May the Record Reflect (National Institute for Trial Advocacy)

In Episode 27 of May the Record Reflect, former federal prosecutor Luke Cass slides into the hot seat to answer questions about closing arguments. He shares what he learned in working civil and criminal cases for the DOJ in Puerto Rico and D.C., with a particular emphasis on reversals on closing: what they are, why they happen, and what happens next. 

Topics
3:39     Closing argument is the time for … 
4:04     Advantages and challenges for counsel in closing argument
6:44     When to develop your closing  
7:18     Visual aids
8:19     Jury instructions
10:34  Differences in closings for plaintiffs versus defendants 
11:50  Rebuttal
13:21  Experience with reversals on closing
14:28  How reversals happen
15:10  Consequences of reversal
16:36  Types of misconduct
20:32  Why misconduct during closing happens
21:50  Predicting reversals
23:39  What reversals feel like for counsel and clients
25:48  Signature sign-off questions

Quote
“To make a closing great, you need to invest a lot of time mastering the facts, the law, your delivery, and the nonverbal communication you want to make with the jury. That nonverbal communication is often as significant as the content of the argument itself.” Luke Cass

Resources
Luke Cass (bio)
“Closed Courtrooms: Sixth Amendment and Public Trial Right Implications” (article)
The Journal of Appellate Practice and Process (free subscription)

In Episode 28 of May the Record Reflect, New Orleans trial legend Dominic Gianna introduces the concept of “audience-centric advocacy” and how to reach jurors and judges through effective storytelling, psychological insights, and physical performance. This self-professed “Broadway theater kid” talks about stepping into your own personal style, becoming comfortable in your own skin, why you need log lines and tag lines, and how he became the legal consultant on My Cousin Vinny.'

Topics

3:26     What jurors want 

4:44     Audience-centric advocacy

6:37     When jurors are most open to persuasion  

8:41     Two stages of trial: framing and scrutinizing

13:44   Central premise 

19:11  Importance of jury psychologists

21:45  Jurors’ attribution of fault and judgment of parties’ motivation

23:45  Back story

26:15  Storytelling

28:15  Log lines and tag lines

34:08  Non-verbal communication

37:01  Developing your trial style

38:43  Raising your comfort level with performance

42:55  Don’t do this

45:31  Advocacy during covid

54:11  Signature sign-off questions

Quote

“The framing process takes place right away in the beginning, and that is, in most trials, in the opening statement. That’s why we tell our NITA students, ‘Never ever, ever save a good, persuasive piece of evidence for the trial.’ Never do that, because when the framing part of a trial is over, which is usually the end of the opening statement, 85 percent or so of people who are leaning this way as opposed to another way, never, ever, ever change their mind.” Dominic Gianna

Resources

Dominic Gianna (bio)

Deposition to Trial Skills: New Orleans (program)

David Mann (bio)

Dr. Dan Jacks (bio)

Kevin Newbury (bio)

Opening Statements: Winning in the Beginning by Winning the Beginning (book)

Sapiens: A Brief History of Humankind (book)

Joan of Arc trial (transcript)

In Episode 29 of May the Record Reflect, we gather all sorts of admissions—about depositions—from NITA NextGen alumni faculty member Jason Young. After taking and defending thousands of depositions throughout his career, he’s no-nonsense and has figured out how to make the challenges easier on himself, his clients, and his witnesses. Jason also talks about the crucial work–life decisions all lawyers face as they begin their careers. 

Topics

2:58     The hard part of taking depositions 

5:07     Federal rules related to depositions

8:24     Witnesses, both expert and lay  

10:47  Role of social media 

14:21   When to video-record a deposition 

16:47  The hard part of dealing with witnesses

18:51  Timelines for expert witnesses, plaintiff versus defendant

21:19  Subpoenas

25:10  Obnoxious opposing counsel

30:02  Preparing your witness

34:53  Protecting your witness

37:01  Remote depositions

38:30  Work–life balance and advice for new lawyers

44:50  Signoff questions

Quote

“What a lot of inexperienced deposition lawyers have a problem with is they are terrified of the unknown in depositions and afraid to follow up on things, know how to shut things down, and that really scares a lot of people. And I guess the thinking with depositions a lot of times is, you want to know more. If there’s information that’s going to come out that’s going to hurt me, I want to know it in a deposition. If there’s additional facts I need or something I didn’t know, I’d rather find out in a depo than in trial.” Jason Young

Resources

Jason Young (bio)

Blog interview (The Legal Advocate)

Federal Rules of Evidence with Objections (book)

NITA Deposition courses (registration)

As social distancing and K95s finally become visible in the rearview mirror, communications expert Carol Sowers returns to the podcast to coach listeners through the yips of post-lockdown performance anxiety and rusty face-to-face social skills, and to discuss the remote advocacy habits we created that are worth keeping and refining. She also touches on a few subtle ways lawyers inadvertently undermine their authenticity and credibility. 

Topics

2:57  Staring down the yips

9:46  Our best work adaptations and habits  

14:20   Court activities that might remain remote

17:20  Framing yourself

19:45  New rules for eye contact 

22:02   Mumbling the play-by-play

24:00  Preparing for in-person presentations

28:22  Distractions and attention span

30:20  Practice, practice, practice

31:20  Virtual backgrounds

35:56  Signoff questions

Quote

“I know it’s so boring to hear communications specialists talk about practice. It’s what we all say, and what we all have said, and what we all will continue to say. But I think it’s even more vital now. If you’re not practicing, I think you’re doing yourself a disservice, and I think that you’re doing your case and your client a disservice.” Carol Sowers

Resources

NITA 1:1 Coaching (link)

Celebrating Carol Sowers’ Nearly 30 Years with KHQA (YouTube) 

Taste: My Life Through Food, by Stanley Tucci (book)

The Dropout (Hulu)

Retired federal judge Nancy Gertner and class action lawyer Reuben Guttman discuss the impact of Twombly and Iqbal, two SCOTUS decisions that precipitated critical changes in pleading, class certification, and expert standards that have affected a complaint’s capacity for making it past the motion-to-dismiss stage. In this wide-ranging interview, they talk about the challenges these decisions have on both judges and practitioners and how the landmark case of Brown v. Board might fare under post-Twiqbal standards.

Topics
4:02    Twombly/Iqbal’s impact on pleading standards
7:17    Why process and procedure matter 
10:16  Changes pleading standards
12:43  Changes in class certifications
14:11  Rise of multidistrict litigation
16:20  Changes in expert standards, both criminal and civil
21:47  Experts in the civil rights arena
25:40  Applying today’s pleading and class certification standards to Brown v. Board
29:30  Rules that affect access to justice
33:04  The benefit of a losing Supreme Court case
36:04  Getting around these obstacles
44:11  Judges, lawyers, and the legacy of discrimination cases
48:35  Signoff question

Quote
“I know from having been a criminal defense lawyer and civil rights lawyer and a judge, and now sort of a litigator as well, that what I may find ‘plausible’ may be not what a jury finds ‘plausible.’ That plausibility is, in fact, a contextual analysis—in context. And when I sat on the bench there were numbers of times, in fact, that my law clerk would say to me, ‘Judge, you can get rid of this case. You can get rid of this case. The allegations are not plausible.’ And I would turn to the law clerk and say, ‘To whom? To you? To me? To some of my male colleagues on the bench?’ So essentially, plausibility enabled the judges, who are not the most diverse group in the world, to make their own decisions about whether a case should proceed.” Judge Nancy Gertner

Resources
Judge Nancy Gertner (bio) 
Reuben Guttman (bio)
Representative Opinions of Justice Ruth Bader Ginsburg (book)
From Conley to Twombly to Iqbal (article) 
Brown v. Board of Education complaint (PDF)
Pretrial Advocacy (book) 

Kansas District Court Judge Amy Hanley is joined by UNT Dallas College of Law Professor Cheryl Brown Wattley for a lively discussion of “the tense trio”: objections, cross-examination, and impeachment. Find out what these elements of a trial have in common; why trial lawyers face so much pressure around them; how to overcome the challenges of the tense trio at trial; and what mentorship means to career development. 

 Topics
3:31     What is the “tense trio”?
 3:56    What makes these parts of a trial so tense for lawyers 
 4:41     The pressure of objections
 6:57     Tuning your ear for objections
 8:59     When not to object
10:05  Learning the FRE
11:00  The pressure of cross
12:34  Cinematic moments
14:40  Preparation versus spur of the moment
17:35  Getting out of your own way on cross
22:56  Women and cross
28:34  Ending with a zinger
31:18  The pressure of impeachment
34:20  The 3 C’s of impeachment
36:01  When impeachment backfires
39:20  Common impeachment mistakes
41:05  Preventing rehabilitation 
43:14  Mentorship
50:30  NITA Women in Trial

 Quote

“I have discovered that there’s also a physical hurdle to cross-examination, in that tone and demeanor. And what I’m talking about there is that adrenaline rush that we get from confrontation, and if you’ve been in trial and you’ve done cross-examination, you know what I’m talking about. The blood is pumping, the energy is coursing through you, and I’ve heard communication specialists talk about this and how we really need to burn off some of that excess energy.” Judge Amy Hanley

“I think the other problem area [in impeachment] is oftentimes lawyers want the impeachment to work and they don’t read the second sentence. They don’t read the thing that the witness said either right after, or alternatively right before. So, you pull out that which seems to be a contradiction, but really, if you read the full paragraph, it’s the same explanation. You can’t just focus on the five words.” Cheryl Brown Wattley

Resources

Judge Amy Hanley (bio)
Cheryl Brown Wattley (bio)
NITA Women in Trial (program) (video)
Federal Rules of Evidence with Objections (book)
Harnessing Your Power on Cross-Examination (webcast)

Legal communications specialist David Mann joins the podcast to encourage listeners become masters of persuasion through storytelling. In this episode, David explains that legal case storytelling is not just for trials, tells how to flip the narrative script and align the fact finder with your client, and reveals a trove of writing techniques that help sharpen your writing and storytelling skills.

Content Warning: Mention of sexual assault. A brief, non-graphic discussion of a defendant’s sexual assault case occurring from 20:35 to 22:03.

Topics

2:52     Why boring opening statements are boring
 7:08    The Seven Basic Plots and the stories we tell
10:38  Orienting the “characters” in your legal case story
12:04  Unifying the fact finder — counterintuitively
19:03  Defending the unsympathetic client
23:11  Building context through storytelling
27:16  Where facts and technical information fit into persuasion
29:01  Differences between telling the plaintiff’s story and the defendant’s 
31:42  A daily practice to become a better writer
33:19  Brainstorming and self-editing
38:44  Workshopping your legal case story
42:10  Signoff question

Quote
“This is the fundamental difference between a legal case story told to, say, a jury versus narrative fiction that we watch in movies or read in books. The fundamental difference is that the narrative fiction that we’re used to watching in movies is a finished story. It has a beginning, middle, and end. The credits roll at the end, you walk away – that story is complete. In a legal case story, it isn’t complete because the jury is the end of the story. The story hasn’t been completed yet. They will complete the story.” David Mann

Resources
David Mann (website)

Story Power: Building Persuasive Case Narratives (course)

Presentation and Oral Advocacy Skills for Any Lawyer (course)

The Seven Basic Plots: Why We Tell Stories (Wikipedia)

The Artist’s Way: A Spiritual Path to Higher Creativity (book)

Engaging the Jury in the First Two Minutes (free webcast)

Winning Cases with Better Storytelling (free webcast)

Give ‘em the Ol’ Razzle Dazzle, with Dominic Gianna (podcast)

Metallica (v. Napster) and (v. Guerlain) litigation

The spontaneity of cross-examination and impeachment often intimidates lawyers early in their trial career. NITA Education Director Rhani Lott Choi and Denver trial lawyer Kate Sandlin have been there, done that — and in this episode, they disclose their favorite tips that honed their skills and settled their nerves. Rhani and Kate talk about how to feel at ease in the moment, advance-prep for the “spontaneity” of cross and impeachment, bring wily witnesses to heel, use demonstratives to pin down an answer, and help your witness be ready to take the stand.

Topics

3:05     Cross-examination: what is it good for?  
5:55    How to plan for cross
8:23     Thoughts on your judge
12:28  Learning about your judge
14:47  Single-fact, leading questions
21:09  Demonstration of crossing a bad witness
27:16  Crossing an alleged crime victim
32:03  Using demonstrative exhibits  
34:22  Witness preparation
39:14  Impeachment: what is it good for? 
41:50  Dangers of impeachment
45:34  Demonstration of impeachment
51:16  One best cross tip
53:50  Signoff question

Quote

“Every mistake I’ve made on cross-examination, if I ever go back and look at it, the problems start with my question, and I probably wouldn’t have made that mistake if I’d asked a better question.” Rhani Lott Choi

Resources

Rhani Lott Choi (bio)
Kate Sandlin (bio)
Building Trial Skills: San Diego (course)
Show AND Tell: Using Exhibits Effectively in In-Person and Remote Advocacy (free webcast)

Imposter syndrome is a common phenomenon among lawyers, often starting in law school, where self-doubt about your spot among so many wunderkinds can shake your sense of achievement and belonging. Gwinnett County Magistrate Court Judge Ruth Rocker McMullin joins the podcast to discuss what imposter syndrome looks like when it shows up in lawyers’ lives, how she got out of her own way as her legal career pivoted into new directions, what happens at the intersection of imposter syndrome and implicit bias, and how cultivating emotional intelligence just might save you from yourself. 

