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Category Archives: NITA Notes

Immigration Law: It Takes Effort to Be a Good Advocate

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written by NITA Guest Blogger and Faculty Erica Schommer

Immigration law is complex and removal defense cases are often difficult on both lawyers and our clients. The stakes are high—in some cases life or death—and in most cases, losing means at the very least separation from family, community, employment, and many other ties to the U.S. There is nothing quite like the jubilation of winning a removal case, but the flip side is devastating for our clients and for us as attorneys. So what can you do to improve the odds for your clients? Put some effort into your courtroom advocacy.

In the simplest terms, your job in immigration court is that of an advocate, “a person who assists, defends, pleads, or prosecutes for another.” Black’s Law Dictionary (10th ed. 2014) available at Westlaw BLACKS. However, since immigration court is administrative and has more relaxed rules of evidence, attorneys often underestimate the importance of trial advocacy. We are comfortable presenting entire cases in writing to USCIS or other agencies and focus on the minutia of the forms and supporting documents. Many attorneys consider the individual hearing to be the easy part and don’t approach is for what it is – a trial at which your client needs a zealous advocate.

One thing that I emphasize with my students is the importance of narrating your client’s story in a well-organized, logical way. This can be extremely difficult when you often have less than four hours to put on your entire case. For asylum cases, it is particularly challenging when clients have been persecuted by different parties for different reasons at different times in their lives. Part of your job as a good advocate is to figure out how to tell a complex story in a way that makes it easy for the judge and government counsel to follow. The next time you are preparing for trial, try to do the following:

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

Although there is no magic formula to win every case, training that includes simulations provides an excellent opportunity to get individualized feedback about how to become a better advocate in the courtroom.
As a clinical professor, I know the importance of teaching advocacy skills to law students who are preparing for their first court appearances. I was recently reminded of the importance of trial advocacy skills for all practitioners. Last month our clinic co-hosted a free training through EOIR’s Model Hearing Program, designed for volunteer pro bono attorneys. A wide range of practitioners attended, from law students to attorneys who have been licensed for over twenty years. The Immigration Judge who participated offered individualized feedback, which practicing lawyers rarely get, to each and every participant on his or her performance during the mock hearing. My take away was that all attorneys, regardless of years of practice, can always learn new techniques and improve our advocacy skills.

Different NGOs work with EOIR to sponsor Model Hearing Program trainings throughout the country. Those trainings always include mock hearings before an Immigration Judge and often have participation from a representative from DHS’s Office of Chief Counsel. NITA also offers advocacy courses specifically tailored for immigration court, which include substantive, individualized feedback to improve your skills as an advocate in the courtroom. With the stakes as high as they are, we owe it to our clients to embrace the role of zealous advocates in the courtroom and put at least as much effort into trial preparation as we do into our briefs and evidentiary submissions. The skills and confidence you will gain with pay off for both you and your clients.

Enforcing Forum Selection Clauses in Euro-American Contractual Disputes

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written by NITA guest bloggers Anastasia Pellagrosi and Professor Michael J. Dale

Given the dramatic expansion in international commerce, the question often arises as to in what jurisdiction a resulting contractual dispute should be litigated or where a contracted arbitration should take place.

A typical fact pattern might involve a contractual dispute over the sale of goods between an American and a European corporation. For example, assume that there are a producer and a buyer, who are respectively located in Miami, Florida, and Rome, Italy, a member of the European Union. In 2015, the parties entered into a five-year contract, in which the producer promised to sell strawberries to the buyer for the price of $ 5.90 per box, payment to be made every third week of each month. The producer agreed to deliver the strawberries through a common carrier. The contract, known as a shipment contract, meant that the producer bore the risk of loss until strawberries were placed in the custody of the common carrier. After that, the risk of loss shifted to the buyer, who also paid delivery costs. When the shipment arrived at its destination, the buyer had twenty-one days to inspect the quality of the strawberries and reject them. The contract provided that any dispute, disagreement, or claim was to be litigated in the city of Berlin, Germany, a member of the European Union. In March 2017, the buyer started complaining about the quality of the strawberries. However, the buyer had never inspected the boxes, as required under the contract. In addition, the buyer also started complaining about having to pay for delivery costs. The buyer then suddenly stopped making delivery payments. In addition, the buyer unilaterally started making payments every first week of the month. Thus, it appears that the buyer materially breached[1] the contract with the producer. The question, then, is, Will the dispute be litigated in the United States or in Europe?

This blog post focuses on forum selection clauses and the two different approaches as interpreted in the American and European legal systems. Forum selection clauses have become extremely common in contractual agreements both internally in the United States and internationally. They allow parties to international contracts to choose the most desirable forum to litigate a dispute and the appropriate law to apply[2]. The validity of forum selection clauses had been the subject of dispute for a long time in the United States, until the United States Supreme Court decided Bremen v. Zapata Off Shore[3]. The case involved an international towage contract for the transportation of an oilrig from Louisiana to Italy[4]. The contractual forum selection clause provided that any dispute would be litigated in the High Court of Justice in London, England[5]. However, when the oilrig was damaged in the Gulf of Mexico during its transportation near Tampa, Florida, the plaintiff brought suit in admiralty in federal court in Florida[6]. The defendant moved to dismiss the case, claiming this was a breach of the contract’s forum selection clause[7]. The trial court denied the motion and the court of appeals affirmed. Both courts considered the forum selection clause as an attempt to oust the court’s jurisdiction[8]. However, the United States Supreme Court granted certiorari and enforced the validity of the contract’s forum selection clause. More broadly, the Supreme Court stated that forum selection clauses are “prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances.”[9] Even though the validity of forum selection clauses was first decided in an admiralty case, American courts including the Supreme Court have not hesitated to recognize them in other type of cases considering its teaching to be appropriate[10].

The European Union approaches forum selection clauses differently than the United States, but still recognizes their complete validity and enforceability. The primary source of law on forum selection clauses in the European Union is the Brussels Regulation N° 44/2001, which is binding on every State Member[11]. The goal of the regulation is to ensure judicial cooperation, which is a necessary step to enhance the European market. In order to overcome the national differences among the Member States, the Regulation seeks to “unify the rules of conflict of jurisdiction in civil and commercial matters to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States.”[12] The Regulation is applicable to civil and commercial matters, with specific exceptions that are beyond the scope of this blog post[13]. Jurisdiction is initially placed in the court of the State where the defendant is domiciled[14]. However, a specific provision as to “prorogation of jurisdiction,” which is jurisdiction conferred upon a judge by the consent of the parties, is provided for in Article 23 of the Regulation[15]. Indeed, Article 23 provides for the possibility that parties domiciled in one of the Member States may elect a specific court or courts to have jurisdiction to hear a dispute, and such jurisdiction shall be exclusive unless otherwise agreed to by the parties[16]. However, an agreement conferring exclusive jurisdiction can only be valid if it is in writing or evidenced by a writing, or in a form that accords with practices that the parties have established between themselves, or for agreements in a particular trade or commerce in a form widely known or regularly observed by the parties to the contract[17].

Both the United States and the European Union have signed the Convention of 30 June 2005 on Choice of Court Agreements, whose purpose is to promote international trade and ensure the effectiveness of forum selection clauses in international contracts. The Convention specifically applies to “exclusive choice of court agreements concluded in civil or commercial matters.”[18] One of the basic principles of the Convention is that the court that the parties chose shall have jurisdiction, unless the contract itself is void according to the laws of the Contracting State[19]. Also, the selected court has no power to deny its jurisdiction on the ground that another court would be more appropriate in trying the dispute[20]. The Convention also provides obligations for any other Court that might be chosen by one of the parties in violation of the forum selection clause. In that event, the court is generally required to suspend or dismiss the case[21]. Finally, the Convention provides for the general recognition of any judgment rendered by the selected court in any other jurisdiction[22].

So, what if a dispute arose in the hypothetical contractual agreement described above? It would be helpful to describe how this would work pragmatically. The forum selection clause in the contract specifies that should a dispute arise, any litigation would take place in Berlin, Germany. From the facts we have, we know that the buyer is unhappy with the quality of fruit it has been receiving, but never inspected the boxes as it was required to do under the contract terms. We also know that the buyer is unhappy with the provisions relating to the risk of loss, and stops making delivery payments. Finally, the buyer changes the payment schedules and starts payment in a different time of the month. From these facts, it is likely that the buyer has committed a material breach of contract and the producer will probably bring suit. Following the precedents established by the American courts, we know that the forum selection clause has prima facie validity, representing the free choice of the parties to the contract. Thus, both the United States Supreme Court precedent and the 30 June 2005 Convention on Choice of Courts Agreement apply to this transaction. More specifically, the Convention applies to exclusive choice of court agreements concluded in commercial and civil matter, given that the present matter is a commercial one. Therefore, as a matter of U.S. and European law, the producer should bring suit in Berlin or it would breach the forum selection clause contained in the contract. Moreover, the court in Berlin cannot refuse to try the case on the grounds that another court would be more appropriate, because the selection of the court was agreed to the parties.

Anastasia Pallagrosi is a graduate of Roma Tre University, Rome, Italy, and a 2017 dual-degree graduate at Nova Southeastern University College of Law, where she also served as a research assistant to Professor Michael J. Dale. She can be reached at anapellagrosi@gmail.com.

Michael J. Dale is a member of the faculty at Nova Southeastern University Shepard Broad College of Law. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. He can be reached at dalem@nova.edu. Click here to read more articles co-authored by Professor Dale’s research assistants.

