The Art of Advocacy

Art theft and jury trials will be the subjects of a unique two-day program in Bilbao, Spain later this week. Organized by the ABA and the Union Internationale des Avocats, the event will first offer participants a comparative overview of the jury trial systems in the U.S. and Spain. The second day features a rich program on art theft, including a look at infamous art heists and related litigation. I'm fortunate to be attending as a speaker and look forward to reporting back on what's said. You can read about the event here: Download file.

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Posted In: Professional Growth , Training Opportunities

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The officer defendants in the Sean Bell case were acquitted Friday, prompting Mark Fass of the New York Law Journal to write an article about the strategic wisdom of waiving the right to a jury trial in certain cases. You can't argue with success; the defense counsel in the Bell case clearly did fine work and were correct to avoid pinning their clients' hopes to jurors who may well have been swayed by their emotions to convict. New York Supreme Court Justice Arthur J. Cooperman found the defendants not guilty on all counts.

As Fass points out, opting for a bench trial is a tried-and-true strategy for defense attorneys representing law enforcement clients in jurisdictions where citizens may have negative opinions of the police.

Fass quotes one defense attorney's explanation of the rationale:

"With a jury, there's always a chance that emotion can enter the process," said Mark Bederow of Thompson Hine, who recently represented R. Lindley Devecchio, the former FBI agent who opted for a bench trial in his successful defense of four murder charges.

"With a judge, the expectation is that [the decision] will be purely on the facts and the law, and that extra-judicial influences will not play a role. And I think you saw that specifically in the Bell case."

But defense attorneys should be careful not to presume that judges are immune from "extra-judicial influences."

Continue reading "Sean Bell Case Acquittal and Waiving the Right to a Jury Trial" »

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Posted In: Trial Strategy

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Last week the J. Dudley Diggs American Inn of Court in Baltimore had its last meeting of the season. While it's on my mind, I thought I would recommend the Inns of Court to anyone looking for a place to meet and learn from other lawyers and judges. Trial attorneys in Maryland and across America have benefited for decades from these unique institutions.

In this state we have five Inns of Court, one each in Baltimore, Annapolis, Howard County, Prince George’s County, and Montgomery County. Most familiar with Baltimore's Inn, I can shed some light on its activities. But first some background:

We have the English to thank for these groups. Shrouded in the mystery of medieval times, the English Inns of Court today serve as they have since at least the 14th century, as small, local universities of law. The four Inns "across the pond" are, in fact, central to professional life; they have exclusive right to admit the degree of Barrister at Law, which enables one to practice as a courtroom advocate.

Continue reading "Maryland Trial Attorneys Find Camaraderie in Inns of Court" »

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Posted In: Professional Growth , Training Opportunities

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Becoming a better trial attorney is difficult without the opportunity to try cases. That's why I helped launch the ABA's Litigation Institute for Trial Training (LITT). This rigorous two day course for young attorneys had a successful debut last summer, and we are gearing up for the second annual program, scheduled for July 10-11 at the DePaul University College of Law in Chicago.

The program is distinguished from other training opportunities of this sort in that it covers so much ground in such a concentrated period of time (less than two days). And the faculty is tremendous. This year it will include the Hon. Marvin E. Aspen, the Hon. Marvin J. Garbis, U.S. Attorney Patrick J. Fitzgerald, Jo-Ellan Dimitrius, Stephen Susman, Kim J. Askew, and other luminaries of bench and bar.

Participants will have a chance to watch these experts demonstrate the fundamental skills of courtroom advocacy. They will also practice techniques in workshops and take part in peer critique with video footage. The sessions will cover jury selection, opening statements, direct and cross examination, closing argument, and techniques of persuasion. There will be plenty of social time in which attendees can get to know the faculty and each other.

Interested? Read more here, register here, and if you have any questions, feel free to call or write.

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Posted In: Training Opportunities

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Dana Milbank has a revealing sketch of the ongoing "D.C. Madam" trial in today's Washington Post. The prosecutors seem to be holding nothing back in building a case against Deborah Jeane Palfrey. Indicted for allegedly running a prostitution ring made infamous for attracting several Washington luminaries, Palfrey watched as the prosecutors grilled several of her former employees about the services they performed for clients. From Milbank's perspective, these direct examinations were so humiliating, needlessly detailed, and invasive that they discredited the prosecutors.

