by guest blogger and NITA faculty Doris Cheng
NITA provided advanced trial advocacy training to thirty-two attorneys from the Trinidad and Tobago Legal Aid Advisory Authority (LAAA), a unit of the Ministry of Legal Affairs that provides affordable legal assistance to indigent citizens in criminal and civil cases, including family and property matters. The program was funded by the Bureau of International Narcotics & Law Enforcement Affairs (INL) through the National Center for State Courts (NCSC) as part of the Caribbean Basin Security Initiative (CBSI). The three-day skills program furthered the CBSI’s intention to improve the rule of law by supporting the development of the justice sector. Similar programs have been held for prosecutors in Jamaica and the Bahamas and in Antigua for prosecutors in the Easter Caribbean.
The Advanced Criminal Trial Advocacy Program for the LAAA was held in Port of Spain on January 26–28, 2017. Dignitaries from the U.S. Embassy, Ministry of the Attorney General, LAAA, and NCSC gave opening remarks, describing their respective commitment to creating and sustaining a fair and just legal system. Members of the LAAA’s Head Office, Arima District Office, San Fernando District Office, Couva Office, as well as the Legal Aid Clinic, participated in the training. NITA provided the case file, State v. Baker, an intricate murder case with claims of domestic violence and self-defense.
Five NITA faculty members—Doris Cheng, J. Michael Roake, JoAnne Roake, Cynthia Goode Works, and Hon. Teri Jackson—lectured on opening address, oral presentation techniques, examination in chief and cross-examination of lay and expert witnesses, contending with difficult witnesses, and summation. The faculty led workshops with video review in each of these areas with immediate results. NITA Program Director Cheng remarked, “The LAAA attorneys were quick studies and implemented many of the techniques seamlessly. The workshops helped the participants develop a ‘muscle memory’ of the skills that the participants deftly integrated into their performances. As usual, NITA’s trademark learning-by-doing process brought to life the effectiveness of great advocacy.”
The closing ceremony was filled with enthusiastic praise for the success of the training program. The LAAA attorneys expressed an interest in gaining additional NITA training. The legal advocacy training in Trinidad, as with others held around the world, is part of NITA’s ongoing commitment to improving justice by helping lawyers develop and refine their advocacy skills.
The Verdict, the quarterly magazine of the Trial Lawyers Association of British Columbia, reviews NITA books from time to time. Today, we are delighted to share Michael Sporer’s review of Modern Trial Advocacy: Canada, by NITA authors Steven Lubet, Cynthia Tape, and Lisa Talbot, reprinted below with permission and in its entirety. Our thanks to the Trial Lawyers Association for their interest and support of NITA publications.
Modern Trial Advocacy: Canada (Third Edition)
Steven Lubet, Cynthia Tape, Lisa Talbot
NITA, 2010, 481 pages
Reviewed by Mike Sporer, Sporer Mah and Company
Older lawyers who are also hockey fans will remember the Wild West days in Queen’s Park Arena when Ernie “Punch” McLean coached the New Westminster Bruins. But it wasn’t all madness and mayhem. McLean’s teams earned four straight Memorial Cup appearances from 1975‒1978, winning the Cup twice.
The Bruins took the trophy in 1977, but the 1977‒1978 team had fallen short on talent. Barry Beck, Brad Maxwell, and other stars, had graduated. No one expected the hard-working team of grinders, led by Stan Smyl, to go deep in the 1978 playoffs. But the Bruins, after a mediocre regular season, won four straight playoff series, again earning the right to represent the Western Hockey League at the Memorial Cup, held in Ontario, at Sudbury and Sault Ste. Marie.
The underdog Bruins arrived in Sudbury and were promptly crushed 7‒2 by the Ontario champion Peterborough Petes. The mighty Petes, coached by Gary Green, with strategic input from former Petes head coach (and later NHL legend) Roger Nielsen, used an effective centre ice press to bottle up their opponents. The Bruins lost once more to the Petes at the tournament, but, due to the round robin format, were able to survive the two losses, beat the Quebec champs Trois-Rivières, and earn a right to play the Petes one more time in the final game.
The final was to be played in Sudbury. Punch McLean took the Bruins out to Sault Ste. Marie, where no one could see what they were working on. There, in a locked down arena, he unveiled a completely different break-out plan, that would have a Bruins defenceman come up the centre of the ice to break the Peterborough press. For over two hours, Punch drilled the new break-out plan into the team.