Topics
3:50     Imposter syndrome 
5:52    Places, spaces of imposter syndrome in law
8:56     Are lawyers more susceptible?
10:37  What imposter syndrome looks like
15:39  Implicit bias and imposter syndrome
20:32  “Glue work”
26:20  Managing implicit bias upwards, sideways
27:16  Calling out implicit bias, letting it slide
29:18  Upside of imposter syndrome 
31:21  Managing your own brain
33:00  Exploring emotional intelligence 
34:38  Developing emotional intelligence
38:58  Signoff question

Quote
“I had to have that conversation with myself when I switched my career from being a public defender to going into private practice, to taking a part-time judicial position. You know: ‘I don’t know if I’m qualified to do this.” I had to tell myself, ‘You handled death penalty cases. Of course you can do this.’” Judge Ruth Rocker McMillan

 Resources
Judge Ruth Rocker McMillan (bio)
The Imposter Phenomenon (article)
Being Glue (article)

This month’s episode features advice and observations from some of NITA’s top judges, who serve as faculty, presenters, and board members. They share their reflections on what they’ve seen from their unique vantage point on the bench and dispense helpful tips for the next time you’re in court.
Topics
2:13     What counsel should know before setting foot in my courtroom
10:30  Most common mistake I see lawyers make in my courtroom
17:55  Impressive or memorable things a lawyer has done during trial
 22:50  Nuttiest things I’ve seen during jury selection

Resources
50 Tips for 50 Years, Part 1 and 50 Tips for 50 Years, Part 2
Judge Mark Drummond (podcast) (webcast) (webcast)
Justice Lee Edmon (bio)
Judge Marian Gaston (bio) (webcast)
Judge Nancy Gertner (bio) (podcast) (webcast)
Judge Amy Hanley (bio) (podcast) (podcast) (webcast) (webcast) (webcast)
Judge Ruth Rocker McMillan (bio) (podcast)
Judge Sam Sheldon (bio) (webcast)
Judge Mindy Solomon (bio) (webcast)
Judge Christopher Whitten (bio) (webcast) (webcast)

Something that concerns trial lawyers more than ever is seating a juror with intractable explicit biases or who believes in conspiracy theories. King County Senior Deputy Prosecuting Attorney Raam Wong experienced this situation when he prosecuted a high-profile, near-fatal shooting of an antifascist protester during a demonstration in Seattle in 2017. Raam joins the podcast to talk about voir dire and deselection tactics, experts and evidence, and checking your own biases at the courtroom door.  

Topics
5:25     Political violence and Hokoana case
9:57     Factors that contributed to mistrial
14:38  Juror “tells” during voir dire
16:50  Conspiracy theories about a witness
20:17  Digging into social media
20:30  Questions for deselecting jurors
24:36  Willful disregard of evidence, civil versus criminal cases
27:30  Addressing juror attitudes
32:50  Remedying attention span issues
37:50  Believing in or rejecting expert opinion
40:50  Concerns about physical safety at trial 
45:01  Signoff question

Quote
“As trial lawyers, we really have to grapple with [. . .] stereotypes every day in court—the assumptions we have about people and the assumptions that the jury might hold. And at times it can be really effective, as advocates, if our good facts kind of match up, or reinforce, the jury’s preexisting beliefs. But at the same time, as a prosecutor, I’m trying to do justice, and doing justice, in my mind, means ensuring that our courtrooms are open to everyone, and that means not making assumptions about people based on demographics or other characteristics.” Raam Wong

 Resources
Raam Wong (bio)
State v. Hodgman (case file)
Alt-Right Event in Seattle Devolves into Chaos and Violence, Outside, Truth-Twisting Inside (SPLC Hatewatch)
Righteous or reckless? Trial under way for couple accused in UW shooting during Milo Yiannopoulos speech (Seattle Times)

If you’re looking for some resolutions for improving as a trial lawyer, let veteran prosecutor Steve Wood be your guide. In this episode (originally aired in 2021), Steve shares the top ten trial tips that always brought him luck. Any one of these would make for an ideal goal to shoot for in 2023. Steve also talks about public service and his lengthy career in law. 

2:58   Tip #1
5:35   Why law?
7:33   Tip #2
10:46 Recollections of his first trial
13:23 Tip #3
18:23 Favorite part of trial
25:19 Tip #4
27:30 Nerves and anxiety about trial
28:49 Tip #5
33:04 Unwinding after trial
34:31 Tip #6
38:49 Most agonizing career decision
41:04 Public service careers
45:50 Tip #7
48:50 A high-profile case I wish I’d tried
50:11 Tip #8
52:43 Tip #9
54:18 Retirement
54:48 Tip #10
56:41 Signature signoff question

Quote
“Somebody I taught with [at NITA] once said something I thought was brilliant, and it’s this: ‘Time is the measure of importance in the courtroom, whether you want it to be or not.’ And what that means is, we indicate importance by how much time we spend on something.”

Recommended Resources
Steven P. Wood (bio)
NITA On-Demand (free resource)
America’s Constitution: A Biography (book)
So Many Ways to Lose (book)
Geddy Lee’s Big Beautiful Book of Bass (book)

Theatre wunderkinds and storytelling specialists Kevin Newbury and Kate Douglas join the podcast to tell stories about telling stories. Kevin and Kate discuss how universal themes, conflicts, and archetypes can be used as formulas for brainstorming; suggest some practices you should borrow from writing for the stage; and reveal which pandemic-era guilty pleasure can actually make you a more engaging storyteller.

Topics
4:27    Translating events into a story  
6:11    Why good storytelling is essential to your trial
8:25    Unleashing your creative beast
10:49  Summing up with loglines and taglines 
12:57  Classic conflicts for framing your client’s case 
14:36  Evoking an atmosphere to begin telling a story
16:50  Universal story themes 
20:26  Nourishing your creativity
23:07  Importance of your elevator pitch
24:14  Dramaturgy in trial 
27:59  How a trial is like a tv show
30:10  Defending the unsavory client
33:15  New Orleans Trial program
40:17  Signoff question

 Quote
“When we come [to NITA programs], it’s always so much fun to sit around the table with these incredible lawyers and judges and hear all of their stories. I love to ask all of them, ‘What’s the wildest, strangest case that you’ve had this year?’ and [with] every single one of them it’s like, ‘Well, that’s a good idea for a tv show,’ ‘Well, that should be a movie,’ and I find that a lot of lawyers and judges are good storytellers when they’re recounting the adventures of something they just went through.” Kevin Newbury

Resources
Kevin Newbury (bio)
Kate Douglas (bio)
Deposition Skills & Trial Skills: New Orleans (NITA course)
Sapiens: A Brief History of Humankind (book)
The Seven Basic Plots: Why We Tell Stories (book)
Adam Gopnik in The New Yorker (article)
The Secrets of Persuasive Legal Storytelling, with David Mann (podcast)
Give ‘em the Ol’ Razzle Dazzle, with Dominic Gianna (podcast)

Being a trial lawyer is a challenging job even apart from the actual, technical work of lawyering in the courtroom. Legal advocacy often places emotional burdens upon trial attorneys that can be a lot to manage. Henry Su joins the podcast to dissect the various stressors associated with trial work and offers his insights into managing stress through mindfulness.

Topics

3:27   Occupational hazards of being a trial lawyer 

10:09 Toll of adversarial work

14:11 Basic obligations to the client

16:13 Managing when conflicted

19:33 Role of fear

26:07 Mindfulness training

30:45 Learning from critiques

32:49 Developing distress hardiness

37:15 “Goblin mode”

39:27 Managing electronic intrusions

42:13 Resources on wellness

Quote

“You want to create distance. What you also want to do is to avoid is dissonance. Dissonance is when you allow the work that you’re doing to kind of infect you, such that you have internal conflict. You’re torn up about it. You’re torn up about why you’re doing this, and that this is not ‘you’ and that these aren’t the values that you hold dear. You want to avoid dissonance, you want to maintain distance.” Henry Su

Resources

Henry Su (bio)

Stress Hardiness and Lawyers (article)

Integrating Mindfulness Theory into Trial Advocacy (article)

Institute for Well-Being in Law (website)

The Anxious Lawyer (book)

Motion Skills: Online (April, August)

Deposition Skills: Online (November)

The profession of trial lawyering has a steep, intense learning curve requiring years of practice (and “practice”) before you begin to feel like you’ve got a grip on it. What if you could shave years off that timeline. NITA’s Education Director Rhani Lott Choi rejoins the podcast to talk about how trial lawyers can compress time through wormholes, slipstreams, and mentorship. 

Topics
5:00   Time compression through wormholes
22:30 And slipstreams
29:34 And mentorship
34:22 A word about Parkinson’s Law
42:28 Signoff Question

Quote
“I’ve worked at places where you have formal mentorship, which can be great, but often that does not continue past the employment relationship. And especially these days people change jobs all the time. The mentorship, for me, at NITA has been so valuable because it transcends that. It’s not based on a job or a connection ... NITA just encompasses everything, through career changes, through types of practice . . . .” Rhani Lott Choi

Resources
Rhani Lott Choi (bio)
Slipstream Time Hacking: How to Cheat Time, Live More and Enhance Happiness (book)
Tomato Clock (Chrome extension)
Direct Examinnation: Being the Guide for Your Jury (webcast)

How many of us cue up the “sad trombone” every time we think of doing direct examination? Direct is renowned for being a boring slog through facts and faces as we make on our way to the fireworks of cross and closing. Yet, if you’re not using direct to tell a clear, persuasive story, you’re going to lose your case. According to Judge Amy Hanley and Dennericka Brooks, when you approach direct with the same zest as you do cross, you’ll get the best out of your witnesses, avoid rambling or baffling testimony, and tell the tale jurors are keen to hear. 
Topics

3:42   Why don’t people love doing direct?   

6:44   Common mistakes

10:49 Telling the story

12:18 Organizing your direct

14:09 Headnotes

16:29 Exhibits, visuals, and demonstratives

22:36 Witness prep

27:55 Reluctant or difficult witnesses

35:00 Bad facts

40:57 Demeanor

46:00 Redirect

49:55 Signoff question

Quote

“I will say, first and foremost, that you have to be prepared that no matter how well you prepare a witness, they will get on the stand and say something they weren’t supposed to say, something that will throw you off. It’s just going to happen.” Dennericka Brooks

Resources

Hon. Amy Hanley (bio)

Dennericka Brooks (bio)

NITA Women in Trial (course)

The Tense Trio (podcast)

Direct Examination: Being the Guide for Your Jury (webcast)

Harnessing Your Power on Cross-Examination (webcast)

You may see depositions as your golden opportunity to preserve testimony, elicit admissions, and test theories—but for your witness, depositions are a veritable stewpot of jangled nerves and apprehension. In this episode, Maricopa County Superior Court Judge Christopher Whitten shares what you can do to ensure your witness walks into a deposition feeling at ease with the process and ready to handle even the toughest questions. Judge Whitten reflects on role-playing, using video as a prep tool, broaching difficult topics, responding to objections, and testifying live versus livestream—and that's just for starters.

Topics

2:35   Confident witnesses   

3:53   Is witness prep privileged?

5:30   Procedural comfort

13:54 Objections during testimony

16:06 Substantive prep

22:57 Tough questions and role-playing

24:36 Using video in prep

26:38 Theory and theme testing

29:12 Common pitfalls

32:04 Testimony via Zoom versus face-to-face

38:15 Reluctant witnesses

42:36 Expert witness prep

46:03 Signoff question

Quote

“When you have a problem with the witness, it’s because you didn’t prepare enough.” Hon. Chris Whitten

Resources

Hon. Chris Whitten (bio)

Building Trial Skills: San Diego (course)

The Ins and Outs of Jury Selection (webcast)

En Banc: Judges’ Perspectives on Remote Hearings (webcast)

“Can I Get a Witness?” (video)

NITA Education Director Rhani Lott Choi returns to May the Record Reflect, this time as guest host, to interview trial competition coaches Justin Bernstein and Spencer Pahlke. You may know Justin and Spencer from Unscripted Direct, the trial advocacy podcast for the law school community. Tune in to this blast from your mock trial past to hear about how advocacy skills transfer from law school to law practice to life; the forgotten lessons of mock trial that you should resurrect; and how learning, practicing, and teaching are part of a career-long cycle for the skilled advocate. 