Here's some of the testimony that got Milbank's attention:

Yesterday, it was the turn of a young naval officer to take the stand; the case will almost certainly end her career. The prosecutor, Daniel Butler, had the woman spell her name slowly and clearly, then had her talk about when she was "aggressive" with a client, when she was "more submissive," when she had a difficult client ("he tried to remove the condom") and how often she got "intimate."

"What do you mean by 'intimate'? "

The soon-to-be-former naval officer looked at him in disbelief. "Touching, caressing," she explained.

"What happened" after that? he demanded.

"Sex."

"What type of sex?"

"Sometimes it was oral sex; usually it was normal."

"Normal?" Butler persisted.

"I'm not sure what you're getting at," the stricken witness pleaded.

"What's normal sex?" Butler again demanded.

Judge James Robertson intervened. "He wants to know if you mean intercourse."

Butler pressed on with more humiliating questions until the judge cut him off. "That's enough," Robertson said. Minutes later, the dazed woman was helped out of the room.

If that's how it truly played out, you have to wonder what the prosecutor was thinking. By simply having to show up and testify, the witness had compromised her dignity. The aggressive questioning was just rubbing salt on the wound. And what were the jurors thinking? It could very well be they sympathized with the woman and wanted the lawyer to sit down.

Prosecutors should be wary of even appearing like they might be abusing their significant powers. A few questions too many can cause the prosecutors' courtroom ethos to plummet. Whether that has happened in this trial, we can't know, but if the defense puts on a strong case, any ill will the jury feels toward the prosecutor could come back to haunt him.

One of challenges of direct is being selective--paring the testimony down to the essential and letting those points speak for themselves. "Less is more" serves as a helpful axiom particularly in examinations involving sensational or emotional testimony.

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Posted In: Direct Examination

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Are you watching HBO’s production of McCullough's biography “John Adams”? If not, you might want to rent it later. The segment devoted to the 1770 Boston Massacre is fun to watch from a trial attorney's point of view, as the hero demonstrates several valuable advocacy techniques.

Adams, then only 34, defended the indicted soldiers and won the case. In HBO's telling, he lines up his witnesses very much as the doctrines of primacy and recency would advise him to: opening and concluding with his most valuable witnesses, wedging witnesses of lesser importance in the middle.

Also, in final argument, Adams connects the facts of the case with a universal appeal to the rule of law. Here, even though he was representing the soldiers, he was clearly speaking to jurors who were all too aware of English encroachment on their rights.

For those interested in reading up on the Boston Massacre trial, Hiller B. Zobel has written a classic account of the trial, which recounts from actual notes the arguments of counsel as well as engaging summaries of the testimony and historical background.

You might also enjoy browsing this excellent website about the case, created by law professor Douglas O. Linder.

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Posted In: Historic trials

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If you represent the witness, you have to prepare yourself and your client.

To begin with, when appropriate take time to explain the case as a whole and the various theories of all parties to the witness. A full explanation will help the deponent understand what the case is about and respond to the questions in an intelligent and comfortable manner. (Beware that what you say may be discoverable during the deposition by opposing counsel, particularly if the witness is not the client. For example, you could inadvertently waive work-product protection by sharing your notes with a witness.)

Secondly, explain in detail the subjects on which the witness is most likely to be questioned. In that vein, be sure to give and discuss with the witness documents he is likely to see, paying close attention to those he may have authored or received.

During the prep meetings, encourage him to ask questions about what he may expect. It’s also a good idea to engage the witness in a ‘dry run’ or practice session. For the deposition itself there are many pointers to offer your client, though here are twelve commandments that come to mind:

Continue reading "Deposition Preparation, Part 4: Twelve Commandments for Deponents " »

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Posted In: Depositions

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Once the goals of the deposition are selected, the next step is to consider organization of the questioning. Because you are not at trial, you are not necessarily putting on a rhetorical show for an audience. Some pointers that relate to direct or cross examination, such as those concerning body language and delivery, are not as relevant here.

Still, in a deposition you are, even if tangentially, developing a case. You want to elicit favorable testimony, and to do so requires strategic questioning. It’s possible the testimony could come before the jurors later on, so you want it to read to your liking. Try to begin and close with strong testimony. It’s often mentioned, but worth repeating: people remember best that which they hear first and last. This principal has always helped me organize witness examinations and depositions, as well as opening statements and closing arguments and everything in between.

