May 6, 2014

Would Wyatt Earp have been indicted today?

More than 120 years ago, the coroner’s inquest into “Wild West” lawman Wyatt Earp ended with no criminal charges filed. Earp walked away scot free in the infamous O.K. Corral gunfight that only lasted 30 seconds, but is remembered as the day “when blood flowed like water,” according to the next day’s newspaper. While that gunfight and the incidents leading up to it have fascinated history buffs for more than a century, there was never a criminal or civil trial instituted against Wyatt Earp. The gunfight and aftermath leading to no prosecution has long intrigued trial lawyers: How did Wyatt Earp walk away without indictment? Did the prosecution really play the cards at their disposal, or was Mr. Earp’s defense that good? What if here had been a civil trial such as a wrongful death case instituted by family members of those mortally wounded, like Tom McLaury?

At the eighth annual Litigation Institute for Trial Training program, or LITT -- also known as a boot camp for young lawyers – we explored the nuances of an imaginary wrongful-death trial. Our special guest was Wyatt Earp himself, or rather, a descendant of the original Wyatt Earp, who was named after his famous ancestor. Our case was based on the testimony presented at the original investigation of the gunfight at the O.K. Corral. The material we used was created by attorney Jeff Willis of Phoenix, who helped assist in getting the original Wyatt Earp’s descendant to portray his namesake on the witness stand.

I created the LITT program eight years ago, in conjunction with the ABA Section of Litigation, to teach the basics of courtroom advocacy to young lawyers, and more importantly, to inspire them to seek further learning and study of trial, as well as arbitration advocacy. Currently, the LITT program is co-chaired by Dallas attorney Michael Lynn and me, and it was Michael who suggested we use the Wyatt Earp trial as our historical case of the day. We had presented a similar program in Dallas the year before and that event had been presented, to wide approval, before a packed house of 500 young lawyers and law students.

At the LITT program in Phoenix last month, Mr. Earp was joined by some of the leading trial lawyers in the country, many of who gave demonstrations of each facet of a trial, from opening statement, to direct and cross examination, to closing argument. A brochure with details of the day’s activities and a list of the accomplished attorneys who participated can be found on the ABA Litigation Section website, or by clicking here.

I won’t tell you whether or not the legal proceedings surrounding the original Wyatt Earp would have ended any differently had he appeared before the “jury” of this year’s LITT program rather than the justice of the peace who presided over the coroner’s inquest, but I can tell you the original Wyatt Earp would have been proud of his descendant’s convincing performance.

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May 6, 2013

What I learned from my boot camp for young trial lawyers

As a long-time trial lawyer who has spent many years advising the next generation of trial lawyers, I was buoyed by the response to last month’s Anatomy of a Trial One-Day Boot Camp for Young Trial Lawyers. When I got back home to Baltimore following the event, several participants emailed me to tell me how eager they now are to put their newly learned strategies to work trying their own cases. Keep in mind, many of the 100-plus lawyers who attended this year’s boot camp have yet to try a case. That they are still enthusiastically preparing for their first trial could not please me more.

In a day when negative press on law schools and professional prospects for graduates is ubiquitous, it’s good to know that young lawyers are still landing jobs and staying focused on what matters most in their careers: representing their clients to the best of their abilities.

It’s been nearly ten years since the ABA’s Section of Litigation, in conjunction with my Litigation Institute for Trial Training (LITT), held our first boot camp for young trial lawyers. I was pleased to see that the excitement for this annual event has not waned at all.

Last month's boot camp was held in Chicago, as part of the Section of Litigation’s annual conference. We took a different approach to the event this year -- focusing on the tragically notorious trial of Sacco and Vanzetti, two Italian immigrants who were found guilty of murder and armed robbery following a short, politically-laced trial fraught with poor lawyering and even poorer officiating. The original trial, back in 1921, took place at the height of the Red Scare. The two defendants had been branded as anarchists, which turned public opinion – as well as the jury’s – against them. This profoundly affected their trial to such an extent that we will never know whether their guilty verdict was a just one. Though this case is more than 90 years old, the lessons it offers trial lawyers are timeless.