Timestamps & More

Topics

4:44   Unscripted Direct podcast

5:57   Trial advocacy community

9:58   Tough conversations about DEI

13:11 Building a legal podcast

14:48 Intersection of mock trial and trial practice

16:41 Three important lessons from mock trial

19:03 New practice pointers gleaned from podcasting

22:04 Life lessons from mock trial

26:01 Former students as colleagues

28:10 Things unlearned from mock trial

32:12 Why trial skills are important for all lawyers

33:30 Misconceptions about mock trial’s value

36:47 Keeping skills sharp

39:46 Skills transfer

42:58 Signoff question

Quote

“The biggest challenge the jurors have is they weren’t there when these things happened, so helping them feel like they are there, they’re watching things, even if it’s just through the narration of a lawyer, is incredibly powerful and it sort of sears into their memory.” Justin Bernstein

Resources

Justin Bernstein (bio)

Spencer Pahlke (bio)

Unscripted Direct (podcast)

Episode 5 (Adam Shlahet)

Episode 48 (Ben Rubinowitz)

Episode 51 (Rhani Lott Choi)

AvaTax

Without a doubt, knowing your client’s case up one side and down the other and understanding and applying the law are critical to your chances of prevailing at trial. But if your demeanor and presentation style lack polish, you might be getting in your own way. Special Counsel to the New York City MTA Inspector General and NITA Program Director Shareema Abel joins May the Record Reflect to talk about courtroom composure, interpersonal conduct, oral advocacy, self-expression, and so much more.

Topics

3:05 What is courtroom demeanor?

6:12 Demeanor in challenging situations

8:57 When you know the judge or opposing counsel

12:03 Vocal expression and body language

16:49 Personal style

22:55 Conduct outside the courtroom

26:12 Online proceedings

28:39 Picking yourself up on an off day

32:44 Cross-generational learning at the office

37:45 Neurodivergence

40:16 Feedback on your courtroom demeanor

44:58 Signoff questions

Quote

“Silence is one of the things that, over the years, I really had to get comfortable with in a courtroom because I remember wanting to fill every second of space and I thought silence was deadly. But as you grow in your career, you realize that you can use silence as a tool, and so oftentimes, especially when you forget a point, it’s ok to have a pregnant pause or use silence, and then return to a podium, to your notes, to remember what you’re saying. Or using silence to make a point after you ask a rhetorical question and using silence when you’re going from topic to topic, because my theory is you should never be talking and moving at the same time.” Shareema Abel

Resources Shareema Abel (LinkedIn) NITA Women in Trial (program) Deposition Skills: NYC (program) Building Trial Skills: NYC (program) NITA Women in Trial playlist (Spotify)

Content Warning: A brief, non-graphic mention of a sex crime case occurring from 29:34 to 30:49.

Everyone likes to start off on the right foot, and your opening statement is a crucial place to do it. It’s also Assistant U.S. Attorney Brooke Latta’s favorite part of trial, so she joined the podcast to discuss her best tips on telling the right story, using visual aids for maximum impact, and pulling out all the stops to captivate your jurors. She also talks about some of her own openings at trial and what she holds to be the G.O.A.T. of opening statements. 

Timestamps & More

Topics

3:00   What’s fun about openings?

4:07   Rhetorical and legal goals

6:05   Crafting an opening

8:46   Workshopping it

10:54 Figuring out the right story to tell

13:00  Telling auditory stories for visual consumers

14:36 Some good don’ts

15:30 Visual aids

17:10 Court clearance for visual aids

19:01 Objections

21:53 Case weaknesses

23:50 Closing your opening

24:42 Openings and closings, compare and contrast

26:42 Brooke’s favorite example of a great opening

32:35 Signoff questions

Quote

“Something I always do is I talk to jurors like they are a friend that I’m having a martini with and I’m sitting across the table from. And I’m just talking to that friend about something that’s a very serious, very important issue — and I’m keeping it simple, I’m keeping it concise — so it’s a serious tone, but it’s casual.” Brooke Latta

At a time when more cases settle than go to trial, the deposition has become of utmost significance. Our guest Carl Chamberlin draws upon his experience taking and defending depositions in private practice as well as teaching deposition skills for 30 years. As the new author of The Effective Deposition, the topic is top of mind lately for Carl, so he joins us to talk about how to kick off a truly effective deposition with introductory matters and preliminary and substantive questioning techniques—and he even asks a few questions of his own. 

Topics

3:22   The purpose of depositions

6:20   Difference between gathering information and obtaining information

10:38 Why depositions are important

12:30 Physical settings for remote depositions

14:15 The “usual stipulations”

17:20 Getting commitments

21:27 Commitments in remote depositions

24:42 Preliminary questions

29:51 Structure of substantive questioning

33:30 First demo

36:57 Key phrases for asking open-ended questions

38:25 And ones to avoid

43:01 Drilling down into a substantive topic

44:18 Second demo

1:04:19 Paying attention and listening

1:06:40 Using exhibits

1:10:15 Dealing with interruptions

1:13:56 Carl’s early depositions

1:16:53 The Effective Deposition

1:21:36 Signoff questions

Quote

“We want to make our questions clear and concise. Simple. The clearer the question, the better the answer. The fewer the objections, the more powerful it is.” Carl Chamberlin

Resources

Carl Chamberlin (LinkedIn)

NITA Publications (book)

Every trial advocate enters the courtroom hoping for a “one and done” decision that favors their client. But appeals do happen, and if you’re waiting until the verdict is read before you start thinking about what comes next, you’re already bringing up the rear. Judge Randall Warner of the Superior Court of Arizona in Maricopa County joins the podcast to discuss the potential appeal issues you should be thinking about during litigation, the pretrial phase, and at trial; what issues are ripe for appeal (and which ones aren’t) and their impact on your trial strategy; and how to preserve the record for appeal in real time. He also lets you in on what he says are the most undervalued, hence underutilized, tools in your advocacy kit and how you should be using them to your advantage.

Topics
3:35   Different considerations for different trials
5:10   Common mistakes
6:13   Basics of appeals
8:59   Reverse-engineering your case
10:24 Appellate specialist on the trial team
11:22 Good appeal issues
13:00 Bundling your issues
14:10 Poor appeal issues
15:06 Pretrial preservation considerations
16:11 Motions in limine}
17:52 Bench memoranda
19:57 Preservation at trial
22:20 Objections and evidence
26:16 Staying in the judge’s good graces
27:17 Jury instructions
31:22 Verdict forms
38:49 Damages
40:38 Bench memorandum for jury instructions
42:12 Motion to acquit
45:26 Career advice to younger self
46:33 Signoff questions 

Quote
“I’m a fan of bundling issues. So, for example, if you’ve got one issue that’s a sufficiency of evidence issue and another that’s a jury instruction issue and a third issue that’s an evidentiary objection or a couple evidentiary objections, and they all point to the same wrong result, those issues — independent of what the standard of review may be on any one of them — kind of work together to create an argument for prejudice for the case overall.” Judge Randall Warner

Resources
Judge Randall Warner (bio)
“All Mixed Up about Statutes: Distinguishing Interpretation from Application” (article)
“All Mixed Up about Mixed Questions” (article)
“Efficiency in Motion” (article)

Many a young idealist register for law school with visions of Atticus Finch dancing in their heads, but only the rarest few have those dreams come true. NITA Trustee Emeritus and national treasure James Brosnahan is among them. In Episode 49, this legendary legend reflects on a life in law that has included face-to-face encounters with such cognoscenti as Chief Justice Warren Burger, Senator Orrin Hatch, and the Kennedys. He also talks about his viral LinkedIn series on vocal quality and breaks down the six essential qualities of a commanding speaking voice that have served him well over his 60+ years in the courtroom. 

4:28   Voice quality videos on LinkedIn
9:05   Evaluating your own voice quality
11:25 Tempo
17:22 Volume
20:53 Tone and mood
25:16 Warmup exercises
28:20 Emphasis and emotion
30:06 Speech harmonizing and collecting voices
35:15 Favorite voices
37:05 Clarity
42:59 Pauses
41:57 Arguing before SCOTUS
52:04 Interrogation by Orrin Hatch
56:21 Controversial representations
1:00:16 Defending the Constitution
1:03:35 Speaking truth to power
1:07:29 Boston Irish and the Kennedy agenda
1:14:39 What Jim has learned at NITA
1:19:03 Signoff questions

Quote

“The goal, which is not easy, is to be like an actor who can throw the voice up into the second balcony. That’s what you want to do. The equivalent in trial is to be sure that every word that you pronounce is heard by Juror 1 in the back row and Juror 6 in the back row, because if they haven’t heard what you’ve said, it’s like it never happened.” Jim Brosnahan

Resources

Jim Brosnahan (bio)

Jim’s video series (LinkedIn)

Justice at Trial: Courtroom Battles and Groundbreaking Cases (book)

Publio Delgado, speech harmonizer (YouTube)

Cognitive bias is a barrier that lawyers must overcome in court—and it’s not just biases of the jurors they must consider, but those, too, of the judge, opposing counsel, expert witnesses, and even one’s own self. New Orleans trial legend Dominic Gianna returns to May the Record Reflect to talk about how persuasion science can help you clear the tricky bias barrier. He presents the five most consequential cognitive biases to trial lawyers, the impact each has on fact finders, and suggests how you can connect with a diversity of jurors in the post-truth era. 

Topics

4:08    What is cognitive bias?

6:55    Five common cognitive biases

7:35    Confirmation bias

10:40 Anchoring bias

13:31 Hindsight bias

18:00 Availability bias

24:48 Dom’s mantras for helping jurors process information

25:35 Affinity bias

28:52 Stupid lawyer tricks

32:18 Impact of our own biases

34:36 Biases from the bench

39:42 Appealing to a panel of judges

42:24 Expert witnesses bias impact on testimony, interpretation of evidence

44:09 Cognitive biases of opposing counsel

47:06 Persuasion in the post-truth era

57:51 Signoff questions

Quote

“Jurors don’t vote for the evidence. They vote for their views, and so as advocates, we have the obligation to our clients to try to understand those views. Where did those views come from? Where are they based? What attitudes, beliefs, and values, led these people, this person—this particular person—to a belief system that is so strong that he or she will ignore information that seemingly contradicts that confirmation bias?” Dominic Gianna

Resources

Dominic Gianna (LinkedIn)

Deposition Skills and Trial Skills: New Orleans (courses)

“Give ’em the Ol’ Razzle Dazzle (podcast episode)

“The Secrets of Persuasive Legal Storytelling,” with David Mann (podcast episode)

“Off Broadway and Into Court,” with Kevin Newbury and Kate Douglas (podcast episode)

Taking a deposition presents enough challenge as it is without the interference of obstreperous or obstructive counsel, yet it happens anyway and you must be prepared to deal with it. Following her appearance on a NITA panel webcast on depositions in November 2023, Assistant U.S. Attorney and Wilmington Law professor Veronica Finkelstein returns to NITA’s studio71 to answer viewers’ questions about how to manage misbehavior in the deposition room. She also reveals how to be a passionate advocate for your client without crossing those lines yourself, to reclaim your time when the opposition wastes it, and to wield the unexpected power of a deposition binder.

Topics

4:16    Counsel who won’t control their client

8:36    Witnesses “forgetting” their records

12:14 Counsel who try to confuse your witness

15:46 Disruptive, but not inappropriate, objections

19:21 Tracking time wasted on abusive conduct

23:26 Court reporter tracking wasted time

27:21 Being zealous but not obstreperous

29:37 Speaking objections

35:05 Continuing objections

39:51 Written discovery requests

43:36 “The usual stipulations”

46:58 Contents of a deposition binder

57:07 Signoff questions

Quote

“People get pretty quiet when you have the controlling case in your jurisdiction in your hand and they have nothing.” Veronica Finkelstein

Resources

Veronica Finkelstein (LinkedIn)

Reduce the Abuse: Managing Obstructive Opposing Counsel During Depositions (webcast)

Building Trial Skills: Colorado (course)

Content warning: Mentions of sexual assault. Brief, non-graphic discussions of questioning the venire about sexual assault occur at 32:20–32:59 and 42:25–44:34.

Experienced trial lawyers are accustomed to being the ones asking the questions, but in this episode, NITA NextGen faculty member Adam Kendall finds himself in the hot seat for once.  He’s answering our questions about voir dire: building rapport with the venire through icebreakers and humor, eliciting useful information from potential jurors while introducing bad facts about your case, and what you can glean from jury questionnaires. Adam also talks about the developing trend of limiting or eliminating peremptory strikes.

Topics

3:39   Primary goal of voir dire

4:06   What to pay attention to

5:09   “The quiet one”

9:03   Icebreakers to build rapport

11:18 Voir dire by the judge

14:22 Strong personalities among jurors

16;25 Ideal foreperson qualities

17:50 Eliciting strong opinions and reactions

19:19 Introducing bad facts

21:12 Using humor

24:12 Signaling legal issues

26:27 Nationwide changes in peremptory strikes

32:05 Jury questionnaires

35:53 Online research of the venire

41:50 War stories

46:50 Signoff questions

Quote

“People who are too eager to be on a jury scare me.” Adam Kendall

Resources

Adam Kendall (LinkedIn)

Building Trial Skills: New Orleans (course)

Not Just for Trial! How to Use Exhibits from Day One (Register for Adam's live webcast on March 26, 2024)

In our second interview on The Effective Deposition, Program Director and author Carl Chamberlin returns to the podcast to talk about witness preparation. Joining him is NITA Trustee and Program Director Whitney Untiedt, and together they share tips and perspectives on witness prep sessions and how to ready your witness for the procedural and substantive aspects of being deposed. Carl and Whitney also talk about the ethics obligations of counsel and the ramifications of the recent ABA Formal Opinion 508. 