Unlike a direct examination at trial, however, a deposition need not be quite as selective. You may want to ‘cover the waterfront’ and ask a lot of questions as you try to turn up any valuable information from the witness.

To help yourself keep all this in your head, consider preparing a deposition notebook that contains an outline of what you want to cover, technical questions written verbatim, and reminders for follow-up queries. Organizing documents in advance, pre-remarking them and having copies for other counsel is also helpful.

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Posted In: Depositions

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If you need to, remind yourself of the rules of evidence before deposition day. The formal rules of evidence in force at trial are much relaxed in a deposition context. The hearsay rule, for instance, doesn’t apply in a deposition.

Often during the deposition the witness’s counsel will object to a question to protect his or her client’s interests at trial. Nevertheless, the witness will be told by the lawyer interposing the objection to answer the question. For example, “What did the President tell you about his plan?” “Objection, hearsay, but you can answer”, might be the lawyer’s response to a question the answer to which counsel believes would be improper during trial but not improper for the deposition. Whether the answer is admissible at trial is reserved for a later day.

There are limited occasions when it is proper to refuse to answer a question during a deposition. These occasions arise when the examiner is improperly probing for information that is protected by a recognized privilege under the law, such as the attorney-client privilege or the work product doctrine. The privilege against self-incrimination is another important privilege. Sometimes these privileges are inadvertently waived. For example, counsel may have previously shown his or her personal notes relating to trial strategy in preparing the witness for deposition. Under such circumstances the objection posed to the examiner seeking to learn about those notes may have been waived.

Continue reading "Deposition Preparation, Part 2: Depositions and Rules of Evidence" »

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Posted In: Depositions

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Aren’t depositions fun? Hour after hour of barbed questioning can make for a rather treacherous afternoon for the hapless witness. That’s not to mention the challenges to his professional integrity, expertise and character he may well have to endure.

No matter how unpleasant a deposition promises to be, a lawyer can take steps to prepare both himself and her witness. Though a deposition hasn’t the pomp and circumstance of a trial, an unwary deponent and attorney can lose their case if they fail to ready themselves.

Each deposition considered must be analyzed in terms of purpose. Is this deposition for purposes of summary judgment? Do I want to lock the witness into a particular position? Am I simply seeking to discover what knowledge the witness possesses about important events in the case? You may simply be curious about the substance of what the witness’ testimony would be if s/he were to be called to testify at trial. If the witness is an expert, you will want to learn not only the expert’s opinion about relevant issues, but also the basis of this opinion, and the qualifications to render it.

Other motivations for deposing a witness include:

Continue reading "Deposition Preparation: Why Depose a Witness" »

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Posted In: Depositions

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Does reading and writing about trial technique make you a better lawyer? Some veterans will tell you no, that you only learn by cutting your teeth on real cases. It’s true that there’s no substitute for experience in the courtroom. I’ve been representing clients in court for decades, but I still find it helpful to stop and think about what really works and why.

There’s something to be said for studying technique, listening to experts on rhetoric, reading about landmark trials and considering what distinguishes great arguments from competent ones. It’s especially helpful for me to write down what are the core lessons I and others have learned from trying case after case after case.

From depositions to opening statements, to direct examination, to cross, to closing, the lonely trial attorney faces countless decisions about how to proceed. We could all use a little help making the right calls. That’s why I’ve started this blog, to help lawyers, especially young ones, familiarize themselves with proven trial techniques.

Continue reading "Trial Attorneys and Technique" »

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Barack Obama's rhetoric exhibits a powerful "gimmick", according to Stephen F. Hayes' smart piece in yesterday's Wall Street Journal. Here's the quote that caught our eye:

His rhetorical gimmick is simple. When he addresses a contentious issue, Mr. Obama almost always begins his answer with a respectful nod in the direction of the view he is rejecting -- a line or two that suggests he understands or perhaps even sympathizes with the concerns of a conservative.

This method of argument--fairly articulating the other side's point of view, and then trumping it with your own--is just as potent in the courtroom as it is on the campaign trail. It works in the context of opening, closing, direct examination, or any other situation demanding persuasive powers. By giving your adversary a fair shake, you raise your ethos dramatically with the listener, a fact Senator Barack Obama clearly understands. Read the full op-ed here. (Subscription required.)

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Posted In: Campaign Rhetoric

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