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.


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.


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.


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 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.


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.


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.