7:20   Timing and length of prep sessions
12:52 Tips to optimize prep
21:09 Procedure and process of being deposed
23:07 One concept and three rules
28:37 How witnesses should answer
34:15 Answering after an objection
36:21 Handling opposing counsels’ tactics
45:42 Goal of substantive preparation
49:54 Reluctance to disclose
55:57 Ethics obligations
58:28 Demo|
1:02:20  Implications of ABA Formal Op. 508
1:08:03  Signoff questions

 Quote
“We as lawyer operate on ‘our’ time. Our time is valuable, and our time is calculated in six-minute increments, and our time is scheduled to within an inch of our lives, but when we sit down with our witness for a depo prep session, it’s no longer our time. It’s our witness’s time. This is their time to shine.” Whitney Untiedt

Resources
Carl Chamberlin (LinkedIn)
Whitney Untiedt (LinkedIn)
The Effective Deposition: Techniques and Strategies that Work (book)
Beginning the Effective Deposition, with Carl Chamberlin (podcast)
Whitney Untiedt Puts the “Pro” in Pro Bono (podcast)
Deposition Skills: Florida (course)
ABA Formal Op. 508 (opinion)

You've probably heard that in direct examination, controlling your witness is all about witness prep, while in cross, leading questions are the key. Those oft-repeated tenets are true, say podcast guests Judge Amy Hanley and NITA faculty member Adrienne Johnson, but they oversimplify the specific control techniques that actually work and how attorney style, hearing type, and venue factor in. Tune in as they get specific about the part of trial over which we have the least control: examining witnesses.  

Topics 

3:48 One task lawyers often overlook 
7:08 Prep is not just for the witness 
9:50 Practice questions 
13:33 Witness crumbles on the stand 
18:52 Leading questions on cross 
21:00 Using your voice 
26:12 Tips for controlling on cross 
32:33 Anecdotes about control in the courtroom 
36:05 Developing your trial style 
38:30 Impact of venue and regions 
41:22 Controlling in different types of proceeding  
46:06 Script versus bullet points 
55:20 Expecting problems 
58:16 Examinations gone wrong, and right 
1:07:07 Signoff questions 

Quote 

“I think one of the best tools for witness control is some self-control. I always say that often—most of the time—when you get an answer you don’t like from a witness or that is not responsive, usually that’s a ‘you’ problem. You have not phrased the question well to ask the thing that you want an answer to. So the first thing I always think about when I think of a witness being out of control is whether I did a good job with my questions. Did I lead on cross? Am I introducing one fact and not asking for several facts at a time? Did I leave something up to interpretation?” Adrienne Johnson 

Resources 

Judge Amy Hanley (LinkedIn) 

Adrienne Johnson (LinkedIn) 

NITA Women in Trial (course) 

Direct Neglect: Where Is the Love?, with Judge Amy Hanley and Dennericka Brooks (episode) 

The Tense Trio, with Judge Amy Hanley and Cheryl Brown Wattley (episode) 

Justice at Trial, with Jim Brosnahan (episode) 

Give ‘em the Ol’ Razzle Dazzle, with Dominic Gianna (episode) 

David Mann storytelling (course) (episode)

If you’ve ever been baffled by scientific, technological, or financial evidence in your case or wondered how an expert witness arrived at their conclusions, former Gwinnett County Magistrate Judge Ruth McMullin is back on the podcast to share some know-how. In this episode, she talks about why you need to deep-dive into learning about subjects outside of your college major, what fact-finders want to know about forensics and how to make it easier for them to follow, the subtle things you can learn by using subpoenas, and the impact of bias in forensic evidence. 

Topics

3:30   Types of forensic evidence

7:40   What’s harder and easier about types of evidence

12:03 What fact-finders want from forensic evidence

13:25 Judges’ versus jurors’ needs

17:33 Simplifying complex evidence for understanding and retention

22:57 Using expert reports

25:40 Impact in the post-truth era

31:43 Judge McMullin’s favorite forensic evidence

35:18 When your agency lacks funding for competing experts

37:35 Use of subpoenas

40:25 Role of bias in forensic evidence

44:05 Signoff questions

Quote

“Does this [expert] report help, does it hurt, or is it neutral? A lot of times, lawyers will see a report from the opposing side and immediately think, ‘This hurts my case.’ But it you look at it and understand the parameters of that report, it may be neutral. You can save yourself a lot of stress and time if you understand how that evidence plays in with your bigger case. It may help your case, and you may look at the report and say, ‘You know what? This actually supports my theory.’ So, the more you [learn about and question forensic evidence], the more you get comfortable with saying, ‘I don’t have an objection to this report from the other side. I actually want it. I’m glad you got it, thank you.’” Judge Ruth McMullin

Resources

Judge Ruth McMullin (bio)

The Great Imposter (podcast episode)

Some of the most important heads to get into are those of the jurors seated for your trial. Fortunately, figuring out what makes people tick is both interesting and fun, and Temple University Director of Advocacy Programs Jules Epstein is here to share the lowdown. Whether he’s busting common courtroom myths, revealing how the camera lies, or delving into the cognitive process of jurors (and your very own self), Jules makes the case that knowing a little trial psychology can give you a competitive edge for the good of your clients. 

Topics 

4:02 Curse of knowledge 

10:04 Goldfish attention span 

13:47 Slo-mo evidence 

19:16 Problems with graphic evidence 

24:43 Visuals with words 

27:28 Disconnect between science and law 

36:30 Camera bias 

43:21 Thought processes 

48:55 Mythbusting 

53:46 Go slow 

56:12 Bonus lessons 

1:00:15 Collective Wisdom  

1:03:55 Signoff questions 

Quote 
“A visual guarantees that all twelve, or all eight, or all six jurors will know what something looked like.” Jules Epstein 

Resources
Jules Epstein (bio) 
NITA’s free Collective Wisdom articles (link) (latest)
Point Well Made: Persuasive Oral Advocacy (book) 

When people hear the term “rhetoric,” they often think of words full of sound and fury signifying nothing. Yet that is a woeful misunderstanding of the beauty and power of persuasive language and argument. In this episode rife with back-to-school vibes, Temple Law Professor Marian Grace Braccia breaks down the where, how, and why rhetorical devices belong in oral and written advocacy; reveals why rhetorical devices have an massive impact, even on the cellular level, on finders of fact; refreshes your recollection on devices you already know while introducing others that belong in your repertoire; and totally geeks out about how fun, easy, and powerful they are to use.

Topics

3:30    The road to rhetoric

7:50    Definition of rhetoric and the Queen Philosophy

10:56    What are rhetorical devices?

11:59    The OGs of ancient rhetoric

18:43    Recent rhetoricians

20:59    Aesthetics of rhetoric

27:10    Where to deploy rhetoric at trial

29:12    Rhetoric in oral and written advocacy

33:00    Taking rhetoric too far

35:55    Easiest rhetorical devices to use

40:23    Obama the rhetorician

45:20    Tricolon and antanagoge

50:33    Sources of inspiration

54:09    Favorite devices

55:19    Wait . . . Taylor Swift?

57:40    Pop villains on trial

1:06:23  Signoff questions

Quote

“On an artistic level, rhetoric and the effective deployment of rhetorical devices give us emotional resonance and memory enhancement and aesthetic pleasure, and even surprise and novelty. Some rhetorical devices like irony or puns introduce the element of surprise and novelty, and they can be amusing or thought provoking, and they make the message more engaging, more memorable.” Marian Grace Braccia

Resources

Marian Grace Braccia (bio)

The Queen Philosophy (webpage)

Henry V: St. Crispin’s Day (video)

Renaissance Man: St. Crispin’s Day (video)

Rhetorical devices worksheet (available for download from Episode 58's show notes under Resources > Podcasts at nita.org)

The wish to leave the world a better place has long inspired people to attend law school and make a difference in the important ways only trial lawyers can. According to NITA Trustee Angela Vigil and Program Director Henry Su, pro bono publico provides an opportunity both to help those in need of legal counsel and to develop one’s oral advocacy skills. In this episode recognizing both this week's National Celebration of Pro Bono and the fifth anniversary of May the Record Reflect, Angela and Henry discuss a lawyer’s professional responsibilities, the advocacy skillset that pro bono work develops, and how to find pro bono opportunities. They also reveal their favorite tips, common mistakes they see in depositions and trials, and qualities embodied by courtroom superstars.

“I think law school lights a fire in smart and curious people for sure, so when you come out of law school, you have an idea of what kind of ways you want to apply these great new skills. That is definitely true in most recent generations and you just get rejuvenated when you talk with them and learn what they want to accomplish. I also think that, more and more, lawyers are listening and understanding that wellness and bringing your whole self to being part of your community is really important. You can’t just be a lawyer who locks yourself in a room and bills a bunch of hours for decades. It’s not healthy, it doesn’t last, it’s not good for you, it doesn’t encourage diversity and community. So, I think we all—and certainly younger-generation lawyers—are recognizing that you’ve got to bring your humanity to being part of your practice as well.” Angela Vigil

Topics

6:25    Model Rule of Professional Conduct 6.1

8:40    Pro Bono's impact on access to justice

13:00  Learning trial skills through pro bono service

16:44  Range of pro bono advocacy work

27:35  Inspiration for doing work that is “advisory”

33:45  Generational desire to make a difference

35:37  Wellness and performance

38:16  Obligation to provide competent representation

42:25  Making time for pro bono

46:15  Witnessing skills growth through pro bono

53:00  Common mistakes in depositions and at trial

56:54  Superstar lawyer qualities

58:51  Favorite insider’s tips

1:00:46  Signoff questions


Angela Vigil (bio)
Henry Su (bio)
ABA Model Rule 6.1 (link)
National Pro Bono Opportunities Guide (state search engine)
ABA Free Legal Answers volunteer (registration)
May the Record Reflect (Episodes 1, 2, 3, 4)
The Resilient Lawyer (podcast episode)

In this rebroadcast of our 2022 interview, we gather all sorts of admissions—about depositions—from NITA NextGen alumni Jason Young. After taking and defending thousands of depositions throughout his career, he’s no-nonsense and has figured out how to make the challenges easier on himself, his clients, and his witnesses. Jason also talks about the crucial work–life decisions all lawyers face as they begin their careers.

Topics 

3:46 The hard part of taking depositions  

5:55 Federal rules related to depositions 

9:13 Witnesses, both expert and lay   

11:36 Role of social media  

15:10 When to video-record a deposition  

17:35 The hard part of dealing with witnesses 

19:40 Timelines for expert witnesses, plaintiff versus defendant 

22:07 Subpoenas 

25:00 Obnoxious opposing counsel 

30:50 Preparing your witness 

34:42 Protecting your witness 

37:53 Remote depositions 

40:31 Work–life balance and advice for new lawyers 

44:35 Signoff questions 

Quote
“What a lot of inexperienced deposition lawyers have a problem with is they are terrified of the unknown in depositions and afraid to follow up on things, know how to shut things down, and that really scares a lot of people. And I guess the thinking with depositions a lot of times is, you want to know more. If there’s information that’s going to come out that’s going to hurt me, I want to know it in a deposition. If there’s additional facts I need or something I didn’t know, I’d rather find out in a depo than in trial.” Jason Young 

Resources
Jason Young (bio)
Blog interview (The Legal Advocate)
Federal Rules of Evidence with Objections (book)
NITA Deposition programs (registration) 

In 2021, former prosecutor Steve Wood told May the Record Reflect that to grow as a trial advocate, he had to accept that he is “insufferably boring.” What did he mean by that? And, how can it help you grow as an advocate as well? In this self-deprecating but entirely serious conversation, Steve and fellow former prosecutor Laurie Gilbertson talk about the neuroscience of boredom, multisensory engagement in the courtroom, telling a compelling story, and how it all adds up to self-confidence and stronger advocacy for your client. 

Topics
3:27 What it means to be “insufferably boring” in court
5:55 Neuroscience behind boredom
9:06 Why trials are boring
15:11 Bored judges, bored jurors
28:35 Resting postures for hands
37:07 Role of storytelling
42:42 When storytelling is most important
49:36 Repeating yourself without being boring
57:27 Confidence
1:01:36 Preparation, notes, and delivery
1:14:56 Great Hollywood courtroom performances
1:21:00 Signoff questions

Quote
“Our task as trial lawyers, as I see it, is to do three things. One, admit that we’re boring — all of us, all the time. Two, with the aid of people like Laurie, do the things that we can do to be less boring. And then three, never fall prey to the conceit that at any given time a majority of the trier of fact is paying attention. Assume the opposite. But what we can do, most primarily, is introduce change into the courtroom environment. That’s our mission.” Steve Wood

“. . . what I found often is that jurors who have watched so much tv, who have watched so many movies, who have read legal thrillers, who have maybe listened to true-crime podcasts — some of them, if not many of them, expect to be entertained, and when you, as the attorney, are not kind of doing all these things that Steve is talking about in terms of interjecting that change and keeping them entertained, a lot of the jurors are surprised that court is actually that boring. They expect it to be a lot more interesting.” Laurie Gilbertson

Resources
Steve Wood (bio)
Laurie Gilbertson (bio)
Top 10 Tips that Make a Difference, with Steve Wood (episode)
Thinking with Your Hands: The Surprising Science Behind How Gestures Shape Our Thoughts (book)

In Episode 62, Philadelphia trial lawyer and NITA Program Director Tom Innes introduces listeners to cross-examination math and how the idea of “less is more” increases the impact of the questions counsel poses to a witness. Control is the name of the game in cross, so Tom also shares how to shepherd witnesses through cross, why to restrict interrogatories in the phrasing of questions, and why less is even more when examining an expert. 