With the Honorable Judge Marvin J. Garbis of the US District Court of Maryland presiding, participants in the boot camp were guided by some of the country’s most respected trial attorneys and judges through a mock trial of Sacco and Vanzetti today – with demonstrations of opening statements, direct examinations, cross-examination and closing arguments. Woven into the schedule were lectures by several outstanding speakers and question-and-answer sessions featuring panels of some of today’s brightest legal minds. Click here for a full list of speakers and details of the day’s events.

It is good to know that the terrible misfortune that befell Ferdinando Sacco and Bartolomeo Vanzetti nearly a century ago will not be repeated. That is, so long as our next generation of trial lawyers remains vigilant to the goal of ensuring that all their clients receive the best possible legal representation and, of course, a fair trial. If last month’s “Anatomy of a Trial” boot camp is any indication, the next generation is right on track.

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January 26, 2013

What we can still learn from Sacco and Vanzetti

Nearly 100 years ago, our country experienced one of the most tragic court cases in our judicial history: that of two Italian immigrants who received death sentences following a jury trial, marked by blatant judicial bias, attorney missteps, and heartbreaking circumstances.
Though I wrote about this case about five years ago, the lessons learned from studying the case, Sacco and Vanzetti, are as valuable to young trial lawyers today as they were in 1921, when a jury exclusively comprised of white males, after only five hours of deliberations, found these two men guilty of armed robbery and murder. They were sentenced to death, due to the unfortunate combination of a biased judge, mediocre defense attorneys, a vastly unfair trial and public fears of anarchy that dominated newspaper headlines in the days following World War I. 

The case provides plenty of fodder for a detailed analysis of how trial attorneys today – and their clients -- benefit from techniques in direct examination, cross examination, opening and closing statements that were absent in the case against Sacco and Vanzetti. We will study these components in detail at my Anatomy of a Trial: One-day Boot Camp for Young Trial Lawyers, which is being held at the Section of Litigation Annual Conference in Chicago on April 24, 2013, from 8:00 am until 5:30 pm, at the JW Marriott.

The Honorable Marvin J. Garbis, of the US District Court for the District of Maryland, will serve as presiding judge for the program. Click here for a full list of speakers. To register, go to and click on the Anatomy of a Trial tab.  

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July 25, 2011

The US versus Canada: a friendly competition

It’s the United States versus Canada – but it doesn’t involve hockey or other winter sports. Rather, it’s a friendly competition in the courtroom featuring trial lawyers from the United States representing the plaintiff in a wrongful termination case against a team of Canadian lawyers representing the defense.

The program is called “Trial Practices in Canada and the United States: A Comparison.” It will be held on August 4, as part of the American Bar Association’s annual meeting next month in Toronto, Canada. This particular event is being hosted by the Litigation Institute of Trial Training ( “LITT”), the organization I founded several years ago to help young trial lawyers hone their skills.

In the program, two judges will preside -- one from the United States and one from Canada. A jury will also be rendering a decision. In addition to gaining valuable courtroom exposure, trial lawyers will have the opportunity to learn the courtroom protocols of our neighbor to the North.

Following the “trial,” we will feature a panel discussion about the differences in the trial practices in the two countries. Though in many ways our systems are similar, the differences are fascinating. In Canada, for example, all matters in the federal courts are heard and determined without a jury. Though in some provinces civil jury trials are available, the court can “strike the jury” if it determines that the factual issues are unduly complex. Pretrial discovery is also more limited in Canada. In Ontario, for example, a party is limited to a total of seven hours of deposition regardless of the number of depositions the party undertakes. Also, in Canada, counsel under some circumstances may answer for the witness and non-parties may not be deposed, with limited exceptions.

If you would like to attend the LITT program in Toronto next month, or if you’d like any additional information about the LITT program in general, please contact the ABA.

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May 7, 2011

Litigation Institute for Trial Training: A boot camp for young lawyers

Last month, the ABA’s Litigation and Criminal Justice Sections jointly conducted the fourth annual Litigation Institute for Trial Training program, or LITT -- also known as a boot camp for young lawyers. I created the LITT program to help young lawyers hone their advocacy skills in a one or two-day intensive training session that covers all aspects of trial preparation and proceedings, and courtroom protocol.

