The Legal Advocate

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Voting Is an Act of Faith

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Written by NITA Legal Editor Virginia Judd

Tomorrow, voters across the country are heading to the polls. Voting is an act of faith. It can seem pointless—you are one of millions and millions of people pulling a lever, or filling in an oval, or touching a screen. What does your one vote matter?

But what does one raindrop matter? It’s a tiny bit of water, and falling by itself it would evaporate and be forgotten in moments. Put millions of them together, though, and you can carve the Grand Canyon.

Some of our most critical elections were not decided by millions of votes, just thousands. A few thousand individuals who didn’t think they mattered. But they did.

Whatever your political beliefs, voting is an act of faith. When you take the time to go to the polls, you are putting faith in the belief that millions of other people like you are doing the same—and they are putting the same faith in you.

Keep that faith.

Image credit: By Dwight Burdette [CC BY 3.0 (https://creativecommons.org/licenses/by/3.0)], from Wikimedia Commons.

Welcome the Newest NITA Advocates

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NITA is proud to announce the 2018 3rd quarter recipients of the Advocate Designation. These designations are awarded to a person who has taken a well-rounded set of courses, proving they are serious about trial advocacy.

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  • Vecdet Tasel | AVSA LAW FIRM
  • Eric J Eastham | Mintz Levin PC
  • Wanda Cannick | US Dept HHS

If you have any questions on how you can receive the NITA Advocate or NITA Master Advocate Designation, please review the information on our Advocate Designations page, or email customerservice@nita.org.

Monthly Theme: Storytelling Part Two

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Engaging the YouTube Attention Span

Written by NITA Program Director and guest blogger, David Mann

Ask yourself this: “When I see a video pop up on my social media feed – if the title has caught my attention and I’ve clicked play – how long do I give it before I click it off?”

I’ve asked this question to seminar audiences across the country, and the answer always seems to be “about ten seconds.” If it has engaged you, you’ll generally let it run to about 30 seconds before getting back to work. But if it still has your attention past 30 seconds, then past 60 seconds, there’s a really good chance you’ll find the time to watch that entire 13:42 video about something completely unrelated to anything you were thinking about prior to that moment.

That’s what I call the YouTube attention span, and we’re all subject to it now.

We expect – we demand – that whatever is being presented to us grabs our attention instantly and holds it. We “audition” the video clip, the speaker, the commercial…whatever it is. And yet when we present in court (and in most other professions that involve speaking) we tend to slog through a long background and history before getting to the main event. We load up that precious first few moments with technical detail, jargon, and abstract language. For some reason, we seem to believe cultural habits don’t come into the room when there are “serious” matters at hand. But nothing could be further from the truth.

How you organize your story is absolutely critical to it being engaging. What’s often frustrating for logic-minded attorneys is the fact that live delivery of a story needs to be decidedly non-logical in its organization. In other words, there’s no need to educate the fact finder about the history or background before getting to the point. You can do that later. Build your opening for engagement, not logic. Our brains don’t mind; we can be presented with well-designed, out-of-order story fragments and our brains will sort it all out into a clear picture. But the key is to make it well-designed. Have you watched Better Call Saul? Like its predecessor, Breaking Bad, part of its appeal is that you wonder what’s going on before it is made clear. That’s well-designed storytelling.

An opening statement is the purest storytelling you’ll do in court. The impressions made during the opening will last for the entire trial. When I’ve worked with attorneys on constructing and writing opening narratives for trial, I direct them to spend a lot of time on the overall construction: build the opening with the mindset of a performer, not a lecturer. That means paying attention to the pace and density of the material, not just the logic.

Here’s a quick overview of a shape I believe works well for getting a jury engaged and keeping them with you. Generally, a 20-25 minute opening can break down like this:

PART ONE: Establish the Players and Events – 5 minutes

  • Introduce characters so it is simple to know who to root for and against
  • Give a simple, streamlined version of the story
  • Introduce simple, common sense principle or theme
  • Establish simple version of the basic rules that were broken

PART TWO: Fill in the detail – 10-15 minutes

  • Give a longer, more detailed version of the story
  • Provide a more detailed background
  • Explain the details of the rules that were broken
  • Characterize opponent’s case

PART THREE: Make the Jury a Character – 5 minutes

  • Let the jury know they can make it right
  • Explain the details of the jury instructions
  • Give a context for damages

This is clearly a very general outline, and of course each case has its own unique features that will dictate the shape of the opening to a certain extent.