Timestamps & More

Topics
3:06    How to think about cross
3:53    Objectives of cross
5:05    Rules of cross-examination math 
6:41    Why concision helps your finder of fact
9:22    Controlling an adverse or difficult witness
10:15  Cross demo
14:12  Omitting the interrogatory
17:00  Expert versus fact witness
18:11  When to break the “cross math” rule
23:26  Signoff questions

Quote
“Every word you put into a leading question permits the witness to decide which word they will, or they can, disagree with or work around or give you a hard time about.” Tom Innes

Resources
Tom Innes (bio)
Judge L. Felipe Restrepo (bio)
Mary DeFusco (bio)
Building Trial Skills Philadelphia (program)

NITA Program Director and former Resource Director Mark Caldwell joins the podcast to chat about how to effectively communicate with the various audiences in the courtroom to ensure they get — and comprehend — the information they need from you. He shares how to talk to jurors about unfamiliar courtroom procedures and substantive information, why sounding like a tv lawyer is a huge turn-off to jurors, and recommends some of his favorite lawyers from pop culture whose techniques can help trial lawyers refine their courtroom communication style.

Topics

3:05    The needs of the courtroom audience
7:14    What “talking like a lawyer” means
10:10  Juror impressions of “lawspeak”  
13:53  Communicating procedural and substantive complexity
20:06  How not to sound like a lawyer
27:50  Pop culture examples of legal communication
29:00  Why my cousin Vinny is a great trial lawyer
31:42  Movies and a book to recommend
51:55  Implicit bias training

Quote
“Don’t be a tv lawyer, but take lessons from what you see on television.” Mark Caldwell

Resources
Mark Caldwell (bio)
Colorado Deposition Skills and Trial Skills (programs)
Films, shows, and book (list)

As a sitting district court judge and 29-year public defender, NITA Program Director Judge Cynthia McCollum knows a thing or two about jury selection, and in this episode, she opens up about how to get your jurors to open up. She serves up a baker’s dozen of her best tips for getting jurors to talk during voir dire, mistakes she learned from as a public defender, what to know about Batson challenges, and anecdotes about her career trajectory before and on the bench.

Topics
3:50  First tip for getting jurors to open up during voir dire
4:47  Second tip
5:45  Judge’s first time in court as a new lawyer 
9:48. Third tip
14:24  Fourth tip
18:33  Fifth tip
20:08  Being a public defender, then a judge
24:42  Sixth tip
26:39. Seventh tip
29:28  What it’s like to be a judge
31:48  Eighth tip
33:09  Ninth tip
38:25  Tenth tip
41:31  NITA involvement
45:06  Eleventh tip
48:35  Twelfth tip
50:32  Baker’s dozen tip about Batson
52:39  Signoff questions 

Quote
“Everyone needs to work on their jury selection. It’s not a natural for a lot of people, because you get nervous about asking those tough questions.” Judge Cynthia McCollum

Resources
Judge Cynthia McCollum (bio)
Batson bonuses (file)
Minnesota Deposition Skills and Trial Skills (programs) 

For trial lawyers, “advocacy in a hurry” — injunctions, bail hearings, requests for orders of protection, emergency custody petitions, or immigration orders — calls for making the most of the limited time you have before the court, even if it's just 15 minutes. Former Illinois Eighth Circuit Court Judge Mark Drummond shares seven valuable tips on compressing your case to fit the time available, how to help the judge quickly understand what’s at issue in the proceeding, and what ethics concerns must remain top of mind for all advocates regardless of whether their time before the court is 10 minutes or 10 weeks. 

Topics
3:43  What is emergency advocacy?  
8:00  Circumstances calling for emergency advocacy
16:48  Making the most of the little time you have
17:40  Factors you must prove in your state
18:30  Primacy and recency
21:00  Appeal to the judge
21:47  Written offer of proof
23:15  Persuasive use of numbers
23:53  Offer time limits
27:00  Judges triage
27:39  What judges fear
31:02  Two things to be prepared for
34:11  Your duty of candor to the court
38:06  Signoff questions

Quote
“You’ve spent a lot of time going through law school. You’ve build a practice. Clients will come, clients will go. You built your practice brick by brick on the decisions you’ve made, the judgments you’ve made, and the choices you’ve made. And it takes a lifetime to do that. But you know, sometimes like a child that knocks down their wooden block tower, it only takes one time to tear all that down. And no single client is worth that.” Judge Mark Drummond

Resources
Judge Mark Drummond (bio)
"Death Penalty Cases in a Traffic Court Setting" (article)
"What Judges Want" (article)

In Episode 2 of NITA’s recognition of the National Celebration of Pro Bono here on the podcast, we are joined by Whitney Untiedt. Whitney is an attorney with Freidin|Brown in Miami, where she handles whistleblower and false claims actions, medical malpractice, and catastrophic injury cases. Previously, Whitney managed the national, firmwide pro bono practice at an AmLaw 100 firm and mobilized large-scale legal efforts in response to natural disasters, the unconstitutional incarceration of juveniles, and the immigration enforcement crisis. Whitney is also NITA program director and will join our Board of Trustees in January 2020.

Topics
2:38 Why I volunteer for NITA 
5:03 Why public service matters
6:59 A volunteer experience that meant a lot to me
9:45 Signature “softball” 

Quote
“My work as a volunteer faculty member is given back to the organization in honor of all those who came before me, every NITA faculty member, and participant who’s mentored me professionally, and everyone in the NITA family who’s offered to spent their time and their expertise to bring up the next generation of lawyer leaders.” Whitney Untiedt

Recommended Resources
Whitney Untiedt on LinkedIn
Freidin|Brown
Catholic Legal Immigration Network, Inc. (CLINIC)
Catholic Charities of NYC – NITA Public Service Program
NITA Announces Co-Program Directors: Jayme Cassidy and Whitney Untiedt, Building Trial Skills Florida in March 2020
Attorney of the Year: Whitney Untiedt

Upcoming Teaching Engagements
Building Trial Skills: Florida

In Episode 3, Judge Robert McGahey chats with us about the importance of public service during this week’s National Celebration of Pro Bono. Judge McGahey presides over a civil docket in the Denver District Court. In his almost 20 years on the bench, he has also served in the criminal and domestic relations divisions. In his 25-year civil trial practice before becoming a judge, he tried over one hundred jury trials. Judge McGahey is a familiar face at NITA trial skills programs and is the four-time recipient of NITA’s Volunteer of the Year award. Outside the courtroom, he loves to travel and is a film buff, to which his many law-setting movie reviews for our Legal Advocate blog will attest. 

Topics
1:49 Why public service matters
2:42 Choosing a career in public service 
4:48 Why I volunteer for NITA
6:18 How I found NITA 
7:20 Signature “softball” 

Quote
“If the rule of law means anything, it means that everyone who’s touched by the legal system should be treated fairly and with dignity—and that means everyone, not just the people that can afford lawyers. That’s why my favorite programs are public service programs—public service lawyers, immigration programs, tribal programs—and by teaching at those programs, I hopefully do my part to level the legal playing field by making sure there are well-trained advocates available to everyone who needs one.” Robert McGahey

Recommended Resources
Robert McGahey court bio
Asked and Answered: Judge Robert McGahey
Bill deMoulin obituary
Perry Mason
Erin Brokovich movie review
Chicago movie review

Upcoming Teaching Engagements
Deposition Skills: Rocky Mountain

In Episode 4, we wrap up this week’s National Celebration of Pro Bono by talking to Stephanie Ledesma. Stephanie is the Associate Dean of the Thurgood Marshall School of Law Experiential Education program in Houston and one of NITA’s national faculty members. In addition to developing curricula for law schools, agencies, and other legal professionals, she serves the bar on the local, state, national, and international level and volunteers within her Houston community. Stephanie’s recent travel to Namibia to teach for NITA is a case in point for the nearness and dearness in her heart for public service. 

Topics
2:38 General volunteer work 
3:09 Pro bono cases
3:30 Volunteer work in Namibia
5:15 Why does public service matter
6:52 Why I volunteer for NITA 
8:52 Signature “softball” 

Quote
“Until I crossed the border [into Nabimia] with Judge Ann Williams, I didn’t realize that globally we are the same people. We are working for the same cause. We are doing the same work. I was energized to a different level with that work.” Stephanie Ledesma

Recommended Resources
Stephanie Ledesma on LinkedIn
Thurgood Marshall School of Law Experiential Education
Namibia Teacher Training and Trial Advocacy – NITA Public Service Program
Stephanie Ledesma Receives Appointment at Thurgood Marshall
Catholic Charities of NYC – NITA Public Service Program

Upcoming Teaching Engagements
Deposition Skills: Atlanta
Building Trial Skills: New Orleans
Building Trial Skills: Chicago
Building Trial Skills: Dallas

In today’s inaugural episode of May the Record Reflect, we introduce you to NITA’s new podcast by talking to Annie Deets, one of NITA’s 100+ hour volunteers for 2018. Volunteerism is the theme for this season of the podcast because this week is the National Celebration of Pro Bono, an annual event that brings attention to the valuable pro bono work by lawyers, paralegals, and law students in the U.S., whether it’s to recognize individual volunteers or to draw awareness to opportunities for service in our profession.

Annie Deets works for the Law Office of the Public Defender in DeKalb County, Georgia, where she handles some of Atlanta’s highest-profile criminal cases as part of the Behavioral Health Division. During her career, she has also represented victims of domestic violence as a Henry County prosecutor, as well as handled civil matters for indigent populations in rural Georgia. Annie donated over a hundred hours in teaching time to NITA over the past year and was selected as one of NITA’s NextGen faculty in 2018.  

Topics

1:34 Why I volunteer for NITA 
4:23 The difference I think public service makes
5:21 My public service experiences 
7:56 Signature “softball” 

Quote
“I think our country right now is really in this kind of struggle, this time of turmoil and kind of searching for our soul, and what do we stand for and what do we want to represent. . . . Public service, I think, in times like this, it matters now more than ever, because if we’re not equipping people with the skills they need to fight these really hard battles on the front line, then nobody’s going to be there to fight them.” Annie Deets

Recommended Resources
Annie Deets on LinkedIn
Atlanta Legal Aid – NITA Public Service Program
Legal Aid Association of California – NITA Public Service Program
Introducing NITA’s 2018 Next Generation Faculty Members
Annie Deets on women and confidence

Upcoming Teaching Engagements
Deposition Skills: Atlanta
Deposition Skills: Nashville

In Episode 5 of the podcast, we are joined by international communications expert Rebecca Diaz-Bonilla. Rebecca got her start as a theatre major in college, but it was as a law student that she first became aware of how nerves and unpolished communication skills tripped up even the most brilliant intellectual arguments of her fellow classmates—an observation that continued well into her law practice. This gap led Rebecca to blend her background in theater and the law, to teach professionals about overriding their nerves so they could excel at public speaking.

Rebecca’s consulting work takes her around the world as she coaches lawyers, executives, and politicians how to communicate with power and effect. Rebecca is a longtime faculty member and author for NITA.

Topics
3:04 From theater to law 
5:30 “Acting” and emotional self-control 
7:17 What makes a trial lawyer unlikeable 
8:35 “Other-centeredness” and self-awareness 
11:50 Confidence, credibility, clarity, likeability 
15:00 Phone and video conferencing basics 
21.08 Importance of motion practice 
22:30 Types of courtroom communications 
25:17 Developing extemporaneous speaking skills 
28:38 Gender differences in communication styles 
32:12 Diagnosing your adrenaline surge 
38:03 Improv training for lawyers 
40:10 New media and oral communication skills 
42:17 Communicating across the generation gap 
45:58 Elocution to admire 
48:01 Signature “softball” 

Quote
“Becoming self-aware for a trial lawyer is so important so that you’re able to stay attuned to what are each and every one of those jurors thinking, what’s the judge thinking, how are they feeling, how is that witness dealing with being up on that stand and being asked questions? And the second you act pompous and disrespectful you lose the case for your client.” Rebecca Diaz-Bonilla 

Recommended Resources
Rebecca Diaz-Bonilla

Foolproof: The Art of Communication for Lawyers and Professional

Point Well Made: Oral Advocacy in Motion Practice

Children Interrupt BBC News interview – BBC News

Fix Your Totally Miserable Conference Calls

A Video Conference Call in Real Life

Seven Business Lessons for Lawyers from Improv Comedy

Kobe Bryant’s Last Great Interview

Kobe Bryant on Shaq Drama & Raising Four Daughters

Kobe Bryant – The Interview with Ahmad Rashad

In Episode 6 of the podcast, former tv news anchor Carol Sowers shares her tips for becoming more at ease in the physical side of your courtroom performance: how to speak with confidence, project a pleasing vocal quality, connect with jurors, tame your nerves, and rebound from your mistakes. Carol spent more than thirty years as a broadcast professional for CBA/ABC Affiliate station KHQA in Quincy, Illinois, where she worked as a reporter and main anchor all the way up to vice president for public affairs—and everything in between. When she retired from the news, she began training broadcasters and law enforcement and governmental officials in public speaking. She now offers that same training to trial lawyers at NITA programs across the U.S. and abroad. 

