The Legal Advocate

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

Category Archives: Articles

From the Director’s Desk – June 2018

Posted On By

Inspiration comes in many forms. Maybe it’s watching the sunrise from the top of a mountain that you just climbed, maybe it’s learning something new from someone you admire, or maybe it’s watching an incredible lawyer cross-examine an expert witness.

Last week I was inspired when I read an interview with Jim Sandman, Executive Director for the Legal Services Corporation and one of our Keynotes at our upcoming conference, NITAVision 2018: Inspiring Justice Together. He talked about his life in big law and his transition to public service; really about being your authentic self.

Jim shared a story about attending an annual pro bono breakfast of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. The speaker was Michelle Rhee, who had recently become chancellor of the District of Columbia Public Schools. She talked about her need for corporate counsel. Jim had a great observation about this: “I also knew what she meant when she said she was surrounded by lawyers who only know how to say no—the kind of lawyer who spots problems but doesn’t do anything to solve them. What she was saying was, ‘I need a thought partner who can help me get where I’m trying to go.’”

Isn’t that exactly what we’ve been building here at NITA? Thought partners? Yes it is. We want you to be our thought partners to discuss issues, solve problems, learn, grow, and adapt as a legal profession and as legal professionals.

Jim goes on to talk about the challenge to find the right combination of mission and job. “You can go to work for an organization that’s got a great mission, but in a job that doesn’t do anything for you, and you won’t be happy. You have to like what you’re doing day to day. It can be really hard to find that combination.”

People who experience NITA—whether teaching, participating in a course, donating to our foundation or writing a book—are changed; they are inspired. We are inspired every day at what our mighty non-profit accomplishes.

I hope you are as inspired by Jim’s interview as I am. I’m also excited at what we’ve put together at our upcoming summit. Come be inspired with us! NITAVision 2018: Inspiring Justice Together, September 16–18, 2018 in downtown Denver.



Wendy's Signature

 

 

 

Wendy McCormack
Executive Director
National Institute For Trial Advocacy

Monthly Theme: Hearsay Part Two

Posted On By

Direct, Hearsay, and [Proper] Bolstering

Written by NITA guest blogger Professor Jules Epstein

It is a fundamental tenet that a witness has to present a ‘fresh’ version of her story, and may not be asked or permitted to say “well, here is what I told my friends.”   It is not what the jury came to hear; and if coupled with an in-court version is condemned as “improper bolstering [, which] occurs when an out-of-court statement is offered solely to duplicate or corroborate trial testimony.”  State v. Campbell, 254 S.W.3d 203, 205 (Mo. Ct. App. 2008).

But this statement of law is actually incorrect.  Many out-of-court statements may be used to duplicate trial testimony – as long as they have independent hearsay admissibility.

Let’s start with Rule 803, which permits the hearsay of anyone.  And “anyone” includes the testifying witness.  That is apparent from the definition:  “’Hearsay’ means a statement that…the declarant does not make while testifying at the current trial or hearing; and a party offers in evidence.” Fed.R.Evid. 803.  Nowhere does the Rule say, or even imply, that the declarant and the testifying witness must be different people.  But see Brisbon v. United States, 894 A.2d 1121, 1128 (D.C. 2006)(questioning whether a criminal defendant may testify to his own alleged excited utterance).

A witness repeating her own hearsay is not atypical.  A rape complainant may testify to the assault and then read the jury her excited utterance text message that also details the crime.  See, e.g., State v. Young, 2016-Ohio-7477 (Ct. App.).  The same is true with a present sense impression, a statement made for medical diagnosis and treatment, or a contemporaneous entry into the declarant’s own business record.

What is the power of this?  Repetition, which breeds believability.  Consider this example:

Q:      Where were you when the accident occurred?

A:        Right on the corner.

Q:     And what did you see?

A:     This big car, it was red, ran the light, hit the child and drove off.

Q:     Where you able to see the license plate?

A:      Yes, it was XDS123

Q:      What’s the first thing you did?

A:      I had my phone open, as I was about to text my mom, so I typed down the license.

Q:        Please read and show us what you typed.

A:     XDS123

Q:        What’s the very next thing you did?

A:      I was blown away, I dialed 911 and screamed what happened?

Q:      I am going to play a tape [911 call].  “Oh my god, hit and run, red car, XDS123.”  Was that your voice?

A:        Yes.

Q:     And is that what happened?

A:        Yes.

This repetition of out-of-court assertions may also occur if the statement is admissible under the 807 ‘catch-all’ residual hearsay exception.

