions with beloved NITA faculty members Joleen Youngers and Judge Robert McGahey.
In this installment of “Asked and Answered,” The Legal Advocate’s series of interviews with NITA personalities, I’m talking with longtime faculty member Joleen Youngers. I first met the force of nature that is Joleen last year at the Northwest Building Trial Skills program in Seattle, where I watched her connect with attendees as she mentored them through the grueling demands of the program. Her deep courtroom know-how, together with her snappy wit, intellect, empathy, and considerable personal style, make her a dynamo you won’t soon forget.
How many years have you taught for NITA?
It’s all a delightful blur of places and people, but my best guess is about fifteen years.
How many NITA programs do you teach at a year, and where? Is there a particular program that’s dearest to your heart?
I routinely teach at the Pacific Trial Skills and Depositions programs in San Diego, and am a team leader and teach at the Northwest Building Trial Skills program in Seattle. I also go to private programs, public programs, and other places as invitations arrive and I am able to attend. But nearest and dearest has to be San Diego, where I have gone for many years. It is a family reunion of sorts when the faculty arrives.
Why do you teach?
I was a teacher before I was a lawyer and love the role. As a lawyer, I still teach—not only in NITA programs, but in front of juries. On a more selfish note, teaching trial skills keeps my skills sharp. That helps because so many cases of my cases settle and I do not spend a lot of time in front of a jury.
What is a typical day in the life of a New Mexico litigator like?
There is no typical day litigating in New Mexico. The state is small in population but large geographically, with a diverse and somewhat quirky population that is reflected in the legal community and those whom we serve. The following statement of former territorial Governor Lew Wallace rings true:
Every calculation based on experience elsewhere fails in New Mexico.
In any given day, I may be arguing a motion in Santa Fe, meeting with a family that lost a loved one at the other end of the state, taking depositions, mediating a case, or any number of other activities.
What is the most challenging part of your work?
Simply put, time management.
How long is your commute between your Santa Fe and Las Cruces offices, and how often do you make it?
Zipping right along the Rio Grande corridor, with blue skies and broad vistas, the trip takes me four hours max. I try to avoid lengthy phone calls and use the drive to clear my mind. It provides a rare opportunity for quiet reflection or listening to loud music while singing off-key without embarrassment. I traverse my version of the Santa Fe Trail a couple of times each month.
What changes in the legal system would you most like to see?
I’d like to see more trials and fewer dispositive motions. So many lawyers spend so much time and resources on motions for summary judgment that then are either denied or appealed. I often think that cases would progress more quickly to resolution with less expense if they went to trial without all the pretrial motions.
What are your thoughts on image and power in the courtroom for women attorneys? In the late 1970s, “wardrobe engineer” John T. Molloy wrote Dress for Success and doomed generations of professional women to a dreary uniform of skirt suits, low pumps, minimal makeup, and hair buns that dialed their femininity down to zero—giving the impression that femininity was a liability in the workplace. You make no apology for being a woman in your manner of dress and grooming. What advice would you give to a young woman litigator hoping to strike the right note with a professional, but unmistakably feminine, image?
As NITA instructors, we often coach participants to find their own style of advocacy—that a style of advocacy that works for one of us may not work for another. The same applies to dress. Thankfully, things have lightened up for courtroom attire for women, allowing us to ditch the boxy suit and white shirt. My advice is women is to dress in a manner that makes them feel good, feel confident, and feel comfortable, but not in a manner that makes them seem vulnerable or awkward. For example, too high of a heel can make a woman look as if she is teetering, rather than firmly planted and strong. There’s a big difference between 4½” platform heels and a classic pump with a 2–3″ heel. It’s important that your clothes fit well so that you are not tugging at them, as you might with a gaping neckline or a shorter skirt. You need to be able to sit and stand with without self-consciousness. Also, get a good tailor. This applies to men as well. Make sure your sleeves are not too long—if they cover your hands you are limiting your gestures and diminishing one of your tools of persuasion.
That said, being put together in your appearance is part of your image. Avoid looking sloppy or looking ostentatious. If you are sloppy, you may send a message that you just don’t care that much or that you can’t get yourself together. If you wear large jewels and carry a flashy $3,000 handbag, you may evoke a negative response in jurors who think you are just too fancy to connect with them.
I certainly dress differently for trial than a day at the office or even a day of depositions. Being mindful of the forum is important, and being in court should convey a certain solemnity and respect, although you need not disappear into the background.
A final note: I often get asked to respond to the quandary of whether to wear pantyhose or not. Again, be mindful of the forum and the custom where you practice. The last thing you want to worry about is any adverse reactions to your dress when you should be worried about your case!
If you hadn’t gone into the law, what career path do you think you might’ve taken instead?
The answer to that question would depend on whether I could have any fantasy career or whether I had to make a living. A fantasy career would be in the arts, doing studio ceramics and sculpture. A more practical alternative likely would have been going from teaching in the public schools to teaching at the university level. But I am glad I went into the law. I love advocating for the little guy.
What book have you re-read the most in your life? Perhaps not necessarily a favorite book, but the one that keeps drawing you back into it?
Hmmm . . . you mean besides the Rule of Civil Procedure and the Rules of Evidence? They certainly keep drawing me back, but I assume you are asking for something more. This is a tough question. I love to read. I have diverse interests and really cannot pick any one book. I just can’t.
What historical figures would you most like to have dinner with, and why?
I’d like to have dinner with Thurgood Marshall because I’d love to hear firsthand about what it was like to argue Brown v. Board of Education and then how it was to decide landmark cases as a Supreme Court Justice. And then there is Mahatma Gandhi, with whom I would love to dine and would hope to soak up some of his wisdom and courage. Finally, dinner and drinks with Dorothy Parker and Oscar Wilde would be divine for pure entertainment.
Who are your heroes?
Ruth Bader Ginsberg—the Notorious RBG
My friend Maureen Sanders, a great New Mexico lawyer
My daughter, Allie
What did Breaking Bad get right about life in New Mexico?
Some of the good and a fair amount of the bad and ugly. I prefer to think of New Mexico by its self-proclaimed moniker: the Land of Enchantment.
What are your top three recommendations for visitors to Santa Fe to do, see, and eat?
I’m assuming you want three recommendations in each category, so here goes . . . .
Lots of old, old buildings—the sense of history permeates “The City Different”
The Sangre de Cristo Mountains and spotted hills of New Mexico
Tia Sophia’s for great red and green chile
Geronimo for fine dining
Santa Fe Wine & Chile Fiesta in late September
For what fault do you have the most tolerance?
Impatience. I suffer from a lack of patience and fear I become insufferable as a result. For that reason, I tolerate it well in others.
What are your passions outside the office?
Oh, so much to do, so little time . . . I love to cook, listen to music, read, spend time outdoors, and hang out with family and friends. Fairly pedestrian, I know, but these are the ingredients of a contented life for me.
What is your motto?
Never, never, never give up.
Like what you read here? Be sure to check out this “Asked and Answered” session with beloved NITA faculty member Judge Robert McGahey.
Professor Michael Asimow of UCLA Law School said that about the subject of this month’s review, Anatomy of a Murder. I might disagree a bit (I can make a strong argument for My Cousin Vinny), but I think any trial lawyer who’s seen Anatomy of a Murder will put it right near the top of their list; it was Number 4 on the ABA’s list of 25 Greatest Legal Movies. The reasons for that are many.
First of all, there’s the story. Set in a small town in Northern Michigan, it centers on an army lieutenant (Ben Gazzara) who’s accused of killing a tavern owner who allegedly raped the lieutenant’s seductive wife (the ever-fabulous Lee Remick.) The lieutenant is defended by the recently-ousted district attorney, played by Jimmy Stewart in one of his best ever performances. The defense attorney, assisted by his older, hard-drinking lawyer buddy (Arthur O’Connell) comes up with a defense based on an old—and real—Michigan precedent: “irresistible impulse.”
Interesting enough as it goes, but unlike much of what is claimed in the movies and on TV, Anatomy of a Murder actually is “based on a true story.” The basis for the movie was a book of the same title, written by Justice John D. Voelker of the Michigan Supreme Court under a pseudonym. (The book is well worth reading, too.) The book, in turn, was based on an actual murder case where Justice Voelker acted as the defense lawyer. The film was shot on location in the town where the actual murder happened – including in the tavern where the real killing took place. A number of the jurors who sat on the real trial are members of the jury in the film.