Topics

2:58 Breaking up with your notes

4:27 Muscle memory and the mind-body connection

6:30 Preparation and practice

9:00 Writing “for the eye” versus “for the ear”

10:18 Cultivating a pleasing vocal quality

13:10 “Shrill” 

14:33 Warming up for a presentation

17:55 Learning about public speaking from trial lawyers

19:40 Communicating while sitting versus standing

22:00 Hand gestures

24:35 Question about Broadcast News

25:25 Looking sharp

27:40 “The Three C’s”

32:08 Effective eye contact

35:15 Using emotion while speaking

38:57 Managing mistakes and anxiety 

40:32 How to regroup discreetly

45:20 Communicating in high- and low-context cultures

49:32 Changes in culture

51:46 Signature “softball”

Quote
“I try to use . . . eye contact, especially at the beginning of a presentation, as a way to give myself some confidence. I automatically seek out people who look friendly or look engaged. Maybe they’re smiling at me, maybe they’re nodding their head. Because at the beginning when I’m a little bit nervous, that adrenaline rush is making me feel a little uncomfortable, I like to get that little boost of confidence from those people. So, those are the people I’m going to seek out first, and once I get that little smile or little nod of acknowledgment, then I’m going to move on to other people around the room.” Carol Sowers

Recommended Resources

10 Tips for Presenting Yourself Online—Carol Sowers

Webcast—Remote Advocacy: Representing Your Client during the COVID-19 Pandemic

Carol Sowers LinkedIn

Celebrating Carol Sowers’s Nearly 30 Years with KHQA

NITA Whitepaper: Communication Tips from NITA’s experts

Broadcast News (1987 Movie)

Broadcast News Movie Clip—Aaron Struggles on Air

High-context and low-context cultures

NITA International Programs

In Episode 7 of May the Record Reflect, we’re joined by Brooklyn Law School Assistant Professor of Legal Writing Catharine DuBois. Catharine serves as Program Director for NITA’s courses in persuasive writing, including an online version that starts next week. Among the topics she discusses with host Marsi Buckmelter are the importance of prewriting activities, organizing your document on the macro and micro levels, getting past writer’s block, creativity and the editorial process, and how to proofread your own work.  

Topics

3:09     What lawyers typically want to improve in their writing
3:53     A good timeline for your writing project
5:55     A crucial step that lawyers often omit
6:45     Outlining and writer’s block
8:28     Considerations about a writer’s audience
9:11     “What is the point?”
10:10   The importance of prewriting document organization 
11:50  “The test” 
13:36    Developing your writing muscle
15:55   Overcoming writer’s block
18:40   Shutting down your inner critic and perfectionism
22:56  Why it’s ok that your first draft stinks
24:40  Two tips to come back to when you’re stuck
28:26  Words for listening versus words for reading
29:20  Reading your drafts aloud as an editing tool
31:12   The challenge of proofreading
34:45  Whether to draft by hand or by keyboard
36:43  Catharine’s current writing project
40:44  “Signature softball” question 

Quote
“Nobody is writing a good first draft, and so what happens with my students and with my practitioners is, they get caught up in this idea that ‘I need to put into my reader’s ear the first draft, and if I can’t do that, I’m not a good writer.’ And what I encourage all of them to do is embrace what I was saying before: you’re going to write a writer’s-based first draft. It is for you, you are figuring it out, you are getting ideas on the page, and every single minute you spend doing that is useful to what you need to create in what we call the ‘shadow preparation’ for what you’re writing. Use it, make use of it, but reorganize it so it works for your final draft, which is for your reader, and be willing to edit it down to nothing if you need.” (Catharine DuBois)

Recommended Resources

Catharine DuBois—Brooklyn Law School

Writing Persuasive Briefs online course

The Artist’s Way, by Julia Cameron

Julia Cameron Wants You to Do Your Morning Pages (New York Times)

Bird by Bird, by Anne Lamott

Anne Lamott’s Sh!tty First Drafts essay

In Episode 8 of the podcast, we are joined by Kansas District Court Judge Amy Hanley and D.C. civil litigator Reuben Guttman to talk about how to get it right in video and telephonic hearings. The disruptions caused by the covid pandemic have suddenly moved the courtroom into your dining room, and our guests are sharing their best do’s and don’ts from their respective positions on and before the bench. The Honorable Amy Hanley is based in Lawrence, Kansas, and presides over a civil, domestic, and criminal docket for the Seventh Judicial District of Douglas County. In his class action and complex civil litigation practice, Reuben Guttman has become one of the most prominent whistleblower lawyers in the world. 

Topics

6:04    Constitutional and statutory constraints
9:12    Preparing your client 
11:20  Judges’ expectations
13:40  Putting clients at ease
15:08  Courtroom transition to online 
16:51  Views from the bench
18:33  Creating formality
23:17  Equal time 
29:25  Exhibits and judge preferences
31:43  Presenting exhibits
33:45  Making a court record
35:25  Recording the hearing
36:44  Communicating with client
40:25  Witness sequestration
41:42  Confidentiality issues
43:26  Public Zoom hearings
46:00  Closing advice
48:20  Technology’s impact on the law
49:07  Signature “softball”

Quotes

“If your judge doesn’t have the protocol [for remote hearings], don’t be afraid to ask for it. A little secret that I’ll let you in on is that judges love it when counsel does that work for us. You might be better suited to draft and propose a protocol due to your familiarity with the technology or because you know the witnesses and exhibits that need to be used. And we love it when you do that work for us ahead of time and send in a draft that we can use as a starting point.” Judge Amy Hanley

“It’s important to get [clients] to appreciate what it’s going to look like, what they’re going to look like, in the courtroom and to have them to appreciate that maybe the judge might actually pose a question to them directly, to rehearse some of that so they’re not surprised. If you’re sitting next to somebody, it’s a lot easier to tap them and say, ‘It’s ok, don’t worry about it. Answer the question,’ but remotely, I mean, there’s an intuitive sense of fear: ‘Oh, my God, I’m not prepared for this.’ So, the idea is that you want to make sure whether you’re putting your client on from prison or jail, or whether you’re putting your client on from a hospital room, you want to make sure that at least they understand what the possibilities are, in preparing them. I call it inoculation, inoculation against the possibilities that may give them anxiety.” Reuben Guttman

Recommended Resources

Douglas County District Court Guidelines for Court Hearings on Zoom

Using Zoom for Court Hearings

Videoconferencing in the Courtroom

First Emergency Order Regarding the COVID-19 State of Disaster, Supreme Court of Texas

Remote Testimony and Fed. R. Crim. P. 26

Center for Legal & Court Technology Best Practices

A joint ABA/Hazelden study in 2016 found significant rates of anxiety, depression, suicide, alcoholism, and addiction among licensed, employed lawyers in America. In Episode 9, we hear from DeAnna Crosby, addictions specialist and clinical director of a dual-diagnosis treatment clinic in Southern California, about the unique caretaking responsibilities that make lawyers susceptible to anxiety, depression, and self-medication and what resources are available to create a life beyond the bottle. 

Topics

3:45     Statistics on addiction and mental illness among lawyers

5:55     Lawyers and vicarious trauma, compassion fatigue, and burnout

9:26     Drinking “trends” 

10:52  Self-medication

15:02  Dual diagnoses of substance abuse and mental illness

16:22  Knowing if you have a drinking problem

18:52  Lawyers and other gold-collar professionals

20:54  Drinking at law school

22:13  Generational issues

25:40  Managing sobriety

28:23  Genograms

32:08  Prevalence of alcohol

35:01  Distress tolerance

39:00  Favorite resources

45:38  Signature signoff question

Quote

“One of the things that’s interesting is so many people when they get sober, they say, ‘Everyone’s gonna know. Everyone’s gonna know that I’m not drinking, and what am I gonna say?’ Most people don’t care. Most people are so obsessed with themselves that they don’t even notice that you’re not drinking.” DeAnna Crosby

Recommended Resources

ABA, Hazelden National Study on Attorney Substance Abuse, Mental Health

Journal of Addiction Medicine article

ABA Directory of Lawyer Assistance Programs

AA Questions

Genograms

Understanding the High-Functioning Alcoholic (book)

In the Realm of Hungry Ghosts (book)

Codependent No More (book)

Everything you think you know about addiction is wrong (TED Talk)

Brian Cuban’s The Addicted Lawyer blog

I’m in recovery and my office just moved above a bar (great comments section)

In Episode 10, Boulder, Colorado-based coach Will Murray shares how trial lawyers can take the techniques of triathlon performance and endurance training that Murray specializes in and apply them to the endurance tests of litigation and trial practice. Much of it is mental, he notes, and tells us how to develop discipline, recode memories and motivations in our brains, calm our nerves in the moment, deal with traumatic stress (our clients’ and our own), and even get a better night’s sleep in the midst of a busy trial.  

Topics

2:39     The four pillars of endurance
4:16     How trial lawyers are like triathletes
6:22     Discipline
7:11     Flexing your discipline muscle
9:40     “Recoding” your motivations as pleasure
10:34  Pleasure principle
11:29  Tips and tricks for recoding
15:00  Visualization and muscle memory
16:00   Taking cues from negative memories
18:37  Easy fixes for nerves
21:28  Mapping trial times when you’ll need a boost
24:00   Knowing our own weaknesses
24:57  Overcoming apprehension
26:57  Visualization
27:34  “Learning by doing” 
30:04  PTSD on the witness stand
32:50  Reconsolidation of Traumatic Memories (RTM) protocol
34:42  Traumatic compassion
36:45  Tips for sleeping and rest
24:35  Signature signoff question

Quote

“Our brains are good golden retrievers. They aim to fetch what you throw at them, so throw the thing you want to have happen.” (Will Murray)

Recommended Resources

Will Murray (website)

The Four Pillars of Triathlon (Will Murray and Craig Howie, book) 

Writing a Plan in 7 Steps (Will Murray, article)

Reconciliation of Traumatic Memories: A New Treatment for PTSD (NLP Research & Recognition Project, article)

In Episode 11 of the podcast, we discuss issues that women face as legal practitioners. Guests Judge Alia Moses and civil litigator Nicole Westbrook talk about how their shared passion for the law forged their respective career paths and offer guidance for navigating the personal and professional perils common to the practice of law. Judge Moses is the first woman federal judge in history to be seated on the federal bench for the U.S. District Court for the Western District of Texas. Westbrook’s litigation practice at Jones and Keller is focused on complex commercial law; she got her start as a law clerk for Judge Moses.

Topics
3:03     Career beginnings
4:46     Experiences as “baby lawyers”
6:56     Practice areas where men outnumber women
8:46     Judge Moses’s interest in the bench
9:43     Major issues facing women in law
14:40  Work-life balance
15:51  COVID’s effect on flexible workspaces and schedules
19:10  Is remote law work good for women? 
20:00  Year Eight “partner track” or “mommy track”
23:30  Women judges at the federal versus state level
25:23  Working with men
28:50  Generational differences
36:20  The “jealous mistress” of law
37:42  #metoo
42:36  Mentorship
46:00  Advice for young women entering law
49:18  Signature signoff question

Quote
“My advice is to pursue a culture, not a paycheck, especially out of some of the larger law firms like the type that the judge and I went to. You’re very much pressured to go into the biggest law firm that you can find and make that big check—and, of course, we all are swimming in debt and so it seems like a good idea at the time. I would strongly encourage you to be more exacting than that and to really focus on the culture, and what role do you see yourself doing, and what do you want to do.” (Nicole Westbrook) 

Recommended Resources

Nicole Westbrook (bio)

U.S. District Court Judge Alia Moses (profile)

Building a Pipeline to a More Diverse Appellate Bar (article)

In Episode 12 of “May the Record Reflect,” we get tools, tips, and resources that will help you keep up momentum in your legal career development. Professional development officers Amy Hancock and Tim Henderson talk about making the most of the challenges—and opportunities—that the pandemic has brought.

Topics

3:49 Effects of pandemic on legal career development
5:36 Work-life balance for the home office
10:50 Leadership support during individual struggles
16:17 Fostering collegiality
19:28 Cooking classes and holiday celebrations
22:50 Frequency of social touch points
24:18 “We are one firm”
27:45 Business development and client outreach
34:10 Where pro bono fits in
38:31 Silver linings of these strange times
42:19 Advice after job loss
47:58 The future of the virtual law office
51:30 Job interview tips
54:52 Signature sign-off question

Quotes

“I think that just as in-house lawyers are overtaxed and overworked and stressed right now, so are all of the agencies that support those in our communities that are in need. They are overtaxed and they need backup relief and assistance now more than ever, and many of the things they do provide great training and development opportunities, especially for young litigators. I think that you can couple the needs of these organizations for more manpower with the abundance of the social justice causes out there that they are serving and plug yourself right into them.” (Amy Hancock)

“I think one of the more important and significant things we’ve seen as a silver lining is the opportunity to learn, shadow, and kind of view real-time proceedings, real-time client meetings, real-time patent examiner interviews, real-time pitches because it’s much easier to do that virtually than it is if they were traveling to a different court or jurisdiction or traveling to a client site for their pitch.” (Tim Henderson)

Recommended Resources
Amy Hancock (bio)

Tim Henderson (firm)

Professional Development Consortium (PDC)  

PDC COVID-19 Resources

How to Navigate Working from Home During Time of COVID-19 (ABA)

Job-Search Tips for Attorneys During COVID-19 (ABA)

In Episode 13 of “May the Record Reflect,” communications specialist Carol Sowers returns, bringing Judge Mark Drummond with her, to talk about meeting needs of the trial community in the strange new world of Zoom. Video hearings, depositions, jury trials, and even conference calls are now the new normal, but when your client has everything on the line, you must elevate your on-camera presentation. Judge Drummond and Carol talk about NITA’s 1:1 coaching that helps you do exactly that, and they dispense advice that you can instantly apply to your next engagement on Zoom.