There is a second way prior statements are admissible on direct examination – when they are consistent with the witness’ live testimony and rebut a claim of recent fabrication or corrupt motive made in the opposing party’s opening statement.  The proponent of the witness need not defer the use of a prior consistent statement until after cross-examination – the ‘impeachment’ has already occurred.  See, e.g., State v. Campbell, 254 S.W.3d 203, 205 (Mo. Ct. App. 2008)(attack in opening statement allows use of prior consistent statement under 801(d)(1)(B)).

There is little an opponent can do.  The independent admissibility of each hearsay statement warrants its use, precluding a bolstering objection.  All that remain are objections under Rules 403 and 611 that the repetition is cumulative and unnecessary, but given the presumed reliability of each hearsay exception, these arguments will be difficult to make until much damage is done.

[Professor Jules Epstein is the Director of Advocacy Programs at Temple Beasley School of Law in Philadelphia, PA.]

 

 

 

 

New York Evidence with Objections – Fifth Edition

Posted On By

Authors Lissa Griffin, Michael Mushlin, Jo Ann Harris, Anthony Bocchino, and David Sonenshein bring you the fifth edition of New York Evidence with Objections. This 4-by-6 inch reference guide to New York evidence travels easily to the courtroom or the classroom, a handy guide which enables you to quickly reference objections and responses during trial!

Because New York’s evidence law has not been codified into rules, NITA’s guide will help you readily make and respond to objections by using the thumb tabs to quickly locate the information you need. Each section provides the applicable New York case law and statuses (updated through 2017), an explanation giving the reason for the law, and the current understanding of it.

Retail Price: $39

Available in: Print, Ebook (epub), and Ebook (mobi)

ABA/NITA San Diego 2018

Posted On By

written by guest blogger Mark Drummond

“This Monday I tried my first jury trial. After 15 minutes, the jury returned a verdict in favor of my client. This training contributed to my level of confidence, efficiency and to my client and her three children having a roof over their heads.”

-Letter from attorney with Legal Aid of Central Texas received June, 1996

For nearly a quarter of a century, the Section of Litigation of the American Bar Association and the National Institute for Trial Advocacy have partnered to provide no cost advocacy training for attorneys who provide legal services for those in need.  The Section funds the program and provides meals for the participants along with a reception in honor of them and the work they do every day.  NITA provides the training materials and the trainers.

This year’s training was held May 17-19 at the University of San Diego School of Law. Fourteen veteran NITA trainers worked with twenty-seven attorneys from legal services agencies throughout California for this intensive workshop.  Using the NITA method, the attorneys performed advocacy skills and received constructive critique, including video review of their performances.  There are many people to thank—

Past NITA San Diego Program Director Professor Allen Snyder for his assistance in securing space for the training in the law school.  Law school staff members Stacee Groff and Don Poe for their assistance throughout the program. We could not have had better, or more gracious, hosts.

ABA staff liaison, Monica Anchando, who reached out to agencies throughout California and made everything runs seamlessly.

Veteran NITA trainers Monique Carter, Amy Hoffman, Linda Lane, Danielle Hickman, Sadaf Hane,  Jaclyn Pampel, Lori Temko,  Sandy McAdoo, Gregg McClain,  Jaymes Sanford,  Richard Gates,  Andrew Haden and Judge Chris Whitten who freely shared their experience and expertise.

And last, but not least, the participants themselves who arrived receptive to the process and willing to put themselves on the line, in front of us and their peers.  These trainings only work if they work—and they worked.  It was our pleasure to work with them.

Mark Drummond, Program Director

Regional P&A Advocacy – A NITA Public Service Program

Posted On By

On April 24 – 26, a group of NITA faculty went to Frankfort, KY for a public service program for 24 attorneys – all from a variety of organizations such as Disability Rights of Pennsylvania, Kentucky Legal Aid, Disability Rights of Ohio, and more. The program was led by Jayme Cassidy, who began teaching with NITA in 2004.

At the conclusion of the program, Cassidy stated, “It was a pleasure designing this program and working with the Prosecution and Advocacy attorneys. These passionate lawyers come from various backgrounds both personally and professionally. They came together with a common goal to learn how to represent their vulnerable clients more effectively. One performance at a time, these advocates dedicated themselves to elevating their lawyering skills using the NITA method. It was rewarding for the entire team to witness significant improvement each performance!”

Not only did Cassidy find the program to be rewarding, but the participants as well found that they learned a great deal during the three-day program.

“I received great guidance regarding my oral advocacy skills, and I felt comfortable with my peers and advisors . The documents were thoughtfully made for the program. This was well-structured, organized, and I would take a course like this again,” stated one participant.

Overall, the participants felt the opportunity to practice their skills in front of a knowledgeable team of faculty was very beneficial and appreciated the feedback.

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 Goals are 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

Follow

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

Join other followers: