The Legal Advocate

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

Category Archives: Articles

NITA Movie Review: Greedy Cousins, A Fight for Autonomy, and a Really Big Rabbit

Posted On By

Written by guest blogger Judge McGahey

Sometimes we forget all the areas where trial lawyers work. In Denver, where I am, our stand-alone Probate Court handle cases as varied as mental health proceedings and estate matters. This month we’ll focus on films that fall within that court’s purview. I’ve deliberately chosen to leave out movies that I’ve written about before, like Miracle on 34th Street (where Santa Claus goes on trial for “lunacy”) as well as movies featuring really crazy people (like Psycho.) Instead, I’ve picked a black comedy about an inheritance battle, a drama about a fight over competency, and a wonderful movie about a man whose best friend is a six-foot three-and-a-half inch tall invisible rabbit.

The Wrong Box (1966, Columbia Pictures) is a British comedy that centers on the attempts of two scallywags to collect the proceeds of a tontine. A tontine was a sort of investment scheme used in the past. The members of a tontine placed a certain sum of money in an account, with the last surviving member inheriting the entire amount, plus years of interest, far off in the future (hopefully.) The winner’s relatives, of course, stood to profit thereafter. The potential for mischief should be obvious.

In the movie, the last two potential survivors who could inherit the tontine are Masterman Finsbury (played by a true giant of British acting, Sir Ralph Richardson) and his brother Joseph (played by the almost-as great Sir John Mills.) Joseph has two scheming nephews (Peter Cook and Dudley Moore) who want to eliminate Masterman so that Joseph gets the proceeds of the tontine, followed (in short order) by the two nephews. Masterman’s only heir is his somewhat dim grandson, Michael (played by Michael Kane.) To describe the plot of this film would take more pages than these reviews are supposed to cover, but it involves (among other things) several murder plots, a train wreck, a misidentified corpse, a corpse stashed in a barrel, a corpse stashed in a piano, the mis-delivery of coffins — and a love story between Michael and Joseph’s prim and proper, but Victorian-ly repressed niece, (Nannette Newman.)

I’ve always found The Wrong Box hilarious and I think you will, too. It shows, in a farcical way, the ends to which people will go to secure what they believe to be their rightful inheritance. Courts and lawyers handling estate matters with real-life fights like this all the time.

Next, I present Nuts (1987, Warner Brothers), starring Barbara Streisand as Claudia Draper, a call girl who kills a client, according to her, in self-defense. Because of her erratic behavior, Claudia is confined at Bellevue, where she is examined by a psychiatrist, Dr. Morrison (Eli Wallach), who believes Claudia is incompetent to stand trial. Her parents (Karl Malden, Maureen Stapleton), fearful of a scandal, support this finding, because it would allow their daughter to be tucked away quietly in a mental institution. The parents hire a lawyer for their daughter, but the lawyer is in league with the parents and the psychiatrist. But at a competency hearing, Claudia strikes a blow for herself (literally) and the judge appoints a public defender, Aaron Levinsky (Richard Dreyfuss) to represent her. Claudia insists that she has a right to decide her fate, and that whatever mental illness she may have doesn’t deprive her of that right. The courtroom scenes are jarring and the end result of Claudia’s fight is never sure.

Nuts has several aspects that make it worth watching for those of us in “the system.” For lawyers, there’s the issue of how you interact with a client who even her own counsel describes as “a real pain in the ass.” For judges, there’s the fine line between the right of a defendant to make their own decisions and whether someone is actually so mentally ill that they cannot make decisions for themselves. And, throughout the film, there’s the philosophical question of whether or when the law should require that someone be treated for mental illness if that person doesn’t want to be treated or doesn’t believe they should be[1]. These are important questions not just for the law, but for society as a whole.

And last, but definitely not least, we come to Harvey (1950, Universal) a wonderful comedy starring James Stewart as Elwood P. Dowd, a kind and gentle man, whose best friend is a pooka – an Irish spirit, in Elwood’s case is a six-foot three-and-a-half inch tall[2] invisible rabbit named Harvey. Of course, no one else can see Harvey and because Elwood likes to take more than a few drinks, spending much of his time at Charlie’s, Elwood’s (and Harvey’s) favorite local bar. His strait-laced relatives are sure that Elwood is both an alcoholic and certifiably crazy. Elwood is also perceived as an embarrassment to his family, who are convinced that he affects their social position and even the ability of his niece to marry well. An attempt is made to have Dowd committed, even enlisting the help of the local judge, but the attempt goes awry, as these things do in Hollywood. The head of the sanatorium proposes treatment with a secret formula that will keep Elwood from ever seeing Harvey again. I won’t spoil the ending for you, but rest assured that Elwood does not end up as “just a normal human being.”

