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November 2014 Executive Director’s Letter: Looking Forward – A Moment of Thanks

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Lockwood_KarenA week from today, you and I will be busy getting ready to be really busy. Running off our turkey feasts, planning the weekend sports line-up, and considering our December tasks, we’ll hunker down.

What comes with that is reflection. At NITA, in that pause after next Thursday’s holiday, we will be reflecting on our year’s successes. We’ll be finalizing our plans for greater successes in 2015. And we’ll be measuring success by NITA standards.

  • Did we reach lawyers at all levels of seniority through our public-enrollment programs?
  • Did we make new friends by bringing added value through customized programs
    • for firms of all sizes,
    • for agencies lawyers in adjudicatory hearings and trials,
    • for non-profits whose clients are underrepresented,
    • for state prosecutors and public defenders?
  • Did we leverage our transformative power in the public service by bringing it to
    • lawyer groups targeted by grants,
    • attorneys who specialize in child advocacy, tribal system advocacy, domestic violence, and other target populations?
  • Did we use the printed word and videos of NITA-quality advocacy in the service of NITA?
  • Did we find and invite the best talent in the country onto our faculty?

Yes we did. We are thankful to all of you who contribute so generously of your talents and time.

I measure success by impact – the highest quality in all that we do. And by reach – the importance of NITA training to even the most advanced advocates as well as those in their mid-career and early years.

Restless to do more, we are planning for even greater impact and reach in 2015. Our plans are concrete, and exciting. Watch these pages and my monthly letters for evolving news and insight.  And I would love to hear your thoughts.

Have a wonderful time of thanks in next week’s holiday. And again,

Thank You.

Karen_ShortSig

 

 

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

NITA TV Review: Praise for an “Old Bailey Hack”

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Written by guest blogger Judge McGahey

rumpole

TV and radios talking heads are fond of putting together all-star teams or all-time great lists. One manifestation of this is the “Mount Rushmore”: the four quarterbacks on your Mount Rushmore, the four guitar players on your Mount Rushmore, the four chefs on your Mount Rushmore, etc.  If I had a Mount Rushmore for TV and movie lawyers, you’d easily guess three of them: Atticus Finch, Perry Mason, and Vincent Gambini.  But you might not recognize my fourth: the ineffable, irascible, and totally original Horace Rumpole, self-described “Old Bailey hack.”

Rumpole of the Bailey was a long-running British TV show that was a regular part of Masterpiece Theater here in the States. The show centered on a crusty English barrister, Horace Rumpole, and his adventures in and out of court.  The series started as a single episode show on the BBC in 1975.  That show was well received and eventually led to seven series of episodes, on and off between 1975 and 1992, along with the occasional special.  Rumpole was the creation of John Mortimer, who was a barrister in real life.  His experiences gave the series a ring of truth and legal accuracy that are frequently missing from shows about the law.  Interestingly enough, Mortimer turned each series of scripts into books of short stories that were published after the shows themselves aired.  Like the TV shows, the books are well worth reading.

From the beginning, Rumpole was played by the brilliant Leo McKern.  Rumpole is a criminal defense lawyer who likes inexpensive cheroots (cigars) and cheap red wine, “Chateau Thames Embankment,” which he consumes at his favorite haunt, Pommeroy’s Wine Bar.  He is fond of poetry, making frequent references to The Oxford Book of English Verse, particularly Wordsworth. Rumpole is a member of Chambers at 3 Equity Court, where many of the other members find both Rumpole and his practice embarrassing and distasteful. Even so, at some point or another, every one of those other members of chambers calls on Rumpole to extricate them from some potential ethical, legal, or moral dilemma, which, of course, he does.

Rumpole is a barrister who refuses the higher rungs of the British legal profession. He wears a tatty gown and his wig is old and threadbare. He has no desire to be Head of Chambers, or a judge, and particularly no desire to “take silk, [i]” that is become a Queen’s Counsel (“QC”), a barrister who is able to represent the Crown in both civil and criminal matters.[ii]  The last is what matters to Rumpole, for as he frequently says, “Rumpole never prosecutes!” (Although he does, once, sort of.) You learn very early that Rumpole’s goal is always justice—although it can be interesting to see how he achieves it.

Rumpole is surrounded by a bevy of other wonderful characters.  There are the other members of Chambers: Guthrie Featherstone ( a snob with a social-climbing wife; he later becomes a judge), “Soapy Sam” Ballard (a prissy religious zealot who marries the Matron of the Old Bailey Jail), Claude Erskine-Brown (described as “so dull that he had been chosen to bore for England”), and Phyllida Trant (a female barrister that Rumpole takes under his wing.  She later marries Erskine-Brown and becomes a judge, too.)[iii]  There are the judges that Rumpole butts heads with: Judge Bullington (“The Mad Bull”), Judge Graves, and Judge Oliphant.  There are the support folks in chambers like Albert and Henry, the Chambers clerks, and Diane, the Chambers secretary.  And there are the various members of the Timson family, a large clan of “minor South London villains” who look on Rumpole as the family lawyer.

But most of all there is Rumpole’s long-suffering wife, Hilda, known as “She Who Must Be Obeyed.”[iv] Hilda is ambitious for Rumpole; her father was an extremely well-respected QC and she longs to see Rumpole take what she considers his rightful place in the hierarchy of barristers.  Rumpole’s permanent refusal to do so is a constant thorn in her side.  But even as Rumpole and Hilda argue over things, it is clear that they love each other and that she is, ultimately, Rumpole’s rock.  The portrayal of a long-married couple who are still devoted to one another is one of the highlights of the show.

For those of us connected to the legal profession, the show is wonderful for many other reasons.  It gives us an inside look at how the English chambers system works.  This is nothing like an American law firm.  For example, members of chambers can appear opposite one another in cases.  There is the fact that barristers alone can appear in court and must wait to be hired on behalf of clients by solicitors, lawyers who do not appear in court.[v]  There is the faithful replication of British courtroom practice, with barristers referring to their opponents as “my learned friend,” and judges “summing up” (telling the jury what the judge thinks of the evidence(!)) at the end of trials.

Best of all, there is Rumpole’s inner monologue during trials.  I fell in love with this show primarily because of this.  When Rumpole comments internally on what’s happening during a trial, he says exactly what real lawyers think about in these situations. He comments on witness testimony, on jurors paying attention, on the behavior of his opponents and on the conduct of the judge—and boy, does he comment on that! I thought his comments were wonderful when I was a lawyer.  Now that I’m a judge, sometimes I cringe a little.

You don’t have to be an Anglophile (like me) to love Rumpole of the Bailey. If you like great acting, inventive plots, and crackling dialogue, you’ll love Rumpole.  And if you care about trial work, you’ll love Rumpole even more.

I’m thankful for a lot of things at this time of year: my family, my friends, a roof over my head, and a full stomach. I’m also thankful for each and every person who makes NITA the gold standard for teaching trial skills everywhere!  I hope everyone has a bountiful Thanksgiving! - Judge McGahey


[i] In England, only QC’s can wear silk gowns to court.

[ii] At one time in England, there was no centralized prosecution service, and private counsel who were QC’s were often hired or appointed to prosecute criminal cases. The Crown Prosecution Service was established in 1985. It serves much like the United States Attorney or District Attorney does in this country.

[iii] One of the more interesting subtexts of Rumpole is how much more professional and progressive he is than almost every other lawyer in the show about working with woman barristers.

[iv] The reference is to H. Rider Haggard’s famous adventure novel, She. For a really cheesy film version, see She (1965), starring Ursula Andress.

[v] This is changing; there are now some solicitors who have courtroom privileges.

