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NITA Movie Review: “You’re out of order! You’re out of order! The whole trial is out of order!”

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Written by guest blogger Judge McGahey

andJusticeForAllI was admitted to the bar 40 years ago this month; in fact, I’m writing this review on the anniversary of my swearing-in.  I went to law school between 1971 and 1974, when the DU Law School was right across the street from the courthouse where I now work. The courthouse looked much different then: many fewer women lawyers or judges, suits with really wide lapels and bell-bottom pants, ties as wide as tablecloths, and lots and lots of hair, on men and women alike.

Many ‘60’s and ‘70’s law students had a love/hate relationship with what they were studying and what they would do after graduation.  On one hand, they saw the law and the courts as corrupt, venal, another manifestation of “The Man’s” power structure.  On the other hand, they hoped – and believed – that the law and the courts could be vehicles for finding out the truth and bringing justice about. Perhaps no movie dealt with those conflicting feelings better than 1972’s And Justice for All. 

And Justice for All stars Al Pacino as Arthur Kirkland, a criminal defense lawyer in Baltimore, Maryland, attempting to do his best for his clients, but caught up in a system of corrupt judges, indifferent prosecutors, massive pressure to plea bargain cases and a general cynicism about the entire legal process. We see Arthur thrown in jail for contempt after taking a swing at a tyrannical judge who keeps Arthur’s wrongfully jailed client locked up on a technicality. We see that wrongfully incarcerated client react against his treatment in a shocking way.  We see another of Arthur’s clients erroneously sentenced to jail instead of probation – and then taking a drastic and heartbreaking step. We see one of Arthur’s friends hauled before the ethics committee on ridiculous charges. Through it all, we see Arthur trying – and failing – to maintain his professionalism and his hope.

The film primary focus is on Arthur being blackmailed into taking on the defense of Judge Fleming (played by John Forsythe of Dynasty and Charlie’s Angels fame), who’s accused of a vicious sexual assault. This is certainly an odd match-up, since Fleming is the judge Arthur earlier threw a punch at. Fleming is rich (he owns a helicopter), arrogant and stunningly corrupt.  He is also absolutely sure that he’ll be acquitted. His contempt for the legal process is stunning and Arthur has to struggle mightily to provide Fleming with the defense that a lawyer is ethically required to provide.  Eventually the case goes to trial – and it’s here that Arthur delivers one of the most amazing opening statements in the history of legal movies.  I won’t give away the details, but after being told that he’s out of order for what he’s just said, Arthur bursts out with a famous and oft-quoted rant: “You’re out of order! You’re out of order! The whole trial is out of order! They’re out of order!” What follows brings into sharp focus the conflict between a lawyer’s duty to his client and his duty to seeing justice done.

Al Pacino received a Best Actor nomination for his performance as Arthur Kirkland.  John Forsythe makes an eminently hate-able villain.  There are also fine performances by Jeffery Tambor (of TV’s Transparent), Lee Strasberg, Christine Lahti, and by the seemingly ever-present Jack Warden as Judge Rayford, a jurist with a death wish and a very serious belief in the Second Amendment. (Warden pops up in many legal movies, including 12 Angry Men and The Verdict.) Norman Jewison directed and the writers, Valerie Curtin and Barry Levinson, were also Oscar-nominated.

It’s hard to classify And Justice for All. You’ll see it described as a comedy, as a drama, as a satire and as a parody.  The movie certainly has some extremely funny moments (watch the defendant who tries to eat the evidence in his trial) but any number of shocking, maddening and depressing moments as well. After you watch it you can decide for yourself what you think it is.

Here in Colorado, our state bar has declared October to be professionalism month.  Watching And Justice for All brings to mind the inspiring language from the Preamble to the Model Rules of Professional Conduct:

“A lawyer, as a member of the legal profession, is a representative of clients, an   officer of the legal system and a public citizen having special responsibility for the quality of justice.”

But as inspiring as those words are, you also can’t help also thinking of Arthur’s sad discussion with his grandfather:

Grandfather: Are you a good lawyer? Honest?
Arthur: Being honest doesn’t have much to do with being a lawyer.
Grandfather: If you’re not honest, you’ve got nothing.

After you watch And Justice for All, see if you agree with how Arthur resolves his  dilemma about honesty and the quality of justice. I’d be interested in your answer.

Hearsay, Part Five: Five Ways to Make Living with Hearsay Easier

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NITA’s blog theme is Hearsay? Say What? Recognize It; Use the Rule at Trial.

At NITA programs, we train you to the daily thrill of advocating at trial. We ask you to perform constantly, using the rules of evidence. What about the evidence rules themselves? This month, we discuss one set of evidence rules that cannot be covered in the span of our intense performance programs: the substantive rules on hearsay. Each week, we describe the rule’s bounds and (in true NITA fashion) talk about your advocacy punch for that piece of evidence.


Five Ways to Make Living with Hearsay Easier

written by guest blogger and NITA Program Director Professor Thomas Jay Leach

Laypersons who wander into a courtroom – and, let’s be honest, many students of Evidence – feel they have entered an alternate universe when Hearsay raises its ugly head.

  • “We’re not offering this evidence for the truth, Your Honor …” (oh, those lying lawyers again!).
  • “True, I will be able to cross the witness about what he told the police officer, but it’s still inadmissible hearsay under FRE 801(c).” (But I thought the problem with HS is, you can’t cross the speaker …?)

Lawyers, too, blanch when confronted with Hearsay. They dive into the depths of the lists of 8 exemptions (801(d)) and 28 exceptions (803 and 804), then, gasping for air, make a desperate grab for the life preserver (the catch-all rule, 807). The judge, as fearful of Hearsay as he is of reversal, mutters, “Well it may be Hearsay [code for “I am as lost as they are!”] but I’ll admit it for what it’s worth.”

RELAX! Life can be easier than this. When you know your witness will need to testify about what someone (including the witness herself) said before, or did before that was intended to communicate information (e.g., pointing out the suspect – waving to warn a pedestrian of an oncoming bus), you know you will likely face a Hearsay objection. Take the following 5 nostrums and call me in the morning.

RULE ONE: Is the speaker the opposing party or one of the four equivalents:

  • admission by adoption
  • representative
  • employee
  • co-conspirator?

If so, it’s not HS: 801(d)(2)(A)-(E). Say “Statement of the Opposing Party” and look smug. (You can look even smugger if you surprise your opponent with fact that Opposing-Party Statements are not subject to requirement of first-hand knowledge or opinion-rule restrictions. Adv. Comm. Notes to 801(d)(2); Mueller & Kirkpatrick, Evidence (4th ed., 2009) § 8.27, at 799-800.)

RULE TWO: is it one of three types of prior statements by a witness who is/has been on the stand subject to cross:

  • prior inconsistent statement under oath at trial, hearing, proceeding, deposition
  • prior consistent statement (see rule for limitations, and watch for likely December 2014 amendment)
  • statement of identification?

If so, it’s not HS: 801(d)(1)(A)-(C).

RULE THREE: Is it being offered for a non-hearsay use, i.e., “not for the truth,” but don’t utter those idiotic-sounding words in front of the jury; instead say, “It’s offered for ________ [fill in the blank from the following]:

  • witness’s unsworn prior inconsistent statement to show has told conflicting versions, therefore not credible
  • effect on listener/reader (often, but not always, phrased as “notice”)
  • verbal act/legally operative (meaning: the utterance itself, regardless of the speaker’s sincerity or accuracy, supplies the necessary ingredient of some proof in the case):
    • offer/acceptance in a contract case
    • threat in an extortion case
    • slander/libel: the allegedly slandering/libelous words
    • words of gift/loan
    • Adverse Possession: “I own this land” as words constituting a claim of right (BTW, last used in a US court in 1873)
    • conveyancing: the words in the deed
  • context: jury won’t understand an admissible portion of a communication exchange without hearing what preceded it
  • circumstantial evidence of the speaker’s state of mind – on second thought, skip this – no one understands it. If you want to understand it so you can show off and confuse your opponent and the judge (who will still rule against you), read Mueller & Kirkpatrick, Evidence (4th ed., 2009) §§ 8.19-20.

Caution: before you decide to rest content under RULE THREE, ask yourself if you will be happier with the evidence “for the truth” as well as for the non-HS purpose; if so, keep looking for an applicable exception, starting with –

RULE FOUR: Use exception 803-3, “state of mind – intent under Hillmon.” After all of the above rules, this exception supports the admissibility of 50-75% of the HS problems that remain. Then go to 803-6 (business records) and 803-8 (public records); they handle 90% of what’s left. And don’t forget 803-21: reputation concerning character, also useful (but so far down the list it’s easy to forget).