Harvey is simply a warm, sympathetic portrait of a man who is either harmless eccentric or someone who’s mentally ill – or both. Stewart was nominated for Best Actor and Josephine Hull, who played Elwood’s frazzled sister Veta, won the Oscar for Best Supporting Actress Oscar[3]. The movie shows up a lot on TV and is one you shouldn’t miss. It’s also suitable for watching by and with kids, which neither The Wrong Box nor Nuts is.

Kudos to those who labor in the probate, estate and mental health fields!

————————————————————————————————————————-
[1] Many judges have been faced with the issue of involuntary medication of persons receiving treatment in state facilities. Colorado’s statute can be found at C.R.S 1973, Section 26-65-118.
[1] The script always refers to Harvey as being 6’3-1/2” tall, but Stewart, who was 6’4” played it as if Harvey were 6’8” tall, so Stewart was always looking up to talk to Harvey.
[1] Ms. Hull appeared in another movie about slightly doty old folks in 1944’s Arsenic and Old Lace.

Reflections on the Cosby Hung Jury

Posted On By

by guest blogger Melissa M. Gomez

[Photo attribution: World Affairs Council of Philadelphia [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons]

What causes a hung jury? In criminal cases, everyone on the panel has to agree for a verdict to be reached. When there is disagreement, jurors need to discuss and debate their different perspectives. While diverse perspectives typically make for more thorough discussion and review of the evidence, they can also be very frustrating for a jury. While the hope is that thorough discussions lead jurors to come together to a consensus, they sometimes have the opposite effect, and make jury members more entrenched in their diverse positions.

In the case of Bill Cosby, jurors could and likely did become polarized emotionally. One reason could have been their perception of Cosby’s public image. Is he America’s favorite dad who could never do such a thing? Is he a predator who deceived the public by pretending to be a champion of family values and strong women? Another reason could be a juror’s perspective on women’s rights and sexualization. And yet another reason could be a perspective that high-profile people abuse their power and influence. Polarized positions such as these can lead to a lot of difficulty coming to a consensus. They represent strong values that are hard to bend.

Moreover, when there is disagreement on a panel, jurors tend to compromise. For example, when there are both felony and misdemeanor charges to decide, a jury that disagrees may compromise on the lesser charge. For Cosby, there was nowhere to compromise. All of the charges were felonies.

Of course, all of these issues were exacerbated by the jurors’ knowledge that the country is watching and that their verdict is going to have a life-altering effect on a celebrity who was once beloved. They wanted to get the decision right. And because they had different ideas of what was right, they weren’t going to get a decision at all.

Nationally known jury consultant and the President of MMG Jury Consulting, LLC, Dr. Melissa M. Gomez holds a PhD in Psychology and a Master of Science in Education from the University of Pennsylvania. She has worked on over 500 jury trials across the United States with a focus on the psychology of learning, behavior, and decision-making. She is the author of Jury Trials Outside In: Leveraging Psychology from Discovery to Decision, published by NITA.

Point Well Made Indeed

Posted On By

We knew last fall when NITA faculty Nancy Vaidik and Rebecca Diaz-Bonilla submitted their manuscript for Point Well Made: Oral Advocacy in Motion Practice we had something special on our hands that would fill a knowledge gap in the world of trial advocacy—namely, how to prepare for and optimize your time before the bench in a motion hearing. It was gratifying, then, when we received word from a practitioner in the field to confirm that notion.

Mary E. Levy, Practice Professor of Law at Temple University Beasley School of Law, reviewed the book for the Beasley’s advocacy blog (here). She noted:

Point Well Made is . . . a great resource for law professors and other legal educators who teach in the areas of trial advocacy, oral advocacy, or motions practice. It contains excellent examples, exercises, and suggestions that can be easily incorporated into the classroom or other legal training. In sum, Point Well Made is a valuable resource that provides both law students and practitioners with significant advice and tools for successfully arguing motions.

NITA shares a deep history with Temple, as many of our past and present faculty and authors have been based at Beasley School of Law, including David Sonenshein, Tony Bocchino, JoAnne Epps, Sara Jacobson, Ken Jacobson, and Jules Epstein. Our thanks go to Temple Beasley for its ongoing interest in NITA publications, and to Professor Levy for spending time reading and reviewing Point Well Made.

