Thursday, August 28, 2008

NITA: A Worthwhile Investment

A recent Nationals participant wrote of her experiences after attending NITA’s flagship program. Christina M. Sonsire, Esq. , a personal injury & malpractice attorney at Ziff, Weiermiller, Hayden & Mustico, LLP in Elmira, New York, said it eloquently: NITA is a “worthwhile investment”. Read up on her impressions of the program here: http://www.zifflaw.com/NYInjuryLawBlog/the-national-institute-for-trial-advocacy-a-worthwhile-investment

Tuesday, August 12, 2008

Gaining Consensus and Approval for NITA Programs at Your Firm

Guest Blogger: Thomas Hintz, NITA In-House Sales


With the multiple “internal clients” typically involved in the review of new training programs, the approval process for new training initiatives can be challenging. This challenge is compounded by the fact that these internal clients have distinct and sometimes conflicting priorities. The purpose of this whitepaper is to provide checklists that enable you to concisely outline and explain the benefits of NITA training to your primary internal clients.

The two key constituencies in the review and approval of new training programs are typically the Associate Committee (or whatever sounding board that exists for addressing associate needs) and Firm Management (or whoever approves your request for increased budget).

Your internal clients have discrete reasons for supporting new training initiatives. These differences should be reflected when proposing new approaches to these two groups.

Following below is a simple and unique methodology for presenting the value proposition to your primary internal clients:


The Associate Perspective

NITA In-House Programs give associates the opportunity to not only improve their skills and confidence, but also meet and develop relationships with partners (who help NITA faculty critique workshop performances). NITA clients report a reinvigorated feeling of esprit de corps within the organization after our training programs.

Four top line benefits of NITA training:

– Great Training From Great Teachers
NITA faculty who teach at our In-House Programs are NITA’s very best. They have years of experience teaching at our public programs and for In-House clients. They have received consistently outstanding reviews from both program participants and other NITA faculty. They know how “to do”. More importantly they know how to teach the skills and advise NITA participants how to develop them.

– Career Development Plan
Whether an associate plans to be with your firm for the next 30 years or 30 months she needs to develop the core competencies to achieve her aspirations as a litigator. NITA is the most highly regarded provider of deposition and oral advocacy skills training. Our workshop programs emulate real life environments where associates can practice and develop key litigation skills in a safe environment. We encourage participants to stretch and try newly learned techniques. This learning- by-doing approach works. We have 30 years of testimonial letters to prove it (some from partners at your firm).

– Opportunities and confidence for more challenging work assignments
NITA In-House Programs have multiple workshop sessions where associates are reviewed and critiqued on performances and given the opportunity to build skills. This training structure enables participants to develop confidence in their ability to take on more challenging work. This confidence is also needed to go to partners to request the opportunity to take on the added responsibility.

– Opportunity to develop relationships within firm
The team approach needed to complete assignments in law firms makes it difficult for associates at similar experience levels to work with other partners in the firm. In addition, there are limited chances to develop relationships with peers.


Firm Management Perspective

Recognizing the need to tailor your budget proposal to address the unique priorities of your target audience (including articulating job satisfaction gains and ROI computations) increases the effectiveness of any proposal. Positioning your proposal so that it addresses key concerns of both end users and management is very important.

Three top line points:

– Provides recruiting advantage
There are very few law students interviewing for a position as an associate who don’t ask the question: “What type of training am I going to get with the firm?”

The integration of NITA In-House Programs helps to define the commitment firm management places on the development of the core skills needed by associates.

– Supports retention strategy
One reason associates leave a firm is the lack of opportunity for more challenging work assignments. NITA skills development programs address one of the barriers to being assigned higher profile work. Our programs develop confidence associates need to perform and just as importantly lobby partners to be given the chance.

– Business Development
Every law firm has clients interested in moving to an alternative billing approach. One way to make non-traditional billing approach profitable is to push the responsibility for an assignment to a lower pay grade.

NITA training programs help develop the confidence needed for work to be assigned to less experienced associates. These people need to develop the confidence in less experienced attorneys in order to excel at their chosen profession.

Monday, July 14, 2008

Best Practice: Winning Trial Strategies–Having a Realistic Goal

Guest Blogger: Glenn Bradford of Glenn E. Bradford and Associates PC in Kansas City, Missouri


An English lady once asked the Lord Chief Justice of England to explain what the necessary elements to win a case were. He replied, “First you need a good case, then you need good evidence, then you need good witnesses, then you need a good judge and then you need a good jury, and then you need good luck.” ( Frances L. Wellman, Success in Court 96 The Macmillan Company 1941)


The first point that ought to be made in any article discussing trial practice is that, in truth, a trial lawyer has only limited control over the outcome of any given trial. Indeed, it has been written that "[t]he British bar seems fairly well agreed” that "[o]f every hundred cases, ninety win themselves, three are won by advocacy, and seven are lost by advocacy."


