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This month’s episode features advice and observations from some of NITA’s top judges, who serve as faculty, presenters, and board members. They share their reflections on what they’ve seen from their unique vantage point on the bench and dispense helpful tips for the next time you’re in court. Topics2:13     What counsel should know before setting foot in my courtroom10:30  Most common mistake I see lawyers make in my courtroom17:55  Impressive or memorable things a lawyer has done during trial 22:50  Nuttiest things I’ve seen during jury selectionResources50 Tips for 50 Years, Part 1 and 50 Tips for 50 Years, Part 2Judge Mark Drummond (podcast) (webcast) (webcast)Justice Lee Edmon (bio)Judge Marian Gaston (bio) (webcast)Judge Nancy Gertner (bio) (podcast) (webcast) Judge Amy Hanley (bio) (podcast) (podcast) (webcast) (webcast) (webcast)Judge Ruth Rocker McMillan (bio) (podcast)Judge Sam Sheldon (bio) (webcast)Judge Mindy Solomon (bio) (webcast)Judge Christopher Whitten (bio) (webcast) (webcast)
Imposter syndrome is a common phenomenon among lawyers, often starting in law school, where self-doubt about your spot among so many wunderkinds can shake your sense of achievement and belonging. Gwinnett County Magistrate Court Judge Ruth Rocker McMullin joins the podcast to discuss what imposter syndrome looks like when it shows up in lawyers’ lives, how she got out of her own way as her legal career pivoted into new directions, what happens at the intersection of imposter syndrome and implicit bias, and how cultivating emotional intelligence just might save you from yourself. Topics3:50     Imposter syndrome  5:52    Places, spaces of imposter syndrome in law8:56     Are lawyers more susceptible? 10:37  What imposter syndrome looks like15:39  Implicit bias and imposter syndrome20:32  “Glue work” 26:20  Managing implicit bias upwards, sideways27:16  Calling out implicit bias, letting it slide29:18  Upside of imposter syndrome  31:21  Managing your own brain33:00  Exploring emotional intelligence 34:38  Developing emotional intelligence38:58  Signoff questionQuote“I had to have that conversation with myself when I switched my career from being a public defender to going into private practice, to taking a part-time judicial position. You know: ‘I don’t know if I’m qualified to do this.” I had to tell myself, ‘You handled death penalty cases. Of course you can do this.’” Judge Ruth Rocker McMillan ResourcesJudge Ruth Rocker McMillan (bio)The Imposter Phenomenon (article)Being Glue (article)
The spontaneity of cross-examination and impeachment often intimidates lawyers early in their trial career. NITA Education Director Rhani Lott Choi and Denver trial lawyer Kate Sandlin have been there, done that — and in this episode, they disclose their favorite tips that honed their skills and settled their nerves. Rhani and Kate talk about how to feel at ease in the moment, advance-prep for the “spontaneity” of cross and impeachment, bring wily witnesses to heel, use demonstratives to pin down an answer, and help your witness be ready to take the stand.Topics3:05     Cross-examination: what is it good for?  5:55    How to plan for cross8:23     Thoughts on your judge12:28  Learning about your judge14:47  Single-fact, leading questions21:09  Demonstration of crossing a bad witness27:16  Crossing an alleged crime victim32:03  Using demonstrative exhibits  34:22  Witness preparation39:14  Impeachment: what is it good for? 41:50  Dangers of impeachment45:34  Demonstration of impeachment51:16  One best cross tip53:50  Signoff question Quote“Every mistake I’ve made on cross-examination, if I ever go back and look at it, the problems start with my question, and I probably wouldn’t have made that mistake if I’d asked a better question.” Rhani Lott Choi ResourcesRhani Lott Choi (bio)Kate Sandlin (bio)Building Trial Skills: San Diego (course)Show AND Tell: Using Exhibits Effectively in In-Person and Remote Advocacy (free webcast)
Legal communications specialist David Mann joins the podcast to encourage listeners become masters of persuasion through storytelling. In this episode, David explains that legal case storytelling is not just for trials, tells how to flip the narrative script and align the fact finder with your client, and reveals a trove of writing techniques that help sharpen your writing and storytelling skills.Content Warning: Mention of sexual assault. A brief, non-graphic discussion of a defendant’s sexual assault case occurring from 20:35 to 22:03.Topics2:52     Why boring opening statements are boring  7:08    The Seven Basic Plots and the stories we tell 10:38  Orienting the “characters” in your legal case story 12:04  Unifying the fact finder — counterintuitively 19:03  Defending the unsympathetic client 23:11  Building context through storytelling 27:16  Where facts and technical information fit into persuasion 29:01  Differences between telling the plaintiff’s story and the defendant’s  31:42  A daily practice to become a better writer33:19  