Nearly a hundred young lawyers attended this year’s LITT program in Miami Beach, Florida. The one-day program started at 8:00 am and adjourned at 4:45 pm with hardly a break. Box lunches were served as Judge Marvin J. Garbis, of the United States District Court for the District of Maryland, presented a lecture on what young lawyers should know when trying cases. The schedule followed with an array of esteemed attorneys and jurists serving as panelists – demonstrating and leadings discussions involving all components of a trial, including case analysis and courtroom conduct, opening statements, cross examination and closing arguments.

The two-day LITT program, which has been conducted in previous years, follows a similar format. But the two-day version also includes workshops at which young lawyers divide into groups of eight to demonstrate opening statements, direct and cross examination; and closing argument. A faculty of three presides over each of five classrooms.

While up to a hundred students may register for the one-day LITT program, registration for the two-day program is limited to forty students. Next year’s program is already in the works. If you are interested in details or for more information about LITT, please contact me at

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December 10, 2010

New Federal Rules of Civil Procedure

On Monday, December 13, The Honorable Paul W. Grimm and yours truly will be presenting at the Bar Association of Baltimore City. We will be leading a discussion on the "New Federal Rules of Civil Procedure." Judge Grimm is Chief Magistrate Judge for the United States District Court for the District of Maryland. The location: The Brown Room of the Baltimore Bar Library, 100 N. Calvert Street, Baltimore, Maryland. Time: 4 pm until 5:15 pm. For more information, e-mail the Baltimore Bar Association at

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May 27, 2010

Why Maryland Needs Mandatory CLE

Below follows an article co-authored by Hon. Lynne A. Battaglia of the Maryland Court of Appeals and yours truly. It appears in the current Maryland Litigator.

Butcher: “The first thing we do let’s kill all the lawyers” (King Henry VI, Part II) (Act IV, Scene 2).

Why were those like Dick the Butcher, a follower of the anarchist Jack Cage, “head of an army of rebel and demagogue pandering to the ignorant,” when seeking to overthrow the government, planning to strike first at the lawyers? Lawyers throughout history and today are the centrifugal force of a free society under the rule of law.

The legal profession has always been, for the most part, self-governing, particularly in this Country and in the State of Maryland. Self-governing or self-regulation has succeeded because the profession has imposed on itself the very highest standards. As leaders, lawyers impose these highest standards upon themselves, not for the purpose of maintaining self-regulation, which, no doubt, is coveted, but because we have professional responsibilities to ourselves, our clients, the courts and the community. Surely Shakespeare, through Jack the Butcher, knew that for rebellion to succeed, striking first at lawyers might bring down the rule of law and the free society so dependent on that rule.

A free society depends on its lawyers for protection. Lawyers are the palladium of liberty.

It is equally unhealthy for the profession, as it is for society, if the public loses confidence in the high quality of members of the legal profession. Lack of confidence erodes our ethos and our role as leaders. Thus the highest standards must be maintained and self-imposed. This has been so and should continue to be so.

To be professionals requires excellence in expertise and knowledge in order to foster trustworthiness and to enhance the role of the lawyer as a fiduciary - one who seeks to serve another, rather than him or herself. The foundation of excellent lawyering and serving the community rests upon continued education and intellectual growth for self-improvement, to better represent clients, and serve those who depend upon us. More so than ever before is the law growing at a dramatic pace.

Continue reading "Why Maryland Needs Mandatory CLE" »

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January 4, 2010

2010 Litigation Institute for Trial Training

Save the date! The ABA Litigation Section has scheduled the next annual Litigation Institute for Trial Training (LITT) for July 9-10 at the Loyola University Chicago School of Law. You can register on the ABA website starting in February. I and my colleagues at the ABA created LITT to offer a small group of attorneys an intensive, two-day training experience with outstanding trial lawyers and jurists from around the country. Limited to just 40 participants, LITT 2010 will likely fill up quickly. The faculty this year will include, among many other fine people:

The Honorable Marvin E. Aspen
Kim J. Askew (K&L Gates, Dallas)
James J. Brosnahan, (Morrison & Foerster, San Francisco)
Jo-Ellan Dimitrius (Dimitrius and Associates, Pasadena, California)
The Honorable Mark A. Drummond
Steven Susman (Susman Godfrey, Houston)
Lorna G. Schofield (Debevoise & Plimpton, New York)
Robert L. Rothman (Arnall, Golden Gregory, Atlanta)
Terence MacCarthy (Federal Defender Program, Chicago)

Feel free to contact me if you have any questions about the program.

