For advocates caught between a rock and a rhetorical hard place, the article might offer some helpful tips. But judges asking questions in court won’t be fooled the way “Joe six-pack” might. If you have no good answer for a question from the Bench, it is probably wiser to err on the side of honesty, frankly admitting that you cannot respond fully to the question at this time but will submit a supplemental memorandum if the court desires, or state "I am not sure but under the circumstances the answer could only be..." When pushed against the wall you might state, "while I am not certain, my guess would be..."

Best solution, be prepared and know your subject matter. Whatever you do, don't bluff. An evasive answer, even as artful a dodge as Obama’s answer cited in the Post article, will hurt your ethos with a sophisticated listener.

We, members in good standing of the Maryland Bar, respectfully request that the Standing Committee on Rules once again consider recommending to the Court of Appeals mandatory continuing legal education (MCLE) for members of the Maryland Bar.

The challenges confronting the practice of law and our legal system today are more formidable than ever before. The law grows ever more complex, nourished by new statutes, new rules, new opinions by our distinguished courts, and new threats from forces that strain our traditional understanding of the rule of law and individual rights and liberties.

To meet the challenges of modern law practice, lawyers more so than ever before must be competent. The ABA Section of Legal Education and Admission to the Bar defines competency as basic skills, knowledge of the law and legal institutions, and the ability and skill to apply oneself to the task accepted with reasonable proficiency.

Compound Question
A question like, “Isn’t America tired of Democrats wanting to raise taxes?” is a compound question because it actually involves two or more issues that cannot be accurately answered with a single response. It assumes that Democrats have always wanted to raise taxes and also that you may have a position on the issue. The best response to a compound question is to point out that the questioner has made a false or unwarranted assumption.

I am grateful that the Abell Foundation has shed new light on the outcome of jury cases in Baltimore City, as reported in yesterday’s Baltimore Sun. But I take issue with the suggestion that we in Maryland create regional juries. Even if the concept were attainable by overcoming legal hurtles, such juries would smack of the same "court packing" attributable to FDR when he proposed that Congress add a tenth justice to the US Supreme Court. President Roosevelt considered the Supreme Court Justices to be in error when they persistently ruled against him.

We must remember our system of government is composed of federal, state and local governments. In Maryland we have twenty-three counties and Baltimore City. Each county and city has its own local laws and customs. The defendants are entitled to juries who live in the community in which the trial unfolds. Those who say that in some counties juries are more likely to convict than juries in Baltimore City seem to write with a preconceived notion that many of those found not guilty are, in fact, guilty. Each case, however, must be judged on its own merits. Perhaps in the city cases, the prosecution did not have the evidence to persuade or were not as experienced as prosecutors in the other counties.

Although I do not believe that we should create regional juries, we should be ever conscious of enhancing the already refined methods of educating new jurors. We should also take steps to assure their confidence in their safety. And, we should let them know they have our respect for the serious work they do and sacrifice they make to serve the public and our democratic way of life.

“Many foreign lawyers have long questioned the American practice of allowing the parties to present testimony from experts they have chosen and paid. The European judge who visits the United States experiences ‘something bordering on disbelief when he discovers that we extend the sphere of partisan control to the selection and preparation of experts,’ John H. Langbein, a law professor at Yale, wrote in a classic article in The University of Chicago Law Review more than 20 years ago.”

According to the Times story, the researchers looked at 2054 civil cases that went to trial in the state of California between 2000 and 2005. In 61 percent of the cases in which the plaintiff rejected a settlement offer and went to trial or arbitration, they came out with less money than they would have had the taken the opponent’s offer. In 24 percent of the cases when the defendant rejected a settlement offer and went to trial/arbitration, they were forced to pay more than the plaintiff had requested. According to the Times, the “clear lesson” for plaintiffs is that it’s better to make a deal than fight.

The lesson is far from clear. Lawsuits are as individual and idiosyncratic as the people involved in them. To take a sample set of 2054 cases in one state and try to generalize for all litigants is to engage in logical fallacy. And we should acknowledge the study’s implication that 39 percent of plaintiffs in this set and 76 percent of defendants fared better by going to trial.

Obviously, it is often wiser to settle than fight, but the slim body of evidence collected on this subject should not be the foundation for decision-making. When push comes to shove, the risk/reward calculus is largely about the specific case and its unique circumstances. Good trial lawyers will advise clients well in working through these difficult decisions. If a sample set of plaintiffs did not fare well statistically, we should realize that innumerable determining factors were involved. The lawyers may have misjudged their cases and, in some instance, might not have had a wealth of trial experience. The Times article duly notes that the vast majority of civil cases nationwide do, in fact, settle, which means that many trial lawyers have rare opportunities to hone their skills (see post below!). But if any litigant--plaintiff or defendant--has a strong case that has been well prepared by excellent attorneys, studies like this should not interfere with a prudent and judicious evaluation of the specific situation at hand.

