The 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 Modern Trial Advocacy: Canada, by NITA authors Steven Lubet, Cynthia Tape, and Lisa Talbot, reprinted below with permission and in its entirety. Our thanks to the Trial Lawyers Association for their interest and support of NITA publications.
Modern Trial Advocacy: Canada (Third Edition)
Steven Lubet, Cynthia Tape, Lisa Talbot
NITA, 2010, 481 pages
Reviewed by Mike Sporer, Sporer Mah and Company
Older lawyers who are also hockey fans will remember the Wild West days in Queen’s Park Arena when Ernie “Punch” McLean coached the New Westminster Bruins. But it wasn’t all madness and mayhem. McLean’s teams earned four straight Memorial Cup appearances from 1975‒1978, winning the Cup twice.
The Bruins took the trophy in 1977, but the 1977‒1978 team had fallen short on talent. Barry Beck, Brad Maxwell, and other stars, had graduated. No one expected the hard-working team of grinders, led by Stan Smyl, to go deep in the 1978 playoffs. But the Bruins, after a mediocre regular season, won four straight playoff series, again earning the right to represent the Western Hockey League at the Memorial Cup, held in Ontario, at Sudbury and Sault Ste. Marie.
The underdog Bruins arrived in Sudbury and were promptly crushed 7‒2 by the Ontario champion Peterborough Petes. The mighty Petes, coached by Gary Green, with strategic input from former Petes head coach (and later NHL legend) Roger Nielsen, used an effective centre ice press to bottle up their opponents. The Bruins lost once more to the Petes at the tournament, but, due to the round robin format, were able to survive the two losses, beat the Quebec champs Trois-Rivières, and earn a right to play the Petes one more time in the final game.
The final was to be played in Sudbury. Punch McLean took the Bruins out to Sault Ste. Marie, where no one could see what they were working on. There, in a locked down arena, he unveiled a completely different break-out plan, that would have a Bruins defenceman come up the centre of the ice to break the Peterborough press. For over two hours, Punch drilled the new break-out plan into the team.
When the final game started, this time it was different. The underdog Bruins took an early lead, and before the confused Petes could adjust to their opponent’s pre-game plan, they were behind the eight ball. The Bruins never looked back, went on to win 7‒3, and claimed their second consecutive Memorial Cup.
Pre-trial planning is like pre-game planning—a must. It can make all the difference. And pre-trial planning is where Professor Steven Lubet, Williams Memorial Professor of Law at Northwestern University, begins his outstanding treatise, Modern Trial Advocacy. The book, written for American trial lawyers, has a Third Canadian Edition titled Modern Trial Advocacy: Canada, with modifications provided by two Canadian trial lawyers from Ontario, Cynthia Tape and Lisa Talbot. But any recent edition—Canadian or American—will do. It covers all the basic aspects of trial—from pre-trial planning to closing argument—and is the single best introduction to trial advocacy available.
Lubet explains the pre-trial steps that he considers a must. He shows the importance of developing a trial theme—the “moral force” behind the case—and explains how to prepare a persuasive trial story.
He covers the essentials of case theory planning and development, highlighting the fundamentals of a good case theory: it must be simple, logical, and easy to believe. If there is room to criticize Professor Lubet—and there is very little—he might, in places, have simplified his discussion of case theories to articulate more clearly the important distinction between factual and legal theories of a case. But in any event, his discussion of the subject is still very good, and the lessons he offers are of great value.
Lubet’s most important single piece of advice relates to pre-trial planning: start by preparing final argument. “Good trial preparation begins at the end,” says Lubet. “It makes great sense to plan your final argument first.”
This bit of basic advice remains a cornerstone of any pre-trial preparation, yet it remains overlooked by many. As another great advocate once said, a trial is no place to be writing a closing argument. Tinker with it at trial? Certainly. How the evidence unfolds will require that. But it should be no more than tinkering, and Lubet’s book, in its discussion of pre-trial planning, puts first things first.
Lubet takes the reader from pre-trial planning through all the phases of trial, with excellent discussions of direct examination, cross examination, impeachment, expert evidence, foundations and exhibits, opening, and final argument. As he always does, Professor Lubet dedicates a considerable amount of space to important issues of legal ethics, including a very good discussion of the ethics of persuasive storytelling.
There are books that cover particular aspects of case planning and trial work more thoroughly—but none covers it all so effectively. This is a treatise. Lawyers called for less than five years should not be without Modern Trial Advocacy. Experienced trial lawyers would be unwise not to keep a copy on their shelves.
Nita City Housing Authority v. Johnson, Second Edition is now available. Written by Mark Caldwell, NITA’s Director of Resources for Public Programs, this case file examines, among other issues, an important question: when is graffiti considered gang activity, and when is it considered art?