To learn more about how to make the most of your motion hearings, we invite you to tune into Delivering a (Last-Minute) Point Well Made, the webcast Judge Vaidik and Ms. Diaz-Bonilla recorded in Boulder last month for NITA’s studio71. This free, hour-long recording is a fantastic introduction to the preparation and delivery techniques you’ll learn from their book. You’ll come away with tips and tricks that you can put into practice immediately and get a good sense of what other insider pointers and advice you can expect to discover in Point Well Made.

While you’re at it, be sure to read Help Me Help You, by Judge Vaidik, and Eating Humble Pie, by Ms. Diaz-Bonilla, two articles that were part of The Legal Advocate’s series on motion practice last month.

Some Thoughts About Courtroom Technology

Posted On By

Written by guest blogger Judge McGahey

I’ve been invited to share some thoughts about the use of courtroom technology. Let me start with a caveat: I didn’t use much of what is now considered “courtroom technology” when I was in practice, primarily because much of it didn’t exist. But I’ve watched a lot of trials as a judge, and I’ve seen courtroom technology used effectively or misused disastrously; I think that gives me some perspective that could be helpful. Put another way, from the technical side, I have no idea how courtroom technology “works.” But from the advocacy side, I absolutely have some ideas on how it “works.”

Question #1: Can You Make It Work? – Do you understand anything about how the technology operates? Do you know how to make the technology work in the courtroom? Have you investigated which of the multitude of presentation programs is most compatible with your practice? Have you looked into which program is easiest for you, as an individual, to actually use? Can you push the right switch, button, toggle, clicker, whatever, to actually make the exhibit appear where you want it to appear? Would you be better off with someone else in charge of the pushing? And even if you’ve answered these questions, have you actually practiced with the technology so that your use of it is seamless and smooth?

Question #2: Will It Work (In the Courtroom)? – You’ve picked your program and know what button to push. But now you need to figure out whether what you want to do will work in the courtroom where you need it to work. Every courtroom has its own peculiarities. Here in Denver, I preside in a courtroom located in an historic building that was built in 1932. But the acoustics are poor, the sound system is quirky, the sight lines aren’t great and the electrical wiring is old and slapdash. Heck, it’s hard just to find a wall socket that’s easy to access. If you’re going to use technology in my courtroom, you better set it up and make sure that it works, that everyone can hear what’s being said (if you have sound), and that the jurors (or the judge) can clearly see what’s on display. We’ll let you or your tech folks come over to the courtroom ahead of time and set up before trial starts; I don’t know a judge who won’t accommodate a request like this, if at all possible. And please remember to bring along what you need to make your setup function; I’ve had trials held up because someone didn’t have a long enough extensions cord or extra batteries.

Question #3: Does It Work (As Part of Your Case) – All of your best intentions about courtroom technology are pointless unless what you do with it makes your case more credible. A flashy or clever exhibit still has to have impact as an instrument of persuasion; it can’t just be an exercise in nifty graphics. I’ve seen lawyers do really clever and creative things using technology that left the jurors cold. I’ve also seen simple, black and white power point slides used in a closing argument to convince jurors to award a plaintiff more than the lawyer asked for, or to help convict someone of first-degree murder. Think hard about the most effective way to present your case. Are any of your exhibits dodgy so that the judge might not let them in? Does the judge expect you to show your presentation to opposing counsel before you use it? Will your jury be tech savvy or inclined to skepticism about a case using technology? Does your presentation match up with what you’re asking the jury to do? Does the technology overwhelm your argument? Does what you present reflect your client’s case or your ego?

——————————————————————————————————————————————————-

I realize that what I’ve written is very basic. But even experienced lawyers get distracted by shiny objects like really neat presentation software and then forget about the basics that make a courtroom presentation successful. Never forget that your goal as a trial lawyer is a successful outcome for your client, not just impressing a jury with technical wizardry.
I’ll see you in court.

Immigration Relief For Unaccompanied Minors

Posted On By

written by NITA guest blogger Losmin Jimenez

In recent years, the plight of unaccompanied minors seeking protection has garnered much attention in the United States. What does it mean for a child to be an “unaccompanied minor?” This blog post examines the definition of unaccompanied minor, root causes for child migration in the United States, and an overview of some common forms of immigration relief for unaccompanied minors. Given the complex nature of this topic, this blog post provides a brief starting point for a practitioner interested in learning more about this vulnerable population. Hopefully, it will inspire the reader to volunteer and provide pro bono representation to an unaccompanied minor.

