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Category Archives: NITA Notes

March 2015 Executive Director’s Letter: NITA Is Unique, Once Again

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Lockwood_KarenLet’s talk about webinars.

You and I see many invitations to commercial webinars in our inbox.  Some introduce a topic you know little about.  Some give you an introduction to a person or company.  Many are fairly elementary, such as “how to use twitter as a marketing tool.” Others are orientations – like our lawyers’ old friend,  AmJur, purposed to enumerate a large number of topics within a broad field.  An example would be “educating participants about the various types and stages of whistle-blower claims” (in 90 minutes).  In general most webinars that pop into your inbox are tangentially related to something in your zone of interests.  What do you do?  Save them for after-hours to delete or sample.

They are ubiquitous.

Ours are different. Here at NITA our method is to help lawyers in direct and immediate ways, giving you a menu of choices. So too for our NITA webcasts.

  • We run live webcasts. Monthly.
  • They are audio-visual.  You watch the speaker deliver, or be interviewed – on camera in real time.
  • You also watch our speaker’s slides at the same time as you see her gesturing, smiling, exclaiming, or showing you the point.
  • Our topics are small slices of trial advocacy. They sit alongside – but are different from – the advocacy skills you practice in our in-person programs.
  • Our speakers are masters of their topic.  You will see some NITA faculty plus guest speakers who know well the thin-slice of the advocacy topic at hand.
  • And you can ask the speaker questions in real time.

If you miss a live webcast, you will find it recorded (free these days) and ready for you to view online, on demand, just as it was broadcast live. (Sorry you can’t ask the speaker questions unless you go live.)

These are not elementary or orienting types of teaching. Like all NITA offerings, we create them as another way to learn.  Some examples? You can focus for the hour on a detailed lecture and practitioner’s advice about Rule 30(b)(6) depositions, presented by the authors of our NITA’s master book on the subject – The Effective Deposition.  You can engage in a field of expertise through our studio interview of one of the nation’s foremost forensic psychiatrists, thinking through your work with such experts in consulting and trial settings.

Whatever topic you choose from our menu of prior NITA webcasts, you will engage specifically, deeply, and clearly.

Oh yes, we do end each NITA webcast with a reminder of how our live programs help you.  In our live programs, YOU are doing the speaking, gesturing, smiling, and showing as if to the judge or jury.  Guided, critiqued, taught, reinforced. You grow.

Don’t let this knowledge escape your attention.

  • Live NITA webcasts? Watch your email or check the upcoming schedule online.
  • Miss a NITA webcasts that you would like?  View it on demand, recorded live, audio-visual, slides, and all.

Visit NITA’s studio71 library now.

Karen_ShortSig

 

 

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

NITA Movie Review: Husband and Wife,  D.A. and Defense Lawyer, Feminism and “The Unwritten Law”

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Written by guest blogger Judge McGahey

adamsRibDoris Attinger follows her husband Warren and catches him with another woman. She pulls a gun out of her purse and—with her eyes closed—blazes away.  Warren is hit in the shoulder, and Doris eventually is charged with attempted murder. Adam Bonner, an assistant D.A., is assigned to prosecute the case, and Adam’s wife Amanda decides to defend Doris.[1] That’s the basic outline of the 1949 MGM comedy, Adam’s Rib, a film that in several ways was way ahead of its time.

Spencer Tracy stars as Adam and Katherine Hepburn stars as Amanda, with the great Judy Holliday as Doris. George Cukor directed, and Ruth Gordon and Garson Kanin wrote the Oscar-nominated script. It’s regarded by many (including me) as the best of the six films Hepburn and Tracy made together.

One of the underlying issues in the case is the so-called “unwritten law” that supposedly allowed men who caught their wives with another man to use deadly force without any legal consequence.[2] Early on in the movie, Amanda and Adam have a spirited discussion about this “law,” with Amanda arguing forcefully that it should apply to women just the same as it would to men. Adam doesn’t seem concerned about this; after all, Doris confessed! And when the case comes to trial, Adam chooses to treat the case as one that is essentially an open and shut case of attempted murder. Not so Amanda. Early on, in voir dire, she makes it clear to the jury that her defense of Doris will center around equality for women when placed in the same situations as men. And Amanda proceeds to try the case on exactly that point. (While I know this may sound a bit preachy and even dull, believe me, it isn’t at all. Just wait for the lady weightlifter.)

