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This workbook is designed for basic mediation training. Authors Scott Hughes, Mark Bennett, and Michele Hermann take NITA’s performance-based training for trial lawyers and adapt it to training for mediators. The Art of Mediation includes details that are often overlooked such as optimal seating arrangements during meetings. The excerpt and graphic below take a look at that section of this book.
Some mediators prefer to work around tables, others do not like to use them unless absolutely necessary because they form a barrier between people. If the mediation requires reference to objects or documents, it may be inconvenient to work without a table. For more relational mediations, tables can be physical and psychological components that keep people apart or help people feel more secure.
Chairs should be positioned so that everyone can see and hear other participants easily. We prefer to keep a distance between the chairs of the parties, which prevents them from leaning and touching or gesturing at the other party in threatening or offensive ways. We also want the chairs of the parties to be at an angle to each other so they can easily make eye contact but are not in a confrontational face-to-face physical position.
In large group sessions, semicircular seating arrangements facing a wall on which flip chart pages are posted are often helpful. When observers are present but not participating at the table, a “fish bowl” offers a logical and effective format, putting the participants in the center and the observers around them.
reviewed by NITA faculty member and guest blogger, Karen Steinhauser
Ever since travelling to New Orleans and dining on a riverboat, Fred Glenn and his wife dreamed of operating a restaurant on a boat. That dream became a realty four years later with the launching of The Riverboat Queen, a paddleboat that Glenn had designed and built. Then his dream turned into a nightmare when he got a terrible phone call telling him that his dream, his livelihood, had sunk and had been found on the bottom of the lake.
The nightmare only got worse when he hired Marine Recovery and Salvage to raise the boat and they couldn’t get it done, and he had to fire them and hire another company. Then, even though his insurance wasn’t due to be renewed until three days after he lost the boat, the insurance company refused to pay the insurance claim, claiming that Glenn had not properly maintained the boat and that he intentionally sunk the boat.
After another company was able to raise the boat, the problems continued when Nita City terminated Glenn’s lease for the dock where The Riverboat Queen had been docked for years, claiming that he violated the law and did not have the boat insured.
Finally, to add insult to injury, the State of Nita brought criminal charges against Glenn, alleging (1) a violation of the Nita Water Hazards Act in that he recklessly caused the sinking of the boat, creating a condition that could lead to discharge of pollutants into the lake, and (2) attempted insurance fraud alleging that Glenn submitted a false claim to his insurance company.
MRS v. Riverboat Queen, by Cheryl Brown Wattley of UNT Dallas College of Law, is a unique case file in that it really contains four separate case files each utilizing different claims, theories of liability, and defenses, but all of them sharing the same witnesses. It can provide instructors with the opportunity to teach advocacy in various types of legal scenarios while still being able to utilize the same basic witnesses and same basic facts for each of the case scenarios.
The cases are:
The file contains 52 exhibits including contracts, memos to the file, photographs, and emails. The three civil case files all present issues not only of the substantive claims, but also as to how the damages for each of the claims are calculated. Many of the witnesses overlap in the various case files depending on how many witnesses instructors want to use. The witness statements themselves are unique because while there are depositions for each witness, there are supplements to the depositions that provide additional information from the particular witness corresponding to the individual case file that is being used.
Laying Foundations and Meeting Objections: How to Succeed with Exhibits at Deposition and Trial. Written by Deanne Siemer, 4th Edition, 2012 NITA ebook.
This essential, practical guide for the trial lawyer takes the guesswork and the reliance upon imperfect memory out of the obstacle course that is the rules of evidence strangling your friendly collection of ‘intended’ exhibits.
Whether your quest is getting some exhibit evidence in or keeping it out, you need this ebook on your computer or tablet screen as you prepare and appear at depositions and trial. With it this book at your side you can make decisions about text documents, numbers documents (e.g. charts, timelines, and data printouts), illustrative documents (e.g. maps, diagrams, and sketches), physical objects and substances, recordings (e.g. photos, imaging, recordings, and videos), replicas (e.g. demonstrations, animations, and reconstructions, etc.). You can also consider how to use testamentary aids and how to put the necessary arguments for or against admission. This is a reference tool that saves you from the hindsight observation, “If only…”
An exhibit, the author reminds us, is admissible if it is something that reasonable people could use to draw a reasonable inference about the truth of a relevant fact.
Laying the foundation for such an exhibit to be admitted as evidence requires attention to CIRA, that being the sum of: competence of the witness to testify about the exhibit, identification of the exhibit in a defining way, relevance of the exhibit to an issue; and authentication that it is what it is said to be.
Where there is insufficient attention to any one of the elements then a successful challenge can be made.
Deanne Siemer has developed a comprehensive approach that explains the evidential law requirements and illustrates the application to each type of exhibit with transcripts of foundation and argued objections, thereby bringing the process alive.
To write this review the reviewer read the book from cover to cover. That, however, is not the way to use this book in practice. Read the opening part on fundamentals and then go directly to the part that covers the type of proposed exhibit.
For example, there is excellent coverage of the problems posed by computer-stored data, such as to how to validate that the data is ‘secure’ and free from tampering, and how courts ‘often fall back on three standard criteria…the use of routine procedures designed to assure accuracy, the presence of a motive to assure accuracy, and the absence of anticipated litigation when the data were generated’.