Topics

4:29     Individualized, one-on-one coaching
7:24     Session structure
8:38     Instantaneous review and re-do
10:30  Communication skills through Zoom 
11:26  Office setups and backgrounds
13:33  Overcoming the challenges of remote advocacy
15:16  Court-ordered virtual backgrounds, using exhibits in Zoom 
17:45  Role-playing expert witness examination and using exhibits
19:44  Tips on talking to the camera, lighting, eyeglass reflection
22:30  Blue light from monitors that wash out complexions
24:40  Makeup suggestions
26:05  Best clothing colors for the camera
26:52  What contributes to Zoom fatigue
28:32  Tiles for trials and “Hide Self View”
30:07  Jury trials, body language, and constitutional muster
34:15  Gravitas in the remote courtroom
38:01  What Judge Drummond and Carol have learned
40:42  Signature signoff question

Quote

“You want to be concentrating, if it’s a [Zoom] hearing, you want to have the fewest tiles [onscreen] possible. So, you want to have the exhibit perhaps on one tile [by using] Share Screen, and you want that witness’s face as large as possible so you can see the witness reaction. So, you don’t need your face on the screen.” (Judge Mark Drummond)

“My little mantra is ‘Minimizing the distractions in order to maximize the message.’ It’s not necessarily that you have to have the perfect Zoom setup. You don’t have to have the perfect background or the perfect lighting. What you want to consider is doing everything you can to minimize anything that’s going to be distracting when people are watching you on Zoom, because if they’re distracted by the visual, they’re going to miss your very important verbal message.” (Carol Sowers)  

Recommended Resources

Free Virtual Summit: COVID, the Court, and the Future of the Jury Trial

1:1 Coaching for Remote Deposition

1:1 Coaching for Remote Hearing or Trial

NITA Resources for Representing Your Client Online

Boy de Chanel

When Court Moves Online, Do Dress Codes Still Matter?

In Episode 14 of “May the Record Reflect,” we gather insight on how to start your legal career against a daunting backdrop of covid, layoffs, and societal change. Listen as Dean Marc Miller of the University of Arizona James E. Rogers College of Law and Allison Regan, professional development director at Houston’s Bracewell law firm, offer their perspectives on being a successful law student and young lawyer during this unique moment in our nation’s history.  

Topics

3:33    Is this a terrible time to go to law school and become a lawyer? 

6:32    Law school, firm response to pandemic

9:25    2020 bar exams

12:29  Difficulties in transitioning to online

18:02  Standing out in Zoom 

19:34  Enrollment deferrals

22:10  On-ramping and training new hires

25:11  Student loan debt

26:33  Two-year J.D.s

28:44  ROI on educational debt

31:38  Practice areas with a bright future

36:25  Silver linings of the pandemic for young lawyers

41:20  Positive workplace changes

44:10  Top three tips for success

49:10  Signature signoff question

 Quotes

“I just filled out reports for U.S. News [& World Report Top Law Schools] and we [Arizona Law] report to the ABA every year and so follow those numbers closely, and we have not only kept tuition down and lowered it – we lowered it after the last economic downturn – and this is my eighth year as dean, and we have not raised tuition either for in-state or out-of-state J.D.s. We have diversified how we fund our enterprise, making both the J.D. accessible and the bright career paths accessible is fundamental to who we are. I know [the average student loan debt of $160,000] is real, but I also know I don’t have to look at my students and wrestle with that.” (Marc Miller)
 
“The practice of law can be hard. It can be grueling, and I think being resilient is really the key and really bouncing back, learning from those situations and being able to not just push harder but kind of pivot – pivot and move to the situation, and I think that we’re all being forced to learn that and I think that will hopefully pay dividends for our young associates over the course of their very long careers.” (Allison Regan)

 Recommended Resources

Dean Marc Miller (bio)

Allison Regan (LinkedIn)

U.S. News & World Report Top Law Schools

A Guide to Transitioning from Law Student to Lawyer 

2021 marks fifty years of the National Institute for Trial Advocacy as the nation’s go-to gold standard in All Things Advocacy. Here on the podcast, we wanted to celebrate this year-long occasion with our gift to you: 50 trial tips for each of NITA’s 50 years. In this first episode of a special two-part series, a cross-section of NITA program directors, faculty members, authors, and members of the Board of Trustees share their best tips and tricks for improving trial skills.

1:35    Choosing the story of your client’s case
6:35    Overcoming writer’s block
12:02  Breaking up with your notes
24:12  Crafting an opening statement|
32:39  Taking care of yourself during long, arduous trials
36:41  Signature sign-off question

Recommended Resources

“Your Witness, Counsel”: The Ethical, Effective Way to Witness Preparation (Mary Jo Barr)

Virtual Jury Trials: A Concept with No Clear Answer (Dan Kotin and Brian Baloun)

The Opening Statement Song (Jules Epstein)

Collective Wisdom: Whether to Object to the Not-So-Qualified Expert (Jules Epstein)

Win Your Next Motion with These Key Steps (Hon. Carl Chamberlin, Andrew Schepard)

COVID, The Court, and the Future of the Jury Trial (Hon. Mark Drummond, Reuben Guttman)

Whitney Untied Puts the “Pro” in Pro Bono

Ethically Speaking: Meeting the Challenges of Professionalism in Remote Proceedings (Whitney Untiedt)

One on One on One, with Judge Mark Drummond and Carol Sowers

One-on-One Coaching, Remote Hearing or Trial Training

One-on-One Coaching, Remote Deposition Training

Remote Advocacy: Representing Your Client During the COVID-19 Pandemic (Hon. Mark Drummond)

Remote Advocacy 2.0: A Follow-up Q&A on Representing Your Client During the COVID-19 Pandemic (Hon. Mark Drummond)

Best Practices for Remote Hearings (Reuben Guttman)

The Opening Gambit: Learn Opening Statements Through Actual Courtroom Video (Reuben Guttman)

The Art of Memory (book)

Moonwalking with Einstein: The Art and Science of Remembering Everything (book)

“Memory, Agent Starling, is what I have instead of a view.” (clip)

In this episode of May the Record Reflect, we continue our 50th anniversary celebration by picking up where we left off in Episode 15. Part II of this “50 Tips for 50 Years” mini-series gives you best practices for dealing with nerves at trial, how to improve your public speaking skills, and delivering a sound winning argument, as shared by NITA program directors, faculty members, authors, and members of the Board of Trustees.

1:25    Dealing with nerves at trial—or anywhere

15:11  Getting good at public speaking

23:45  Delivering a sound closing argument

29:53  Signature sign-off question

Recommended Resources

Lagos, the Rule of Law, and Gratitude (Hon. Ann Claire Williams, Hon. Marian Gaston)

Namibia Teacher Training and Trial Advocacy – NITA Public Service Course (Hon. Claire Ann Williams)

Ghana Advocacy Training Programs – NITA Public Service (Hon. Ann Claire Williams)

Building Rapport with a Jury: Lessons in Picking the Jury that’s Right for your Case (Richard Schoenberger)

Persuade, Respond, and Prevail: Essentials of Motions Argument (Terre Rushton)

Ethically Speaking: Meeting the Challenges of Professionalism in Remote Proceedings (Whitney Untiedt)

Serenity Now: Carol Sowers on Being Poised in the Courtroom 

One on One on One, with Judge Mark Drummond and Carol Sowers

15 Tips for Presenting Yourself Online (Carol Sowers)

Rebecca Diaz-Bonilla’s “Foolproof” Tips for Professional Communication 

Foolproof: The Art of Communication for Lawyers and Professionals (Rebecca Diaz-Bonilla)

Maximize the Magic of Online Mediations (Sidney Kanazawa)

Tips for Online Mediation in the Age of Social Distancing (Sidney Kanazawa)

The Articulate Attorney: Public Speaking for Lawyers (Brian Johnson, Marsha Hunter)

NITA webcasts (free)

NITA podcasts (free)

NITA whitepapers (free)

Remote Advocacy Resources

In Episode 17 of “May the Record Reflect,” we’re talking about cybersecurity for law firms: why it’s important, how to prevent hackers from accessing your clients’ electronic data, what to do if it happens, and what ethics canons have to say about it. Patent attorney and e-discovery expert Helen Geib and technologist BJ Moore share their tips to help you manage this important and often overlooked aspect of law firm management.  

Topics

4:00     Why law firms are a rich target for cyberhackers
7:45     How our computers are hacked
10:15  Security issues raised by working remotely
11:12  VPN security via cell phone
12:23  Whether hackers can gain access via phone apps
13:20  Cell phone security
14:30  What to do if your system has been hacked
16:00  Lawyer’s obligations around client data security
18:30  Range of consequences of a data breach
19:40  Technical know-how and legal malpractice
20:20  Court decisions in data breaches
27:33  ABA Formal Op. 483 highlights
32:12  Ethics rules touching on data security
34:27  General liability insurance versus cyber insurance coverage
36:26  Basic preventative measures against hacking
40:50  Steps to take after a data breach
42:45  Top-of-the-line “wish list” practices
45:27  Signature signoff question

Quotes

“There’s a general recognition that there are two pieces to tech competence for lawyers: one is education and lawyers raising the level of their own understanding of security and using basic security practices. The other is to recognize the limits of our own knowledge and to associate with experts and people who really understand this area so that they can help us in the areas we didn’t go to law school for.” (Helen Geib)

“Cybercriminals are considered terrorists, so [if you pay a ransom] you’re technically financing a terrorist organization, which is against federal law. You also don’t want it to be profitable for them because as long as it’s profitable, they’re going to keep doing it. The more people pay, the more they’re going to want to do it.” (BJ Moore)
 

Recommended Resources
Helen Geib, Hoover Hull Turner

BJ Moore, Right Hand IT Solutions

FBI Internet Crime Compliance Center IC3

A Guide to Law Firm Cybersecurity Risks & Ethical Compliance

ABA Formal Op. 483

Cyberattacks Have Become Commonplace – Know the Ethics of Prevention and Response

What Is Cyber Insurance? Do You Need It? 

Millard v. Doran, No. 153262/2016 (Sup. Ct. N.Y. Cty.)

Wengui v. Clark Hill, PLC, (D.D.C. Feb. 20, 2020)

Hiscox Ins. Co., Inc. v. Warden Grier, LLP, 474 F. Supp.3d 1004 (W.D. Mo. 2020)

In Episode 18 of “May the Record Reflect,” we’re talking about something that’s all too often an afterthought when a case goes to trial: the electronic courtroom presentation. When expertly executed by a trial technologist, a trial presentation will provide you and your fact-finders one shortcut after another that ease courtroom procedures and benefit your client. Trial technologists Shannon Bales and Alicia Aquino share their insights, recommendations, and best practices that will have you convinced that a trial tech is an integral part of a winning team. 

Topics

4:37     Electronic trial presentation today
6:55     Why a trial tech is crucial to your outcomes
8:45     EDRM, the litigation lifecycle
11:43  Bring them in early in the litigation
13:14  Why trial presentations matter
16:23  How “cat lawyer” memes happen
18:17  What trial techs know that you don’t
20:10  E-discovery and trial
23:57  Fact analysis tools
26:20  Best practices for virtual proceedings
30:37  Timeline for your tech rehearsal
33:15  Exhibit “tutorials” for fact-finders
34:25  Becoming a trial tech
38:11  Trial Presentation Companion tips
39:41  UN War Crimes Tribunal experience
41:12  Types of software
48:03  A mistake firms make
49:39  Outfitting your war room
57:17  A note for small firms and solo practitioners
59:34  Renting versus owning equipment
1:01:17  Helping the opposing team
1:07:08   Signature signoff question

Quotes

“Trial presentation is an efficiency aid for the court. That’s the number-one thing we’re there to do. We’re hired there, of course, to help our team, but the way that we get through the door is that we’re there to make things efficient for the court so that the proceedings will move along at a quick pace and not waste the court’s time.” (Shannon Bales)

 
“Bring [trial techs] in early on. Let us take a look at the evidence, at the exhibits. I can’t tell you how many times that the attorney is presenting their case and then at the end the judge says, ‘You know, this could have easily been done in a timeline. Do you think you can just put together a timeline? That would’ve saved us four days of testimony,’ and I, probably in the background, was saying, ‘Hey, you know, let’s put together a chart, a timeline. Let’s put graphics. Let’s tell the story a little bit better.’ And when you have somebody on your team that’s able to incorporate the graphics and storytelling, it just makes you look that much more organized.” (Alicia Aquino)

Recommended Resources

Shannon Bales (LinkedIn)

Alicia Aquino (Aquino Trial Services)

The Trial Presentation Companion (book)

What Juries Really Think: Practical Guidance for Trial Lawyers (article)

Online Courtroom Project(website)

COVID, the Court, and the Future of the Jury Trial (webcast)

In Episode 19 of May the Record Reflect, Judge Nancy Vaidik of the Indiana Court of Appeals and international communications consultant Rebecca Diaz-Bonilla, are in the hot seat to share insights from their new book, Point Well Made, Persuasive Oral Advocacy. They reveal why oral advocacy still matters in a time when most cases settle before going to trial, how to better know your judge to give yourself a leg up, and what are the highs and lows of ruling from the Zoom bench.  