As the case progresses and Adam and Amanda begin to really spar in court, their marriage starts to suffer. As Adam packs to move out of their apartment, he gives an impassioned speech on how he thinks Amanda is disrespecting the law and what the law means and should mean.[3] (Mark Caldwell and I have used this scene as the final clip in some of our ethics presentations.) After that, Amanda and Adam’s slimy neighbor (David Wayne) makes a play for Amanda and Adam catches him at it. He pulls out a gun and points it at the couple, causing Amanda to burst out that “no one has a right to do that.” Watch what happens next. And if you’re at all worried about the outcome, don’t be. This is Hollywood, it’s 1949, and love and marriage triumph over all.

Amanda Bonner was something new to movies: an effective, skillful woman trial lawyer.  While women lawyers are hardly an oddity today, they certainly were in 1949. While we live in a world where more than half of all entering law students are women, that was not the world of Amanda and Adam Bonner. Amanda is a prototypical feminist and one we can all admire, both as a person and as a lawyer. Bergman and Asimov said it best in their book, Reel Justice: “. . . Amanda Bonner remains the most positive female lawyer role model of all time.”

Of course, there’s one more interesting subtext here. As you may know, Tracy and Hepburn were real-life lovers for nearly thirty years, but kept their relationship a secret. Even though Tracy was estranged from his wife as far back as the ’30s, he wouldn’t divorce her because they were both Roman Catholics. Tracy and Hepburn were as devoted to each other as a couple could be—but they tried to keep their love private, so private that Hepburn didn’t even go to Tracy’s funeral. But as you watch them on screen, you’ll easily see that in their scenes as a couple in love, they weren’t acting.

I hope you’ll search out Adam’s Rib and watch it. Some of it will seem dated, but some of it is as on point as anything released this year. And you have Tracy and Hepburn, which is pretty much all you need for a really great movie!

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[1] Yes, it’s a conflict of interest. But it’s a movie!

[2] While this idea may seem quaint, or even ludicrous, to modern sensibilities, it was actually codified by statue in Texas, New Mexico, and Utah in times past.

[3] Remember that Tracy makes an impassioned speech on what the law means at the climax of Judgment at Nuremberg.

NITA Movie Review: LIGHTS! CAMERA! DIVORCE?

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Written by guest blogger Judge McGahey

Because February is Oscar month and because I’m back in a domestic courtroom, this month’s review will spotlight three Oscar-winning films that feature family court- type situations. (It does not include Kramer v. Kramer.  I still have to decide if I want to review that one.)

thePhiladelphiaStoryWe’ll start with The Philadelphia Story, from 1940. It’s perhaps the apex of a sort of subgenre popular in the ’30s and ’40s that revolved around the idea of remarriage as a springboard for romance.[1] Directed by George Cukor, this movie has a cast that truly deserves the label “all-star”:  Cary Grant, Katherine Hepburn, James Stewart, and Ruth Hussey. The movie revolves around Tracy Lord (Hepburn), a divorced woman getting ready to remarry.  Her former husband, C.K. Dexter Haven (Grant), shows up, planning to stop the wedding; he’s helped by Tracy’s mother and younger sister. James Stewart and Hussey play reporters from a People-type magazine, who (though something akin to blackmail) are permitted to write a story about the upcoming wedding. As one might expect, much confusion and comedy ensue.  (And believe me, this is a way oversimplified summary of the plot!)

The Philadelphia Story is highly acclaimed, with reason.  It’s number 44 on AFI’s 100 Years One Hundred Movies list and in 1995 was added to the National Film Registry of the Library of Congress. The movie was nominated for six Oscars, including Best Picture, Best Actress, and Best Director. It won two: James Stewart for Best Actor[2] and Donald Ogden Stewart (no relation) for Best Screenplay. I really can’t recommend this movie enough: it’s a wonderful example of what happens when great actors have great lines to deliver and a great director to guide them.[3]

paperMoonThe struggles of single parenting (multiplied by about a million) are at heart of Paper Moon (1973.) It stars Ryan O’Neal and his real-life daughter, Tatum O’Neal, as itinerant con artists selling Bibles to bereaved widows in rural Kansas during the Depression. Tatum O’Neal won the Oscar for Best Actress at the age of ten, thus becoming the youngest actor ever to win a competitive Oscar. Peter Bogdanovich directed.

