The Legal Advocate

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Category Archives: NITA Notes

Requests for Public Service Applications

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Part of NITA’s mission is to provide high quality training to all attorneys so they become effective and ethical advocates. Notice the emphasis on “all” attorneys. NITA training isn’t just for Big Law, and it isn’t just for rainmakers. We are dedicated to working with public service attorney groups to provide them with the same training that takes place in our public and custom programs.

We realize it’s unlikely that most public service organization can fully fund this type of training, so we’ve developed a reduced pricing structure that’s flexible enough to meet the budgetary needs of your office. The majority of these programs are Trial Skills or Deposition Skills—but again, we can be flexible to better meet your training needs. To qualify for this type of training under the reduced fee structure, your organization must meet the following public interest programming criteria:

  1. Attorneys or advocates who serve indigent or disadvantaged populations, including, but not limited to, child advocacy, death penalty defense, disability, domestic violence, criminal law areas, immigration, legal services matters, and tribal justice; and
  2. Public agency attorneys working in these areas are eligible automatically.

Agencies and organizations wishing to apply for our reduced fee public service programming must meet the criteria above and provide some level of funding to train their attorneys. We welcome the opportunity to work within an organization’s funding parameters and require a specific agreement that ensures everyone understands their responsibilities for the financial and staffing resources to make for a successful program.

If you’re interested in applying for a public service program for your organization, please complete this application and submit it to We look forward to working with you.

Updates to NITA Foundation Website

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We are excited to share the new and improved updates to our Foundation website. Our hope is for our donors to visit and get a true sense of the NITA Foundation’s purpose and how they can support its efforts. This page outlines:

-Who We Are
-What We Do
-What You Can Support
-How You Can Support

From the About The Foundation page, we invite you to also visit the new Memorials and Tributes section. Here we recognize beloved NITA legends such as:

-Honorable Jim Carrigan
-Jo Ann Harris
-Jim Jeans
-Alston Jennings
-William “Bill” Keating

Each has been honored with a Memorial Fund or Scholarship, and we invite you make a contribution. If you wish to give to the NITA Foundation in memory or honor of the people recognized here or someone else, please click on the Donate Now button.

Public Service and International Program Efforts

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NITA is devoted to providing all lawyers with access to legal skills training. Our public service programs teach relevant advocacy skills to dedicated groups of attorneys and advocates working in areas including, but not limited to, child advocacy, death penalty defense, disability, domestic violence, elder law, immigration, legal services, and tribal justice.

The NITA Foundation’s International Rule of Law and Access to Justice Fund, along with dedicated funds from the NITA Board of Trustees, helps support our international programming efforts. The programs supported must be part of a national or regional purpose of promoting the rule of law or of promoting access to justice for persons denied such access.

If you haven’t visited our new section on our website announcing our public service and international program efforts, we invite you to now! We are proud to highlight our programming efforts in these two areas, along with the sponsoring organizations. This webpage also provides an overview of what we offer and gives agencies an opportunity to apply for programming. Please click here to view.

NITA Brings Back the Trial Skills for Legal Services Attorneys Course

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re-posted with permission from the Advocacy Teaching Blog

Enjoy a great write-up about the return of the NITA Legal Service Trial Skills Program from NITA faculty member, Chris Behan.

One of my favorite advocacy courses is NITA’s Trial Skills for Legal Services Attorneys Course. The course is taught at NITA headquarters in Colorado. NITA fully funded the tuition and course expenses for forty-eight attorneys from legal services agencies across the country. The attorneys (or their agencies) were responsible for their own transportation and lodging arrangements. The faculty all donate their time during the course. The latest iteration of this course took place in Boulder from August 11 to 14.


Because of funding limitations, NITA could not offer the course for the past four years. This year, however, the NITA Board of Trustees was able to fund the program. Pent-up demand for the course was so high that it completely filled within two days of opening. The Board funded a second offering of the course that will take place in September. I’m glad the Board brought this course back. NITA does a lot of good throughout the country, but it is at its best when it finds a way to help those attorneys who would not otherwise be able to afford the instruction.