The best example of the limitations inherent on a trial lawyer might be the career of Abraham Lincoln. Although widely acclaimed during his legal career, Lincoln's courtroom record did not seem to be particularly outstanding, even with his reputation as the “best all-round jury lawyer of his day in Illinois.” (Albert A. Woldman, Lawyer Lincoln 241 Carroll & Graff Publishers, Inc., 1936)


Of 87 cases for which the records are available and that Lincoln tried before the court without a jury, decrees were rendered in favor of his clients in 40 and against them in 47. Of 82 actions argued before a jury, verdicts favorable to his clients were returned in 43. (Albert A. Woldman, Lawyer Lincoln 241 Carroll & Graff Publishers, Inc., 1936)


Lincoln’s legal career is proof of the proposition that brains, talent, experience, preparation, and a compelling personality do not guarantee perennial success in the courtroom. In the author’s experience, effective trial lawyers start with the concept of respecting the facts of the case and respecting the intelligence of the jury. The quickest way to lose a case is to try to oversell it. New York lawyer Francis L. Wellman had these observations:


There is a fine art in never overstating a case; for if the evidence turns out to be stronger than the (opening) statement, the advocate is sure to secure credit for his candor and modesty. He should avoid, therefore, all exaggerations. Facts should expand on the trial rather than diminish in force. (Francis L. Wellman, Success in Court 137 The Macmillan Company 1941)


Clients tend to want to hit a home run in every case. Babe Ruth hit 714 home runs but he also struck out 1,330 times, which was the major league record for many years. Putting litigation in a baseball context, perhaps the wise lawyer will seek to convince the client that it is important to hit what is pitched. Every pitch cannot be hit for a home run. Sometimes it’s better to try for a base hit rather than waste an opportunity trying to do something that cannot be done.


Former Chief Mediator of the Second Circuit Court of Appeals, Frank J. Scardilli, put it well, saying “[t]he lawyer must be an agent of reality to the client” (Robert D. Rachlin, Esq., Seven Habits of Effective Lawyers, Vermont Bar Journal, Summer 2007, at 25) and “this implies respect for economic realities, as well as an awareness of the legally achievable.” (Robert D. Rachlin, Esq., Seven Habits of Effective Lawyers, Vermont Bar Journal, Summer 2007, at 25)


Every plaintiff’s case is not a multi-million dollar verdict waiting to happen. Every defense case is not potentially a defense verdict or an acquittal. Don’t squander what you do have to work with trying to get a result that realistically cannot be secured. Make something out of what you have to work with.


Noted New York lawyer Emory R. Bucker once said: “The greatest compliment a trial lawyer who has won can receive is to have the jury think and say afterwards that the defeated side had a better lawyer but the successful side had a better case.” (Francis L. Wellman, Success in Court 349 The MacMillan Company 1941)

Monday, July 7, 2008

Attorney Recognitions and Designations

There are many organizations and publications that recognize attorneys based on their accomplishments. Some in the mix include Super Lawyers, The Best Lawyers in America, Who’s Who, NLJ’s 40 Under 40, and many others.

So what sets NITA’s designation program apart from the rest? Several elements do.

1) NITA’s recognizes accomplishments in litigation skills through completion of several rigorous learning-by-doing skills programs.
2) There are two designation levels: Advocate (three courses) and Master Advocate (three advanced courses).
3) Through NITA’s partnership with Martindale-Hubbell® LexisNexis®, recognition on NITA Designations is provided on attorney profiles found on www.lawyers.com.

To learn more about NITA’s designations, including the programs necessary to achieve the status, visit www.nita.org/designations.




Monday, June 30, 2008

My Time in Nita City

Are you a NITA program participant with an experience to share? Comment here or contact us to to tell us about it—just like NITA program attendee, Jennifer R. Hersh, staff attorney for the Legal Aid Society of Southwest Ohio, LLC, Hamilton, OH.

"Two days after my return from Rocky Mountain Child Advocacy Training Institute (RMCATI), I had a battle royale in shelter care in which I had to contest a motion against three other attorneys, and I won. I could see the difference in my own performance after attending RMCATI. I had more clarity in preparation. I was calmer in court because I was more confident. I didn't get flustered when witnesses didn't answer as I expected. I used the direct and cross-examination skills I learned at RMCATI and I gave the closing argument of my life. The true benefit, though, is that a medically fragile infant is in a safe placement today because I went to RMCATI last week."