Taking Judicial Notice and Proving Foreign Law in American Courts

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Written by guest bloggers Regina Fullana Pitarch and Michael J. Dale[1]

Suppose three university graduates and good friends from Florida, Italy, and Catalonia in Spain are employed together in the United States. One day, they decided to vacation in Barcelona and, amazed by the place, decided to purchase a vacation home. After negotiation, a real estate contract was drafted in Spain in Spanish and translated into English. The ownership of the house was divided as a comunitat ordinaria indivisa, or ordinary undivided community.  Three years after the purchase, the American owner decided to sell the home and the other two owners refused.

As a result, a case was filed in Florida. The case went to court in Florida, and all parties entered general appearances (this hypothetical assumes no jurisdictional issues). For the court to decide the case, the respondents requested that the Florida court recognize and apply Catalan law. However, the comunitat ordinaria indivisa is a legal institution with its own legal intricacy. Thus, the court had to be properly informed as to Catalan law to resolve the case.

This blog post discusses the procedure by which American courts recognize and apply foreign nation law.

To apply foreign law, it is not necessary for courts to master foreign law. In the modern era, foreign law and legal systems have become much easier to research and understand, particularly with countries commonly engaged in international commerce.[2] Nonetheless, judicial notice is required to enable the judge to apply foreign law in a case.  In the United States, judicial notice is established pursuant to Rule 44.1 of the Federal Rules of Civil Procedure (F.R.C.P.):

A party who intends to raise an issue about a foreign country’s law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a ruling on a question of law.

States, such as Florida, use a rule similar to F.R.C.P. 44.1 that provides the same uniform mechanism as Rule 44.1 in federal court. The provision gives freedom to the parties regarding the time when the notice must be given.[3] The usual means to do so is by written notice, either in the initial proceedings or by later written notice. Thus, in the hypothetical situation above, either party may file written notice with the court providing that Catalan real estate law must be applied because either it was agreed to among the parties stated in the contract in a choice of law clause or, in the absence of a clause, employing the choice of law rules of the State.

Because the contract was performed in Catalonia, because the property is located therein, and because the parties agreed to use Catalan law, the court will use Catalan law.

Timing of Notice

The parties have time until trial to give reasonable notice of the application of Catalan law. Nonetheless, notification both to the parties and the court is required to avoid unfair surprises.[4] Rule 44.1 does not require the parties to include the substance of the applicable law applicable at the time of filing the notice.

Substantive Law to Be Applied

The court does not need to wait for the parties to submit information related with foreign law. Courts have the authority to conduct their own research, sua sponte, on the meaning of the law with which they will have to resolve the case. In doing so, the court may request the parties to aid it by bringing materials and all sources of information that will be necessary.[5] The court may also engage in research without giving formal notice to the parties. However, in general, the court should give the parties an opportunity to analyze and provide counterpoints and new points upon which the court proposes to rely.[6]

The parties have wide discretion to use any kind of materials, from expert testimony to journals, passing through treatises and other sort of materials, to provide the substantive law. They may even use materials that would not otherwise be admissible under federal or state Rules of Evidence. In this case, the legal concept of comunitat ordinaria indivisa, regarding what it means and how it is to be applied, is unknown to the Florida court.

In our hypothetical, the most efficient way to prove the relevant law is through expert witnesses testimony because it will provide the opportunity to the attorneys and the court to enquire. An expert is someone who “has studied the foreign law, has practiced law in the country of its origin, and can translate and interpret it in the language of the American attorney.”[7] Declarations, depositions, or live testimony are the ways the expert will bring her knowledge to the court.

Some judges dislike the expert testimony for proving foreign law because they are paid and selected “on the basis of the convergence of their views with the litigating position of the client, or their willingness to support the views urged upon them by the client.”[8] Therefore, in practice, some judges may prefer to rely upon other sources such as written materials.

