The Legal Advocate

A blog brought to you by the national institute for trial advocacy

Category Archives: Articles

Asked and Answered: Judge Robert McGahey

Posted On By

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

Posted On , , By

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

Posted On By

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 Movie Review: “A Scourge That Is Always With Us”

Posted On , By

Written by guest blogger Judge McGahey

mRay Rice.  Adrian Peterson. The issues of domestic violence and child abuse are at the forefront of the news once again, jumping into our consciousness because of high-profile cases involving NFL players. But violence like this is hardly a new phenomenon.  For this month’s film I’ve chosen a film from 1931, in black and white, in a foreign language, that is one of the most powerful cinematic statements – if not THE most powerful cinematic statement – about the horrors of child abduction and sexual assault on children.  It will chill you to the bone.

M is a German film released in 1931.  It was directed by Fritz Lang, one of the all-time great directors.[1] It was Lang’s first sound film.  Lang also wrote the script with his wife, Thea Von Harbou.  Of all his many movies, M was Lang’s favorite. He stated years later that the story came to him because Germany was plagued by a number of serial killers.  However, the subject matter of the movie was not one that the public was happy about.  When Lang announced that he would make a movie about this subject, he received death threats and his regular studio refused to allow the film to be made there.  Lang would eventually come to the United States after Hitler came to power and would make a number of remarkable films after moving here.

M tells the story of a mentally ill man who abducts, sexually assaults and kills children. We see the pursuit of the killer on two fronts.  There is the frantic search by the police authorities, led by Inspector Karl Lohmann. That search leads to a crackdown on the city’s criminal class and that crackdown in turn leads the criminal underground to begin its own parallel search, at the direction of a character known as The Safecracker. The criminals find the killer first and put him on trial before a kangaroo court made up of the criminal underground.  I won’t spoil the ending – but it will move you.

The killer is played by Peter Lorre in his first starring role.  If you only know Lorre from his slightly silly performances in low-budget horror films of the ‘60’s, his acting here will be a revelation.  The anguish of a crazed and obsessed killer is palpable. Watching him during the trial, one can almost feel sorry for him.  Almost.

M is filled with images that will disturb and even shock you – but given the time of its making, we see nothing explicit or even very direct. Rather than battering us with the kind of graphic images easily available to us today on the internet and television, Lang instead conveys fear, terror, obsession and loathing by carefully crafted images that leave everything to our imaginations. The power of Lang’s visual language is such that I have seen people weep or cry out in shock or fear while watching M.

Yes, this movie is 83 years old.  Yes, it’s in black and white.  Yes, it’s in German with subtitles. None of that matters. Watching it will be powerful and unforgettable experience for you. M reminds us that violence against our fellow beings is a scourge that is always with us and is, sadly, nothing new. Every one of us in the legal system sees this every day, no matter where we are: sex assaults on children in criminal, sexual harassment suits in civil, protection orders in domestic, D&N’s in juvenile, abuse of the elderly in probate. The maltreatment of human beings by other human beings is a constant thread in our work. But our knowledge of that sad, frightening thread should remind us that we, as a society can do better.

And we must do better.

[1] Among other movies, Lang also directed Metropolis, a silent film about a future society and its relationship to robots, found on every list of movie classics and a must for all sci-fi fans.

Hearsay, Part Three: Some 803 Exceptions

Posted On , , By

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 Three: Some 803 Exceptions

written by guest blogger and NITA Program Director Professor Frederick Moss 

Last time, I discussed the hearsay exemptions, the first way in which out-of-court assertions can be admitted for their truth, as tending to prove or disprove some material fact. Like exemptions, assertions admissible via the Rule 803 (and 804) exceptions meet the definition of hearsay but are admitted for their truth nevertheless. The reason for this pass is that the assertions were supposedly made under circumstances that make them more reliable than “rank” hearsay.

The exceptions are divided into two rules: Rule 803 exceptions work regardless of whether the out-of-court declarant testifies. Rule 804 exceptions apply only if the declarant is “unavailable” to testify.

The Federal Rules of Evidence (FRE) have twenty-three 803 exceptions. I can’t discuss all twenty-three, so I will cover a few of the most frequently used exceptions.

Probably the most used exception is the “Business Records” exception. Civil litigation is document heavy. Rule 803(6) allows the introduction of records of a business, institution, association, profession, occupation, or other “regularly conducted” “calling of every kind” without having to call the maker of the record. If businesses depend upon the records for the success of the businesses (not for litigation purposes), then the courts trust their reliability, at least to the extent of not banning them as hearsay. Hence, a records custodian or other person from the business who knows how records of the kind offered are made and kept, and who can answer the five or six predicate questions embedded in Rule 803(6), can get the records admitted. Recently, states and the FRE have made it even easier, dispensing with the need to call any witness by allowing the proponent to submit an affidavit by a business employee affirming the predicate questions. See FRE 902(11) and (12). The only catch is that the offering party must notify all opposing parties before trial in writing and make the affidavit and the records available for inspection.

The second catch is that statements in the report by others not associated with the business (outsiders) may be inadmissible hearsay rendering the report inadmissible. See FRE 805 (Hearsay Within Hearsay). These outsiders are not covered by the exception because they do not have a business duty to report accurately to the report writer. When this is the case, another hearsay exception or exemption must be found for the outsider’s assertion or else the report is not admissible for the truth of the outsider’s assertion.

Rule 803(8) provides the exception for documents produced by government agencies. This rule is tricky because it incorporates Confrontation Clause protections for criminal defendants. However, it allows the statements of outsiders to be admitted in civil cases when they are part of an investigation by the public agency.

The next most used exception is probably Rule 803(2), the Excited Utterance. It is an assertion about a “startling event or condition” while under the stress of excitement caused by the event or condition. Assuming we have a “startling event,” admissibility is dependent on showing that the declarant was still startled when he or she made the statement. While the time between the event and the assertion is a factor in determining whether the declarant spoke while under stress, courts have found that declarants can remain stressed for rather long periods of time.  It is all about how the declarant looked, acted, and sounded when the statement was made.

Statements by which the declarant is recounting what the declarant is seeing, hearing, feeling, smelling, or tasting at that moment—“or immediately thereafter”—are admissible as present sense impressions per 803(1). The passage of time enough for reflection before speaking defeats this exception.

Finally, there is Rule 803(3), the “Then Existing Mental, Emotional, or Physical Condition” exception. This exception assumes increased reliability inheres when the declarant is speaking about a “then existing” condition, such as an emotion, physical feeling, or intention. This exception is often misunderstood. Many think it applies when the assertion is relevant to prove the state of mind of the person who heard the assertion. Wrong. This exception applies only when offered to prove the declarant’s expressly asserted condition. If offered as circumstantial evidence that, say, the hearer possessed certain information at a particular time, the statement is not hearsay; it is not offered for its truth.

Excluded from this exception are statements of memory to prove the fact remembered. After all, unless we are describing a current feeling or intent, most of what we talk about are memories of past events. If memories were excepted from the hearsay ban, the exception would swallow the rule.

Next time, I’ll write about some Rule 804 exceptions, especially the requirement that the declarant be “unavailable”—a multi-faceted concept.

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.
Feature Products

Get every new post on this blog delivered to your Inbox.

Join other followers: