The Legal Advocate

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Category Archives: Publications

Trial Advocacy Basics, Second Edition

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trialadvocacybasicscoverTrial Advocacy Basics  is a courtroom primer that helps both the novice advocate prepare for his first day in court and the practicing lawyer bring her skills in line with the most recent developments in trial advocacy. The second edition provides the modern perspectives on both the style and substance of case analysis, case theory, cross-examination, impeachment, closing arguments, and presenting information using technologies. Authors Molly Townes O’Brien and Gary Gildin relate practical advice on every stage of trial preparation and practice in a straightforward manner, using memorable examples and anecdotes to highlight each lesson.

Retail Price: $70

Order Here in: Print, Epub, or Mobi

State v. Bloodworth

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statevsbloodworthIn Joseph E. Taylor and Aleshandra Griffith-Reed’s second edition, State v. Bloodworth, a frantic 911 call about an unconscious intruder brought police to Gene Bloodworth’s home, but was that the real story? Readers will investigate and find that Kenneth Fletcher was found unconscious on the floor of Bloodworth’s condo but Bloodworth claims that Fletcher broke into his home and had a knife. Three days after the break-in, Fletcher is found dead from blunt force trauma to the head. As Bloodworth insists he acted in self-defense, what will you believe?

The second edition now includes extensive social media exhibits, giving participants a chance to work with this new and important form of evidence and the challenges it presents.

Retail Price: $38

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Book Review: Alternatives to Litigation

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alternatives-to-litigationThe Verdict, the quarterly magazine of the Trial Lawyers Association of British Columbia, reviews NITA books from time to time. Today, we are delighted to share Michael Sporer’s review of Alternatives to Litigation, by NITA authors Andrea Doneff and Abraham Ordover, reprinted below with permission and in its entirety. Our thanks to the Trial Lawyers Association for their interest and support of NITA publications.

Alternatives to Litigation: Mediation, Arbitration, and the Art of Dispute Resolution
Third Edition

by Andrea Doneff and Abraham Ordover. 282 pp.
Published by the National Institute for Trial Advocacy

The phone would ring early in the morning, well before the office opened. The familiar voice would almost shout: “Fred Perry. Inter-City Claims. Do you still take cream in your coffee?” An instant later, the office door handle would be jostling impatiently and old Fred, barking about litigation costs or howling in agony about the plaintiff’s demand, was pushing his way through the door and trying to resolve the file.

Wily, diminutive Fred—a well-known insurance adjuster, now gone for some years—seldom paid trial dollars to settle a case, but he would pay a little more than he wanted in the early stages of a claim to avoid litigation costs and to get a matter settled. He often achieved that settlement with his friendly, if occasionally acerbic, pro-active approach. And Fred always brought a coffee.

He wasn’t the only one who would pay a visit. A manager from the local ICBC Claims Centre showed up unannounced at the law firm I was working at not long after I was called. Personal introduction. Handshake. Business card. Some warm words of wisdom. “Call any time.” And two very fair settlement offers on smaller injury files.

Sure, there were always hard lines that were taken and tough people to deal with. But it is different today: many insurance companies now look and behave and feel more like entrenched bureaucracies. Hardly anyone comes knocking on the door anymore, and personal visits are rare. While clients are still eager to resolve cases, plaintiffs’ lawyers have to be creative to find ways forward to resolution.

Books on trial strategy and biographies of great barristers are staples in any trial lawyer’s reading diet, but those who are looking to change direction and read something focused on resolution of cases outside the courtroom would be well-served to read Andrea Doneff and Abraham Ordover`s Alternatives to Litigation: Mediation, Arbitration, and the Art of Dispute Resolution, published by the National Institute for Trial Advocacy (NITA). The book, first published in 1993, is now in its third edition (2014) and contains new, valuable, updated discussions.

Alternatives to Litigation covers general information important to all legal conflict resolution, before going into specifics. One of the fundamental suggestions the authors make, sounding a little like the great Wyoming trial lawyer and advocacy teacher Gerry Spence, is that lawyers should start with themselves. Chapter two—“The Dynamics of Conflict”—advises lawyers to take specific on-line tests—the good ones are identified by the authors and easily accessible on the internet—to help lawyers gain insight into their own personalities, and learn how they approach conflict. The authors emphasize that this is an important starting point for lawyers who work day-to-day in litigation, where their clients require conflict resolution.
The book, as its title promises, covers a range of alternatives to litigation, and provides useful advice in relation to negotiation, arbitration, and mediation. Chapters seven through thirteen—the heart of the book—focus on mediation.