When the final game started, this time it was different. The underdog Bruins took an early lead, and before the confused Petes could adjust to their opponent’s pre-game plan, they were behind the eight ball. The Bruins never looked back, went on to win 7‒3, and claimed their second consecutive Memorial Cup.
Pre-trial planning is like pre-game planning—a must. It can make all the difference. And pre-trial planning is where Professor Steven Lubet, Williams Memorial Professor of Law at Northwestern University, begins his outstanding treatise, Modern Trial Advocacy. The book, written for American trial lawyers, has a Third Canadian Edition titled Modern Trial Advocacy: Canada, with modifications provided by two Canadian trial lawyers from Ontario, Cynthia Tape and Lisa Talbot. But any recent edition—Canadian or American—will do. It covers all the basic aspects of trial—from pre-trial planning to closing argument—and is the single best introduction to trial advocacy available.
Lubet explains the pre-trial steps that he considers a must. He shows the importance of developing a trial theme—the “moral force” behind the case—and explains how to prepare a persuasive trial story.
He covers the essentials of case theory planning and development, highlighting the fundamentals of a good case theory: it must be simple, logical, and easy to believe. If there is room to criticize Professor Lubet—and there is very little—he might, in places, have simplified his discussion of case theories to articulate more clearly the important distinction between factual and legal theories of a case. But in any event, his discussion of the subject is still very good, and the lessons he offers are of great value.
Lubet’s most important single piece of advice relates to pre-trial planning: start by preparing final argument. “Good trial preparation begins at the end,” says Lubet. “It makes great sense to plan your final argument first.”
This bit of basic advice remains a cornerstone of any pre-trial preparation, yet it remains overlooked by many. As another great advocate once said, a trial is no place to be writing a closing argument. Tinker with it at trial? Certainly. How the evidence unfolds will require that. But it should be no more than tinkering, and Lubet’s book, in its discussion of pre-trial planning, puts first things first.
Lubet takes the reader from pre-trial planning through all the phases of trial, with excellent discussions of direct examination, cross examination, impeachment, expert evidence, foundations and exhibits, opening, and final argument. As he always does, Professor Lubet dedicates a considerable amount of space to important issues of legal ethics, including a very good discussion of the ethics of persuasive storytelling.
There are books that cover particular aspects of case planning and trial work more thoroughly—but none covers it all so effectively. This is a treatise. Lawyers called for less than five years should not be without Modern Trial Advocacy. Experienced trial lawyers would be unwise not to keep a copy on their shelves.
Meet our staff members! While NITA is the faculty and author network that brings you learn-by-doing programs and materials, NITA’s professional staff in Boulder is the engine, director, and glue that makes it all possible. We coordinate, expand, envision, and deliver highest quality and efficient support of NITA’s mission. We direct our amazing network of lawyers, as they teach in the unique NITA way.
Over the next few months, I will be introducing you to NITA’s staff. This month, I bring you greetings from our Programs Department. As you work with them, you will admire their dedication – just hear what they have to say!
Program Specialist II
My eagerness to further NITA’s Mission engages my full support as I administer my programs, and “lend a hand” in the department’s other projects and goals.
I see NITA’s mission, creating the best advocates for our legal system, to be a constantly evolving goal. As we set the level of excellence in legal advocacy training, I draw great satisfaction from knowing that it means so much to so many people.
Given my familiarity with program content, case files, materials, and other faculty resources, I consult with staff to help them support programs that succeed, and help support program directors.
NITA’s leadership in improving the quality of trial practice is unquestioned. Our philosophy of inclusion, regardless of the lawyer’s position in a case, means that NITA constantly strives to improve the quality of representation for all, including the underserved client base.
Senior Program Specialist
I contribute through pitching in on some of the more strategic aspects of our department, along with administering programs.
NITA for me is a job, a mission, and a vision. What makes it important personally is the big, awesome family; I value my NITA friendships inside and out, and enjoy seeing the program participants bond. As we face a changing market, it is our relationships and dedication to mission that carries us into the future.
Senior Program Specialist
In addition to running my programs, I support the team from my customer service and IT background, helping enhance the client experience as well as our staff’s efficiency.