Wednesday, June 25, 2008

CLE in the Summertime

Many attorneys choose to mix their CLE obligation with a little rest and relaxation. Although firms don’t always encourage destination trainings, there is no denying the appeal.

CLE providers across the country are aware of the draw a short summer program has and have tailored their schedules to provide participants with ample opportunity to learn and have a little fun at the same time. For instance, CLE International has four programs in Florida this year alone.

And then of course there is NITA who covers every area of legal advocacy skills training and provides programs in great vacation spots such as Ft. Lauderdale, Los Angeles, Boston, and Boulder. Although NITA programs are typically longer than most, we always encourage participants to enjoy the ocean and mountains (or maybe both) that are nearby.

Thursday, June 19, 2008

NITA Program Directors Leading Many Law Schools

NITA has always worked hand-in-hand with law schools to develop programs and a curriculum that emphasize the importance of trial advocacy training for their students, and this is still evident with the presence of NITA’s program directors and faculty in law school leadership positions. NITA and these distinguished deans are constantly working together to craft the best possible environment to better prepare students for the courtroom by using the skills of trial advocacy.

This all comes at an opportune time after the Carnegie Report (see previous post on Carnegie) has left a lasting impression on most law school leaders. Hopefully with NITA’s presence at these schools and others, the vision expressed in the Carnegie Report will be reached with more ease.

For more information on these NITA faculty and program directors listed here, visit their law school Web sites:

Barbara Bergman – Associate Dean for Academic Affairs, University of New Mexico School of Law
Douglas Blaze – Dean of the University of Tennessee College of Law
JoAnne Epps – Dean of the Law School, Temple University James E. Beasley School of Law
John Douglass – Dean of the Law School, University of Richmond TC Williams School of Law
Leo Romero – Interim Dean, University of New Mexico School of Law

Wednesday, June 11, 2008

A Milestone: June 11 Marks NITA’s 37th Birthday

The articles of incorporation for the National Institute for Trial Advocacy were officially signed on June 11, 1971 by Thomas S. Jackson, Frank R. Roberson, and Edward F. Howrey. Happy Birthday NITA.

Tuesday, June 10, 2008

Rule of Law: NITA Taking It Up a Notch

by Jennifer Long

As a staff member in the Development office for the NITA Foundation, I work with those who focus on NITA’s public service efforts, making possible scholarships for public service attorneys who couldn’t afford tuition, and applying for grant funding for free and reduced tuition programs which fill a need in the legal community. One of our recent milestones was creating a partnership with the grassroots rule of law organization Lawyers Without Borders to aid our efforts to expand our training internationally, and to help emerging democracies build stronger legal systems from the ground up.

Rule of Law means that no one is above the law, and ensures that the personalities and emotions of those immersed in the courtroom don’t get in the way of the facts. NITA programs take it up a notch, teaching the art of advocacy, which is integrating those personalities and the emotional intelligence with the facts, and presenting them through the voice of the client. Trying to heal the pain from genocide while building a democracy in a country that was subjected to the capriciousness of dictatorship, for example, requires fashioning the story with the utmost care towards the victims and the intricacies of their stories.

When NITA faculty travel abroad – to South Africa, to Eastern Europe, to Asia – they take with them an intuitive sensitivity to the places they visit, and the host communities haven’t seen much of that. They work with lawyers whose clients are victims of human trafficking, egregious domestic violence, and survivors of apartheid, training them on how to tell these stories to those with the power to affect the clients’ fate. This can only be accomplished with an ethical approach, a goal that justice be served, and a desire to give their clients a foundation to rebuild their lives.

To learn more about the NITA Foundation or to help contribute toward Rule of Law initiatives by donating to our Public Service Programs, please visit us at www.nita.org/foundation

Friday, May 30, 2008

NITA Earns Top Awards from ACLEA

The Association for Continuing Legal Education (ACLEA) honored NITA with the Award for Professional Excellence for its book, Winning at Trial by D. Shane Read and the Award for Outstanding Achievement for its 2008 Brand Campaign Design: The Journey. ACLEA grants only 15 annual awards to competitors representing more than 300 organizations.


The Award for Professional Excellence is the top prize; only one is awarded in each category of prizes. ACLEA will formally present the awards to NITA at the Annual Meeting of ACLEA in Vancouver, British Columbia on August 5, 2008.

Winning at Trial, the winning text, encapsulates every litigator’s fundamental aspiration. The book includes two DVDs containing almost four hours of footage from the O. J. Simpson trial and a focus group deliberating a civil trial (440 pp., two DVDs, 2007, ISBN 978-1-60156-001-8, $75.00).


The “Journey” brand campaign has been a centerpiece of NITA’s marketing and communications pieces in 2008. E-mails, brochures, catalogs, and other pieces of collateral have included this theme in both imagery and copy. Given that participation across NITA’s public and public service programs is up year to year over 2007, the 2008 Journey campaign is a likely contributing factor.

Thursday, May 29, 2008

How to Try a Jury Case

How to Try a Jury Case: Trial Tactics, by John F. Kimberling, recently published by NITA, has been well-received by the legal community. The following reviews underscore that the practical advice it offers deems it an important addition to any trial lawyer’s bookshelf.

“…a must-read for all trial lawyers, whether the lawyer is new to the practice or simply want to brush up on some trial techniques…replete with tips that only a seasoned trial advocate can provide.”
--Trial, May 2008

“Kimberlings’s trial manual permits a new trial attorney to gain practical knowledge and insight that can be obtained only from years of success and mistakes as a trial attorney…a highly recommended read.”
The Colorado Lawyer, April 2008

Monday, May 19, 2008

The Ten Commandments of Cross-Examination

In the summer of 1975 NITA’s faculty member, Irving Younger, lectured to 182 program participants of NITA’s National Session. The result of this lecture is the video of Younger’s well-known speech, The Ten Commandments of Cross-Examination. That year, like all years at the National Session, the lecture is given on Flagstaff Mountain in Boulder, Colorado.

The Ten Commandments of Cross-Examination:

1. Be brief
2. Use plain words
3. Ask only leading questions
4. Be prepared
5. Listen
6. Don't get into a quarrel
7. Avoid repetition
8. Disallow witness explanations
9. Limit questioning
10. Save the main point for the summation



Thursday, May 8, 2008

The NITA Method in Action

by Steve Gibson

As NITA's Chief Operating Officer, it's my continuing privilege to visit NITA programs across the country and see the NITA method in action. After conversations with dozens of our faculty, I couldn't help but observe an interesting, and consistent, paradox: While the NITA method, with its focus on the student rather than the teacher, is explicitly not about the faculty member, the faculty also benefit greatly from the interaction.

What it comes down to, from my view, is the answers to two related questions. When asked what they like best about teaching, most faculty (and all of our best faculty) suggest that it has to do with the satisfaction of seeing the attorneys they work with improve and expand their skills - sometimes over the course of years, as NITA relationships so often carry-over beyond the time of the program itself. At the same time, when asked why they teach, most faculty (and, again, virtually all of our best), recognize that it is because through teaching they become better lawyers themselves, learning from the critiques they provide, the insights of other faculty and, not surprisingly, from the students, who often are skilled attorneys in their own right.

Not to put too philosophical an edge on things, but perhaps it is this duality of student focused process leading to improvement for both the faculty and the student that engenders the loyalty to NITA and connection to their chosen profession I see in so many of our dedicated volunteer faculty. The contrast to a typical lecture-and-listen program, where the attendees may learn but the lecturer receives little more than ego gratification (and, often, a paycheck), could not be clearer.

Seen in this light, the connections between the values at NITA's core—things like improving justice, a sense of community and personal connection, and giving back—and the very nature of what NITA is becomes clear. Given the sacrifices in family and professional time that our faculty make to teach, NITA really must be something more than just another CLE program. And I'm pleased to say that, from what I've seen, it certainly is.

Monday, April 28, 2008

Temple's Law Library Blog


Temple’s Law Library Blog wrote a generous description of NITA’s new case file, State v. Tyler by John F. Francis. To read this and other posts about NITA publications visit the Trial Advocacy Blog.

Thursday, April 3, 2008

McElhaney Looks at Jury Selection

Longtime NITA faculty member, Jim McElhaney, is a senior editor and columnist of the ABA Section of Litigation's magazine, Litigation. He also recently wrote a piece that was featured in the April issue of the ABA Journal, cleverly titled "Rejiggering Jury Selection."

He writes: "I would have thought that the National Institute for Trial Advocacy, the Inns of Court, and other organizations have done a lot to help those problems," said Judge Standwell.

"They've helped," said Angus, "But like plain speaking and clear thinking, simple excellence is still in short supply."

To read the rest of the story, visit The ABA Journal.