Little gems of deadpan insight appear unexpectedly, but often enough to be waited for. One such is that ‘perishable, greasy, living, or dangerous things all have peculiar problems that can be resolved by careful thought and perhaps a conference with the judge.’ No doubt. My mind wanders to an Aliens movie.
Another is that ‘when you read from any document, even if only a few sentences, you should give the court reporter a copy to help them more easily transcribe the reading.’ Some court reporters would nominate the author for their Hall of Fame for that suggestion.
And one more: that ‘no sophisticated animation can be cross-examined successfully at trial without…sufficient time to prepare for the cross-examination.’ This reflects one of Newton’s laws in that the time taken to make a good animation is generally so much that an equal contribution in lawyer time seems only fair.
When the author is discussing the pros and cons of a view there is this appealing suggestion of another way: bring the outside inside—have a large screen next to the witness in the courtroom. Have a ‘live’ feed from the view site so that an assistant at the view site can move the camera around at your request for the benefit of fact-finder, witness, and your opponent. Be sure to have the images received in the court room stored and marked as an exhibit.
The success of this book is also due to the reader’s realization that those assessing the strengths and limitations of the present rules of evidence should ponder why that which should be straightforward has become so time consuming and complex. As the author expertly and smoothly navigated from one rule to another, this reviewer could not escape this thought: “No wonder formal litigation is on the wane, while other forms of dispute resolution prosper. This stuff is like counting angels on pinheads.”
Reviewed by Hugh Selby © who, along with his NITA friends Chris Behan and Charlie Rose, runs www.advocacyteaching.blogspot.com, a blog with a focus for all those interested in improving the teaching and learning of advocacy skills, especially at law school. He is based at the Australian National University. email@example.com.
Are you new to trial work? Buy this book. Not new but wondering why you’re not much good? Buy this book. Are you experienced and wanting to give a useful gift to a much less experienced, but capable of learning advocate. Buy this book.
With the ‘who can benefit’ issue now out of the way let’s have a look at the interwoven ‘why’ and the ‘what’.
This book doesn’t just give examples of good advocacy. Anderson succinctly, clearly, and persuasively explains why a number of them are good. And sometimes he is wickedly funny. Evidence and advocacy teachers should use his mock trial ‘how, when and why to make objections’ script as a timeless teaching tool.
Those readers who understand that ‘decision maker indoctrination’ trumps ‘sadistic endeavor’ as the hallmark of effective cross-examination can convince the rational doubters by showing them what attorney Roy Black achieved when he crossed a prosecution witness in the Smith rape trial. The transcript still sings.
Anderson comments that he once heard that, ‘the definition of a nanosecond is the amount of time it takes for a newly appointed judge to forget what it is like to be a lawyer after taking the judge’s oath’. He thinks that is something of an overstatement. It might be added, however, that too many of those judges who choose to publicly comment enter an ‘evidence free zone’, substituting assertion for the evidence (rather like those advocates who do bad directs). But not Anderson. Here’s that rare trial judge who gathers evidence of what happens in his court room over many years and then uses that data to offer useful insights to those of us with much less experience, no aggregated data, and so only ad hoc anecdote to guide us. Maybe some of those advocates who keep on talking, talking, talking will read his lessons that juries want us to learn, reflect and finally fathom that being repetitive, turgid, and boring is not the way to win the hearts and minds of decision makers.
For all of us, there’s a useful two page checklist of ‘do’s and don’ts’ for closing argument. Put it in your trial reference folder, and use it as a tool to bring some objective critique to the closing you’ll deliver after lunch or tomorrow morning.
While reading this book I dropped into three criminal jury trials and witnessed 36 jurors being driven to despair by advocates and trial judges who were oblivious to juror interests. The jurors’ body language was unambiguous. It’s hypocrisy to laud the jury as a great democratic institution, while treating them throughout the trial as though they should be passive, unfeeling, put up with anything automatons. Such failure to think about the jury’s needs and wants is one of the ‘common mistakes to avoid’ that Anderson addresses.
Why so many advocates are blind and deaf to those decision makers sitting so close to them is a great mystery. Anderson cites the 1993 National Law Journal report that jurors make up their minds about who wins and who loses at the following key times (I’ve collapsed and rounded the figures): much less than 10% when opening statements are done; about 15 % when the prosecution/plaintiff rests; a bit less than 50% when the defense rests; up to 75% after the closings and judge’s instructions; and 25% in jury deliberation. With those kind of figures any rational advocate would pay a lot of attention to decision makers.
Talking about judges, their strengths and foibles, Anderson admits that he knows of judges who bully. There is not much you can do, he says, ‘except respectfully and steadfastly hold your ground’. That, however, takes courage of a sort rarely seen. I watched from the public gallery recently as a judge got down into the ring to ask some questions. The witness’s advocate, quite properly, stood to object. The judge cut her off with a ‘Sit down’. She did. I felt for the witness, paying out good money for nothing.
Paying out money for this book though is well worthwhile. It should sit alongside some other texts that have more to say and suggest about questioning techniques. Anderson’s comments on those matters reflect the orthodoxy of the past. We know more now than the late esteemed Irving Younger about effective questioning, especially about story telling and picture building on direct and indoctrination of the audience on cross.
So if you’re one of those many who should have this book let it join those other ‘how to do it’ trade books, and let it become as well thumbed and ragged as all such books should be.
Hugh Selby © March 2013.
You can find Effective Courtroom Advocacy here.