Brainstorming and self-editing38:44  Workshopping your legal case story42:10  Signoff questionQuote“This is the fundamental difference between a legal case story told to, say, a jury versus narrative fiction that we watch in movies or read in books. The fundamental difference is that the narrative fiction that we’re used to watching in movies is a finished story. It has a beginning, middle, and end. The credits roll at the end, you walk away – that story is complete. In a legal case story, it isn’t complete because the jury is the end of the story. The story hasn’t been completed yet. They will complete the story.” David MannResourcesDavid Mann (website)Story Power: Building Persuasive Case Narratives (course)Presentation and Oral Advocacy Skills for Any Lawyer (course)The Seven Basic Plots: Why We Tell Stories (Wikipedia)The Artist’s Way: A Spiritual Path to Higher Creativity (book)Engaging the Jury in the First Two Minutes (free webcast)Winning Cases with Better Storytelling (free webcast)Give ‘em the Ol’ Razzle Dazzle, with Dominic Gianna (podcast)Metallica (v. Napster) and (v. Guerlain) litigation
Kansas District Court Judge Amy Hanley is joined by UNT Dallas College of Law Professor Cheryl Brown Wattley for a lively discussion of “the tense trio”: objections, cross-examination, and impeachment. Find out what these elements of a trial have in common; why trial lawyers face so much pressure around them; how to overcome the challenges of the tense trio at trial; and what mentorship means to career development.  Topics3:31     What is the “tense trio”?  3:56    What makes these parts of a trial so tense for lawyers   4:41     The pressure of objections 6:57     Tuning your ear for objections 8:59     When not to object10:05  Learning the FRE11:00  The pressure of cross12:34  Cinematic moments 14:40  Preparation versus spur of the moment17:35  Getting out of your own way on cross22:56  Women and cross28:34  Ending with a zinger31:18  The pressure of impeachment34:20  The 3 C’s of impeachment36:01  When impeachment backfires39:20  Common impeachment mistakes41:05  Preventing rehabilitation 43:14  Mentorship50:30  NITA Women in Trial Quote“I have discovered that there’s also a physical hurdle to cross-examination, in that tone and demeanor. And what I’m talking about there is that adrenaline rush that we get from confrontation, and if you’ve been in trial and you’ve done cross-examination, you know what I’m talking about. The blood is pumping, the energy is coursing through you, and I’ve heard communication specialists talk about this and how we really need to burn off some of that excess energy.” Judge Amy Hanley“I think the other problem area [in impeachment] is oftentimes lawyers want the impeachment to work and they don’t read the second sentence. They don’t read the thing that the witness said either right after, or alternatively right before. So, you pull out that which seems to be a contradiction, but really, if you read the full paragraph, it’s the same explanation. You can’t just focus on the five words.” Cheryl Brown WattleyResourcesJudge Amy Hanley (bio)Cheryl Brown Wattley (bio)NITA Women in Trial (program) (video)Federal Rules of Evidence with Objections (book)Harnessing Your Power on Cross-Examination (webcast)
Retired federal judge Nancy Gertner and class action lawyer Reuben Guttman discuss the impact of Twombly and Iqbal, two SCOTUS decisions that precipitated critical changes in pleading, class certification, and expert standards that have affected a complaint’s capacity for making it past the motion-to-dismiss stage. In this wide-ranging interview, they talk about the challenges these decisions have on both judges and practitioners and how the landmark case of Brown v. Board might fare under post-Twiqbal standards. Topics4:02    Twombly/Iqbal’s impact on pleading standards7:17    Why process and procedure matter  10:16  Changes pleading standards12:43  Changes in class certifications14:11  Rise of multidistrict litigation16:20  Changes in expert standards, both criminal and civil21:47  Experts in the civil rights arena25:40  Applying today’s pleading and class certification standards to Brown v. Board 29:30  Rules that affect access to justice33:04  The benefit of a losing Supreme Court case36:04  Getting around these obstacles44:11  Judges, lawyers, and the legacy of discrimination cases48:35  Signoff questionQuote“I know from having been a criminal defense lawyer and civil rights lawyer and a judge, and now sort of a litigator as well, that what I may find ‘plausible’ may be not what a jury finds ‘plausible.’ That plausibility is, in fact, a contextual analysis—in context. And when I sat on the bench there were numbers of times, in fact, that my law clerk would say to me, ‘Judge, you can get rid of this case. You can get rid of this case. The allegations are not plausible.’ And I would turn to the law clerk and say, ‘To whom? To you? To me? To some of my male colleagues on the bench?’ So essentially, plausibility enabled the judges, who are not the most diverse group in the world, to make their own decisions about whether a case should proceed.” Judge Nancy GertnerResourcesJudge Nancy Gertner (bio)  Reuben Guttman (bio)Representative Opinions of Justice Ruth Bader Ginsburg (book) From Conley to Twombly to Iqbal (article)  Brown v. Board of Education complaint (PDF) Pretrial Advocacy (book) 