Best Practices in Winning Bench Trial Tactics, What Not To Do

how to win a bench trialOriginally featured in the December 2007 issue of NITA Notes, NITA faculty member, The Honorable Robert L. McGahey, Jr., district judge of the Second Judicial District in Denver, writes about his best practices in bench trials.



Best Practices: How to Lose a Bench Trial

Trial lawyers (and the people who teach them) tend to focus on improving jury trial skills. There is a good reason for this: jury trials are more interesting, jury trials are more fun, jury trials (at least in the conventional wisdom) require a more sophisticated set of skills to win. Important to remember, however, is that many more proceedings are bench trials, or things that look, walk, and quack like bench trials, such as domestic relations proceedings, administrative hearings, hearings on motions, etc. It is also important to remember that many young lawyers now cut their advocacy teeth on this kind of non jury proceeding. For these reasons, I think there is some value discussing bench trials or their equivalents. As a judge, I am frequently shocked by the difference between the way even very good lawyers approach bench trials and the way they approach jury trials. From painful experience, I would offer the following suggestions on how to make sure you lose a bench trial.


DON’T BE ORGANIZED

Come to court without reviewing the applicable case and statute law. Don’t mark your exhibits ahead of time. Be sure not to find out whether you and your opponent are offering exactly the same exhibits. Never check to see whether you and your opponent can stipulate to the admission of some or all of the exhibits. Have your witnesses meet you in the hall right before going into the courtroom and give them no real preparation. Don’t think out and plan cross-examination. Don’t have an obvious theme and theory to catch the judge’s interest.


DON’T BE FLEXIBLE

Be surprised that sometimes judges schedule bench trials around other proceedings, and that you may be interrupted. Ignore the fact that in some jurisdictions judges are allowed to ask questions—and the questions a judge asks may not be what you are prepared to deal with at that moment. Insist— vehemently—on an absolutely strict compliance with the Rules of Evidence even though in many jurisdictions judges are presumed to ignore irrelevant evidence in making their findings of fact and conclusions of law. Be so locked into what you want to do that you ignore hints from the judge on what she’d like to hear.


DON’T BE EFFICIENT

Before trial, make motions in limine to exclude evidence—even though the judge has to look at the evidence in order to rule. Do so much useless discovery before trial that you run up a huge bill. Don’t schedule your witnesses in an orderly fashion, so there is a huge time gap between the end of Witness A’s testimony and the start of Witness B’s testimony. Don’t have an exhibit notebook for the judge, and don’t have one for the witness either. In the alternative, don’t review your exhibits at all; just give the judge every document, photograph, and sticky note, and make him figure out what’s important. Make sure you have to root through the five or six boxes you brought with you to find a specific piece of paper. Ask plenty of unnecessary background questions about a witness’ family, education, and work history. Make sure that the one nugget of fact you need to accredit a witness’ testimony is buried under heaps of meaningless verbiage. Oversell your expert. Make sure that you ask the judge for half an hour to prepare the five-minute closing argument he’s promised to give you at the conclusion of the evidence.


DON’T BE THOROUGH

Don’t do the necessary discovery to properly prepare your case. Forget to lay the necessary foundation to admit exhibits. Don’t make an appropriate offer of proof when a judge disallows the admission of an exhibit or the giving of testimony. Don’t present the essential evidence necessary to give your client the relief requested—and more importantly, make sure the judge has to ask those essential questions herself. Skim over or ignore difficult evidence when you are cross-examining—or better yet, don’t cross examine at all. Undersell your expert. When permitted to give a brief opening statement and/or closing argument, make sure that what you say sounds like stream of consciousness poetry or a recitation from Finnegans’ Wake.


DON’T BE MEASURED

Act as if this case is the most important case this judge will hear during the entirety of her legal career. Make sure to ignore the judge’s pretrial order and the rules relating to pretrial procedure as often as you can. Shout whenever possible. Make loud, fervent, and frequent objections. Show obvious displeasure at rulings on evidence. Heave big sighs, snort derisively, waggle your eyebrows, or throw up your hands during testimony you don’t like. Act exasperated and impatient with your own witnesses. Cross-examine like you were auditioning for Law and Order. Ask lots of rhetorical, conclusory, and argumentative questions. Insult your opponent, your opponent’s case, and your opponent’s parentage. Oh, and be sure to treat the judge like an idiot.


