Written by guest blogger Judge McGahey
It’s been said that trials are part of a truth-seeking process. And certainly those of us involved in trial advocacy like to think that the process works and that the truth comes out in the end. But every one of us is well aware that sometimes juries and judges reach decisions that we don’t understand or that we even know are flat-out wrong. When that happens, we may ask ourselves Pontius Pilate’s question: “What is truth?” For this month’s review, I’ve chosen a film that explores that question in ground-breaking ways, a film whose name has become synonomous with the difficulty of establishing the truth. The film is Rashomon (1950), simply one of the greatest movies ever made – and a movie that every trial lawyer must watch.
As Rashomon opens, a Woodcutter and a Priest are taking shelter from the rain. They are joined by a character called the Commoner. The Woodcutter and the Priest begin talking about the recent trial of a bandit where both testified as witnesses. The bandit (brilliantly portrayed by the great Toshiro Mifune) has been accused of accosting a samurai and his wife who are traveling through the woods and of killing the samurai and sexually assaulting the wife. In flashbacks, we first see and hear the bandit’s version of the story. Then we hear the wife’s story. Then we hear the samurai’s story, through the intervention of a medium. Each story has similar elements, but each story is radically different from the others, presenting a mystery as to which – if any — is true. And as we are wrestling with these three distinct and contradictory versions of the truth, we find out that the Woodcutter has yet a fourth version, which he chose not to tell at the trial because he didn’t want to get involved. The resolution of the film is a small message of hope in the face of such confusion and cynicism.
Rashomon was directed by, Akira Kurosawa, one of the greatest directors in the history of film. Kurosawa was a genuine genius and his brilliance is obvious throughout the movie in such things as the use of light, the pacing, the use of only three simple sets. Kurosawa had his actors and crew live together during filming. Despite their pleas, he refused to tell the actors which version of the events was “actually” the truth, since determining “actual” truth was not his point.
Rashomon was a breakthrough movie for Kurosawa, the first to bring him serious recognition outside of Japan. It unexpectedly won the Golden Lion (top prize) at the Venice Film Festival in 1951 and an honorary Oscar in 1952, before there was a category for Best Foreign Film. Over the years, it has become recognized as the classic that it is and has spawned numerous other films and television programs that are either homages or direct copies, including episodes of Star Trek: The Next Generation and Homicide: Life on the Street – and the truly awful The Outrage (1964), which stars Paul Newman as a Mexican bandit. The phrase “Rashomon effect” has entered the English language to describe the difficulty of ascertaining objective truth based on subjective evidence.
The “truth-seeking” aspect of Rashomon is one of the reasons that the film is a must for trial lawyers. But for those of us who work in the NITA world, it’s also important for what it says about the power of storytelling. In the past several years, there’s been an emphasis on storytelling and how it affects our presentation at trials. It’s a rare NITA program that doesn’t include some discussion of the importance and power of telling an effective story. Rashomon speaks to this aspect of trial advocacy, too, since it may be the greatest single example of how subjective stories, powerfully told, can influence what is perceived to be true.
Do not be deterred by the fact that Rashomon is subtitled. You’ll be immersed in its brilliance so quickly that that won’t matter a bit. And it’s a movie which rewards multiple viewings; I’ve probably watched it close to 50 times. As a trial lawyer and teacher of advocacy, every time I watch Rashomon, I’m struck by a line from the Commoner as he tries to comprehend what he’s been told: “Just think. Which of these stories do you believe?”
That’s what every trial lawyer is asking every jury to tell us – and is yet another reflection of the agony of Pilate’s question.
NITA urges all lawyers to deeply give in pro bono service, supporting the success of our justice system. Our system means less as fewer people gain access to it. We all know that:
NITA too invests in our own style of “pro bono.” We do not practice law, and so we don’t use the phrase “pro bono” for our work. We use the phrase “public service”. NITA strategizes endlessly to include in our training the lawyers who themselves earn very little for the sake of serving the indigent or legal services clients. We want also to reach more lawyers, to extend farther than our resources make possible.
Those lawyers need access to the finest advocacy training that can be found. To NITA.
And thus, NITA is known not only as the “premier provider of learning-by-doing for the legal profession.” It is also the provider that serves the public service part of our mission by reaching across the legal profession and including lawyers in financial need who serve clients who receive pro bono legal advice.
You and NITA. As you serve your own pro bono obligations, remember that we serve ours also, at our own cost. We cover as much as we can of the costs. But we need help. We seek partners for particular programs to help us fund them, and without that partner the program may not go forward. We seek donations for these reasons.