The goal of Part One is simply to get the jury on board. They do not need to understand everything at this point – they need to be interested and curious in understanding everything as it comes up later. That is a different goal. Five minutes in speaking time is a little less than two written pages, assuming it’s 1.5 space in 12-point font. It’s really easy to look at those two blank pages and fill them up with everything you know about the case…but don’t do that. Imagine a jury with their fingers poised over the “stop” button on the video if they’re not interested after two paragraphs. Then get them to the next two paragraphs…and so on.

The goal of Part Two is to fill in all the detail they’re now hungry for. So do that, but still keep it economical. It isn’t necessary to try your entire case in the opening; just get the jury acclimated to the characters, events, and crucial details that will emerge in the rest of the trial. Again, it’s about making them interested and curious so they’ll see the rest of the trial through the correct lens.

Part Three is simply to articulate the purpose of their role and to empower them with the tools they’ll need to play that role.

We joke about the shrinking modern attention span caused by social media’s influence. To an extent, it’s true. But keep in mind that people always find time to pay attention for a long time if they’re intrigued. By using well-designed narrative structure, you can keep them intrigued on your side all the way to the verdict you want.


If you’d like a more in-depth look at story construction and delivery, take a look at my October 16 NITA webcast or join me for my intensive 2-day NITA program, “Make Your Case Story Engaging.” Participants use a real case file, which we build into an engaging narrative opening statement in two days. See the NITA website for details, dates set for April 18 – 19, 2019 in Washington, DC.

Asking Expert Witnesses for an Opinion ‘to a Reasonable Degree of Certainty’ Redux

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Written by NITA guest bloggers Iva Čechráková and Michael J. Dale

A question has recently arisen regarding the rationale or basis for the use of the phrase “to a reasonable degree of certainty” in California. The question was posed, based upon our June 20, 2018, blog post, Why Do Lawyers Ask Expert Witnesses For An Opinion “to a reasonable degree of medical certainty”? The answer appears to be similar to what we discovered in other jurisdictions: it is tradition.

Jeff L. Lewin in his article on the subject describes the evolution of the term and the process by which the phrase spread into other states from Illinois.1 Referring to, among others, courts in California, Lewin stated that “the appellate courts simply quoted or paraphrased the trial testimony, and such cases merely reflected that attorneys in the jurisdiction were using the phrase.”2 At another point, the author, making a comparison with courts in different states where the courts endorsed the use of this phrase, seems to have encouraged its use.3

The answer in California appears to be twofold. First, California is among the states that do not have a relevant statute incorporating the phrase. Second, research discloses no reported California case discussing the reason for the use of the phrase. Rather, a substantial body of California case law, like reported opinions in other jurisdictions, simply refers to the phrase without explanation.

 

Iva Čechráková is a graduate in law from Charles University, Prague, Czech Republic, and a dual degree graduate of Nova Southeastern University College of Law, where she was until recently a research assistant to Professor Michael J. Dale. She is currently working for the White and Case law firm in Prague and can be reached at ivacechrakova@gmail.com.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985. He teaches regularly for the National Institute for Trial Advocacy. He can be reached at dalem@nova.edu. If you’d like to know more Professor Dale, please read his “Asked and Answered” interview with The Legal Advocate here.

To read more articles by Professor Dale’s research assistants at Nova Southeastern, click here.


1 Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About “Reasonable Medical Certainty,” 57 Md. L. Rev. 380, 439–40 (1998).
2 Id.
3 Id.

Monthly Theme: Storytelling Part One

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Everyone Has a Storyteller Inside Them

Written by NITA Program Director and Guest Blogger, Terre Rushton

Everyone has a storyteller inside them, and everyone has a story to tell. James Joyce once said he never met an uninteresting person. The difference between people who seem interesting and people who don’t is their ability to turn their experiences into compelling stories.1

Why are so many lawyers unable to be interesting in court?  Maybe because we are trained in a system that has the result of squeezing the creative juices out of us; law schools use the Socratic method, issue spotting, and make us read hundreds of appellate cases written in a style that is highly parsed and authoritative. We are rewarded for using the archaic, multi-syllabic language of our profession, language that needs translation when we talk to our family and friends…and to a jury. In almost every NITA course, we struggle to get lawyers not to talk like lawyers, to instead adopt simple, clear, clean words and concepts. In other words, to be the communicators that they probably were before law school.

