Posted On: February 12, 2012

Thurgood Marshall and the value of moot court

Recently I was reminiscing about a day long ago when I met briefly with one of our country’s most admired and iconic men – Supreme Court Justice Thurgood Marshall – and what I learned from him about the value of moot court in preparation for trial. I had shared my recollections in a speech I presented at a ceremony of the American College of Trial Lawyers but I think the values of the lesson are worth sharing here as well.

I was an 18-year-old college student when I had the opportunity to meet with Justice Marshall, who was then Solicitor General of the United States. I had been writing a thesis about him for a college class and thought it might be interesting to meet him in person. I called and explained myself to his secretary who laughed at my apparent naiveté but remarkably arranged the meeting. Once I was at his office, Justice Marshall made me feel comfortable and at ease almost instantly. He had a great buoyant laugh and a wonderful, slightly baudy sense of humor. Once we got down to business, I questioned him about Brown v. Board of Education.

This is what he told me: In preparing for oral argument in the Brown case, he had conducted a moot court session at Howard University Law School. Shortly thereafter he was scheduled to begin oral arguments before the United States Supreme Court. As a young college student, I wasn’t familiar with the expression “moot court,” so he explained to me that moot court was the term used to describe a simulated argument for practice. With moot court, he elucidated, “You can iron out the wrinkles of your argument and observe the reaction of your listeners for purposes of strengthening your case.”

Justice Marshall went on to explain that the moot court session for the Brown case seemed to go on forever, with law students – in their roles as mock judges -- peppering him with an endless stream of questions. At around midnight, one particular student asked him a question he simply could not answer: “By this time I was shocked and also weary,” he said. “It was after midnight, but, young fella, the duty of a lawyer is to push forward. And so we did, and we worked out an answer.”

At this point in the story, Justice Marshall paused briefly, but then continued: “Then the day of the hearing, damned if one of the Justices didn’t ask the same question. I just looked at the Justice; put my hand on my chin, looked down and gathered my thoughts, and pow – right in the kisser -- nailed the question.”

This remarkable meeting confirmed my desire to become a trial lawyer. More than forty years later, I often think about my brief time spent with Justice Marshall and the stories he took the time to share with a young college boy who simply had the audacity to call him up and ask for an interview. I also think often about the value of moot court and what our country might be like today had not this great man also seen its value.

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Posted On: February 1, 2012

In trial, be visual: technology makes it easier than ever

“To see is to believe,” we hear quite often. For trial lawyers today, it’s an important message to keep in mind. Visual aids work wonders in the courtroom and thanks to the myriad technologies offered today, creating a visual impact has never been easier.

As a longtime Baltimore trial lawyer I regularly use visual aids ranging from simple charts and diagrams sketched on an easel to multifaceted PowerPoint presentations. The combination of high-tech imagery and low-tech witness examination often creates vivid, lasting memories in the minds of jurors. As technology has evolved, there are now even more ways to show exhibits in a courtroom. Keep in mind, however, that it is not sophistication that counts but how well the imagery persuades.

Studies indeed show that people are more likely to believe what they see than what they hear, but different people process information in different ways. With that in mind, it is best to vary your visuals so that your message is fully received, in one version or another, by each of your listeners. Some individuals are most receptive to logical and straightforward information – best expressed in charts, graphs and technical exhibits. Others benefit most from comparisons, stories, examples and familiar analogies. Photos and more vivid images may be a better conduit of information for this latter group. Increasingly, judges and younger jurors are far more accustomed to visual images than are older baby boomers, so it is more important than ever to maximize your use of visuals and their variety.

Remember, even with a heavy use of visual aids, uniformity and monotony will reduce their impact. Your challenge is to capture and hold your listeners’ attention throughout your arguments. After an hour of videotape, for example, move into a colorful, high-tech PowerPoint presentation, and follow that with information on a chart that you highlight using a manual pointer. The art of balancing demonstrative aids and testimony can be comparable to directing a play or film. When you show the evidence, how you display it and what you say about it play a role in how effective you will be.

As is true with the presentation of any evidence, the use of exhibits in argument should be strategic. Consider whether to use exhibits that already exist and were introduced as evidence during the trial as well as exhibits created solely to enhance your argument. In a contract dispute, for example, the written contract constitutes not only the formal embodiment of the agreement of the parties at the time but also concrete evidence of the parties’ true intent. You can argue effectively that it is not necessary to rely solely on the plaintiff’s present recollection of events surrounding the execution of the contract. Instead, you can find in the actual contract a record of the parties’ intent. You may, however, need to create a new exhibit for that contract to have maximum impact: Would a model or reproduction help hit the mark? Would a timeline help make the alleged sequence of events easier to follow?

Though most courtrooms today have projectors, monitors and other devices at the ready for attorneys to use, it is always advisable to meet with the judge’s law clerk or the court’s technology advisor to discuss in advance your technology needs, both generally and logistically. Details such as where a projector and monitor should be positioned for optimal juror viewing, and where best to set up your other demonstrative aids for maximum impact, are best planned out well in advance.

Another thing to consider as you iron out your visual aids is how to respond if opposing counsel seeks to use your exhibits. You may or may not find it appropriate to accede to the request. Your opponent might effectively discount or reverse the power of your exhibits and use them to his or her own advantage. On the other hand, you might appear ungracious or petty to the jury if you were to refuse. Therefore, discuss in advance how your opponent may use your exhibits. One of the advantages of PowerPoint or other downloadable presentations is that they are controlled from your laptop computer. When you are finished with your argument, you can turn off your computer and return to your seat. Rarely would opposing counsel gather the courage at that point to ask if he or she could use your laptop.

Finally, despite the numerous advances in technology and their ease of use, always come prepared for the worst. Be sure to have a backup copy of all your presentations, and make sure you have an appropriate programmer or technical advisor on hand in case something requires immediate attention. Know your visuals sufficiently so that you can face the jury while you present, and not focus your attention solely on the demonstration at hand.

Keep in mind that though demonstrative aids can be a powerful weapon in your arsenal, American juries can quickly become cynical if the gloss is stronger than the message you are conveying. High-tech presentations can be and should be used to support your argument, not detract from it.

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