Think of us as the premier provider with the deepest heart. Think of us as you find bar groups and others who can partner with us to help us in our public service. Think of us as the training group that focuses hard on the entire profession.
Do pro bono. Do NITA. We match.
Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy
Unless you spent this past winter hibernating like a bear, you’ll remember Making a Murderer, the ten-part Netflix documentary that had everyone talking for months. Since 2008, the Bluhm Legal Clinic, Center on the Wrongful Convictions of Youth (CWCY) of the Northwestern Pritzker School of Law has represented Brendan Dassey, the young man whose coerced false confession was the subject of Episode 10. NITA Trustee Tom Geraghty’s colleagues in the Bluhm Legal Clinic, Steve Drizin and Laura Nirider, have played key roles in Brendan’s case for the past eight years. They entered the case after Brendan was convicted and have represented him on appeal in Wisconsin state courts and now in a habeas corpus proceeding in the federal district court in Milwaukee. Tom signed on as a member of the Dassey team and has had the privilege of working with Steve and Laura on Brendan’s behalf. Tom joins us today for a round of “Asked and Answered,” giving us an expert insider’s perspective on Brendan’s case.
How did the system fail Brendan Dassey?
Brendan was the unfortunate victim of one of the most egregious failures of defense counsel that I have ever seen. From the beginning of his case, his first lawyer, Leonard Kachinsky, actively worked against Brendan’s interests by publicly (and wrongly) proclaiming his guilt and by taking steps to coerce Brendan to falsely confess. Thus far, the system has failed Brendan by its unwillingness to recognize the prejudice that Brendan suffered as the result of the conduct of his first lawyer. I should also add that Brendan should never have been tried as an adult. His age and his intellectual disability should have been taken into account by prosecutors. If tried anywhere, Brendan should have been tried in juvenile court.
Will you please explain the Reid Technique and its role in Brendan’s conviction?
The Reid Technique, as understood (sometimes inaccurately) by many in law enforcement, permits and encourages police officers to use a variety of high-pressure tactics to get suspects to confess. Suspects are isolated from family, cabined in small interrogation rooms, repeatedly accused of committing the crime, told that the evidence against them is overwhelming (even if there is no such evidence), and then are offered two choices, both of which involve an admission of guilt but one which provides the suspect with a moral or legal excuse and the other which paints the suspect as a monster. Over time, these tactics may be effective at getting confessions from the guilty, but they also work to get confessions from the innocent. They should never be used against vulnerable suspects like Brendan, whose youth and cognitive disabilities made him an easy target. When used against such suspects, these can and do lead to false confessions. Basically, such suspects are more compliant and suggestive and are easily convinced to tell interrogators what they (the suspects) think that the police investigators want to hear. This is what happened to Brendan.
For example, in Brendan’s case, he was told that it would be “best” for him to confess and promised that the officers would “help” him, and not “leave him high and dry” if he confessed. Over and over again, he was falsely told by police investigators that they “already knew” that Brendan was guilty and that they could only “go to bat” for him with the District Attorney and others in law enforcement if he confessed.
Once a suspect makes an admission, interrogators are trained—even by Reid—to let the suspect tell the narrative of the crime. Reid recognizes that if interrogators feed the suspect the details of their investigation and the suspect adopts them in his or her confession, the confession is worthless as evidence. Over and over, Brendan’s interrogators fed him information about the crime (e.g., that the victim was shot in the head in the garage); that her cell phone, camera, and purse were found in the burn barrel; that Steven Avery went under the hood of the car, etc. This process is called “contamination.”
How did you become involved in the case?
My colleague, Steve Drizin, who is a nationally known expert on false confessions—especially false confessions involving youth—asked me to join his team after he was contacted by Wisconsin lawyers who were concerned that Brendan may have been wrongfully convicted and that he had received ineffective assistance of counsel. One could say that I came on as a “senior trial consultant” to help out with some of the direct and cross-examinations of witnesses during Brendan’s post-conviction hearing.
What systemic changes need to be made to prevent another Brendan Dassey situation from happening again?
Thanks in large measure to the work of Steve [Drizin] and Laura [Nirider], attention is being focused on the dangerous tactics used by the police who interrogated Brendan. Steve and Laura have been speaking around the country about Brendan’s case, seeking to draw attention to the tragic consequences of coercive and improper interrogation techniques sometimes employed against vulnerable suspects. They have prepared a YouTube presentation on the Dassey case, which can be accessed here. I urge you to view this presentation. It is a game changer. I’m very proud of the work that our CWCY has done in this important area.
Any predictions on what lies ahead for Brendan?