DON’T BE INVOLVED

Act as if your case doesn’t matter to you, let alone to anyone else. Don’t look at the witnesses while you’re examining them. Read your questions in a nice dull monotone. When the judge invites you to make brief argument, don’t do it. Don’t give an opening statement, even if you can. Don’t give a closing argument, even if you can. Don’t submit proposed findings and conclusions if the judge asks you to do so. Make sure the judge understands that you have no concern at all about what the results of this case are.


Obviously, my tongue was inserted firmly in my cheek when I prepared this list. Certainly there are differences between a bench trial and a jury trial that require us to adapt our method of presentation. But those adaptations do not require us to ignore basic principles of successful trial work: develop a theme and theory that ties your case together; be knowledgeable about the law; understand the elements of the relief which you are requesting or the defenses you are asserting; make opening statements and closing arguments interesting and understandable, without tub thumping; present your case efficiently, and so on. For many of us, our experience in bench trials was our first taste of what it’s like to be on our own in a courtroom. It’s like that first bicycle ride with training wheels. It’s fun, but relatively low risk—at least for the lawyers. For the clients, however, that bench trial may be the only chance they have to tell their story and prove their point. You owe it to your clients to give them the best trial you can and to give them the best shot at a successful outcome by remembering how to win a bench trial.

I’ll see you in court.

Trial Skills in Action

From March 13-15, sixty-five child advocates attended a NITA Advanced Trial Advocacy Skills program at Emory University School of Law in Atlanta. The program was directed by Terre Rushton and held in conjunction with the Carl Vinson Institute at the University of Georgia. Participants reported the program was a success and these pictures illustrate just that.



NITA trial advocacy skills course



Emory University School of Law



Terre Rushton

NITA Course



legal advocacy


21 Questions to Consider When Starting a Deposition

deposition questionsOriginally featured in the September 2007 issue of NITA Notes, faculty member James L. McCrystal Jr. of Brzytwa Quick & McCrystal, LLC in Cleveland, Ohio, shares some of his best practices when it comes to initial questions.



Best Practices: Initial Questions

How many depositions have you seen that start with questions like, “Will you let me know if you are confused?” “Do you understand that you have to answer the questions out loud?” All too often, the witness responds with a “yes” or at times the inarticulate nod of the head or an “uh ha” response.

Try this approach; ask questions such as, “What will you do if you don’t understand a question?” and, “What will you do if you know we have a document that will help you better answer a question?” These questions get the witness to make a commitment to you.

They aren’t getting their answers from me. I’m not setting the rules, they are. They can’t simply agree with my statements. I think I get a stronger commitment from the witness when he or she is writing the rules. In my experience, the well schooled and crafty witnesses and the poorly educated and barely articulate witnesses both set terms I can readily accept.

This process works because the basic rules for deposition conduct are common sense. This is why asking the witness to set the terms should be relatively risk free.

Sure there is a risk in this style. You are letting the witness take charge, but where can they go that would hurt you? After all, if they propose a rule for the deposition you don’t want to accept, you can still impose your own rule.

When the witness sets out the terms, impeachment is easier because the jury will see that the witness has broken his or her own rule. Your impeachment begins, “Do you remember being asked ‘what will you do if you don’t understand my question?’ and didn’t you tell me ‘I’ll tell you I didn’t understand it.’ And then didn’t you say, and I quote from page seven of the transcript, ‘If I am confused, I’ll let you know.’” Jurors are more likely to find it fair to impeach a witness who set the terms by which they will be judged. If I dictate the terms, jurors are more likely to give the witness the benefit of the doubt.

Here are some simple questions to consider using when starting a deposition:

1. What do you think this deposition is about?

2. Why do you think there is a court reporter here to record everything you and I and your lawyer say?

3. What will you do if you don't hear a question?

4. What will you do if you don’t understand a question or are confused by it?

5. Will you do your best to answer loud enough for everyone in the room to hear?

6. Is there anything on your mind that might make it difficult to concentrate on what you are being asked?

7. Are you on any drugs or medications or alcohol that you think will interfere with your ability to answer my questions?

8. Is there anything else you are aware of that would keep you from giving full, complete, and accurate answers to the questions here today?

9. What will you do if I cut you off or interrupt your answer?

10. What will you do if you need to look at a document to answer a question?

11. What will you do if you realize an answer that you’ve given was wrong or inaccurate? Will you let us know right away?

12. Here is a copy of the duces tecum for your deposition. It’s the request we made for documents and records related to your testimony. We will have it marked as an exhibit. Have you seen this before? What did you do to respond to it?

