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August 2016 Executive Director’s Letter: Counsel will take notice…Trial Bar’s Next Gen

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“The Court . . . will particularly welcome . . .” —Grooming the Trial Bar’s NextGen

U.S. District Judge William Alsup issued this simple notice in Oracle America, Inc. v. Google, Inc., Dkt C 10-03561 N.D. Cal. (Nov. 6, 2015).

edAug1

 

Judge Alsup’s Notice speaks volumes in pointed terms:

  • The first sentence addresses the need. Disaggregated, its logic makes these points
    • Practitioners in court must have experience.
    • The next generation must learn by experience.
    • Their senior lawyers bear the obligation to train through experience.
    • Accomplished trial counsel must create in-court appearances by juniors.
    • The next generation needs opportunities from their very early years.
    • This applies even to lead counsel who may seem essential because of their renown (as can be inferred from the prominence of lead counsel in this case).
  • The second sentence addresses the hesitation:
    • Lest firms or lead counsel would avoid risk by turning (repeatedly) (only) to senior experience, comfort is offered: the Court will “particularly welcome” the junior lawyer to argue the motion.

Are you pondering this? Whether motions are the only place a court would welcome a junior who may fumble words or lack polish? Whether this case and this judge are unique? Whether lead counsel should wait for an order that puts out the welcome mat?

Don’t ponder. Lead.

Lead, with the secure knowledge that a firm lives by the promise of its future. A client invests its loyalty by the firm’s attention to its own future and to the experience built into lower billable rates.

Lead, knowing that the judiciary is taking us there and, really, it is not their job to make us do what we should do. See NextGen in Courtroom (seventeen federal district court judges have taken steps to remedy the problem; resolution pending for circuit-wide principle in Ninth Circuit to encourage orders and local rules on letting junior lawyer handle matters before the court).

I gained my own experience as lead counsel in my early years, yet I understand law firm pressures. As a partner for over twenty-three years in, respectively, a litigation boutique, a mid-size firm, and a global firm, I witnessed law firm economics transform. Thus, what I hope you will ponder is the structure and systems of the firm. We need to spread courtroom opportunities like fertilizer across the entire field of talent. Nearly every lawyer had wanted more experience in their earlier years, before they became young partners. It seems risky, yes, to ask seniors and stars to share when others will not be as polished. It is scary to bring in juniors knowing they may stumble or hesitate while forming their next sentence.

Don’t fear. Act.

Act, to provide opportunities that produce experience early and often. Start a series of discussions within your firm leading to mutual commitments to lead. In your own docket, find the opportunities for your juniors to star, and assign them. Coach the juniors. As they stand in court, sit by their side.
Act, to establish initiatives by your city and state bars so that even reluctant lead counsel will feel the ethic of sharing the courtroom—even if they yearn themselves for experiences once denied.

Act—at this precise juncture—by turning to NITA to help you get this done. When the judiciary rang the same bell forty-five years ago—a different time—NITA was founded for this precise mission. We do a great job. And we have adapted to the pressures of modern practice.

NITA is here for the lawyers who missed their big challenges eight or ten years ago. (It’s never too late.) NITA is here for the lawyers you need to groom for their first in-court challenge. NITA is here for beginners as well, and law students. NITA works for the more senior lawyers who have been out of court too long, or have a trial looming, or simply want to kick up their energy a notch.

How do you get lawyers ready for their in-court experience, at whatever level of the challenge? We partner with your firm’s own planning. We love serving you.

Karen_ShortSig

 

 

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

NITA’s Imprint on Midlevel and Newer Practitioners: The Only Thing Better than the Experience Is the People

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Jayme_3 (3)(1)written by NITA guest blogger, Jayme M. Cassidy

True talent is understanding that dedication towards improvement of advocacy skills is necessary at every stage of our career. The NITA Program encompasses talent ranging from the most seasoned faculty member to the neophyte law firm associate. Also, in the mix, you encounter the driven, focused, equidistant attorney seeking the platform to advance her or his career to the next level.

As part of my Next Generation experience, I was privileged to join the faculty at the National Trial Program. The faculty team included professors, judges, and practicing lawyers. At the conclusion of the nine-day demonstration and performance boot camp style program, I was curious. What was the participant take away? Did NITA actually have an impact? I engaged a few participants post program. Their thoughts are persuasive and humbling.

Adding Confidence to Commitment and Ability
Rebecca Mastel is a second year associate at Felser, P.C. in Denver. Rebecca was an engaging and insightful participant who gave great thought to her presentation. She came into the program with very specific goals. “My decision to attend NITA stemmed from the desire to assure both my supervising attorney and myself that I had the aptitude to competently chair a full trial from beginning to end.” In speaking directly about the training process Rebecca added, “The faculty at NITA did not pull punches – yes, there was encouragement, but not at the expense of specific, detailed advice. I got to practice or relearn half-forgotten trial practice skills that have been buried since mock trial in law school. The number one thing I learned at the NITA National Program was how to be a persuasive advocate when there is no backspace button.”

Bottom line, Rebecca felt that her goal was attained, “What I got out of NITA was the ability to both think and speak on my feet, under pressure, with confidence and organization…. and I can competently chair a trial.” “I cannot thank the faculty at NITA enough for everything they taught me.”

On behalf of all the faculty, Rebecca, thank you for your hard work and participation. You are going to be a super 1st chair!

Fine Tuning Talent Via Performance On an Innocuous Stage
Gregarious and poised, midlevel associate, Peter J. McCaffrey, of Franklin D. Azar & Associates worked diligently throughout the program to refine his advocacy and trial skills.

Peter recognized that NITA is beyond the ordinary course that attorneys take for CLE credits. He shared his view on enrolling in the program, “This was the first time that I felt really lucky to be in a program and learning from such great attorneys. The quality of teaching is what sets the program apart.”

NITA’s learning-by-doing teaching philosophy is designed to provide support from both faculty and participants. Peter’s thoughts on the method, “If I tried something in front of the group and it didn’t work it wasn’t the end of the world. I just tried something different next time. It helps you figure out how to think on your feet better.”

The courtroom is the attorney’s version of Carnegie Hall. Similar to the music masters who practice to perfect their performance on the Carnegie Hall stage, attorneys who attend NITA programs perform and demonstrate noticeable development daily. Peter’s astute personality observed, “I also think it is amazing how much everyone improved over the course of the week. I definitely saw some of my fellow group members take some huge strides.”

Pete, you also gave an encore worthy performance!

The Take Away
The combination of various skill levels, legal practice areas, and yes, personalities lends itself for a unique and dynamic experience when set within the framework of NITA’s learning-by-doing teaching philosophy.

One of our more intellectual participants, Britton Davis, an associate at Cooley LLP stated with decisiveness, “…the only thing better than the experience were the people.”

That’s a fabulous theme Britt and I could not agree more. Thank you to all the participants for allowing NITA to cultivate your talent!

Jayme Kennedy is a member of the NITA Class of 2016 Next Generation faculty. Read more about Jayme here.

July 2016 Executive Director’s Letter: What Can A Lawyer Do?

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Lockwood_KarenThe corners and boundaries of civilian violence are changing. I am going to talk about just one incident to illustrate.

Last night in Dallas, amid a peaceful demonstration against police shootings (largely by white officers), there was a sniper. He was African-American. He shot the police. He shot towards and at the largely black group marching for justice, and at an important voice against urban violence – Black Lives Matter. His shots hit their mark.

They cannot hit our freedom to assemble, or our non-violent demonstrations and marches. They must not. Nor can they hit the peaceful movement calling for just and appropriate police action. What is more, this unique Dallas event showed how good relationships among police officers and African Americans can look in urban centers. Police-Black Citizens strife was not at play in the demonstration itself. Yes, it was the topic. No, there was little of no such rivalry or aggression in Dallas demonstration. Quite the opposite, the officers dressed without riot gear, used and benefited from good credibility and relationships they have worked hard to develop, and worked as humans and professionals to maximize the peaceful (and effective) event.

So, the police officers are to pay? Of course not.

This cross-cutting of race, violence, protest, and freedom of speech exemplify a cauldron of actions based on automatic bias in our country. (You can think immediately of other examples in the political realm.) This event is unique. With that come an opportunity and a responsibility.

The opportunity is for us to use this moment to discuss bias and assumptions nationally. Indeed, shortly after the event and in the time since I wrote this blog, social media and new outlets have raised some of those issues. But we can hold the moment for longer than a news flash. We must combat the thinking that some groups in our diverse and heterogeneous society — a cultural trait which is our national treasure – are more privileged than others to hold sway, exert power, and predominate simply as a matter of privilege. No one group has a “propensity” to violence or a uniform viewpoint of what is right.

The responsibility accrues from our special status as members of the bar. The Dallas shootings situation deserves our reflection as lawyers. But we must act too, in our own cultures and communities. We swore to uphold our Constitution and to preserve and pursue justice. What inspiration for action do we gain from the Dallas events?

In the same vein, as a clergyman, Reverend Jeff Hood shared his insights that morning after. He was there in Dallas. In fact, he was one of the organizers of the day’s successful demonstration. At the front of the march, he was one of the first to hear the sniper’s shooting. He told NPR:

“Ultimately, I spent those three hours talking to people, asking the question, ‘Why? Why? Why is this happening?’ The only answer I know now, and the only answer I knew then, was turn to love, we’ve got to turn to love, we’ve got to stop shooting.” (Rev. Jeff Hood, Dallas, July 8, 2016, reported in CNN report 7-8-2016

As lawyers, and as citizens with that special knowledge and duty, what is it that lawyers are trained for, and good at, that our national society needs? You know how to answer. Share your answer with me and with each other

If clergy citizens can call for love and find ways to encourage it, lawyer citizens can call for what? How about personally acting locally and constantly to call for –

  • Interpersonal respect that fuels open discussions, listening skills, and cohesion necessary to draw out our differences tolerably (and long enough to think, rather than react with violence).
  • Self-awareness of hidden presumptions (starting with ourselves as examples).
  • Accountability for one’s beliefs and generalized judgments (in us as well as our candidates).
  • Real conversation among disparate groups (locally; just start conversing).
  • Teaching the Constitution, why it works, and how we risk sacrificing it (for all ages, and community-based).

These are things we lawyers are good at. Are we using those talents as opportunities?

Karen_ShortSig

 

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

An Overview of the 2015 Amendments to the Federal Rules of Civil Procedure

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written by NITA guest bloggers Tereza Horáková and Michael J. Dale

I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics.

This quote comes from the 2015 Year-End Report on the Federal Judiciary issued by the Chief Justice John G. Roberts. Chief Justice Roberts[1] was addressing the protracted, antagonistic, and wasteful discovery practices often present in today’s litigation. The eradication of such practices became the main focus of the Amendments to the Federal Rules of Civil Procedure that went into effect on December 1, 2015 (hereinafter the 2015 Amendments). The 2015 Amendments represent one of the most significant changes to the Federal Rules of Civil Procedure in years. In the words of Chief Justice Roberts himself, they provide a concrete opportunity for actually getting something done[2].

While the 2015 Amendments address several topics, the most important changes affect Rule 26 defining the scope of the discovery and, most notably, electronic discovery. This post provides an overview of the impact and meaning of the 2015 Amendments to Rule 26 and how it will affect everyday federal litigation practice.

Return of Proportionality
A potential game changer with respect to discovery practice is the re-introduction of proportionality. The 2015 Amendments restore six proportionality factors to their original place in Rule 26(b)(1) and point out that parties must consider proportionality in all aspects of discovery. In particular, the Rule 26 was amended, with deletions stricken through and additions underlined:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. [3]

Proportionality: Not a New Concept
The proportionality factors were first adopted in 1983 as an integral part of the scope of discovery provisions, with the objective to deal with the problem of overdiscovery and encourage judges to be more active in identifying and discouraging discovery overuse[4]. Ensuing amendments separated the proportionality language from the integral scope of discovery provision into a separate paragraph[5]. While the 1993 amendments made clear that the separation was intended merely for ease of reference and explicitly encouraged their active judicial use, the courts were nevertheless reluctant to limit the use of the discovery devices[6]. The amendments adopted in 2000 incorporated an otherwise redundant cross-reference and further urged the courts to apply the proportionality limitations, albeit to no avail[7].

It was the 2015 Amendments that finally brought a change. Before the 2015 Amendments, the proportionality factors appeared in subsection Rule 26(b)(2)(C), which governs court-ordered limitations on discovery and, therefore, operated as a limitation used in motions for a protective order[8]. The return of the proportionality factors to their original place in Rule 26(b)(1) makes them again an express component of the very definition of the permissible scope of discovery[9].

Underlying Reasons for the 2015 Amendments
The reasons for doing so are directly connected to the explosion of discoverable information. The technological progress of the last decades has created ample opportunities for abuse of discovery tools as instruments of delay or oppression[10]. With the advance of e-discovery, its cost apparently often exceeds its utility and the potential for abuse is ever more present[11]. As a consequence, one of the goals of integrating proportionality into the definition of discovery in the Federal Rules of Civil Procedure is to reduce its costs and remind both the courts and parties what should and should not be discoverable in any case[12].

The 2015 Amendments further advocate for active judicial involvement and supervision especially early in the case[13]. However, judicial activism is also advised later on in cases where parties cannot overcome on their own important differences leading to ineffective case management[14].

“The Point Is to Make Sure We Don’t Look Just at the Dollars”
The 2015 Amendments point out that monetary stakes are only one of the proportionality factors to be considered[15]. In fact, the courts should approach the factors in an evenhanded manner. Discovery requests addressed to an impecunious party do not automatically foreclose discovery, just as a party’s wealth does not justify limitless requests[16]. Similarly, important personal or public issues often connected to public policy such as discrimination or First Amendment cases must be taken into consideration even if they are involved in litigation over small or no amounts of money at all[17]. Moreover, the 2015 Amendments recognize that some cases involve an information asymmetry where a party seeking discovery of information may know little in comparison to the other party[18]. This asymmetry may justify one party bearing heavier discovery costs than the other.

Deleted Provisions
While the 2015 Amendments added some language, they also deleted three sections of the Rule 26(b)(1) for various reasons.

First, it is the enumerative list of discoverable matters [19] (“. . . existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter”). The Advisory Committee on Civil Rules has explained that the list is so deeply entrenched in practice that the language is simply redundant. Nevertheless, the list of discoverable matters remains the same regardless of eradication of the express language of Rule 26(b)(1)[20].

Second, the 2015 Amendments omit the provision authorizing the court, for good cause, to order discovery of any matter relevant to the subject matter involved in the action. As it turns out, the scope of discovery with respect to matter relevant to a claim or defense and matter relevant to the subject matter in fact overlaps and the latter was rarely employed[21].

Third, the 2015 Amendments modified a problematic phrase regarding relevant but inadmissible information that appears reasonably calculated to lead to the discovery of admissible evidence. The “reasonably calculated” test was sometimes incorrectly interpreted as a general scope of discovery tied to the probability of discovering admissible evidence which in effect eliminated all other limits[22]. The language is now replaced with a direct statement that information within the scope of discovery need not be admissible in evidence to be discoverable, such as hearsay testimony solicited during a deposition[23]. In this way, Rule 26(b)(1) makes clear that discovery of nonprivileged information not admissible in evidence remains available as long as it is otherwise within the scope of discovery[24].

Relaxation of the Early Discovery Moratorium
Another important change in the 2015 Amendments concerns the time for serving a request for production under Rule 26(d). Prior to the 2015 Amendments, a party could not usually serve any discovery requests before meeting for a conference under Rule 26(f), which typically happens months after a complaint is filed[25]. The 2015 Amendments allow requests for production to be served as soon as twenty-two days after service of process regardless of whether the Rule 26(f) conference already took place[26].

The aim of allowing early requests for production was to make Rule 26(f) conferences more productive. Specifically, negotiations at the conference may be more fruitful with the knowledge gained from each party’s initial set of requests for production, thus facilitating a more focused discussion[27]. On the other hand, it is arguable whether parties will seize this new opportunity because doing so would provide the opposing party more time to prepare objections[28]. Furthermore, the early requests may turn out to be inconsistent with agreements later concluded at the Rule 26(f) conference[29].

Effect on (Pending) Matters
Although it would be premature to jump to conclusions as to the impact of the 2015 Amendments, there are already some signs that courts have been making use of the amended Rule 26 and its proportionality principles. For example, in Henry v. Morgan’s Hotel Group, a court in the Southern District of New York declined to grant a Rule 45 subpoena because the discovery request for “all documents and communications” was determined to be overly broad and the requested information was not relevant to the disputed issues[30].

Similarly, in Gilead Sciences v. Merck in the Northern District of California, the court declined to grant additional discovery[31]. The court found that no reason had been provided to doubt the proof tendered by the plaintiff, and given the cost and potential delay, additional discovery on that topic was precisely the kind of disproportionate discovery that Rule 26 was intended to preclude[32].

Conclusion
While it is undeniable that the 2015 Amendment stirred up the litigation waters of federal court discovery, its true impact on practitioners and litigants and potential to reshape certain discovery practices remains to be seen. Finally, further information about the 2015 Amendments may be found in the entire amendments packet sent to Congress.

————————————————————————————————————————-

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 tereza@hotmail.cz.

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 dalem@nova.edu.

[1] John G. Roberts, 2015 Year-End Report on the Federal Judiciary 11 (2015).

[2] Id.

[3] Fed. R. Civ. P. 26(b)(1).

[4] See Fed. R. Civ. P. 26 Advisory Committee’s Notes to 2015 Amendment (hereinafter 2015 Notes).

[5] Id.

[6] Id.

[7] Id.

[8] Leeron Morad, Andrew Bramhall, Digging Through The New Federal Rules of Civil Procedure, Law360 (May 26, 2015), http://www.law360.com/articles/654798/digging-through-the-new-federal-rules-of-civil-procedure (hereinafter Law 360).

[9] Id. 17, 2015), http://www.metrocorpcounsel.com/articles/32726/just-follow-rules-frcp-amendments-could-be-e-discovery-game-changer.

[10] 2015 Notes.

[11] Jennifer A. Brennan, Hon. John M. Facciola, Hon. Mary M. Rowland, Just Follow the Rules! FRCP amendments could be e-discovery game changer, Metropolitan Corporate Counsel (Jul. 17, 2015), http://www.metrocorpcounsel.com/articles/32726/just-follow-rules-frcp-amendments-could-be-e-discovery-game-changer.

[12] Law 360.

[13] 2015 Notes.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Law 360.

[19] 2015 Notes.

[20] Id.

[21] Id.

[22] Id.

[23] Jennifer A. Brennan, Wendy Butler Curtis, FRCP Amendments: The Early Returns Courts Show Signs of Heeding the Call for Early and Active Management, Metropolitan Corporate Counsel (Mar. 3, 2016), http://www.metrocorpcounsel.com/articles/33591/frcp-amendments-early-returns-courts-show-signs-heeding-call-early-and-active-managem.

[24] Id.

[25] Law 360.

[26] Fed. R. Civ. P. 26(d).

[27] Law 360.

[28] Id.

[29] Id.

[30] Henry v. Morgan’s Hotel Grp., Inc., No. 15-CV-1789 (ER)(JLC), 2016 WL 303114, at *2 (S.D.N.Y. Jan. 25, 2016).

[31] Gilead Scis., Inc. v. Merck & Co, Inc., No. 5:13-CV-04057-BLF, 2016 WL 146574 (N.D. Cal. Jan. 13, 2016).

[32] Id.

June 2016 Executive Director’s Letter

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Lockwood_Karen“Everybody has the power for greatness, because greatness is determined by service.” –MLK

Leading NITA these past three and a half years, is a privilege of a lifetime. Why?

Why leave a fine-tuned 30-year career for parts unknown? Why leave a rich professional and personal life in DC, friends, law partners, farm and urban condo, children; why? Every friend asked that, back then. My pithy answer: “I love NITA.”

This morning, I deviated from my ritual skimming of the day’s Washington Post feeds, snared by news of Jimmy Page’s testimony: “Stairway to Heaven” was not, it turns out, composed at Bron-Yr-Aur. (Good story.) I could not resist clicking on the story’s concert videos of “Stairway.” (Wow; still wow, after all these years.)

It is that deviation that launched this reflection on service, greatness, and NITA. You see, after “Stairway,” the video that automatically loaded showed me Michelle Obama and Oprah Winfrey on stage. Their wide-ranging conversation drew me in. Three days ago, at the United State of Women conference, before an audience of 5000 women and men, they paused to discuss service, fame and greatness.

Now I admonish you: Resist the urge to save time by reading news summaries. Instead, watch the whole video. That conversation is not about sound bites on “men” (swagilicious though they may be), or “women” (wise though they can be). That fabric of their conversation gives everyone reasons to reflect.

Bringing me to my theme today: I left behind a “life well-planned” to take on NITA’s top position for the reasons that Martin Luther King taught, and “Mrs. O” and “Ms. O” reflected upon: “Everybody has the power for greatness, because anybody can serve.” It is not about fame. Simply put, I at NITA want to make you Great.

NITA is about service. Using Dr. King’s syllogism, NITA is this:

  • Through inconvenience we learn commitment.
  • Through commitment we perfect our service.
  • Through service we become great.
  • Through greatness we improve justice.

To you who do not yet know NITA well, you need to. Lawyers who passionately believe in how our courts and hearing rooms achieve justice through due process must . . .must . . . join up with NITA. We are a force.

To you who teach NITA every year, you know why your commitment means so much to you personally. You are great, every one of you. The lawyers in your programs see you work magic, bringing your witness and argument skills to them, and teaching them that they too can learn to do that. The drugs of gratitude and on-the-spot change, which NITA teachers enjoy in every program, feed our teaching service. Teaching for NITA builds our individual sense of greatness, and secures our understanding of NITA’s fame.

Please call me — NITA’s doors are wide open to new faculty who are great trial lawyers. Mid-career, aspiring, or already famous, if you have teaching talent it belongs with us.

“Greatness is determined by service.” I am here to serve our mission. Our faculty passionately teaches for the same reason. Your soul to will sing at the difference you can make for justice as a member of our NITA network.

Karen_ShortSig

 
 
 

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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