Although I cannot predict what will happen, I am hopeful that we will soon receive a favorable decision from the judge presiding over Brendan’s federal habeas case in Milwaukee. The brief that Laura wrote in support of the habeas petition is one of the best briefs I have ever read.
What are your thoughts on how Making a Murderer generally portrayed the case?
I limit my comments to the portions of Making a Murderer that focus on Brendan’s case. In those segments, the filmmakers did an excellent job of bringing to light the injustice that was done to Brendan.
How and when did you begin your close association with NITA?
I was a student in the second national session (1973). I had the privilege of having Prentice Marshall as my instructor and of meeting many of those who were involved in NITA’s founding (Jim Carrigan, Bob Hanley, Ken Broun, Bob Keeton). My dear friend Patti Bobb (and former Chair of NITA’s Board of Trustees) was also a student in the 1973 session. The session was intensive and long. It was one of the best learning experiences I’ve ever had. In 1977, Ken Broun asked me to take the lead in organizing NITA’s Midwest regional session, which was held at Northwestern for twenty-five years until moving to Loyola University of Chicago. A few years back (actually more than a few years), I was asked to join NITA’s Board of Trustees. NITA is a very special organization, with its exemplary corps of volunteer faculty, program directors, and its dedicated and very talented and effective staff in Boulder. I’ve been honored to have been a part of it.
You’ll soon be stepping down from your position as Director of the Legal Clinic and Associate Dean for Clinical Education at Northwestern (announcement here), as well as dialing down your NITA Board of Trustees status from active to emeritus. What are you looking forward to doing with your new spare time?
I am not retiring from teaching or the practice of law. I am just scaling back my administrative responsibilities of leading the Clinical Program. I plan to fill the time with more teaching and writing. I’m also involved in a project to improve Cook County’s criminal justice system, an effort that will more than fill the time that I have been devoting to administration. One important aspect of this effort will be to encourage NITA, law firms, and our local government to devote more resources to the training of lawyers (prosecutors and defenders) who work in our criminal justice systems. This is where most cases are tried. NITA has been a leader in this effort.
In your many years of teaching and service, what’s the one thing you have strived to bring to the legal profession?
The practice of law is more than a business—to me, its central focus is (or should be) providing the best possible service to individual clients. This means developing ongoing and rewarding professional relationships with clients and colleagues that underscore the importance of the function that lawyers perform in our society. Not enough is said about this vital role of the profession.
There’s a reason people say that “hindsight is always 20/20.” Looking back over your career, if you could go back and give yourself one piece of advice when you were just starting out, what would it be?
Looking back, I’ve benefitted immensely from collaborations with outstanding lawyers (within NITA and elsewhere). An example of this is the association that I’ve had and continue to have with my colleagues at Northwestern, with clinical teachers around the country and around the world, and, especially with my old friends and outstanding teachers who were so helpful with the Midwest Regional session of NITA. Perhaps the bottom line is, find good people to work with and value those relationships.
Why do you teach?
I love it. Education is the best long-term investment.
What country would you most like to visit and why?
I have special affection for Ethiopia, where I’ve long worked with legal educators.
Who are your heroes?
Jimmy Carter. Pope Francis. Minnie Minoso.
Enjoy this interview? Find more of our “Asked and Answered” interview posts with NITA personalities here on The Legal Advocate.
Earlier this year, NITA sent two trainers and crates of textbooks to the West African nation of Liberia to lend its support of an advocacy program organized by Lawyers Without Borders (LWOB). A group of attendees, comprised of prosecutors, defense lawyers, judges, and police officers, attended the five-day program, held January 11–15 in the capital city of Monrovia.
The program was designed to sharpen the trial and other human trafficking related skills of attendees. NITA trainers Daniel Foster and Judge Angel Kelley Brown were among the senior trainers leading exercises modeled after NITA’s “learning by doing” methodology. Because Liberia’s legal system is rooted in the American common law tradition, there is considerable crossover in what judges, lawyers, and police in both countries do and how they do it. “I truly believe—and plenty of Liberian judges and lawyers have echoed my sentiments—that this kind of program helps to promote the rule of law in Liberia and considerably strengthens the justice sector,” said Foster. “This program is a great example of how the long term sustained support that the LWOB/NITA collaboration provides can considerably impact justice sectors in the developing world.”
These advocacy skills drills were interspersed with special modules on legal ethics and human trafficking, areas of particular concern for law enforcement and officers of the court in this emerging democracy. “[Liberians’] passion for the fight against human trafficking is inspiring. [They] equally appreciate the notion that the protection of individual rights begins with legal advocacy in the courtroom,” said NITA volunteer instructor Angel Kelley Brown. “There is a natural affinity and connection between the U.S. and Liberia, a country founded by freed slaves from America. I learned more from [our program attendees] than I could possibly teach them.”
NITA’s alliance with Lawyers Without Borders dates back to 2007 and is based on the organizations’ shared mission to support the rule of law in emerging democracies around the world.
written by NITA guest bloggers Tereza Horáková and Michael J. Dale
Over the last couple of decades, international commerce has experienced a dramatic boom. Such an environment quite naturally provides fertile ground for transnational litigation. For example, suppose that an American owner of a chain of sports bars visits the hidden gem of Central Europe, the Czech Republic. Stunned by the delicious taste of the local “liquid gold,” she enters into a long-term contract for shipments of Czech beer, with the intent to sell the beer in her sports bars. Regretfully, the Czech contractor, albeit experienced in the beer export trade, turns out to be an unreliable partner more interested in tasting his product than conducting business. After the American owner wires the agreed payment, the shipment of beer never arrives. The American sports bars owner decides to initiate litigation in the U.S. court against the contractor, who resides in the Czech Republic.
Leaving aside the questions of subject matter jurisdiction and personal jurisdiction, one of the first crucial issues she must resolve is the question of how to serve process on the foreign defendant outside the United States. The term service of process, of course, refers to the requirement to duly notify the defendant of the initiated litigation with a copy of the complaint (or its equivalent) filed by the plaintiff and a summons issued by the court clerk commanding the defendant’s appearance. In fact, proper service of process in compliance with constitutional and statutory requirements is a necessary prerequisite to establish jurisdiction. Only with proper service may the court be sure that the defendant has been made aware of the claims against it, and of the need to answer those charges in order to avoid entry of a default judgment. Accordingly, all plaintiffs must at one point or another deal with the issue of service of process.
A key question that this blog post discusses is, how do you do that? This post provides a basic overview of the most utilized methods of service of process on defendants outside the U.S. In turn, it analyzes the main issues related to each of the described methods in federal and state proceedings.
The rules governing service of process in federal proceedings are found in Rule 4(f) of the Federal Rules of Civil Procedure. By a cross-reference, the framework set out in Rule 4(f) applies to both natural persons and legal entities.
The primary method of service is by any internationally agreed means of service reasonably calculated to give notice, such as that authorized by the Hague Convention on the Service of Judicial and Extrajudicial Documents. In case there is no internationally agreed means, the process is to be served by a method that is reasonably calculated to give notice, such as in a manner prescribed by the law of the foreign country where the service is to be executed, or as directed by the respective foreign authority in response to a letter rogatory, or by personal delivery or by mail requiring a signed receipt, provided that such ways are not prohibited by the foreign country’s law. Lastly, Rule 4(f) allows any other means ordered by the U.S. courts which are not prohibited by international agreements.
Internationally Agreed Upon Means of Service
The internationally agreed means include two important multilateral treaties, the Hague Convention and the Inter-American Convention. As ratified international treaties, the Supremacy Clause grants them the status of the supreme law of the land. Whether the respective international treaty automatically preempts all other methods of service must be determined on a case-by-case basis based on the language of the treaty.
The Hague Convention
Possibly the most important platform for service abroad is the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter Hague Convention). Its popularity may be attributed to its efficiency, with 66 percent of the requests being executed within two months (hereinafter Outline). As of December 2015, there were sixty-nine signatories including the U.S. and the Czech Republic.
For the Hague Convention to be applicable, the document to be transmitted from one signatory state to another must relate to a civil or commercial matter and the address for the recipient of the service must be known. U.S. courts have interpreted the language in the Hague Convention as exclusive. Therefore, if all of the requirements are met the convention must be applied and preempts the use of all other methods of service.
The Hague Convention provides one main and several alternative channels of transmission of the documents to be served. The main channel is from the judicial officers of the requesting country (referred to as “state”) to the so-called Central Authority of the receiving country. All signatory countries must denominate a Central Authority that both receives and executes requests for service of process. To make a request, one must file the Hague Convention Form USM-94 available in any U.S. Marshals Service office together with two copies of the documents to be served (hereinafter Practice Note). The request can only be forwarded to the Central Authority (in the U.S., it is the Department of Justice) from what is described in the convention as a “competent authority.” In the U.S., the competent authority includes any court official or attorney. The service rendered by the Central Authority is generally free of charge, but some jurisdictions require a translation of the documents to be served.