Why Use Expert Testimony to Prove Foreign Law

Litigants should bring live expert testimony to the court to prove Catalan law or other foreign law. As stated in Bodum, USA, Inc. v. La Cafetiere Inc., 621 F.3d 624, 638 (7th Cir. 2010), “the U.S. reader/court is likely miss nuances in the foreign law, failed to appreciate the way in which one branch of the other country’s law interacts with another or to assume erroneously that the foreign law mirrors U.S. law when it does not.”

Additionally, expert testimony has highly probative value because the expert witness is able to provide the court with information about the sources of law, hierarchy of law, legal interpretation, and other matters not readily ascertainable or necessarily apparent on the face of foreign legal materials.[9]

In conclusion, by the resource of judicial notice, parties in litigation bring knowledge of foreign law to American courts to enable them to solve any kind of litigation by way of applying any kind of law from around the world.

The Problem of Language When Applying Foreign Law

The use of experts applying foreign law is not as simple as it may seem at a first glance. For the court to be able to apply the law, that law has to be translated into English. This is a complex process involving not only a mere word translation but an in-depth interpretation of the meaning of the law and the intent by which it was created. This process and the problems involved are often underestimated.[10] The translation is often done by scholars and linguists who, while professional, do not normally have significant knowledge of law.[11]

The translation process takes two steps. First, the translator requires a deep knowledge and familiarity with the culture in which the law was created, knowledge that would provide her with the capability of associating the meaning of the words within each specific context.[12] Second, the translator must find some equivalence in meaning between the two familiar contexts and languages, a process of “filling the gaps” because almost always, even if the legal systems have familiar contexts and languages, they never exactly “map” onto one another.

Thus, as one author has noted, “An identical provision of the law of two countries may have wholly different moral backgrounds, may have been brought about by the interplay of wholly different forces, and hence the similarity may be due to the purest coincidence.”[13]

Additionally, the translation requires knowledge of the historical context in which the law was created because a phrase may have different meaning depending on the historical context in which it was made.[14] Finally, ambiguity in the law makes the translation processes even more challenging.[15]

Conclusion

The task of deciphering the meaning of a foreign country’s law can often be daunting.  Judges who are called upon to make these determinations may have little or no legal expertise about the foreign country in question, making it difficult to render accurate decisions.[16]  And judges are required to interpret foreign law applicable to the particular case at hand.[17]

Thus, judges may receive materials and information provided by the parties as well as testimony by expert witnesses as well as through their own research. Counsel should be compelled to demonstrate to the court that the foreign law is not similar to domestic law. Further, judges tend to give naive “plain” meanings to foreign provisions where they should not. Finally, unconsciously, readers tend to “find” what they seek, in a self-deceiving process of “wish-fulfillment.”[18]

In sum, the final key for an accurate legal interpretation and application of foreign law requires judges and practitioners to research and understand the foreign law and its “institutional values,” history, philosophy, social circumstances, and meaning of when the law was enacted. Sources like expert testimony or agreements between legal systems make this daunting process easier to lawyers and courts, therefore providing greater justice.


[1] Regina Fullana Pitarch is a Spanish attorney, a graduate of the University of Barcelona, and a dual degree student at Nova Southeastern University Law School. She is a research assistant to Professor Michael J. Dale.

[2] Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 628 (7th Cir. 2010).

[3]  Matthew J. Wilson, Demystifying the determination of foreign law in U.S. courts: Opening the door to a greater global understanding, West Forest L.Rev. 887, 901 (2012).

[4] Uniform Judicial Notice of Foreign Law Act § 4 IC 34-38-4-4.

[5] Uniform Judicial Notice of Foreign Law Act § 3 IC 34-38-4-2.

[6] Schlesinger, Comparative Law 142 (2d ed. 1959); Wyzanski, A Trial Judge’s Freedom and Responsibility, 65 Harv. L. Rev. 1281, 1296 (1952).

[7] 126. C.C. Bjorklund, Law of Foreign Jurisdiction, in 21 Am. Jur. Proof of Facts 2d 1, § 13 n. 25 (2010).