There are three reasons this course is exceptional. First is Mark Caldwell, who is the most gifted trial course administrator I’ve ever worked with; any opportunity to work with him is a delight. Mark puts all of his heart and soul into planning these courses. Over the years, he has experimented with cutting-edge adult learning techniques in this course, knowing that he has a receptive audience and a willing faculty.

Second is the faculty team. Mark always assembles a gifted, eclectic, interesting, and fun group of faculty to teach this course. I learn something new about teaching and advocacy from my colleagues in every single session of this course. I’ve met some of my closest friends in the advocacy teaching world at this course. In fact, the genesis for this blog occurred during an informal lunch with a group of faculty members in Louisville, Colorado, several years ago. “Somebody should start a blog,” we all agreed, and a week later, Hugh Selby, Charlie Rose and I launched The Advocacy Teaching Blog.

Third, and most important, is the students. Simply put, it’s inspirational and humbling to work with them. They come to the course because they want to improve their ability to help others. Their work is often unheralded and often unappreciated, even by their clients, but they do battle every day in a system that is rigged to the disadvantage of their clients: the poor, the elderly, the disabled, and the infirm. During one of the plenary sessions in this year’s course, one of the students shared why she decided to practice law. She told how as a young girl, she was impressed by an attorney’s red Maserati and wads of cash. An instructor asked her what about her work made up for the Maserati and the cash, and she answered simply but powerfully: “I get to help people with their problems.”

From this course, there were a few lessons learned that I’d like to share.

Good Trial Advocacy Training Has a Normative Effect on Legal Systems. One of the things that has struck me in my work with Justice Advocacy Africa is the sense of mission, the idea that advocacy training should not only improve the individual participant’s skillset, but also help improve the system as a whole. In Botswana and Kenya, for example, it is not common for attorneys to give opening statements at trial. Attorneys and judges who’ve had advocacy skills training learn to appreciate the value of opening statements–even short opening statements in bench trials–and they start asking for permission to give them if they are advocates and expecting to hear them if they are judges. I was a bit surprised to hear that many American judges in the jurisdictions in which our students practice actively discourage, or at the very least do not expect, opening statements. So I thought it was interesting to hear Mark Caldwell give the same speech I heard Pepsi Thuto give in Botswana and Benjamin Njoroge give in Kenya about the transformational impact of opening statements on local practice. Mark encouraged the students to ask for the right to give opening statements, and even if permission was not granted, to at least briefly tell the judge what the case was about before calling the first witness. Mark told a great story about how a recent NITA short-course graduate persuaded a judge that opening statements were a good idea, even in child neglect cases. The attorney stood up in court and gave a very brief, thematic statement: “Your honor, this is a case about a mother’s love. A mother’s love for alcohol and drugs.”

Trial-Ready Advocates Get Better Deals for Their Clients. Nancy Hathaway, a fellow faculty member in this course, is a supervising attorney in Massachusetts, specializing in the juvenile court system. With her permission, I share something she sent to the other faculty members at the conclusion of this course:

So, I’m in supervision training in my office — the public defender’s office in Boston — and the topic is in-service, routine trial skills training. In answer to the question, “Why focus on trial skills?”, the training director said, “Because I know I have had clients who, despite being told that the decision whether to plea or try a case is theirs alone, despite having a viable defense, have pled guilty because they could see the fear in my eyes.”

I found that incredibly moving. When we build lawyers’ confidence in their ability to try a case, they convey that confidence to their clients. It gives their clients more options. That is an issue of equal justice for poor clients.

Thought you all would appreciate.

It can’t be said any better than that.