Nita City Housing Authority v. Johnson is a wrongful eviction case, filed in response to Ladonna Johnson’s refusal to follow eviction instructions. Nita City Housing has evicted Ladonna, her two grandchildren, and her great-grandchild from their apartment at the public housing complex Nita Gardens. Nita City Housing Authority claims that Ms. Johnson’s grandson, Elroy, is involved with a local gang and is putting the other complex residents at risk by hanging out with gang members on the property and writing graffiti in the neighborhood. Elroy insists he is not involved with gangs and that he only tags as an art form.
Ms. Johnson is disputing the eviction notice, and believes that it is being served in response to her recent protests. She had formed a Tenant Action Committee and staged public protests in and around the complex when the building management refused to install a complex-wide fire sprinkler system. Ms. Johnson contends her rights to peaceful protest were challenged, and she is being evicted because of the protests.
Nita City Housing Authority v. Johnson is a modern and relevant case file that considers issues taking place throughout major cities. Graffiti is becoming increasingly recognized as a valid art form, not solely a gang-related activity, and charges involving graffiti will have to start accounting for this shift in perspective. The case file also examines classic issues around eviction rights and rights to peaceful protest. Students, practitioners, and professors will find this case file engaging and challenging.
The case file includes a CD with full-color exhibit slides as well as a sample PowerPoint presentation of the exhibits.
ISBN: 9781601562142 ∙ Pages: 114 ∙ Retail Price: $35.00
Order Now at lexisnexis.com.
If you are looking for one book to guide you through the arbitration process, look no further than the NITA classic Arbitration Advocacy, 2nd Edition.
Authors John W. Cooley and Steven Lubet have combined their experiences in the courtroom and classroom to bring you a detailed and in-depth guide to arbitration and Alternative Dispute Resolution. This comprehensive text is designed to help readers understand and master arbitration and ADR from beginning to end. Arbitration Advocacy has been written for ADR practitioners, ADR neutrals and arbitrators, CLE organizations and participants, and teachers and students.
The book takes readers through the entire arbitration process, with chapters on general description of ADR and arbitration, pre-arbitration considerations, advocacy during arbitration hearings, and effective advocacy in cyberarbitration. Chapter 5 includes adapted sections of the NITA bestseller Modern Trial Advocacy, which discuss trial advocacy principles that pertain to arbitration hearings.
In-text charts supplement the material as the reader works through the book, helping to break down the content. The 200+ page appendix includes:
As part of our ADR series, this month’s book report will highlight a textbook that supports and educates legal professionals involved with Alternative Dispute Resolution. The Mediator’s Handbook is a NITA favorite, and a book that covers all aspects of mediation and ADR.
This book is broken down into stages, to better separate and explain the mediation process. The stages include the Initiation and Preparation Stages, the Introduction Stage, the Problem Statement Stage, the Problem Clarification Stage, the Generation and Evaluation of Alternatives Stage, and the Agreement Stage. These stages are prefaced and summarized with introductory and conclusive chapters as well. The Mediator’s Handbook also includes lengthy and convenient Appendices, which provide the reader with helpful checklists, guidelines, examples, and models of mediation-related processes.
The Mediator’s Handbook discusses the basics of mediation; communication skills; pre-conference, conference, and post-conference duties; and hybrid and non-mediation processes. Author John W. Cooley has used his years of experience as a government and private practice mediator to create a book that relates to legal professionals of all capacities, including:
Dixon v. Providential Life Insurance Co. is one of NITA’s oldest case files. The original publication was written by James H. Seckinger and published in 1977, and was included in a compilation book titled Cases in Trial Advocacy 1977-1978. The case examined the death of Judge John Dixon, whose wife found him with a gunshot wound to the head. She sued Providential Life Insurance Co. for failure to pay on his life insurance policy. Providential claimed that the death was not proven to be accidental, and instead claimed that Judge Dixon’s death was a suicide.
Today, Dixon v. Providential Life Insurance Co. looks just a little bit different than it did 35 years ago. Last updated in 2000, the case file has been adapted by NITA authors Edward R. Stein and Frank D. Rothschild, but has retained Seckinger’s original case summary. Dixon v. Providential Life Insurance Co. is now sold as its own case file, and as a Technology Case File includes an interactive DVD. It is one of NITA’s best-selling case files and is used in classrooms, programs, and trainings worldwide.
Books and case files must constantly be updated to retain relevancy and accuracy, and that is evident in this case file. While the summary has remained the same, facts and figures must be adjusted over time. For example, the original life insurance policy was for $50,000–in the 2000 edition, the claim is over a policy worth $250,000.