[8] Bodum, USA, Inc. v. La Cafetiere, Inc., 621 F.3d 624, 634 (7th Cir. 2010)

[9] Wilson, supra n. 2, at 904.

[10] See, e.g., Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law, 39 Am. J. Comp. L. 1, 20 (1991) (“The complexity of the problems involved in legal translation makes the carelessness with which they are approached seem incredible.”).

[11] John C. McKenzie & Antonio R. Sarabia, The Pleading and Proof of Alien Law, 30 Tul. L. Rev. 353, 368, 373 (1956).

[12] Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165, 1194-96 (1993).

[13] Pierre Lepaulle, Function of Comparative Law, 35 Harv. L. Rev. 838, 853 (1922).

[14]Andrew N. Adler, Translating and Interpreting Foreign Statutes, 19 Mich. J. Int’l L. 37, 50 (1997).

[15] Charles Szladits, Translations of Foreign Civil and Commercial Codes, 3 Am. J. Comp. L. 67, 49 (1954).

[16Doug M. Keller, Interpreting Foreign Law through an Erie Lens: A critical look at United States v. MCNAB, 40 Tex. Int’l L.J. 157, 164 (2004).

[17] Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 535 (1983).

[18] N. Adler, Supra note 17, at 50.

NITA Celebrates Pro Bono Recognition Week

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written by NITA Board Member Barbara Bergman

proBonoWeek2014National Pro Bono Recognition week is October 19-25.  As a result, this is a fitting time to reflect on NITA’s historic and continued commitment to pro bono and public service work.  From its founding, NITA’s Board of Trustees and its staff have embraced public service as part of its mission. The first NITA programs included many lawyers who were either legal service attorneys or who actively represented pro bono clients. NITA continues to train those lawyers at its public and public service programs.

The Board of Trustees has chosen to make training attorneys and advocates who work with specific underserved communities a priority—including, but not limited to, areas such as legal aid, child advocacy, criminal law, tribal courts, and cases involving domestic violence.  We do this through scholarships to public programs, NITA-funded public service programs, and working with local organizations to provide programs for those attorneys who serve these communities.

So far, in 2014, scholarships have been awarded to 94 attorneys in NITA public programs totaling over $100,000, enabling them to attend various NITA programs throughout the country. In addition, in 2014, over 500 participants were trained in NITA’s more specialized public service programs.  Those programs included three child advocacy programs training 66 attorneys; two programs training 40 attorneys who do disability rights work; three legal services programs training 100 attorneys, two domestic violence programs training 56 attorneys, one death penalty program training 48 attorneys, a civil rights program training 32 attorneys, and three programs in conjunction with bar associations training an additional 56 attorneys.  NITA has also sponsored teacher training programs for legal service and child advocacy attorneys, which were designed to enable those attorneys to return to their offices and train the attorneys with whom they worked to be more effective advocates.  Finally, NITA is participating in advocacy training programs in Serbia, Singapore, Ireland, Kenya, and Japan.  Overall, 150 individuals attended nine international programs.

Not only is NITA committed to training attorneys who give selflessly of their time and talents representing clients who are indigent, but in addition members of the NITA Board and staff continue to do pro bono work by volunteering for many service projects, including serving on boards, speaking and teaching, and working with service organizations.

During this Pro Bono Recognition Week, it is important to acknowledge the tremendous unmet need for legal services both in this country and internationally. It is equally important  to recognize the dedication to pro bono work demonstrated by NITA’s staff, faculty, and Board.

October 2014 Executive Director’s Letter: NITA Talent – Our Faculty Are Honored In Their Fields

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Lockwood_KarenProud of our faculty’s talents, in teaching as well as in the law, I share with you these accolades for members of NITA’s Faculty. Our faculty are leaders. They are thinkers. They are restless – the world should be better! They walk the talk – they work to extend knowledge and advocate for real justice. They pass it on – they teach NITA, making others into more skilled trial lawyers. They achieve – honors, results, justice. These folks exemplify NITA – we are true-blue through and through.