The film is masterful in showing how lawyers put together a case and present it in court. But it also contains some of the most close-to-the-line ethical issues ever put in a movie – especially the scene where Stewart and Gazzara discuss what defenses may be available. When Mark Caldwell and I show that scene at programs, it’s almost always a 50/50 split between participants who see it as “ethical” versus “unethical.”
In addition to having some excellent examples of what goes on in a courtroom, the movie was ahead of it’s time for its forthright discussions of sexual assault. Made in 1959, it caused some aggravation for what was seen (for the time) as “graphic” language, such as reference to a “sexual climax” and the use of the word “panties,” which the trial judge actually has to gently admonish the jury about.
A word about the trial judge. He was portrayed by Joseph N. Welch, counsel for the Army in the Army-McCarthy hearings in the ‘50s. He was a lawyer to be admired, the one who took on Joe McCarthy with the famous statement: “Have you no sense of decency, sir? At long last, have you left no sense of decency?” Welch makes a great judge here, but lawyers should revere him for his courage in real life, too.
Anatomy of a Murder was highly regarded in its time, and its stature has grown over the years. It was nominated for Best Picture, Stewart was nominated for Best Actor, and both O’Connell and George C. Scott were nominated for Best Supporting Actor (Scott plays a prosecutor from the state AG’s office with such oily fervor that you feel a little tainted just watching him. But he gets what’s coming to him by asking a question on cross-examination that he doesn’t know the answer to.). There were other nominations for writing, editing, and cinematography. Duke Ellington wrote the score and appears in a minor role.
I could go on. But I’ll stop so you can go watch Anatomy of a Murder for yourself. Enjoy!
We invite you to comment below with your thoughts on Anatomy of a Murder or with your requests for a movie you’d like to have Judge McGahey review.
Paul Newman was one of our greatest actors. He was nominated for eight Best Actor Oscars, winning in 1986 for The Color of Money. That was sort of a Lifetime Achievement Award—a number of his other portrayals were much better, including his role as Frank Galvin, a Boston lawyer, in 1982’s courtroom drama, The Verdict. The film is well-acted, well-directed, dramatic, and, as the book Reel Justice notes, “[I]t’s … in the running for Most Lawyer Misconduct in a Single Film.” (Mark Caldwell and I have used at least four different scenes from The Verdict in our film clip ethics presentations over the years).
Galvin is a lush so down on his luck that we first meet him he is trying to hustle business at the funeral of a man he didn’t know. He gets a medical malpractice case from a friend. The victim is a young woman in a persistent vegetative state, brought on by a mistaken dose of anesthetic during childbirth. Galvin is opposed by Concannon, a ruthless defense lawyer, brilliantly played by James Mason (who was also nominated for a Best Supporting Actor Oscar.) Galvin also has to take on the Catholic Diocese of Boston, who owned the hospital. This being a Hollywood movie, you probably have a pretty good idea on how this will end. But the twists and turns are mesmerizing and Newman makes Galvin’s road to redemption as a lawyer and a human being believable and moving.
However, it’s an easier movie to watch if somehow you can forget about all the egregious ethical violations: an ex parte meeting with the trial judge, bribing a witness to disappear, using burglary to obtain evidence, failing to communicate a settlement offer to a client, lawyers communicating with opponents who are represented by counsel, etc. If ethical violations were a drinking game, you’d be hammered before The Verdict was half over.
As a lawyer, you should care about all that, but you can love the movie anyway for its appeal to justice (even if that appeal isn’t based on any admissible evidence.) Whether you’re a lawyer or not, you can love The Verdict as a gripping drama, directed by a great director (Sidney Lumet, who also directed 12 Angry Men) and acted by real pros (Newman, Mason, Milo O’Shea, and Jack Warden, who played Juror Number 7 in 12 Angry Men). It’s those qualities that make The Verdict one of my favorite legal movies. I bet it’ll be one of yours, too.
I have plenty of movies in mind I want to write about, but please let me know if there’s a movie you’d like to have me review. I’ll try to accommodate requests!