I’m proud to work at NITA. We truly help empower attorneys to better serve clients, including the underserved. I picture my work as an integral part of that mission, as NITA continues to grow as the premier CLE provider in the legal profession.
Program Specialist I
I work to be a fun, awesome, sassy member of Programs, engaging with my team and my faculty, and working to create a well-oiled machine as we organize our programs.
I personally feel the most important role we have here is providing excellent customer service to our participants. It’s a pleasure coming to NITA each and every morning!
Director of Programs
As the lead director of this amazing Program Department, I coordinate our goals and our work to provide consistently excellent programs for both public and private programs.
NITA provides chances for lawyers to get on their feet and learn. We have the teachers and the method to help advocates speak for others. We are aiming to provide relevant training for a changing playing field in all areas of advocacy.
Program Specialist I
I add to the group’s success by working to run each of my programs smoothly, and helping other specialists on the team.
NITA is a great opportunity for lawyers to build new skills and strengthen techniques they have used in the past. I feel NITA increases their comfort going into a courtroom. We at NITA expand into the future as we perfect what we do by working together.
As ED, I am proud of these Programs team members. Please say “thanks” the next time you talk to them!
And thank YOU.
Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy
In November, NITA sent two faculty, Judge Michael Washington and Geraldine Sumter, to Nigeria in support of an advocacy training program organized by Lawyers Without Borders and the Office of the Public Defender of Lagos State. We’d like to share the opening remarks to this successful program that Olubukola Salami, the director of the Office of the Public Defender, delivered on the first day of the sessions. We are grateful for receiving Mrs. Salami’s permission to share her welcome address with you, along with photos taken during the trainings.
The Honourable Attorney General and Commissioner for Justice, Lagos State Ministry of Justice, Mr. Adeniji Kareem,
The Representative of the Ambassador of the United States of America, Ms. Rosalyn Wiese, the Director, International Narcotics and Law Enforcement Affairs, The United States Embassy, Abuja,
The Judges of the High Court of Lagos State,
The Judges of the United States of America,
The Permanent Secretary, Lagos State Ministry of Justice,
Our Distinguished Guests,
All the Participants,
I am highly delighted and honoured to address you on the occasion of the Trial Advocacy Training Course organized by the Office of the Public Defender in collaboration with the National Institute for Trial Advocacy, Boulder, Colorado, United States of America.
The Office of the Public Defender (the first in Nigeria) was established on the 24th of July, 2000, to provide qualitative legal aid through free representation in court and to ensure that all persons resident in Lagos State irrespective of means, sex, tribe, or religion have equal access to justice.
Our practice scope cuts across most areas of legal practice consisting of both criminal and civil litigation. This requires that our advocacy skills be optimum. The Office provides legal services for matters in the criminal and civil divisions of the courts sitting in Lagos State. We institute divorce petitions, debt recovery cases in the Magistrate Court, and employee–employer cases at the National Industrial Court, where in a year and a half we have prosecuted over one hundred cases and counting.
As advocates and public defenders, it is important that we represent our clients who are the common man to the best of our abilities, as every Nigerian has a constitutional right guaranteed by section 3(6)(c) and (d) of the 1999 Constitution to representation and participation at the trial of his case.
A lawyer without the basic advocacy skills both for trial purposes and otherwise is a disaster waiting to happen, as he needs to stand for his client and make a convincing case on their behalf before a court.
As an office, we have been keen to raise and improve our advocacy skills as a unit, especially as this office is the only department within the Ministry of Justice that is consistently involved in trials in almost every court across the State.
Ladies and gentlemen, the timing of this training course could not have been more appropriate, with the introduction of Section 268 and 269(1) into the Administration of Criminal Justice Law of Lagos State 2015 for the first time in Nigeria.
We are quite excited that this reputable international Institute are here in Nigeria to train us and are doing so at no cost to us. We are immensely grateful. At this point, I must extend my sincere appreciation to the National Institute for Trial Advocacy and Lawyers Without Borders who put together such a distinguished team and the Government of the United States of America. We indeed count it as a privilege and a gift. We hope that this would be a continuing collaboration.
It is our expectation that the training would assist us to become better lawyers both inside and outside the courtroom. We hope the training will inspire confidence and improve our capacity as lawyers both for trial purposes and our written addresses.
Your Excellencies, distinguished ladies and gentlemen, it is my singular honour and privilege to welcome you all. Thank you.
Written by guest blogger Judge McGahey
In December, I like to review a movie that features the law and Christmas, but after Miracle on 34th Street and Remember the Night, the pickings are pretty slim. So I started thinking about movies that feature family law, since my tenure as Presiding Judge of the Domestic Relations Division of the Denver District Court is coming to a close soon. Then inspiration hit me: Bachelor Mother would cover both bases – and as a bonus, it’s from the best year for movies ever, 1939.
Ginger Rogers plays Polly Parrish, who’s working as temporary salesgirl during the Christmas season at Merlin’s Department Store in New York City. Laid off because the season is ending, Polly sees a young woman leave a baby on the front steps of what were then called “foundling homes” – places where abandoned children could be raised in safety. The young woman flees and Polly, afraid the child will roll down the steps, runs over the make sure the baby doesn’t. Of course, as she does this, the door of the home opens and the people inside decide Polly must be the mother, in spite of her protests to the contrary. When they find out she’s recently lost her job, they get in touch with David Merlin (David Niven) whose father, J.B. Merlin (Charles Coburn) owns the store. Polly goes back to work, and giving in to fate, starts to raise the child. Not surprisingly, David and Polly begin to care for one another. And J.B., who’s long wanted his playboy son to “settle down,” decides that David must be the baby’s father – and won’t take “no” for an answer. (In a terrific scene, David and Polly each suggest to J.B. that some other man is the baby’s father, to which J.B. exclaims; “I don’t care who the father is, I’m the grandfather!”) Since this a Hollywood movie made in 1939, you can guess how it all turns out.
Bachelor Mother was released by RKO and directed by Garson Kanin. It’s a surprisingly sympathetic treatment of some issues that had a different significance in 1939 (unwed motherhood) and some that we are still trying to figure out (child abandonment.) Throughout the movie, Polly is treated with sympathy and respect, and never condemned for (allegedly) having a baby “out of wedlock.” This is no longer the moral issue that it once was; indeed, in most states, domestic relations law takes for granted that an allocation of parental responsibility or custody can be made in cases where the parents were never spouses. But we still wrestle with what can be done with children abandoned by their parents. Although foundling homes are pretty much a thing of the past, many states now have “safe haven” laws that allow children to be left by their parents in a safe and secure place without legal consequence to the parents. And even J.B.’s line anticipates some modern concepts of family law, including such ideas as grandparents having visitation rights or even, in some circumstances, being allowed to battle birth parents for custody.
Bachelor Mother was nominated for one Oscar (Best Original Story) and features some first class actors. We tend to think of Ginger Rogers as Fred Astaire’s partner, but forget that she was an excellent actress, both in comedies and in dramas. Indeed, she would win a Best Actress Oscar in 1940 for her role in the drama Kitty Foyle. David Niven had a long and distinguished career, appearing in nearly one hundred films as diverse as Around the World in 80 Days and The Pink Panther. Niven would win an Oscar in 1958 for Separate Tables. Charles Coburn was no slouch, either. He was a constant supporting presence in movies from the ‘30’s through the ‘50’s, usually, but not always, in comedies. And Coburn, too was an Oscar winner: Best Supporting Actor in 1943 for The More the Merrier.
Bachelor Mother is an interesting take on some important issues in family law, presented in a comedic format. Sometimes laughing while we consider serious matters can help us understand them better. That’s a good reason to find and watch Bachelor Mother. I think you’ll enjoy it.
 As I write this review, that would be in 20 days, 11 hours, 57 minutes and 27 seconds, according to the timer I have on my phone – not that I’m counting or anything.
 No, I won’t bore you with another argument about why I think this is true.
 In Colorado, C.R.S. § 14-10-123
 Colorado’s “Safe Haven” statute can be found at C.R.S. § 18-6-401(9).
 In Colorado, C.R.S. § 19-1-117. And see, generally, Troxel v. Granville, 530 U.S. 57 (2000), which deals with the constitutional rights of grandparents in custody cases, among other things.
 In Colorado, C.R.S. § 14-10-123(3).
 And in case you think this is just another example of me picking out some obscure old black-and-white film that no one’s ever seen, when I told my colleague, Judge Karen Brody that I was going to review Bachelor Mother she said: “Oh, I love that movie!” And Mark Caldwell has seen it, too – which I suppose is no surprise.