The authors note that some of the dynamics in mediation are typical to particular areas of law, and the differences between specific mediation environments are highlighted. Family law divorce mediation receives its own chapter[1], and personal injury and employment mediation also receive perceptive commentary. The book notes that in personal injury mediations, it is particularly difficult to break the more entrenched, positional mold of negotiating, which they say, is part of “the nature of this particular beast.” Strategies are suggested to help break an impasse, when both sides dig in.

One of the features of the book is that it helps lawyers understand what a mediator can do to help the settlement process, and how to work with a mediator more effectively at mediation. While the experienced, well-trained mediator might find little new in these pages, one exception could be the discussion on ethics. Like most NITA courses and publications, the book puts ethical questions front and centre, and in this case particularly so from the perspective of the mediator, dedicating a full chapter to ethical issues that can arise during the mediation process.

As always, there is room for a quibble or two. In its discussion of injury law mediation, the book is critical of unhelpful incentives said to arise from contingency fee agreements, suggesting that such fee structures can ostensibly provide barriers to appropriate settlements for plaintiffs. But one can find theoretical problems with any fee structure. And there is no doubt that a contingency fee also can be said to provide important incentives on plaintiff`s counsel to reach a fair settlement earlier rather than later, pushing down litigation costs, and keeping cases out of the courtroom. On the other hand, the hourly fees of defence lawyers who oppose injury claims could, theoretically, be argued to provide very different incentives—for example, to run a big trial or prolong a case—but as to those hourly fees of insurance defence lawyers and their incentives at personal injury mediation, the discussion is silent. Nor, perhaps should it go there—the professional obligation to act in the best interests of the client and not to prolong a case prevails. But the point is that contingency fees often receive disproportionately negative treatment, as they do here in this personal injury mediation discussion. These are, however, minor quibbles, that don`t distract from the effective overall presentation or the useful information that is provided throughout the book.

The book explains novel concepts like co-mediation, when more than one mediator might be helpful, and on-line mediation, to be used when it might be difficult to get all the parties together. In the latter case, a mediator can contact the parties—by phone, video conference, email, and a little shuttle diplomacy—to help bring a case to an end that all parties can accept.
Doneff and Ordover have years of experience working and teaching in this field. Most lawyers will find they have shared valuable insights in their recently updated book.

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[1] Chapter Eleven, “Divorce Mediation,” is written by Patricia Siuta, President of American Mediators, LLC.

Federal Rules of Evidence with Cues and Signals for Good Objections, First Edition

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federalrulescuesIn Federal Rules of Evidence with Cues and Signals for Good Objections, First Edition, knowing the technical bases for objections is not so difficult because law school covers that. However, the difficulty lies in recognizing a good objection very quickly when your opponent puts a question to a witness or starts using a document. This handy guide identifies the cues to listen for when your opponent asks a question or the witness gives an answer. When you know the cues you can object rapidly and successfully.

Furthermore, this guide gives you details on every objection that has been recognized in federal courts and sorts out the high-payoff objections from those of lower priority for both oral testimony and exhibits. If you are looking to increase your knowledge and understanding of objections then look no further. This compact guide is perfect for you.

Retail Price: $35

Order Here in: Print, epub, or mobi

McNamara v. Energy Dynamics, Inc.

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mcnamara500In Theresa Driscoll Moore’s civil case file, McNamara v. Energy Dynamics, Inc., a small local dairy farmer is pitted against a large energy company which results in a case of negligence. Energy Dynamics has developed a new chemical, unlocking precious resources and untold millions of dollars. However, local farmers such as McNamara experience mysterious livestock deaths. Will the chemical breakthrough prove to be a dangerous breakout of a toxic chemical?

This case file includes witnesses and exhibits and truly encourages readers to vigorously fight for their client and see McNamara’s unique issues of the environment and public policy as a means to draw decision-makers into a human understanding of events and scientific issues.

Retail Price: $38

Order Here in: Print or Epub 

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.
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