Repetition Works. Mark has been experimenting with allotted performance times in his courses, and one of his recent innovations is building sufficient time in each performance block for repeat performances. In nearly every session of this course, there was enough time for each student to perform twice. Often, the second performance would come after critique and video review. Sometimes, the repeat performance would occur with different instructors from the ones who gave the original critique. This is in contrast to the typical advocacy course in which the student performs, receives a critique, but then does not perform that skill again during the course. I would highly recommend finding a way for repeat performances. Perhaps Mark will write more on this for us in the future, but what I observed is that the quality of student performances improved dramatically, not only for each individual skill, but in the aggregate, throughout the week. I believe that the opportunity to correct a performance and apply the critique points and advice within a short time after the original performance helps improve the learning process considerably.

Flipping the Classroom Creates Additional Performance Time. For this course, most of the substantive instruction came from professionally produced instruction videos that were posted to NITA’s Studio 71. The students were assigned to watch these before attending the course and were reminded every night of which videos to watch that would give them the substantive instruction necessary for the next day’s assignments. This frees time for live performances, critiques, video reviews, and repeat performances. It requires greater advance effort from the student, but the payoff is well worth the effort. The value of learning-by-doing programs, after all, comes not from the live lectures and faculty demonstrations, but rather from students practicing their skills in a live environment with expert critiques and commentary to help them improve.

If you get the chance to teach in or attend one of NITA’s public service courses, I highly recommend it.

September 2015 Executive Director’s Letter: Jurors Bring Implicit Biases With Them. Can They Be Fair?

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Lockwood_KarenI have questions about how to rethink empanelling juries in order to take account of new brain research. Over the last decade, brain research has established the immutable presence of “implicit bias” in every human brain on earth. Those biases influence our behaviors and judgments in ways that are unrecognizable to the person who owns the brain.

Without this research, we have used age-old techniques to empanel a jury. We question each juror about the ability to judge “fairly” (without bias). Yet a truthful answer to that commitment question is impossible as to implicit biases. By definition the juror does not recognize what biases are harbored in his brain.

Explicit bias in jurors is a topic well known to trial lawyers. We watch for it, and use peremptories. As to their invisible and real “attitudes,” we do what we can to discern what attitude they will likely have to our fact situation, our theory of the case, and our cast of players at trial. But what latitude do we have to address implicit bias? What latitude could we use if we had it?

We use little latitude for implicit bias. Typically we use our own presumptions about what observable characteristics and background to infer potential attitudes that a juror would bring to the case. What is the scope of the “observable” characteristics? It includes the most skeletal information about occupation, the observable individual characteristics such as color of skin, presumed ethnicity, and presented gender. And our own human brains (also necessarily incorporating our experiences as implicit biases) lack facts to use as we seek to make good and fair judgments about a juror.

Whether we have more latitude is untested, and unanswered.

Clearly this bears new thinking.

  • Can counsel use the voir dire process to discern implicit biases based on stereotypes of race, gender, national origin, LGBT differences, and more? How?
  • During trial, how can counsel recognize moments when implicit bias lurks, and use witness examination, and argument to negate the bad effects of implicit bias?

On the first question, lawyers and judges on our NITA Bias in the Courtroom panels this year have coalesced around one basic technique that is both procedurally possible, and potentially helpful if it has any effect at all. That technique is this: the judge can caution the jury, in the preliminary instructions before opening statements, to watch for and recognize their own assumptions and stereotypes in the course of listening to witness testimony. Beyond that, lawyers have to groom their own powers of perceiving the moments where implicit bias may exist, and find a way to alert the juror that such biases may influence his perceptions without his awareness.

On the second question, we are largely unpracticed at using voir dire to alert jurors to the inevitable existence of implicit bias. Further, alerting them in theory to the existence of implicit bias cannot be enough. The progress to be made is in developing techniques to ask for the jury’s commitment. To make use of the principle that when a person of good will recognizes that he is reacting from an implicit bias, he would more likely self-correct. Self-correction means that the implicit bias ends up not influencing his behavior.

I invite you to share your ideas on the following question: “In trials, when you know that implicit bias is likely to be cued, how can use opening, witness examination, closing, and instructions toward negating the power of implicit bias?”




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

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's 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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