LITT is an annual, two-day trial training boot camp hosted by the ABA Litigation Section at the DePaul University College of Law in Chicago. The year’s gathering (July 10 and 11, 2008) featured some of the top trial lawyers and judges in the United States. Patrick Fitzgerald, U.S. Attorney for Illinois and prosecutor in the Libby case, explained the art of opening statement. Judge Marvin Aspen of the U.S. District Court for the Northern District of Illinois worked with participants on direct and cross-examination. Steve Susman of Susman Godfrey and Professor Stephen A. Saltzburg of George Washington University Law School presented on closing argument. Also among the faculty were: Chicago federal public defender Terrance MacCarthy, who lectured on cross; jury consultant Jo-Ellan Dimitrius, who talked about mock trials and jury consultants; James J. Brosnahan of Morrison & Foerster, who presented on great trials and great trial lawyers; and Ed Waller of Fowler White Boggs Banker in Tampa, Florida, who offered thoughts on ethics and civility. No aspect of trial practice was left untouched. Yours truly spoke about “twelve secrets of persuasion.”

The program alternated between lectures, demonstrations, and opportunities to perform before peers and faculty. Participants were also exposed to faculty critiques and went home with a video of their own performances for further study.

As expected, we had a full house, with forty young trial lawyers registered. If you are interested in participating next July, contact me ASAP and I will put you on the list. Though it seems we are running out of space quickly, in the case of timely responses, I should be able to guarantee a slot for LITT 2009.

The crimes occurred on April 15, 1920 in South Braintree, Massachusetts, a small town south of Boston. Those responsible shot and killed a guard and a shoe factory paymaster carrying over $15,000 in payroll cash, then made off with the money in a getaway car. Less than a month later, police arrested Sacco and Vanzetti as they were traveling at night on a trolley from Bridgewater to Brockton. Both men were carrying guns when apprehended.

One hundred witnesses testified during the trial. For every eyewitness who identified the defendants as the culprits, another witness swore to the contrary. Many eyewitnesses for the prosecution were exposed as simply mistaken or not testifying truthfully. The defense presented a straightforward alibi. Vanzetti was in Plymouth selling fish. Sacco was in Boston at the Italian consulate obtaining a passport.

The law school will miss her leadership. Over the years she has steered the school with the same moral sensibility that is on display in the op-ed, in which she announces that:

Thanks to a $1.6 million investment from the Fetzer Institute, the UM School of Law has recently launched a pioneering initiative that will emphasize ethics, moral formation and leadership development for lawyers.

This is an excellent initiative. In 2003 I attended a meeting of the 4th Circuit Judicial Conference at which several law school deans, including Dean Rothenberg, discussed the future of legal education in the country. Afterwards, I wrote an article for The Daily Record entitled "A Challenge to Law Schools" that addressed this very topic.

If you think you know discovery rules inside and out, note Judge Grimm's comment in the article:

Issues Grimm said he sees all too frequently include “non-particularized or generalized boilerplate objections” to discovery requests, which give the judge little insight when ruling on the subsequent motion to compel; lawyers stating facts in motions without supporting them with a citation to any affidavit or document; and lawyers who fail to realize that litigation proceeds in an “adversarial system but in discovery you have to cooperate” and compromise.

For those who want to brush up on MD discovery rules, you're not too late for two upcoming MICPEL programs on the same topic, offered on June 17 and July 16. Details available here.

In addition to reading prior opinions and talking with former law clerks, court personnel, and other attorneys about the judge's manner and preferences, be sure to observe the jurist in court, particularly if you are presenting a case before him/her for the first time. There is no substitute for this firsthand knowledge.

Observe the judge's style, what s/he seems to like and dislike, how s/he relies on other cases. Then, tailor your presentation to these preferences. (Without, of course, compromising your own natural style.)

By way of example, consider the story of a young trial lawyer defending a criminal assault case.

How do you research a judge? To begin with, read all relevant opinions and other writings to gain an appreciation of the judge's views. If those views differ from the position you plan to present in court, be ready to acknowledge this difference, as a show of respect, and then explain why the jurist should hear you out. Think of the potential embarrassment if you started arguing your point, ignoring the court's standing on the matter. That kind oversight will be detrimental to your ethos in many cases.

Second, you will need insight into the judge's mannerisms, style and idiosyncrasies. For example, will the judge be receptive to your moving away from the lectern? Will she have read your brief before oral argument? How much time should you devote to the facts or to the questions presented? Does the judge have a long or short attention span? Does he pepper counsel with many questions? Reading opinions won't provide answers to questions like these.