RULE FIVE: if none of the above succeeds, and you find no other plausible exception, give up with good cheer (after ensuring that you have preserved all issues for appeal). How important could this one piece of HS be to your case? Few cases are lost “for want of a nail.” Carry on as if you had planned it this way all along.

Asked and Answered: Judge Robert McGahey

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written by NITA’s Legal Editor Marsi Buckmelter

Robert_McGaheyWe all know and love Denver District Court Judge Bob McGahey from his years of lively instruction at NITA programs (eighty-eight so far, with no sign of slowing down) and the legal movie reviews he writes for us here on The Legal Advocate. When we decided to kick off “Asked and Answered,” our new series of interviews with NITA personalities, Judge McGahey was the natural choice for our inaugural post. We hope you’ll enjoy getting to know him as much as we did.

What is a typical day in the life of a judge in Denver District Court like?
It depends (a good lawyer-like answer). We have three divisions in the Denver District Court: civil, criminal, and domestic. Depending on your assignment, [as judge] you could be in trials regularly (criminal), hearings regularly (domestic), or a mix of trials hearings and desk time (civil). Since I’m currently in a civil division, the last defines my day. Really and truly, I don’t have a standard daily routine, unless I’m in trial. Then I’m here at 8:15 a.m. to talk briefly with counsel before bringing the jury back at 8:30 and going on from there until 5:00 p.m. We take a fifteen- to twenty-minute break in the morning, another similar break in the afternoon, and an hour to an hour and a half for lunch depending on witness availability. It’s common for me to set matters of course during the lunch break so that we don’t lose trial time. All the time I’m on the bench, I multi-task: communicating with my staff via email or IM, looking at motions or other pleadings, fine-tuning orders, etc. I stop at 5:00 since I teach at the University of Denver School of Law three nights a week (Basic and Advanced Trial Practice and the Judicial Externship Seminar). I’m a member of several court-related committees as well as one at the law school. I have to work NITA programs and events into my schedule, but NITA is flexible about that. And I still try to get to my granddaughter’s school concerts, talent shows, and fun fairs!

What is the most challenging part of your work on the bench?
I’ve been a lawyer for almost forty years and have taught advocacy since the 1980s. I have high standards for advocates, given how the advocate’s performance affects the life of the client. I struggle with lawyers who come into court unprepared, who don’t know the law, who make the case about emotion rather than reason, and whose focus is on themselves rather than on the client’s case.

What changes in the Colorado judicial system would you most like to see?
I’d like to see an increase in judicial salaries, not just for my own selfish reasons but so that we can be sure to attract the best candidates for the bench. Our judicial selection and retention system is the best in the country, and Colorado has an outstanding group of judges, at all levels. But increasing salaries would make sure that the net is spread as widely as possible when it comes to picking judges.

What is the earliest recollection you have of realizing that being a member of the judiciary was something you’d be interested in and capable of?
I never thought I wanted to be a judge. But I practiced law for years with Bill DeMoulin, who was first my mentor and then my partner. After Bill became a district judge in Jefferson County, I would stop by and see him when I was in the courthouse and we would talk about life and the law. In one conversation, Bill said, “I see that there’s a judgeship opening up in Denver,” and I replied: “I saw that. I wonder who’ll get it?” His answer was, “Why not you?” Taken aback, I said, “I don’t think I want to be a judge.” Bill laughed and said, “What do you think we’ve been talking about for the last two years?” It dawned on me that Bill had been subtly moving me toward thinking about becoming a judge, and I began to consciously consider that as the next step in my career.

What was your first experience with NITA?
It’s far enough back that I can’t even remember the exact year, but sometime in the ’80s, Mark Caldwell [NITA Program Development and Resource Director] called me up and asked me to be a last-minute replacement for the Rocky Mountain Regional. Someone (and I can’t remember who) had recommended me. I agreed to do it and found the experience terrific. NITA became an important part of my life from then on.

Why do you teach?
The smart-aleck answer is: “Self-defense. The better I can train lawyers, the easier my job is.” The bigger answer is that I am devoted to trial advocacy and its value to people. I wanted to be a trial lawyer from age nine, which was when Perry Mason started on TV. I thought that was the coolest thing I ever saw, and I wanted to do it. I’ve been fortunate to be able to spend my adult life involved in the legal system, first as a lawyer, then as a judge, and I’ve been able to teach advocacy as well. The value of “advocacy” is profound. The word “advocate” comes from the Latin “ad-vo-cate,” which means “to be called to speak for.” How cool is that? Since I care about advocacy, I want to see it done properly, which is why I teach. Maudlin though it sounds, the people I teach will be practicing law after I’m dead. It’s important to me to know that the advocates who come after me will be doing the job right.

If you hadn’t gone into the law, what career path do you think you might’ve taken instead?
I was encouraged by some of my undergraduate professors to consider an academic career in political science, but that had very little appeal to me. My guilty secret is that I almost transferred to the NYU Film School before my junior year in college. I decided that while I was pretty sure I could be a good lawyer, I wasn’t sure I could make good movies.

You’re NITA’s resident movie buff, so we have to ask, what are your three favorite movies of all time? What do you like about them?
Being a lawyer, I’ll break this down into overall favorites and favorite law movies. My single favorite movie ever, the one I’d watch over and over if I could only watch one movie on an endless loop, would be The Searchers (1956.) The greatest western (the essential American genre) by the greatest American director, John Ford, it’s a stunning achievement in direction, cinematography, and acting, especially on the part of its star, John Wayne (don’t laugh; he should have won an Oscar!). The movie examines obsession, hatred, and racism and how those things corrode the soul. My next two favorites would be Duck Soup (1933), an anarchic, political, anti-war comedy starring the Marx Brothers (the funniest people who ever lived), and The Mark of Zorro (1940) because I love swashbuckler movies, especially this one, with the greatest onscreen swordfight ever! Favorite three legal movies: To Kill a Mockingbird (1962) (obviously), My Cousin Vinny (1992) (also obviously), and a tie for third between Judgment at Nuremberg (1961) and Anatomy of a Murder (1959.)

What book have you re-read the most in your life? Perhaps not necessarily a favorite book, but the one that keeps drawing you back into it?
Moby Dick, by Herman Melville. I’ve re-read it every four or five years since college—and not because it’s my “favorite” book.

What historical figures would you most like to have dinner with, and why?
Abraham Lincoln, the epitome of lawyerly grace under pressure, of compassion, and of character.
St. Thomas More, because he struggled with the how a lawyer’s devotion to the law clashed with his conscience.
John Ford, because he was a crotchety bastard, but a genius.
Pele, because I’m a soccer fan and he was the greatest player ever (at least before Messi.)

Who are your heroes?
Lincoln and St. Thomas More, for the reasons described above. But on a more personal level, my maternal grandparents, Peter and Diana Radulovic, who immigrated to the United States from Serbia to find a better life for themselves, their children, and their children’s children.

For what fault do you have the most tolerance?
Overestimation of one’s abilities. It’s OK to strive for something and fail. (Note: This does not apply to lawyers in my courtroom. To paraphrase Clint Eastwood, “A lawyer’s got to know his/her limitations.”)

What is your motto?
Illegitimi non carborundum.

Hear more from Judge McGahey with his recent movies reviews: “A Scourge That Is Always With Us,” “Inspired by a True Story? Well, Not So Much . . . .,” “Like A Knotted-Up Hose, or A Plate of Spaghetti,” or catch him presenting in last month’s webcast from NITA, now avilable OnDemand: “Bench Trials: What you say and what the judge hears.”

Hearsay, Part Four: Some 804 Exceptions

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NITA’s blog theme this September is Hearsay? Say What? Recognize It; Use the Rule at Trial.

At NITA programs, we train you to the daily thrill of advocating at trial. We ask you to perform constantly, using the rules of evidence. What about the evidence rules themselves? This month, we discuss one set of evidence rules that cannot be covered in the span of our intense performance programs: the substantive rules on hearsay. Each week, we describe the rule’s bounds and (in true NITA fashion) talk about your advocacy punch for that piece of evidence.

Hearsay, Part Four: Some 804 Exceptions

written by guest blogger and NITA Program Director Professor Frederick Moss 

Last time, I wrote about a few Rule 803 exceptions to the hearsay ban. Today, I address the Rule 804 exceptions.

The distinction between the 803 and 804 exceptions is simple: 804 exceptions do not apply unless the hearsay proponent shows that the declarant is unavailable to testify at trial. The drafters of FRE 804 felt (consistent with the common law) that these forms of hearsay should not be admitted unless there was a greater need for them because the declarant could not be examined about the statements at trial. (Whether this makes any sense is beyond the scope of my topic. Hint: I doubt it.)

The key to admissibility, therefore, is not only that the declaration meets the requirements of the specific exception but also showing that the declarant is “unavailable” as prescribed by Rule 804(a). All the circumstances that qualify as “unavailable” seem straightforward, but there is a hidden trap for the unwary here.

Assume one of your witnesses is scheduled for a serious operation and will be hospitalized during the trial. This appears to meet the definition of unavailability under 804(a)(4)—existing physical illness or infirmity—but not so fast. Rule 804(a)(5) says that when a declarant is deemed unavailable under 804(a)(2), (3), or (4), the proponent must also show that the proponent was unable by reasonable means to procure the declarant’s testimony.

Therefore, if a party knows a witness will be unavailable to testify at trial, the party must either preserve the witness’s testimony or show that it was unable to do so by any reasonable means before it can offer any of the witness’s hearsay statements via an 804 exception. Note that this requirement applies in criminal as well as civil trials.

As for the exceptions themselves, the most used is 804(b)(1): Former Testimony. This is how the deposition of the to-be-unavailable witness gets admitted under the federal rules. The tricky part of this exception is the “predecessor in interest” language. Courts differ over whom this covers. The conservative view is that the party who had the opportunity to examine the witness at the earlier proceeding is a predecessor in interest with the party against whom the testimony is now offered only if the two parties are in legal “privity” with each other. An example would be where the party facing the live testimony at the earlier proceeding was a business that was bought by the party now facing the former witness à la transcript. The former testimony is admissible in this situation. The party who bought the business is now stuck with the examination of the witness by its predecessor. The more liberal view—not supported by the language of the rule—is that the predecessor needs only to have had the same motive as successor to challenge the testimony at the earlier proceeding. Legal privity is not required.

Dying declarations are admitted per FRE 804(b)(2). These are rare, but be careful. Many state rules differ from the FRE. Some require the declarant to have died. The FRE does not. Some states restrict this exception to murder cases or to criminal trials. The FRE allows this exception only in murder and civil cases. In the murder case, necessity rules. In civil cases, who cares? It’s only money. Go figure.

Statements by witnesses that are against pecuniary and proprietary interest come in under 804(b)(3). Some states include statements against social interests—that is, statements that would tend to make the declarant the object of “hatred, ridicule, or disgrace,” to quote the Texas exception. The FRE does not. Examples of statements against “social” interests would be that the declarant had a venereal disease, was a convicted felon, or was a Republican while visiting an Irish bar in Boston.

FRE 804(b)(6) permits hearsay from an unavailable declarant to be admitted if the adverse party either caused or acquiesced in wrongdoing that cause the declarant to be unavailable. So, if you persuade your opponent’s prime witness to go on vacation during the trial, the witness’s hearsay statements of any kind can be admitted at trial. Some states do not have this Rule, but admit hearsay under the “forfeiture by wrongdoing” theory by court opinion.

Finally, the FRE has a “catch all” hearsay exception, Rule 807 (f.k.a. 803(24) and 804(b)(5)). Many states did not adopt this exception. Where it exists, proponents of hearsay that meet no exception or exemption can try to get it in by arguing that the circumstances in which the statement was made, by whom and to whom, and the purpose for which it was made, show it is as reliable as the recognized exceptions, that it is really, really important, and that “Justice,” fairness, and all that is good in this world demand that it be admitted. So, when all else fails, go for it under Rule 807. And, may Justice prevail.

A Trial Experience from One Juror’s Perspective

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NITA’s blog editor, Kathy Behler, was recently summoned to jury duty for United States District Court. She sat down with NITA’s Program Development and Resource Director Mark Caldwell in studio71 to discuss her experience, as it is a perspective we don’t often get to see.

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 Goal is 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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