13. Can you think of any reason why your testimony at trial would be different than today?

14. What have you done to help yourself remember what you are going to be testifying about today?

15. Do you understand everything I've gone over so far?

16. Do you have any questions before we get started?

17. Finally, how long would you like to go before we take our first break? Would an hour and a half be okay. with you?

18. If you need to take a break sooner than that will you let me know?

19. If you need something to drink or if you need to stretch while you are testifying, will you let us know?

20. When the deposition is over, it may be typed up by the reporter into a transcript. If so, and you review it, will you let us know of any changes or corrections you would like to make to your testimony, along with your reasons for them?

21. Do you have any questions about what I have just covered?

Not all these questions are necessary and there may be others that need to be added to the list.

The goal at the outset of the deposition should be to set clear ground rules with the witness. When the terms are clear and come from the witness, the more likely they will follow them. When that happens, you should expect to have a more effective deposition. Try this technique in your next deposition; I think you will find it works.

Monday, March 24, 2008

Mexico’s Changing Criminal Justice System

As reported in the February 2007 issue of NITA Notes, NITA has entered into a partnership with Southwestern Law School, Tecnol√≥gico de Monterrey, Texas Tech University School of Law, and the ABA Section on International Law under a United States Agency for International Development’s (USAID) grant to provide advocacy training to Mexican attorneys. This work was prompted by Mexico’s changing criminal justice system from a written inquisitorial to an oral adversarial system.

In January of this year, NITA’s work in Mexico was expanded by entering into an agreement with the Programa de Apoyo al Estado de Derecho (PRODOCHERO) and the USAID’s Rule of Law Project in Mexico. This agreement extends NITA’s reach even further into Mexico by inviting Mexican attorneys to attend various programs held in the U.S., by coordinating teacher training programs and other trial advocacy programs in Mexico, as well as providing translated NITA materials. These efforts are intended to assist both state and federal governments, along with law schools and practicing attorneys.

This partnership, much like the agreement with the Japanese PSIM Consortium, is an opportunity for NITA faculty to bring the NITA method abroad. If you are a fluent speaker in Spanish or Japanese, and are interested in teaching abroad, please send an e-mail to faculty@nita.org.

Thursday, March 13, 2008

Azerbaijan Attorney Given NITA Scholarship

Extortion, corruption, assault, fighting for the benefits due a World War II veteran who had been on the waiting list for nearly forty years… this is a sampling of the work in cases brought to the lawyers at the Legal Advocacy Center in Baku, Azerbaijan. The NITA Foundation is pleased to award a scholarship to attend the March Teacher Training Program in Boston to Mehriban Ovchuyeva, an attorney working for the American Bar Association’s Rule of Law Initiative in Baku, Azerbaijan.

Working in the Legal Advocacy Center in Baku, which is the capital city of Azerbaijan, Mehriban provides pro-bono legal services for citizens on such issues as human rights, education, family law, and employment law. After completing this program, she will have the necessary skills to train other attorneys in her home country.

In addition to tuition assistance from the Foundation, Michael Kelly, a NITA Trustee and Program Director, also generously contributed mileage awards for roundtrip airfare for Mehriban. In a country where the average annual income is less than $4,000 a year, the cost of a plane ticket is beyond the reach of most Azerbaijani citizens. A special thank you to Mike for making this journey possible for this scholarship recipient. Since our inception in 2003, the NITA Foundation has awarded more than $1.5 million in scholarships to worthy applicants seeking to attend one of NITA’s many programs, and our faculty is our most dependable donor base.

The NITA Foundation as a nonprofit, charitable organization is playing an increasingly more important and visible role in the area of promoting justice and human rights in various countries, including Azerbaijan, South Africa, Mexico, China, Liberia, Nigeria, and Kenya. Unfortunately, we have limited funding to support the important work of advocates such as Mehriban, who are advancing change in their home countries. Our scholarship program depends on the generosity of individuals, corporations, and foundations desiring to make an impact in this area. Therefore, we need your support in order to ensure that NITA’s mission is fulfilled.

To get involved in the Foundation, please contact us at development@nita.org or 303.953.6853. You can make a contribution by visiting us online at www.nita.org/donate. Please consider pledging mileage awards to our scholarship program to assist with the travel costs of young attorneys from faraway countries. Without these generous gifts, tuition may be covered, but the lawyers would have to forego the scholarship without the ability to pay for the flight to get to the program.

When you make a gift to the Foundation’s scholarship program, your act of charity is magnified by the work of each recipient, and, in this case, an attorney working to advance human rights and the rule of law. Consider how your gift to the Foundation’s scholarship program has a multiplier effect especially in our international programs.

As always thank you for your support.