Topics

3:56    A learning-by-doing book for oral advocacy
6:45    Writing process as co-authors writing remotely
9:05    Why trial lawyers should care about oral advocacy
11:16  Oral versus written advocacy
13:17  Oral advocacy in persuasion
16:02  What judges are looking forward to in a proceeding
21:24  What to know about your judge
23:45  Relationships you need to know about
27:45  Appearing before a multi-judge panel
30:03  Why rebuttal matters
31:31  Judge Vaidik’s experience with remote advocacy
35:32  “Soft” things lost in remote hearings
40:06  Communication needs that have changed during the pandemic
42:25  Signature signoff question

Quotes

“Oral advocacy is a lot different from written advocacy and our law schools are focusing on written advocacy and not on oral advocacy, and there are differences. In oral advocacy, as an advocate, you can actually listen to the judge’s concerns—or whoever you’re talking to, the listener’s concerns – and adapt your argument. You can’t do that in a written setting. In an oral setting, however, you need to keep attention, the attention of the listener. And in a written advocacy situation, that’s not so much the case because when the reader loses focus, they can go back and re-read the material. You can’t do that in oral advocacy situation.” (Judge Nancy Vaidik)

“Judges are people too, and so they’re not immune to the digital age and the lower attention span and the need for people to get to the point and say it clearly, concisely, thematically. All those things are super important, and so old-style argument is not going to be as effective. You have to take into account the digital age and the judges who are going to be listening, especially as younger and younger judges get appointed to the courts. It’s so important to adapt the way we approach oral argument in front of one or multiple judges.” (Rebecca Diaz-Bonilla)

Recommended Resources

Point Well Made: Persuasive Oral Advocacy (book)

Hon. Nancy Vaidik (bio)

Rebecca Diaz-Bonilla (bio)

Foolproof: The Art of Communication for Lawyers and Professionals, Second Edition (book) 

Rebecca Diaz-Bonilla’s “Foolproof” Tips for Professional Communication (podcast)

Delivering a (Last-Minute) Point Well Made (webcast)

 
Read NITA’s statement on the important of in-person advocacy in courts, 

In Episode 20 of May the Record Reflect, trial lawyer and wardrobe consultation Judith Gaton joins us to explain why style matters in the courtroom and how to dress for post-pandemic office life at a time when the expected corporate culture—and maybe our bodies—have changed.

Topics

3:05 Why your clothes matter

5:36 But isn’t style frivolous?

13:18 Work clothes that no longer “fit”

16:22 Evaluating your wardrobe after covid

18:45 What pieces to invest in, and what to save on

21:48 Pandemic’s impact on dressing for the law office

25:15 Menswear options for a more casual office environment

27:29 Stanley Tucci’s refined casual style and sprezzatura

30:54 Sleek footwear options

32:40 Style inspo and options for lawyers and other professionals

38:07 Signature signoff question

Quote

“We have to sort of make room to be amused by each other as we find our footing and find out what it’s going to look like for all of us as we re-enter society, as we sort of spend more time with each other, as we come back to the office. It doesn’t have to go back to the way it always was. There’s no requirement. This is a beautiful moment for all of us to rethink ‘Did we even like the way it always was? Did we enjoy wearing suits? Did we enjoy being dressed up all the time?’ or would we all collectively prefer to be a little more on the smart-casual side of things, or business casual of things, than to be so dressed up all the time. Each office culture’s going to have to figure that out for itself. I think every courtroom, almost, is going to decide that for itself.” (Judith Gaton)

Recommended Resources
Judith Gaton (bio)

How COVID-19 has changed what we wear and how we feel about clothing (Seattle Times)

Schedule an Appointment with Those Clothes You Haven’t Worn in a Year (New York Times)

Sprezzatura Do’s and Don’ts

In Praise of Stanley Tucci’s TV Travel Uniform (GQ)

Berluti wingtip sneakers 

Berluti double monkstrap sneakers

Next Level Wardrobe (Instagram)

Read NITA’s statement on the important of in-person advocacy in courts, here. 

In Episode 21 of May the Record Reflect, veteran prosecutor Steve Wood joins us to share his ten favorite trial tips. He also talks about what he remembers about his first trial, his life in public service as the Delaware DOJ’s leading trial attorney, and the other reflections on living the lawyering life. 

Topics
2:43    Tip #1
5:20    Why law?
7:18    Tip #2
10:31  Recollections of his first trial
13:08  Tip #3
18:08  Favorite part of trial
25:04  Tip #4
27:15  Nerves and anxiety about trial
28:34  Tip #5
32:49  Unwinding after trial
34:16  Tip #6
38:34  Most agonizing career decision
40:49  Public service careers
45:36  Tip #7
48:36  A high-profile case I wish I’d tried
49:56  Tip #8
52:28  Tip #9
54:03  Retirement
54:30  Tip #10
56:27  Signature signoff question

Quote
“Somebody I taught with [at NITA] once said something I thought was brilliant, and it’s this: ‘Time is the measure of importance in the courtroom, whether you want it to be or not.’ And what that means is, we indicate importance by how much time we spend on something.”

Recommended Resources

Steven P. Wood (bio)

America’s Constitution: A Biography (book)

So Many Ways to Lose (book)

Geddy Lee’s Big Beautiful Book of Bass (book)

Read NITA’s statement on the important of in-person advocacy in courts, here.

In Episode 22 of May the Record Reflect, Reuben Guttman and J.C. Lore discuss their new book, Pretrial Advocacy, and why modern litigation practices necessitate early, close attention from practitioners. They discuss the interplay of early discovery with the Federal Rules of Evidence and Civil Procedure, how law schools are responding to “front-loaded” litigation that often results in fewer jury trials, why public interest law matters, and what’s exciting about pretrial.  

Topics

3:37    The meaning of front-loaded cases
6:16    Effects of Iqbal, Twombly, and Daubert on law practice and teaching advocacy
10:15  Pretrial advocacy at law school
12:14  Is pretrial exciting? 
16:56  Settlement versus trial
18:21  Why trials are still important
23:09  Getting to know the rules
29:07  Social media evidence
36:20  What’s lost with settlement
38:22  Public interest practice
41:03  Signature signoff question

Quotes

“The fun thing I always thought about pretrial advocacy is you get to learn about areas you never knew of. I once met a famous trial lawyer many, many years ago and he’s since passed – Alfred Julien – and he told me that one of the fabulous things about being a trial lawyer is that you get to be a jack of all trades, in some regards, and an expert in none. I always thought it was exciting because it’s a process you get to immerse yourself in and really learn a lot.” (Reuben Guttman)

“Certain types of trials aren’t happening anymore because of the huge cost of litigation. But there are courthouses and courtrooms all over this country that are doing trials every single day, on both the civil and the criminal side. You go to landlord–tenant court, you go to family court, you go to municipal court, you go to immigration court—all of these courts are having trials all of the time.” (J.C. Lore) 

Recommended Resources

Pretrial Advocacy (book)

Reuben Guttman (bio)

J.C. Lore (bio)

Iqbal v. Ashcroft

Bell Atlantic Corp. v. Twomby

Conley v. Gibson

Daubert v. Merrell Dow Pharmaceuticals, Inc.

 Read NITA’s statement on the important of in-person advocacy in courts, here.

In Episode 23 of the podcast, we’re joined by Jo Carol Nesset-Sale, who as a young woman brought forth a pregnancy discrimination lawsuit that found its way to the United States Supreme Court. Her case, Cleveland Board of Education v. LaFleur, was part of the societal sea change that resulted in women being able to remain in the workforce as their families grew. Jo Carol’s experience lit a fire in her to become a lawyer herself and transform the lives of her clients she serves. 

Topics

2:09     The story behind the SCOTUS case
9:47     How pregnant women faced discrimination
11:49    Maternity leave, benefits in the 1970s
13:05    The lawsuit begins
15:07    Why Jo Carol fought back 
19:15    Equal rights movements
22:28    Legal team’s strategy for SCOTUS
24:25    What the Court ruled on 
26:25    Impact of ruling
30:45    Becoming a lawyer
34:18    Jo Carol’s other 15 minutes of fame
36:05    Pathways in law
41:00    Guidance for law students, new lawyers
43:21    Bias in the courtroom
44:15    Career advice
46:11    Signature sign-off question

Quote

“I certainly saw that, at a moment in time, if you can have the intersection of an aggrieved person who’s been unfairly treated and a lawyer who’s willing to take the case and charge no fee, that wonderful things can happen, that change can be made.” Jo Carol (LaFleur) Nesset-Sale

Recommended Resources

Jo Carol Nesset-Sale 

Cleveland Board of Education v. LaFleur

From Sideline to Frontline: The Making of a Civil Rights Plaintiff

She Was a Teacher. She Got Pregnant. Her Case Ended Up at the Supreme Court

In Episode 24 of May the Record Reflect, we’re joined by legendary American trial lawyer Dick Harpootlian. He takes a moment out from representing Alex Murdaugh to describe the roundabout way he entered law and became one of the nation’s top trial lawyers, discuss what it was like to work death penalty cases and prosecute an infamous mass murderer, and reveal advocacy tips that have always brought him luck.

Topics
3:28 The accidental lawyer
7:14 Winning . . . and losing
8:48 Introducing Pee Wee Gaskins
16:02 The life philosophy of a mass murderer
20:28 Dick’s tips on jury selection
25:18 Owning the courtroom and “the confidence to lose”
26:56 Bushido in the courtroom
28:36 High-profile cases and managing the media
32:39 Traditional media versus social media
33:42 The secret to deposing experts
35:33 Nerves and emotions
36:38 Pleasure reading and favorite shows
38:11 Murdaugh case on Netflix?
40:05 Volunteering for cases for trial experience

Quote
“Check your fly before you get up, gentlemen.” Dick Harpootlian

Recommended Resources
Dick Harpootlian (bio)
The ‘Murdaugh Murders’: What to Know About the South Carolina Mystery
Murdaugh attorney addresses “hysterical theories” in interview with Good Morning America
Pee Wee Gaskins
Lincoln’s Last Trial, by Dan Abrams (book)
The History of the Bushido Code: Principles of Samurai Culture
Fargo
Goliath

In Episode 25 of May the Record Reflect, we take a listen to the best tips we heard from each episode in 2021. To hear the full episodes from which each tip was derived, please visit our podcasts on nita.org  here.

Topics

1:47     Dick Harpootlian 

3:49     Alison Reagan

5:57     Dean Marc Miller

9:14     Helen Geib

11:28  BJ Moore

14:35  Alicia Aquino

16:22  Shannon Bales 

17:35  Hon. Nancy Vaidik

20:15  Rebecca Diaz-Bonilla

21:59  Judith Gaton

23:29  Steve Wood

27:16  J.C. Lore

29:10  Reuben Guttman

30:36  Jo Carol (LaFleur) Nesset Sale

32:59  Angela Porter

34:10  Dan Kotin

36:13  Hon. Ann Claire Williams (Ret.)

37:00   Clay Taylor

26. Direct Hit, with Mike Beckwith

 In Episode 26 of May the Record Reflect, we’re joined by trial veteran Mike Beckwith to talk about one of the foundations of trial practice: the direct examination. As a Chief Assistant United States Attorney with the Department of Justice, Mike has litigated hundreds of cases before trial courts in multiple federal districts and the Ninth Circuit. Tune in to find out why he thinks direct examination is crucial to your case, the best way to deal with bad facts and unlikeable witnesses, and how to comport yourself on your feet and in the moment. 

Topics
5:35     Where your case is won
6:55     Why direct is harder than it seems
10:44  How to keep direct interesting 
13:40  Humanizing a despicable witness
18:50   Objections from opposing counsel
21:08  Visual aids 
24:23  Body language
27:17  If you’ve stunk up your direct
30:17  Introducing bad facts
34:43  Redirect
36:09  Signature sign-off questions

Quote

“With a good witness, you feel like Clarence Darrow. With a bad witness, you feel like a first-year law student. But there are good and bad out there, and so you’ve got to listen, because the good witness will give you something you want to follow up on that you didn’t have in your notes, and the bad witness you really need to be careful with because  there’s a reason why they’re doing what they’re doing and a lot of times you can shift to something that’s going to explain that or you can shift them off a topic that’s irrelevant or is just going to go down a rabbit hole that is going to confuse the jury.”  Mike Beckwith