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[1] “Material breach is a significant enough substantial failure in the performance of a contract, as to give the affected party the right to sue for damages as well as release the aggrieved party from its obligations.” Black’s Law Dictionary, THE LAW DICTIONARY, http://thelawdictionary.org/significant/, (last visited Apr. 30, 2017).
[2] Michael E. Solimine, Forum-Selection Clauses and the Privatization of Procedure, 25 Cornell Int’l L.J. 51, 52 (1992). A discussion of enforcement of choice of law clauses in such international commercial contract disputes shall be discussed in a forthcoming NITA blog post.
[3] M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972).
[4] Id. at 1.
[5] Id.
[6] Id.
[7] Id.
[8] Id. at 9.
[9] Id. at 10.
[10] See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991).
[11] A discussion about the European Union’s sources of law is beyond the scope of this blog post.
[12] See Council Regulation 44/2001, 2000 O.J. (L 12/1) (EC).
[13] Id. art. 1.
[14] Whereas the American concept of domicile is being in a place with the intent to reside there permanently, domicile in the civil law approach, followed by the Brussels Regulation, is referred to a person’s habitual or ordinary residency.
[15] Council Regulation 44/2001, art. 23, 2000 O.J. (L 12/1) (EC).
[16] Id.
[17] Id.
[18] Id. art. 1.
[19] Id. art. 5.
[20] Id.
[21] Id. art 6.
[22] Id. art. 8; see also art. 9.

Hughes Hubbard, NITA Collaborate on Federal Trial Practice Guide

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Hughes Hubbard & Reed LLP and the National Institute for Trial Advocacy (NITA) are pleased to announce the release of a new guide for federal court trial lawyers.

Entitled “Playing To Win: Appellate Preservation for Trial Lawyers in Federal Court,” the guide is co-authored by Hughes Hubbard lawyers Robb Patryk, Ross Lipman, and Jonathan Misk and addresses appellate preservation rules, techniques, and case law applicable to every stage of trial.

“Hughes Hubbard presented NITA with an informative and engaging discussion on federal trial practice, and we are excited to make this guide, the product of their hard work, available to those in our NITA family who practice in federal courts,” said Jennifer Schneider, Director of Publishing and Digital Content at NITA.

The guide is free of charge as a courtesy to trial lawyers on Hughes Hubbard’s and NITA’s websites and their respective social media platforms. Click here to download.

About Hughes Hubbard & Reed
Hughes Hubbard is a New York City-based international law firm that offers clients results-focused legal services and a collaborative approach across a broad range of practices. Hughes Hubbard was founded in 1888 by the distinguished jurist and statesman Charles Evans Hughes and is renowned for its trial and appellate practice in complex cases, including litigation involving issues related to product liability and toxic torts, antitrust and competition, corporate reorganization, international arbitration, and patent and intellectual property. For more information, visit hugheshubbard.com.

Help Me Help You

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written by NITA guest blogger, the Honorable Nancy Vaidik. Judge Vadik is the co-author, alongside communications expert Rebecca Diaz-Bonilla, of NITA’s newest publication Point Well Made.

I prepare extensively for hearings. The clients of the attorneys who appear before me deserve it. Every time I hear an oral argument, I hold my breath to see if the lawyers are also prepared. Often times, they are not.

After years of practice and years on the bench, I know the hardest preparation involves drilling down to the essence of an argument. This drilling down is called theme creation. Themes are memorable, focused, and connect the argument to the judge. Good themes take work to develop. For example, when arguing that the plaintiff lacks standing, Bob Dylan’s quote, “If you ain’t got nothing, you got nothing to lose,” tells me what we are here to discuss and why you should win.

If there is a secret message to those who dare speak in a motion hearing or any other oral argument, it is “better bring a theme with you.”

Here are some simple steps to developing a theme:
1. Distill the argument into a one-line summary;
2. Find a creative way to word it;
3. Practice synonymous ways to repeat it so it doesn’t become stale.

Delivering a well-crafted theme forces the judge to remember. Delivering a well-crafted theme forces the judge to focus. Delivering a well-crafted theme instantly connects the judge to the argument. If you’re reading this and you want to start creating themes, welcome to the world of winning.

Do You Know How to Handle a Media Crisis Related to Your Case?

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Last month, NITA hosted communications specialist Richard S. Levick for “How Lawyers Handle Media in a Time of Crisis, a free, one-hour webcast.

In the Internet age, courtroom victories are Pyrrhic if the client’s reputation and bottom line are savaged by day’s end. The “media” is no longer just beat reporters from the local newspaper; the “media” is now anyone who owns a mobile phone. The lawyer’s job now is more challenging than ever, managing these massive audiences with one eye on the jury pool and the other on consumers and shareholders. This program provides trial lawyers with guidance on effectively doing just that and effectively anticipating what’s next.

Mr. Levick is an experienced public relations professional and spokesperson. He and his colleagues at Levick, Inc. regularly write substantive articles about media management for the firm’s blog, which you can check out here.

Intrigued? It’s never too late to catch this webcast. Register now and watch at your leisure.

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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