NITA in the YouTube Dimension

A simple search on YouTube for “trial advocacy” will bring up many different relevant videos including one of NITA’s very own productions. Surf on over today to learn more about the NITA Foundation and all that it does for advocates and the community. And while you’re there, do a search for Jim Carrigan to see the Hon. Jim R. Carrigan talk about NITA beginnings.

Wednesday, March 5, 2008

Law Firm Leadership Training


In a recent issue of The National Law Journal, the effectiveness of law firm leadership training was analyzed from all perspectives in its story “Are Law Firm Leadership Programs Worth the Money?” NITA is confident in its own mentoring program, Developing Supervisory Skills, and is happy to see big firms finding a value in this type of training too.

NITA author, Paul Zwier (writer of Supervisory and Leadership Skills in the Modern Law Practice) was interviewed in the NLJ story stating: “in some cases leadership training can serve as an ‘opium of the masses.’”
What do you think? Read the story in its entirety and leave us your comments.





Reprinted with permission from the March 4th edition of The National Law Journal. © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited. For copyright clearance visit: http://www.almreprints.com/

Thursday, February 28, 2008

Carnegie Report Reinforces the NITA Mission

A Special Perspective from NITA’s Educational Consultant, Jeanne Philotoff

As mentioned in our recent post, The Carnegie Report, The Carnegie Foundation for the Advancement of Teaching released a report in March 2007 that reinforces what the McCrate Report found in 1992 and what the NITA faculty and staff have known for decades. The message: legal skills training must become an essential part of law school curriculum. Legal education needs to evolve to become more linked to the practical requirements of practicing law.

Most people familiar with NITA know that we started as a task force of the American Bar Association. The success of NITA was immediate. It must be noted that many of our original programs took place at the law schools where these very discussions on learning-by-doing are taking place today. You could (and in most cases, can still) find us at Hofstra, SMU, Nova Southeastern, Northwestern, Loyola/LA, Loyola/CA, University of Washington, and the University of California at San Diego, to name just a few. We created a mission that organizations believed in and were determined to become apart of. Materials were needed to train our participants and soon the law schools looked to NITA for the role-playing exercises needed to test the skills that faculty were trying to develop in their students.

Most graduates report that they are able to incorporate into practice the legal skills they’ve developed in school during their summer associate experiences after their first and second years of law school. It is this experience, and the fact they show themselves to be capable in the art of advocacy, that has the greatest influence on their career paths.

The Carnegie report suggests that the third year be designed as a kind of “capstone” opportunity for students to develop specialized advanced clinical training. Most schools now limit this opportunity to a few lucky students. We, like the Carnegie Foundation, would like to see this change.

Together, we can provide the quality education that our law students need and that their future clients deserve. NITA programs and publications can serve as a guide and catalyst toward a fundamental shift in law school curriculum. Integrating theory and practice, the abstract and the practical is of paramount importance.

Tuesday, February 19, 2008

The PSIM Consortium and NITA

On February 9 several individuals from NITA traveled to Tokyo and Nagoya, Japan, to discuss and plan for NITA’s relationship with the PSIM Consortium, a collection of 25 law schools throughout Japan that are dedicated to improving the study of law. For the next three years NITA will be working with the Consortium to provide translated materials, a faculty exchange, a customized teacher training program, and allow for many of the participating Japanese professors to attend NITA programs in the United States so that members of the Consortium can get a feel for the NITA method.

According to Lonny Rose, NITA's CEO & President, the goal is to develop the curriculum and methods to increase the skills of future Japanese lawyers and to promote the public’s confidence in the Japanese justice system.



Tuesday, February 5, 2008

The Carnegie Report

At the recent American Association of Law Schools Convention in New York City there was much buzz about the March 2007 Carnegie Foundation Report on Educating Lawyers. The future of legal education is evolving from one of theory and lecture to practice in the first year of law school. This is an exciting time for NITA. One that promises growth in learning by doing.

More to come...

Legal Education Renaissance

NITA Program Director and Author, John Sonsteng recently launched a new project titled the Legal Education Renaissance through William Mitchell College of Law where he is a professor.

Here is an excerpt from the William Mitchell Web site:

The Legal Education Renaissance project began more than a decade ago. Two colleagues and I talked about how little we knew about the practice of law when we graduated from law school. We agreed that as new lawyers, we did not understand what it meant to be a lawyer. My colleagues asked why no one was doing anything to improve the legal education system and challenged me to do something about it.

To read the rest and to participate in the forum visit http://www.wmitchell.edu/LER/Legal-Education-Renaissance/