The Hague Convention further furnishes several alternative channels of transmission, most importantly the international postal channels and direct service through an agent of the receiving state. There is a split in the U.S. courts as to whether the postal channels relate only to judicial documents such as motions or to service of process as well. Ultimately, one must be cautious to check the position of the circuit where the action is filed. Service through an agent means service through the judicial officers, officials, or other “competent persons” of the state of destination. The latter phrase has been construed as anyone who would be competent to serve process within the destination state under that state’s law.
Once the service is executed, the chosen agent is required to provide the party requesting the service with evidence of the service. The party must file the evidence with the court where the litigation is pending as a proof of extraterritorial service. The procedure for filing the proof is dependent on local rules of procedure and varies from state to state.
The other pivotal international treaty is the Inter-American Convention on Letters Rogatory and its Additional Protocol, adopted in 1975 in Panama (hereinafter Inter-American Convention). The Inter-American Convention constitutes an important supplemental means of service in countries of the Central and South Americas, which are mostly not a party to the Hague Convention. The Inter-American Convention constitutes a non-exclusive method of effecting service between its signatories.
Like the Hague Convention, the Inter-American Convention applies in proceedings in civil and commercial matters. However, the Inter-American Convention allows the signatories to extend its applicability to other areas as well. So far, only Chile has made use of this opportunity and broadened the scope to cover criminal and administrative cases.
With respect to channels of transmission, the Inter-American Convention is limited to letters rogatory—in other words, official requests from one state to another to assist with the administration of justice. All signatories must establish a Central Authority for receiving requests and executing the service. A party wishing to make a request for service must file Form USM-272 and 272A and the documents to be served, all in three copies. The party must obtain the seal and signature of the court clerk that issues the process, as well as the signature and stamp of the Central Authority of the country in which the court sits, which poses an extra financial burden. Furthermore, all documents to be served must be translated into the language of the destination country.
The Inter-American Convention has been subject to criticism. Some states have failed to designate Central Authorities at all, while others claim not to receive requests transmitted by the U.S. Central Authority. Moreover, the process is said to take up from six months up to a year—that is, when it actually works.
When there is no applicable international treaty or when the treaty is non-exclusive (such as the Inter-American Convention), service may be executed by any of the procedures under federal Rule 4(f)(2) and Rule 4(f)(3), provided they are reasonably calculated to give notice of the service.
Service in State Court Proceedings
In case the American owner of the sports bars decides to commence the action in a state court, the analysis is somewhat similar. The preemptive powers of international treaties apply to proceedings in the federal courts as well as state courts. If there is no applicable treaty, the respective state law where the action is filed governs. Naturally, the procedural rules regarding extraterritorial service widely vary from state to state.
For example, New York, California, and Florida laws allow process to be served outside of the state in the same manner as service is made within the state. In addition, New York law allows process to be served outside the state by either a New York resident who is authorized to serve process within New York or anyone authorized to serve process under the laws of the foreign country. California supplements the regular methods by service by first-class mail, postage prepaid, requiring a return receipt together with a presumption of delivery on the tenth day after such mailing.
For more detailed discussion of the methods of service of process outside the United States, further information may be found at the websites of the Department of State, Hague Convention, or the Practical Law Company Practice Note.
Tereza Horáková is a graduate of Charles University, Prague, Czech Republic, and a dual degree student at Nova Southeastern University College of Law where she is a research assistant to Professor Michael J. Dale. She can be reached at firstname.lastname@example.org.
Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at email@example.com.
 Legal Information Institute, Service of Process, https://www.law.cornell.edu/wex/service_of_process (last visited Feb. 12, 2016).
 Outline: Hague Service Convention, https://assets.hcch.net/docs/f4ccc07b-55ed-4ea7-8fb9-8a2b28549e1d.pdf (last visited Feb. 12, 2016).
 Status Table of the Contracting Parties, https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited Feb. 12, 2016).
 Practical Law Company, International Litigation: Serving Process outside the US, Practice Note, http://www.proskauer.com/files/News/5b04a3dd-34ab-40f4-a64f-3bc52468277a/Presentation/NewsAttachment/db2a546c-d01c-4ce3-815a-43df368f05c8/Proskauer_122011_Practical%20Law%20Company_Scullion_Berkowitz_McNew_International%20Litigation_Serving.pdf(last visited Feb. 12, 2016), at 8.
 USA Central Authority and Practical Information, https://www.hcch.net/en/states/authorities/details3/?aid=279 (last visited Feb. 12, 2016).
 Inter-American Convention on Letters Rogatory, General Information on the Treaty, http://www.oas.org/juridico/english/sigs/B-36.html (last visited Feb. 12, 2016).
 Service of process, https://travel.state.gov/content/travel/en/legal-considerations/judicial/service-of-process.html (last visited Feb. 12, 2016).