Whatever the reason, many jurors and judges find trials to be boring.2 Part of the problem is that so much of the information we present during a trial is oral, and listening is a very poor way of retaining information.3 We have to find a way to up our game, especially to those who are used to getting information faster better, and in a more stimulating way than a human speaker can deliver. Storytelling is ancient social media. Man’s religious texts, oral traditions, cave paintings, all told stories of right and wrong, good and evil, the hero and the adversary.  Our cases involve just those classic elements, whether we are personal injury lawyers, legal service lawyers, or intellectual property lawyers. An injustice has been done, someone is damaged and we are asking that our client be made right. Give the fact finder a narrative that captures the imagination and at the same time allows the listener to place reason and logic within its’ outlines. Give them a simple, believable, logical explanation that can be recalled throughout the trial and you will increase the chances your client will prevail. A good story that engages our listeners from the beginning, continues through the evidence, and is concluded in the closing argument may be the answer to our increasingly short attention spans.

As Johnny Dzbak says in his blog, The Art of Charm “Two people can tell the exact same story with wildly different results. One captivates, while the other has the audience checking its watch. While we tend to look for exciting stories, the actual story material isn’t what separates a good story from a bad one. What makes the difference is the emotion the storyteller puts into their narrative.”4

Every story has that emotional center. In literature, art or choreography, the emotional core is how the artist  feels about the events they’re describing.  Not in trial. The lawyer doesn’t reveal her personal beliefs about the facts and events and it is probably improper to do so. Instead, under the NITA method of case analysis, the lawyer tries to discern the persuasive theory, what I think of as the moral or the social mores that pulls together both the legal and the factual theories and puts that emotional center into the story.

That sounds easier than it is. The best lawyers struggle to find that persuasive theme, that core. Stories (and cases) die when they are just dates and events with no connective tissue. I’m paraphrasing one of the foremost authors on trial advocacy who says that a good trial story includes 1) Central characters, what they did, and why they did it; 2) The important facts, both good and bad, but not every fact; 3) A persuasive theme that appeals to common sense and morality ( I’ve referred to this as the emotional center); and 4)  a careful organization, where each fact presented makes each succeeding fact more likely to have happened.

Now, when you do case analysis for your trial, think of telling the case as a story.  What is the emotional center? Who is important to the story?  Why did they act as they did? What are the best of the good facts you have, and how will you explain the things you wish hadn’t happened?  How can you organize it so people remember or even better, anticipate the evidence you told them they would hear?

You now have the elements of  a really good opening and, with only a little tweaking, a great closing argument.  But  don’t forget that the trial story has to continue throughout the case.  The testimony and the exhibits are a critical part of your story.  The testimony obviously has to reflect the theme of the case/story, has to make the listener see the witness as you want them to be seen, and has to explain their actions, both good and not so good.  Make sure their account clearly reflects the larger story that you are telling.  Word choice, repetition, and other rhetorical devices can greatly aid you in this, but witness preparation is key.  We use persuasive foundations for exhibits, not just technical foundations, because we want the jury to know how an exhibit came into being, where it fits in the narrative and why it’s of interest even before they see it. An exhibit has a story, a life cycle, that fits into your larger story. Make sure that you understand what the exhibit has to say is and allow it to tell its story.

And then you need to think about simple but active language, eye contact, tone of voice, stance, gestures…the list goes on.  But two things are most important to being a great storyteller.

You have to practice, and practice, and practice again.  Develop your innate oral advocacy skills.  Don’t start with the most important case of your lifetime.  What are the personal stories you enjoy telling ? (Yes, we all tell stories.)  How about that driver who cut you off, or that horrible blind date?  Or the funny thing your three-year-old said to you? Think about those stories.  If they are good stories, ones that people have enjoyed, unpack them. Think about whether they have the elements that Lubet describes.  Practice those short and familiar stories aloud, alone or to a sympathetic ear, and see if you can improve upon them.  Get to the point where telling a story is enjoyable for you and for your listener.

You have to be interested to be interesting. The adage is so true here.  If you aren’t truly interested in the story that you are telling, if you don’t believe in it, why would anyone else? That’s why the search for a persuasive them is so hard…it must be one that resonates inside you. Don’t use the kind of rhetorical device that works for someone else. Find the theme, and the way to share it that is authentic and that you can talk about from your heart. Your story will be wonderful.


1 Johnny Dzubak, from one of 56 Blogs on The Art of Charm
2 “From time immemorial jurors have been falling asleep because from time immemorial lawyers have been boring,” John Gleeson, a former federal judge in Brooklyn, told The Wall Street Journal.  Ladies and Gentlemen of the Jury, Please Wake Up, WSJ December 08, 2017
3 Edward Dale, Audiovisual Methods in Teaching, Dryden Press, 1969. Dale’s research led to the development of “The Cone of Experience” which postulated that people retained only 20% of what they hear.  Dale is often cited as the father of  learning by doing.
4Johnny Dzubak, again

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.

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