  • Pamela Bresnahan (NITA Board member, Chair Nominating Committee, faculty member). Pam was elected to the ABA Board of Governors to serve as an At Large Member for a three year term beginning in August 2014. The Board of Governors is the body that decides ABA policy and governs when the House of Delegates is not in session. Pam has served on top leadership committees and commissions of the ABA for years, and is a Fellow of the American College of Trial Lawyers. She is a partner at Vorys, Sater, Seymour and Pease LLP in Washington, DC. Read More
  • Thomas F. Geraghty (NITA Board member, Chair Publications Committee, faculty member). Tom received the 2013 Lifetime Achievement Award from the Illinois Association of Criminal Defense Lawyers. The award honors Tom for his professional accomplishments and dedication to justice. Tom is associate dean for clinical education and director of the Bluhm Legal Clinic. He has been a member of the Northwestern Law community – and of NITA — for more than 40 years. Read More
  • Michael A. Kelly (NITA Board member, past Program Director Teacher Training). Mike was selected as Trial Lawyer of the Year by CAL-ABOTA, the American Board of Trial Advocates’ award honoring California lawyers. The award requirements are for the person to be an excellent advocate, have a distinguished career, have a superb reputation of civility, ethics and fair play, and have one or more outstanding trial results. Read More
  • Louise A. LaMothe (Emeritus Trustee, NITA Board, Past Chair, frequent faculty member). Louise is now Judge LaMothe, installed as United States Magistrate Judge for the Central District of California (Santa Barbara Division). She is past Chair, ABA Section of Litigation, served twice as a 9th Circuit Judicial Conference representative, and in other leadership roles. She is a Fellow and Board member of the College of Commercial Arbitrators, and a Fellow of the Chartered Institute of Arbitrators. She practiced at Irell & Manella, LLP, and is distinguished as the first woman partner at Bird Marella. Read More
  • Marcia Levy (Program Director of NITA’s New York Deposition Program, public service and custom programs). On November 10, 2014, Marcia will become only the second Executive Director of Pro Bono Partnership. Founded in 1997, Pro Bono Partnership provides business and transactional legal services to nonprofit organizations serving the disadvantaged or enhancing the quality of life in neighborhoods in New York tri-state area, with affiliates in Atlanta and Cincinnati. Ms. Levy currently is Professor at Cardozo School of Law, and previously practiced with Sullivan & Cromwell. Read More
  • Leo M. Romero (NITA Board member & Past Chair; fmr Program Director NITA Southwest Deposition Skills). Leo is the 2014 Spirit of Excellence Award Honoree, bestowed by the ABA Commission on Racial and Ethnic Diversity in the Profession annually to a very select group of law leaders who lead in diversity as well. His address underscores the importance of UNM, and of Leo’s work from law school forward, to elevating the numbers and impact of diverse members of the bar. Read More
  • Leo is a “two-fer” this year. Past Dean of the University of New Mexico Law School, the law school also honored him at a soiree naming a major new classroom, the ”Leo M. Romero Classroom.” Read More
  • Andrew Schepard (Program Director, custom programs; NITA Author). A Professor at Hofstra University Law School, Andy was honored when Hofstra bestowed the title of Max Schmertz Distinguished Professor of Law. Andrew Schepard is a 1972 graduate of Harvard Law School, where he served as articles editor of the Harvard Law Review, and served as a law clerk to then-Chief Judge James L. Oakes of the U.S. Court of Appeals for the Second Circuit. Read More

(NITA faculty, please send us other honors and awards you know of – we would like to congratulate you and your colleagues too.)

By gathering these examples of our faculty’s leadership, I ask that you extend NITA’s outstretched hand to others with such top legal talent, inviting them into the NITA community across the nation. Our community grows through lawyers who care. It is an act of friendship to turn to a most talented colleague and say, “You would be great at teaching too. NITA is the one.”

Then call me.

NITA teaching. Recognition as a leader. The two go hand in hand.

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 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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