Ryan O’Neal plays Moses Pray, who at the beginning of the film is working his scam alone.  He meets Addie at her mother’s funeral and discovers that Addie might be his daughter.  Moses, somewhat against his will, agrees to deliver Addie to her aunt. On the way, they meet up with a scatterbrained hooker played by Madeleine Kahn and a bootlegger and his nasty brother, who just happens to be a sheriff, both played by John Hillerman of Magnum, P.I. fame. Watching Moses and Addie interact—and bond—is what the movie is all about.  The ending will warm your heart—and make you laugh out loud.

mrsDoubtfireThe last movie we’ll consider won only one Oscar, for Best Makeup. But although it’s a comedy, it highlights the agonies that often surround custody and visitation—or as many states (including mine) now call them, allocation of parental responsibilities and parenting time.

The movie is 1993’s Mrs. Doubtfire, starring the recently lost and much-lamented Robin Williams as Daniel Hilliard, an irresponsible actor whose ex-wife is initially given custody because at the time of the divorce he has neither a job nor a home. Daniel is  so desperate to spend more time with his children that he disguises himself as an elderly Scotswoman and becomes his children’s nanny and confidant, without his children or his ex-wife (Sally Field) figuring out the deception, at least initially.  As he interacts with his children as Mrs. Doubtfire, he grows as a person and as a father and his children learn how to handle their parents’ divorce. He also becomes his ex’s best friend and confidant. Of course, Daniel’s disguise is eventually discovered and the judge, bothered by Daniel’s actions (what a surprise!), gives him only supervised parenting time. If you haven’t seen the movie, I won’t spoil the ending.  Rest assured, however, that it’s happy—and even a little uplifting.

Hope everyone enjoyed this year’s Oscars and that your favorite film/actor/actress/song came out a winner!

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[1] I won’t list any others here; I can use those movies as the theme for another review!

[2] Stewart always felt this Oscar was a “make-good” for his not winning in 1939 for Mr. Smith Goes to Washington. When you look at the other 1940 nominees, he may have had a point.  They included Henry Fonda for The Grapes of Wrath, Charlie Chaplin for The Great Dictator, and Raymond Massey for Abe Lincoln in Illinois. Stewart said he voted for Fonda. I would have, too.

[3] One caveat: there’s a scene at the very beginning of this movie that we would now recognize as domestic violence. Even though we understand that now, I’m pretty sure that the vast majority of the audience didn’t see it that way in 1940.

February 2015 Executive Director’s Letter: Watch Us in 2015!

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Lockwood_KarenI emerge from the annual meeting of NITA’s Program Directors to write to you. What a show!

You see, NITA’s founders emerged from that first meeting over 40 years ago and started being program directors. They created the special ways that NITA teaches skills. They developed it over years of programs, working together to constantly verify, refine, and supplement their NITA-unique methods and content. NITA thus earned its legacy of collaboration. It has owned the fruits of that early collaboration ever since, with strong allegiance to our mission.

NITA is larger now, yes. Yet that legacy is as clear to us as ever.

Indeed, we carry forward that same warmth, excitement, and collaboration, vigilant to refine, and expand our method, and support our legacy’s growth. Thanks to this unique collaboration and trust among NITA program directors, NITA’s excellence in teaching trial advocacy skills is unlike anything you will find elsewhere.

This year, the program directors’ meeting focused on how we best bring the benefit of over 40 years of designing our NITA method of teaching to lawyers who may not know our breadth. We focused on how live advocacy takes its shape in courtrooms and meeting rooms across the country. We focused on how learning takes effect through live in-person programs. We shared insights on how the learner can profit from other learning tools presented online. And we talked in detail about the needs of various law practice specialties when their lawyers stand up to take on live advocacy.

Thank you to the program directors. Your warmth with each other is palpable — true to the trial lawyer‘s style of ideas, counter-ideas, stories, suggestions and counter-suggestions . Your focus on NITA’s unique station in the loose landscape of lawyer training is laser-sharp, true and “NITA-blue.”

We will continue to take our warmth, our spirit of collaboration and critique, and our support out to lawyers across the country. Lawyers who want to freshen, hone, or start learning stand-up live advocacy skills. We will find lawyers who may not even know how much they will learn with us. 2015 will be another very important year.