An “unaccompanied minor” or “unaccompanied alien child” (“UAC”) as defined by U.S. immigration law is a child who “(A) has no lawful immigration status in the [U.S.]; (B) has not attained 18 years of age; and (C) with respect to whom— (i) there is no parent or legal guardian in the [U.S.]; or (ii) no parent or legal guardian in the [U.S.] is available to provide care and physical custody.”[1]

Between 2014 and 2016, 168,203 unaccompanied minors were apprehended by the U.S. Customs and Border Protection in the U.S.[2] While many reasons exist for why a child flees his or her country of origin, the vast majority of unaccompanied minors arriving in the U.S. are fleeing gang violence, gang recruitment, narco-traffickers, child abuse, or gender-based violence. Some children hope to reunify with a parent or family member in the U.S.[3] Although the children arriving in the U.S. are from many different countries, the top three countries of origin in fiscal years 2014, 2015, and 2016 were Honduras, Guatemala, and El Salvador.[4] Indeed, the top three countries of origin of unaccompanied minors seeking protection in the U.S.—countries sometimes referred to as the “Northern Triangle” countries— are some of the most violent countries in the world. Currently, El Salvador is the most deadly country in the world after Syria.[5] In 2013, “Honduras had the world’s highest murder rate for a non-war zone in 2013 with 79 homicides per 100,000 inhabitants.”[6] According to a recent report by Kids in Need of Defense (“KIND”), “[o]n average two women are murdered each day in Guatemala and the number of women murdered each year has more than tripled since 2000.”[7]

Obviously every child has a unique life story that determines his or her eligibility for immigration relief. However, under U.S. immigration law there are some common forms of relief practitioners see in this area such as special immigrant juvenile status, asylum, and the T nonimmigrant visa for survivors of human trafficking.

Respondents in immigration court have a right to be represented by an attorney in immigration court, at no expense to the government[8]; there is no right to appointed counsel in immigration proceedings, even if the Respondent is a child. Despite the complexities of immigration law, about 60 percent of unaccompanied minors in the U.S. have to face immigration court without a lawyer.[9] Unaccompanied minors with a lawyer are five times more likely to gain protection under U.S. immigration law, while only one in ten unaccompanied minors without attorneys win their cases.[10] Without a lawyer, unaccompanied minors do not have a meaningful opportunity to be heard and are in grave danger of being returned to the dangerous conditions they fled.[11]

Consider contacting your local immigration advocacy organization and taking a pro bono case. You will grow as an attorney professionally and personally, provide access to justice to a very vulnerable person, and have the chance to impact a child’s destiny.

————————————————————————————————————————-
[1] 6 U.S.C. §279 (g)(2).
[2] See U.S. Customs and Border Protection, available at https://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children/fy-2016 (last visited May 13, 3017).
[3] See Center for Gender and Refugee Studies and Universidad Nacional de Lanus, Childhood and Migration in Central and North America: Causes, Policies, Practices, and Challenges, February 2015, pages iii, vi, vii, available at https://cgrs.uchastings.edu//sites/default/files/Childhood_Migration_HumanRights_FullBook_English.pdf (last visited May 13, 2017).
[4] See U.S. Health and Human Services, Office of Refugee and Resettlement, Facts and Data, available at https://www.acf.hhs.gov/orr/about/ucs/facts-and-data (last visited May 7, 2017).
[5] See Nina Lakhani, ‘We Fear Soldiers More Than Gangsters’: El Salvador’s ‘Iron Fist’ Policy Turns Deadly, The Guardian, Feb. 6, 2017, available at https://www.theguardian.com/world/2017/feb/06/el-salvador-gangs-police-violence-distrito-italia (last visited May 13, 2017).
[6] See Center for Gender and Refugee Studies and Universidad Nacional de Lanus, supra Note 3, at iii.
[7] See KIND, Neither Security nor Justice: Sexual and Gender-based Violence and Gang Violence in El Salvador, Honduras, and Guatemala, May 4, 2017, at 5, available at https://supportkind.org/resources/neither-security-justice/ (last visited May 14, 2017).
[8] See Immigration and Nationality Act, § 240 (b)(4)(A).
[9] See Representation for Unaccompanied Children in Immigration Court, Transactional Records Access Clearinghouse (“TRAC”) at Syracuse University, available at http://trac.syr.edu/immigration/reports/359/ (last visited on May 19, 2017); see also KIND Talking Points: Unaccompanied Children in the United States, available at https://supportkind.org/wp-content/uploads/2017/02/TP_KIND-info-packet-2-1-17-FINAL.pdf (last visited on May 15, 2017).
[10] Id.
[11] Id.

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: