Written by guest blogger Judge McGahey
Erin Brockovich was released in 2000 by Universal Pictures. Julia Roberts won a Best Actress Oscar for portraying the title character, a real-life, self-trained legal assistant who played a huge role in a landmark environmental case. It’s a movie that should remind all of us how much we need hard-working dedicated people to support what we do as trial lawyers and judges – and how sometimes what we need is for those folks to kick our keisters.
We first meet Erin as a plaintiff, suing a doctor with whom she was involved in a traffic accident. In spite of having a good case, her angry behavior in the courtroom leads to a loss; her lawyer Ed Masry (Albert Finney) intends to wash his hands of her. But then Erin appears in Ed’s office, tells him she has three kids and is out of work and that she has to hire her, since he lost her case. Somewhat surprisingly, Ed does exactly that, even though Erin has no legal background or experience.
Erin is assigned a case involving a couple who’s negotiating the sale of their home to Pacific Gas and Electric (PG&E). As she researches the file, Erin comes upon evidence that the property is contaminated with a carcinogenic chemical. Eventually, it comes to light that much of an entire town has been affected, along with hundreds of people. A class action suit is filed. Ed eventually decides that arbitration could produce a more rapid result for his clients, but such a tactic would require the agreement of most of the plaintiffs. After much more hard work by Erin, who wins the trust of the townspeople (and who also has to prod Ed to do what a lawyer should do), the arbitration is agreed to. Erin keeps digging and investigating and dramatic proof of knowledge of the scope of the problem by PG&E’s management is uncovered, leading to a court-ordered payment of $333 million dollar to the plaintiffs.
Erin Brockovich was a popular and successful film. In addition to Roberts’ Oscar win, the movie was nominated for Best Picture, Finney was nominated for Best Supporting Actor, there was a nomination for Best Screenplay, and director Steven Soderbergh was nominated for Best Director, an award he lost to himself, since he also directed Traffic that year. The real Erin Brockovich has a cameo in the movie — as a waitress named Julia.
Bill Demoulin was my mentor and then my partner. On the day I started with the firm, he made a point of telling me: “Never forget that a lawyer is only as good as his staff.” Being successful in court certainly requires skill and dedication and hard work on our part. But we should never forget that all that skill and dedication and hard work doesn’t mean anything if we don’t have people helping us with the same focus. The success we can deliver to our clients depends in large part on what happens long before we ever get to the courthouse. If you haven’t taken the time recently to thank your legal assistant, your secretary, your investigator, your receptionist, your file clerk, in fact, everybody in your office who makes you good at your job, do that tomorrow, if you don’t have time to do it today.
Now, you’re probably asking what happened to inspire me to write this review. Erin Brockovich is a movie about a focused person, dedicated to justice, who wants to see the right result happen and will do the hard work to make that happen. Maybe you guessed: Kelly Boe let us know she’s going to retire. As we all know, Kelly is an administrator without peer. She is both a team player and a leader. I have never seen her flustered, even when she had good reason to be. If something needs to get done, she gets it done. Her goal has always been that the Second Judicial District should be the model for every other district in the state and that everyone, from the oldest judge to the newest clerk, has the environment and the resources and the help they need to get their job done right. We will miss her immeasurably, but wish her all the best. And we will try not to envy her on that first morning when she wakes up and doesn’t have to come to work!
This month, NITA’s faculty will be talking about motions. Last week we heard from the Honorable Christina Habas. She gave us the advice on how to Offer Alternatives to the Court. Next, we heard from NITA faculty Andrew Schepard, the Max Schmertz Distinguished Professor of Law for Maurice A. Deane School of Law at Hofstra University. Professor Schepard discussed five guidelines for answering hard questions at oral argument on motions. Up now is Judge McGahey with with three simple rules to follow when filing motions. And still to come later this month are other NITA faculty and their best practices when filing motions in NITA’s April content series.
Since I’m a trial court judge, my focus in these blog posts will be on motions practice from that perspective. This post is about three simple rules that I outline at the beginning of my presentations on motions practice. These rules apply to both the written motions that you file and (if you’re lucky enough to get it) any oral argument on those motions.
Rule Number 1: The Ball Should Always Move Forward. I’ve never understood why so many lawyers want to spend so much time complaining about all the awful things their opponent has done in this case. Please don’t spend time whining about how mistreated you’ve been! Unless the issue involves very specific (and very egregious) conduct, complaining about it doesn’t help me make a decision. And it really doesn’t help me if the fight is about what one lawyer has done to another lawyer. This case is about your client; it’s not (as we were told as adolescents) about you. Tell me what I me what I need to fix and why; take your ego out of this, please.
Rule Number 2: Know Your Audience. I’ll be expanding on this in future posts, but here I’ll just remind you to have some idea who the judge is on your case. What’s her reputation for dealing with the kind of motion you’re filing? Does he more often rule on the pleadings or does he allow oral argument? If she or he allows argument, what’s likely to help you get that if you need it? How quickly can you expect a ruling? Will it be written or oral? Are you asking for something well-supported by case law or are you trying to make new law? Make sure you understand what the judge’s docket is like: crowded? mixed criminal and civil, or civil and domestic, or…..? If you practice in a jurisdiction where one judge handle the motions and another handles the trial, how does that affect you?
Rule Number 3: Don’t Be Afraid to Ask for Help. This flows out of Rule Number 2, and is particularly aimed at younger lawyers. Motions practice is frequently one of the ways we cut our lawyer teeth, both in the stuff we write and when we get to stand up in court and talk. There’s nothing wrong with asking someone with more experience for their advice. Certainly a partner who gave you an assignment is likely to have distinct ideas on what should happen; my partner and mentor, the late Bill DeMoulin, always told us: “The only dumb question you can ask is the question you ask too late.” But remember you can get help from other folks, too. Ask your legal assistant if what you’ve written makes sense, if it sounds snarky, if it comes off as high-handed. If your significant other or friends will tolerate it, practice your delivery with them. Those close to you know you better than anyone else and are more likely to catch distracting gestures or unpersuasive language. Once again, don’t let your ego overcome your common sense. As Jerry Facher (played by Robert Duvall) said in A Civil Action: “Now the single greatest liability a lawyer can have is pride. Pride… Pride has lost more cases than lousy evidence, idiot witnesses and a hanging judge all put together. There is absolutely no place in a courtroom for pride.”
I’ll see you in court…….
written by NITA guest bloggers Federica Turetta and Professor Michael J. Dale
Trials allow parties to persuade the judge or jurors by recounting their version of the historical facts. The National Institute for Trial Advocacy (NITA) describes this process as “storytelling.” However, in addition to persuasiveness, a story presented at trial obviously must consist of admissible evidence. This then requires the lawyer to present witnesses who can describe what happened in a way that avoids objection.
There are least two different ways to address a question on direct examination. A lawyer may frame a question in such a way as to elicit a very specific answer from the witness. Alternately, the lawyer can invite the witness to explain her story in her own words.
Usually, witness examination proceeds in question-and-answer format. This approach ensures that opposing counsel has the opportunity to present objections to the question before the answer is given. For this reason, a problem can arise when the lawyer asks the witness, generally, to tell the jurors what happened. The problem with this mode of interrogation—the narrative question—is that it calls for a narrative answer.
A narrative answer is one that continues at some length in the absence of question. A narrative question and answer create a serious problem for opposing counsel because the opposing counsel can object only after the jurors have heard all or part of the answer. In other words, opposing counsel cannot prepare an objection based on the question. It is something in the content of the answer that is objectionable.
Unfortunately, it is not easy to define the term narrative evidence. Indeed, neither the Federal Rules of Evidence nor state evidence codes provide any specific definition, leaving its meaning and admissibility to the discretion of the judge. The absence of any specific rule leads to another question. On what basis does the judge exercise discretion to sustain an objection to testimony as narrative? One knows that under Federal Rule of Evidence 611(a), the judge, in controlling the mode of interrogating the witness, must balance the probative value of the narrative evidence against the prejudice of exposing the jury to inadmissible evidence. The balancing and the control over the mode of examining witnesses and presenting evidence are essential to render those procedures effective in determining the truth. American case law has developed some common factors helpful in understanding how the judge exercises her discretion in balancing the evidence.
For example, the judge can decide whether the witness has demonstrated any propensity testify to about inadmissible matters. Another situation in which a judge might exercise discretion in allowing the introduction of narrative evidence is whether the use of such evidence affects the objecting party’s substantial right under the principle of undue prejudice. Thus, under Federal Rules of Evidence 403, the use of relevant evidence, regardless of whether it is in narrative form, is outweighed only by the danger of unfair prejudice. In the absence of this prejudice, the use of narrative evidence is per se harmless.
Another issue involving the introduction of narrative evidence arises when its use does not produce a factual outcome different from what it otherwise would have been had the evidence come in through question-and-answer format. In other words, both the introduction of evidence in question-and-answer format and in a narrative format would have led to the same result. To reach this conclusion, the judge has to evaluate the weight of all the other evidence to determine whether the party offering the evidence objected to on narrative grounds would have been in the same position without introducing the narrative evidence.
There are, however, theories that underlie the positive aspects of the narrative evidence. Indeed, in United States v. Pless, the court found that “[t]here is . . . nothing particularly unusual, or incorrect, in a procedure of letting a witness relate pertinent information in a narrative form as long as it stays within the bounds of pertinency and materiality.”
In addition, as the reported case law demonstrates, in the absence of any specific rule of evidence, it is within the sole discretion of the trial judge to control the form of examination of witnesses. Thus, it is in the judge’s discretion to determine whether a witness will be required to testify by a specific question and answer or in narrative format, and the judge’s decision is reviewable only for abuse of discretion.
Therefore, the only way to avoid the introduction of narrative evidence is through the prompt use of an objection. Opposing counsel must then make a motion to strike the objectionable portion of the narrative answer and ask that the jurors be admonished to disregard it. As NITA teaches, the purpose of objecting is to prevent the introduction or contemplation of inadmissible information at the time the information is provided. The objection, obviously, must be timely. The party objecting to narrative testimony can neither obtain retroactive benefit from a subsequent objection nor broaden the scope of such objection.
Sometimes, the objection to narrative evidence has the effect of misleading the questioning party into believing that the evidence is inadmissible in its entirety. The use of a series of successful objections could lead the examining party to give up on the question and the area of inquiry. This is because every time an objection to a question calling for a narrative response is sustained, the objecting party has convinced the court and the examining lawyer that he otherwise will be deprived of the right to object until it is too late. Although it should not, this atmosphere in the courtroom can consequently lead the party examining lawyer to fail to establish a critical line of testimony. The response of the examining lawyer should be to return to the question-and-answer format of eliciting testimony.
Another situation in which judges usually overrule the objection to a question calling for a narrative answer is when the evidence and means of interrogation of a witness have already been submitted to the opposing party. Under Rule 75(c) of the Federal Rules of Civil Procedure, a party can request the use of evidence in narrative form, providing at the same time, copies of the testimony to the other party. When the party asking for the introduction of evidence in narrative form complies with the requirement of Rule 75(c), the opposing party is still allowed thirty days to object to the testimony or propose amendments that can be in either narrative or question-and-answer form. Any objection or amendments must be submitted to the judge for approval. Consequently, the failure to comply with the prescribed time period bars the opposing party from later raising objection regarding the testimony in narrative form.
However, probably the leading factor that may influence the judge’s decision in employing discretion in allowing narrative evidence is whether the case is being tried to a jury. The only reality that counts in a case tried in front of a jury is the jury’s reality. “The jury perception of reality is the reality.” Therefore, all the communication inside the courtroom must be juror centered. A good story, well told, can make a difference between winning or losing a case. Jurors listen, remember, and are molded by it, fitting the evidence into the story that makes the most sense to them. Consequently, it is fundamental to plan and execute the introduction of evidence from the jury’s point of view. If the subject is not persuasive for the jury, it is not worth pursuing at all. Evidence in narrative form, if it is to be used, must be both admissible and persuasive. The effect of inadmissible evidence on the jury is greater than on a judge. A judge, by definition, is impartial. Therefore, he should be better able to handle the introduction of inadmissible evidence. The same cannot be said for jurors, who may make decisions based in part upon narrative evidence they heard but which was stricken after the fact pursuant to an objection. The goal of every lawyer is to get sufficient autonomy from the judge on the content of the examination for it to be persuasive to the jurors. This may or may not a lead to the use of narrative evidence.
For all these reasons, judges exercise substantial discretion in the admissibility of narrative evidence when a case is tried in front of a jury. The effect on the jurors may be catastrophic because a narrative answer heard first by jurors may not give opposing counsel a reasonable opportunity to make a timely and effective objection.
Finally, a brief comment may be helpful when the testimony is by an expert witness. Federal Rule of Evidence 702 permits an expert to testify in the form of an opinion when scientific, technical, or other specialized knowledge will be helpful to understand or to determine a fact in issue. As the Rule provides, a witness can be qualified as an expert when he has greater knowledge, skill, experience, training, or education than an average person. His qualifications, opinions, and the bases for those opinions should be informative evidence for the jurors to understand unfamiliar terms and concepts. It is sometimes impossible, or at least very difficult, to conduct the examination in the question-and-answer format. The technical nature of the issue involved may require the expert to testify in a narrative form in order to render the information understandable to an average person and perhaps to a judge. In a situation like this, however, an objection can be raised when the expert witness, instead of relying on relevant special skills, is merely trying to introduce evidence that would not be otherwise admissible. Indeed, the testimony of an expert witness is still subject to the relevant test analysis under Federal Rule of Evidence 403.
In conclusion, there is no single factor or specific evidentiary rule to follow when dealing with the introduction of narrative evidence. Its admissibility is in the discretion of the judge. The best system to follow, then, is to object at the outset when one believes inadmissible evidence will come in through the narrative. If that is unsuccessful, one should object to each inadmissible portion of the narrative and move to have it stricken and the jurors admonished to disregard it.
Federica Turetta is a graduate of Roma Tre University, Rome, Italy, 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 is a member of the faculty at Nova Southeastern University Shepard Broad College of Law. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. He can be reached at email@example.com. Click here to read more articles co-authored by Professor Dale’s research assistants.
 Examination of Witnesses § 3:9, Westlaw (database updated May 2014).
 Justice Mark B. Simons, Other Objections to Form of Question—Calls for a Narrative Answer § 3:35, Westlaw (database updated Jan. 2017).
 John Wesley Hall, Jr., Trial Handbook for Arkansas Lawyers § 32:3, Westlaw (database updated Nov. 2016).
 Fed. R. Evid. 611(a).
 Significantly, here is no equivalent legal institution like case law precedent in most of the European systems. For example, in Italy, Rule 511 of the Code of Criminal Procedure (“c.p.p.”) regulates which evidence can be introduced through the reading of some of the materials already present in the Pre-Discovery Folder (“Fascicolo del Dibattimento”). The reading of the material in a narrative form is disposed under the discretion of the judge. However, the in person examination of the witness is always preferred. Furthermore, there as some limits to the narrative reading of some evidence; for example, the as is reading of some documents, like petitions or motions, can be used only to verify the legal basis to move forward with the process. Therefore, their content, in narrative form, cannot be used to reach a verdict. Rule 511 c.p.p., most of the time, must be read together with Rule 514 c.p.p. Rule 514 c.p.p. regulates, more specifically, which evidence, in narrative form, can be introduce in the process.
 Examination of Witnesses § 11:11, Westlaw (database updated Sept. 2016).
 United States v. Silva, 748 F.2d 263, 264 (5th Cir. 1984).
 Fed. R. Evid. 403.
 Silva, 748 F.2d at 264.
 Hall, supra note 4.
 People v. Dickman, 253 N.E.2d 546, 547 ̶ 48 (Ill. App. 1969); see also Goldsmith v. Newhouse, 72 P. 809, 810 (Colo. App. 1903).
 United States v. Pless, 982 F.2d 1118, 1123 (7th Cir. 1992).
 State v. Wren, 498 S.W.2d 806, 810 (Mo. App. 1973).
 Steven Lubet & J. C. Lore, Modern Trial Advocacy: Analysis & Practice 232 (National Institute of Trial Advocacy, 5th ed. 2015).
 James W. McElhaney, Trial Notebook 39, 534 (American Bar Association, 3rd ed. 1994).
 Fed. R. Civ. P. 75(c).
 Hall v. Gordon, 119 F.2d 463, 464 (D.C. Cir. 1941).
 Thomas A. Mauet, Trial Techniques 23 ̶ 24 (Wolters Kluwer, 8th ed. 2010).
 Fed. R. Evid. 702.
 See generally Charles H. Rose, Fundamental Trial Advocacy 240 ̶ 54 (2007).
 Fed. R. Evid. 403.
This month NITA’s faculty will be talking about motions. Last week we heard from the Honorable Christina Habas. She gave us the advice on how to Offer Alternatives to the Court. Today, NITA faculty Andrew Schepard, the Max Schmertz Distinguished Professor of Law for Maurice A. Deane School of Law at Hofstra University, will discuss five guidelines for answering hard questions at oral argument on motions. Next week, Judge McGahey is back with with three simple rules to follow when filing motions. And still to come later this month are other NITA faculty and their best practices when filing motions in NITA’s April content series.
You represent a father seeking damages for the wrongful death of his child. The wrongful death statute says that relatives of the deceased can recover for the pecuniary loss of a “person” that they are related to. The word “person” is not defined in the statute and it does not mention “child.”
Defendant moves to dismiss the complaint because the statute does not authorize recovery. At oral argument, the motions judge asks you a question:
“Counsel- The statute doesn’t mention “child”, only “person”. A person is an adult, not a minor. So, the statute does not authorize wrongful death recovery by a parent, correct?”
What is your goal in responding to this question? To those who like sports analogies, it can be thought of as a major-league pitcher’s strike out pitch. It seems to from a disagreement with your position. Its dares you to answer it. And what you want to do is hit it out of the park just like the best major league hitters do.
Your actual answer will, of course, depend on precedent and policy in your jurisdiction. Here, however, are some guidelines for the attitude and style of your answer presented at a recent NITA motions practice program. They are drawn from the writings of noted judges and authors on advocacy as well as my own experience.
Guideline #1 – Brainstorm questions and prepare answers in advance
There is simply no excuse for not anticipating the question and answer in advance of oral argument. Play the devil’s advocate in preparation. Attack your argument as you believe a skilled opponent would. Pull no punches. If you find weak spots, expect your opponent to find them too. Don’t ignore weaknesses — embrace them. It is far better to recognize a flaw in your argument when you still have an opportunity to fix it than on argument day in front of the judge.
So, preparation for oral argument means systematically answering questions like:
– Where are the hard issues?
– What hard hypotheticals are there?
– Where are the key disagreements between the parties?
– What practical considerations or public policies impact the weight of the arguments (that is, what real or hypothetical facts, if slightly altered, could influence the outcome)?
– What are the most likely counterarguments to your points?
– Are there points of compromise that might be suggested if the judge seems to be leaning the other way? Construct a variety of fallback positions and plan when you might introduce them.
Mooting oral arguments in advance with colleagues helps them help you answer questions like this.
Guideline #2 – Welcome the question.
Regard the question as an opportunity to educate the questioner on the “right” view of the case – yours. As Judge Paul H. Anderson former Associate Justice of the Minnesota Supreme Court said:
“Most good… advocates welcome difficult questions because they know this is how they can engage in a dialogue with the court…Every question from a judge should be regarded as a gift, even the most difficult question… you will use the information gleaned from the questions to make a persuasive argument. –
Do not regard questions from the court as annoying because they require you to depart from your prepared text. Also, do not treat them as lighted sticks of dynamite about to explode and injure you. Often the judge is trying to telegraph the point you need to convince her on. Accept the invitation and challenge the question presents with grace and style.
Guideline # 3 – Respond directly, concisely and without delay.
When the judge asks her question immediately end your prepared presentation. Stop whatever you are doing and answer the question directly – and simply.
• “Yes or “No” are the best possible answers.
• If you explain, do it after the “yes” or “no.”
• KISS- “Keep it simple, stupid”- meaning do not use a lot of big words and legalese in explaining your answer
• “I will get to that later” is not acceptable. Answer the question immediately. Nothing in your argument is more important than that answer.
• Praising the question (“That is a good question your honor) is potentially condescending. Just answer the question
• Do not try to change the subject or evade the question (e.g. with a long emotional statement beginning with “The father suffered great emotional harm because of his son’s death”…) – a damaging, but short, response with a cogent explanation is better than a long- winded, nonresponsive answer.
Guideline #4 – Concede minor points to enhance your credibility:
The ancient Greeks and Romans were wise in the ways of debate. As Bryan Gardner points out in the most recent edition of Garner’s Modern English Usage (4th ed. 2016) they developed tactics and rhetorical devices that can be adapted to oral argument.
For example, Garner suggests using the rhetorical tactic of “paromology”- the concession of minor points as a way of enhancing your credibility. After “no” begin your explanation with: “It is true, your honor, that the statute doesn’t specifically mention child. But it doesn’t need to: it says ‘person….” By beginning this way, you are not really conceding anything but you acknowledge that that you’ve heard what concerns the judge.
Guideline #5- Return to themes after answering.
Your job is not done after you hit the home run in response to the judge’s question. You still must circle the bases. Go back to your argument outline and continue. End strong.
This month NITA’s faculty will be talking about motions. Below, the Honorable Christina Habas gives us a look at motions from behind the bench and how you can help the court while next week Judge McGahey advises you with three simple rules to follow when filing motions. Next we will hear from NITA faculty Andrew Schepard, the Max Schmertz Distinguished Professor of Law for Maurice A. Deane School of Law at Hofstra University. Professor Schepard will discuss five guidelines for answering hard questions at oral argument on motions. Later, we will hear from other NITA faculty and their best practices when filing motions in NITA’s April content series.
Before I took the bench in 2004, it never occurred to me that motions practice was no more complicated than making a decision between two conflicting positions. Once I was tasked with resolving motions myself, I learned that the work of a trial judge involves a much more complicated and careful balancing act.
When presenting or opposing a motion, the wise practitioner will have empathy for the judge. It is a rare legal issue that clearly identifies only one winning position. Instead, the court must always meticulously consider several factors, and more often than not those factors directly conflict with one another.
Perhaps the most important of those factors is the mandate that courts are expected to resolve disputes on their merits; procedural shortcuts are generally frowned upon. Take the case of a violation of a court-ordered witness sequestration during a trial. What may seem an easy determination (you violate my order, I strike your witness) is not as simple as it appears. Instead, the court is required to balance the rights of all parties to a fair trial and their interests to fully litigate their dispute against what may be a technical violation of a court order. Simply excluding evidence – any evidence – takes away important information for the jury to consider, and may result in a reversal on appeal if the appellate court deems the punishment too harsh to fit the “crime.” The court must instead balance the higher consideration that disputes are resolved on their merits, and weigh that against the violation of the order. The moving lawyer may make a record that striking the witness is the best option to address the violation, but may provide the alternative of giving the jury an instruction that outlines the violation, and allowing the jury to take that into consideration in reaching their verdict.
Wise practitioners will consider offering a back-up remedy to the court hearing their motion. Make the argument for the most severe penalty to which you may be entitled, but then offer the court an alternative that may not present the same problems during appellate review. The court will appreciate that you understand what must be balanced, and many times the court will adopt your alternative as the most reasonable approach.
written by guest blogger Hon. Christina Habas