Saluting you,

Karen_ShortSig

 

 

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

Professor’s Notes: Potential Jury Biases in Civil Litigation

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vidmar_neilwritten by guest blogger Neil Vidmar, Ph.D. (social psychology) , Russell M. Robinson II Professor of Law, Duke Law School and Professor of Psychology, Duke University

The fact that prospective jurors may hold biases against the plaintiff or defendant, or both, is of no surprise to experienced trial lawyers. However, one problem is to recognize the potential multi-factor nature of juror bias and consider it not only in jury selection but also throughout the trial. Equally important is the need, in some cases, to provide evidence to persuade the judge to take remedial steps to ensure a fair jury, sometimes through a change of venue but , alternatively through the process of jury selection, jury instructions throughout trial, and/or planning strategy as to how evidence should be presented. In this brief essay, I outline some insights from the perspective of a social psychologist with approximately four decades of research and testimony in civil and criminal cases, not only in the United States but also in Canada, England, Australia, and New Zealand.

It is useful to consider four general categories of juror bias. The first is Interest Prejudice, also called “manifest” prejudice. Such biases arise from the prospective juror having a direct or indirect interest in the outcome of the trial. Obvious examples are a juror having a social or financial relationship with one of the parties to the litigation. In one case against a North Carolina utility company, focus groups revealed that many people in the community expressed concern about a rise in their electricity rates if the plaintiff prevailed. The second bias, Specific Prejudice, involves juror attitudes arising from factual information or rumors bearing on one or both of the parties—or trial witnesses. Such prejudice may arise not only from mass-media coverage but also from informal gossip, often erroneous, generated among members of the community. Generic Prejudice, the third bias, involves the transferring of pre-existing attitudes, beliefs, or stereotypes with respect to the parties or witnesses involved in the trial. Such examples might involve alleged or actual drug use, homosexuality, parental irresponsibility, corporate irresponsibility/greed, race, and ethnicity. In one case, a substantial number of prospective jurors reported that they were offended by aggressive television advertising by the plaintiff’s law firm and therefore from the outset would tend to favor the defendant. Finally, Conformity Prejudice exists when a juror perceives that there is such strong community reaction in favor of a trial outcome that he might tilt in that direction, despite personal feelings that are neutral. In the North Carolina power company case referenced above, survey research indicated that despite professing personal neutrality, substantial numbers of potential jurors indicated that they might feel pressure from friends and neighbors to tilt toward the defendant rather than the plaintiff.

It goes without saying that multiple sources of potential prejudice may exist in a particular trial, but these problems have been made more problematic in the age of the Internet. In both criminal and civil cases, there are numerous examples of jurors researching facts about the case on the Internet. This contamination may occur following a jury summons, after jury selection has begun, or during trial. Research has shown that although jurors may be reluctant to undertake jury duty, once they become involved in the trial they increase their interest; also, some jurors are tempted to seek out additional information on the Internet, despite judicial admonitions to refrain from such activity.

Systematic empirical research can often identify and document these sources of potential bias. Indeed, such evidence is often necessary in order to convince the trial judge to provide a remedy, whether it is extended voir dire, change of venue, or some other remedy. In previous cases, I have provided the court with testimony and documents involving systematic analyses of news media coverage, including not just the number and length of articles but also their content. This coverage might include not only newspaper reports but also television, radio, and Internet chatter. Frequently, it is important to have data from one of more alternative venues for comparison. It is advisable to conduct a systematic survey—usually by telephone—of a random number of households in the community and in alternative venues. Moreover, these surveys should include some open-end questions in which respondents are recorded verbatim ( as opposed to multiple-choice answers ). However, in some cases surveys have not followed accepted standards of survey design and were subject to serious criticism when the expert testified in court.

While most of the time my own surveys and testimony in civil cases have been on behalf of defendants, in one recent case civil case I testified for the plaintiff—actually, a state attorney general—that the design of the defendant’s survey violated elementary research guidelines and was badly biased toward producing a favorable result for the defendant. I should also note that in another case involving construction claims against a university, my survey on behalf of the defendant showed that the original venue chosen by the plaintiff was potentially more favorable than alternative venues originally favored by the defense litigation team. (Both the defense lawyers and I had originally underestimated “town versus gown” hostility.)

Some illustrative writings bearing on these matters are as follows: Vidmar, N. Case Studies of Pre-and Mid-trial Prejudice in Criminal and Civil Litigation. 26 Law and Human Behavior, 73 (2002); Vidmar, N., Media Impact on Trial by Jury, in Andrew Taslitz, ed., A Criminal Practitioner’s Guide to Managing the Media in Client Representation, ABA Press, 2013; see also Vidmar, N. and Hans, V. P., AMERICAN JURIES: THE VERDICT, Prometheus Books ( 2007) at Chapter 4.
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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