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August 1, 2008

Litigation Institute for Trial Training 2008

I recently returned from the Litigation Institute for Trial Training, or LITT, as it is affectionately known. Outside of trying cases, I cannot imagine a better way to hone your litigation skills in such a short period of time.

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.

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June 16, 2008

Maryland Discovery Problems & Solutions

Maryland Discovery Problems & Solutions is a new book co-authored by Chief Magistrate Judge Paul W. Grimm, Charles Fax (of Rifkin, Livingston, Levitan & Silver) and yours truly. We and others offered an unusual seminar based on the book at the Maryland State Bar Association's annual meeting in Ocean City last week. The Daily Record ran this preview of the event.

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.

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May 14, 2008

International Conference on Jury Trials and Art Theft

Art theft and jury trials were the topics of a conference in Bilbao, Spain hosted last week by the UIA (Union Internationale des Avocats) and the ABA Litigation and Criminal Law Sections. If you’ve the time to attend such international gatherings, I recommend them. In learning about the legal systems in other countries, you come away with a better understanding of your own. You also get to meet attorneys you otherwise wouldn’t.

The night of May 9, the Bilbao Bar Association hosted attendees to a welcoming reception that featured a live choir performance of Basque folk music. Early the next day, the program began with a comparative overview of the common law and the civil law procedures in Europe and predominately Spain. Later, Professor Mar Gjimeno-Bulnes Associate Professor at the University of Burgos explained salient distinctions between the Spanish and U.S. jury trial systems. (In Spain jury trials are limited to criminal cases, and the verdict must be decided by majority. Significantly, Spanish juries must state the basis of and provide a rationale for the verdict.)

For the American perspective, U.S. District Court Judges Marvin Aspen and Marvin Garbis gave an overview of our criminal and civil justice systems. Professor Stephen Landsman of DePaul University College of Law eloquently summarized the key attributes of U.S. jury trial procedure and provided historical context.

In the afternoon, under the leadership of Professor Stephen A. Saltzburg of George Washington University School of Law, a group of American lawyers presented segments of a criminal trial. Yours truly presented an opening statement. Ann Swern, Assistant District Attorney in Brooklyn, New York, conducted direct examination, and Janet Levine of Los Angeles, California conducted cross examination of a witness. Wayne McKenzie, Vera Foundation, Brooklyn, New York, demonstrated a closing argument.

Another highlight of the afternoon was an explanation of the Spanish jury system by Gustavo Lopez-Munoz Ylarraz, founder of the Spanish Association for Trial by Jury.

That evening, we gathered for dinner in the Museo Guggenheim Bilbao, one of the most stunning buildings I’ve even seen. (Follow the link for a vista and virtual tours.) The cuisine here wasn’t short of stunning either.

On Saturday, the program shifted to the mystery of stolen art, featuring Andrea Pizzi, President of UIA Art Law Commission from Belogna, Italy; Claudia Von Selle of Berlin, Germany, who discussed ancient art taken by one country from another and art taken in war time; Howard Spiegler of New York; Luis Li of San Francisco; and Richard A. Altmann of New York.

Noah Charney also spoke. Charney, a distinguished author now residing in Slovenia, wrote the exciting novel “The Art Thief” and formed the Association for Research into Crimes against Art, the first think tank/consultancy group on contemporary issues in art crime. He talked about the history of art theft, the nature and extent of art theft in its many forms as well as ways to prevent the crime.

The program concluded with an invitation by the Spanish Bar Association to develop further programs and discussions, hopefully next year in Barcelona.

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May 6, 2008

Art Theft and Jury Trials in Spain and the U.S.

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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April 25, 2008

Maryland Trial Attorneys Find Camaraderie in Inns of Court

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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April 18, 2008

Litigation Institute for Trial Training

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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