As social distancing and K95s finally become visible in the rearview mirror, communications expert Carol Sowers returns to the podcast to coach listeners through the yips of post-lockdown performance anxiety and rusty face-to-face social skills, and to discuss the remote advocacy habits we created that are worth keeping and refining. She also touches on a few subtle ways lawyers inadvertently undermine their authenticity and credibility.  Topics2:57  Staring down the yips9:46  Our best work adaptations and habits  14:20   Court activities that might remain remote17:20  Framing yourself19:45  New rules for eye contact 22:02   Mumbling the play-by-play24:00  Preparing for in-person presentations28:22  Distractions and attention span30:20  Practice, practice, practice31:20  Virtual backgrounds35:56  Signoff questions Quote“I know it’s so boring to hear communications specialists talk about practice. It’s what we all say, and what we all have said, and what we all will continue to say. But I think it’s even more vital now. If you’re not practicing, I think you’re doing yourself a disservice, and I think that you’re doing your case and your client a disservice.” Carol Sowers ResourcesNITA 1:1 Coaching (link)Celebrating Carol Sowers’ Nearly 30 Years with KHQA (YouTube) Taste: My Life Through Food, by Stanley Tucci (book)The Dropout (Hulu)
In Episode 29 of May the Record Reflect, we gather all sorts of admissions—about depositions—from NITA NextGen alumni faculty member Jason Young. After taking and defending thousands of depositions throughout his career, he’s no-nonsense and has figured out how to make the challenges easier on himself, his clients, and his witnesses. Jason also talks about the crucial work–life decisions all lawyers face as they begin their careers. Topics2:58     The hard part of taking depositions 5:07     Federal rules related to depositions8:24     Witnesses, both expert and lay  10:47  Role of social media 14:21   When to video-record a deposition 16:47  The hard part of dealing with witnesses18:51  Timelines for expert witnesses, plaintiff versus defendant21:19  Subpoenas25:10  Obnoxious opposing counsel30:02  Preparing your witness34:53  Protecting your witness37:01  Remote depositions38:30  Work–life balance and advice for new lawyers44:50  Signoff questions Quote“What a lot of inexperienced deposition lawyers have a problem with is they are terrified of the unknown in depositions and afraid to follow up on things, know how to shut things down, and that really scares a lot of people. And I guess the thinking with depositions a lot of times is, you want to know more. If there’s information that’s going to come out that’s going to hurt me, I want to know it in a deposition. If there’s additional facts I need or something I didn’t know, I’d rather find out in a depo than in trial.” Jason Young ResourcesJason Young (bio)Blog interview (The Legal Advocate)Federal Rules of Evidence with Objections (book)NITA Deposition courses (registration)
In Episode 28 of May the Record Reflect, New Orleans trial legend Dominic Gianna introduces the concept of “audience-centric advocacy” and how to reach jurors and judges through effective storytelling, psychological insights, and physical performance. This self-professed “Broadway theater kid” talks about stepping into your own personal style, becoming comfortable in your own skin, why you need log lines and tag lines, and how he became the legal consultant on My Cousin Vinny.'Topics3:26     What jurors want 4:44     Audience-centric advocacy6:37     When jurors are most open to persuasion  8:41     Two stages of trial: framing and scrutinizing13:44   Central premise 19:11  Importance of jury psychologists21:45  Jurors’ attribution of fault and judgment of parties’ motivation23:45  Back story26:15  Storytelling28:15  Log lines and tag lines34:08  Non-verbal communication37:01  Developing your trial style38:43  Raising your comfort level with performance42:55  Don’t do this45:31  Advocacy during covid54:11  Signature sign-off questions Quote“The framing process takes place right away in the beginning, and that is, in most trials, in the opening statement. That’s why we tell our NITA students, ‘Never ever, ever save a good, persuasive piece of evidence for the trial.’ Never do that, because when the framing part of a trial is over, which is usually the end of the opening statement, 85 percent or so of people who are leaning this way as opposed to another way, never, ever, ever change their mind.” Dominic Gianna ResourcesDominic Gianna (bio)Deposition to Trial Skills: New Orleans (program)David Mann (bio)Dr. Dan Jacks (bio)Kevin Newbury (bio)Opening Statements: Winning in the Beginning by Winning the Beginning (book)Sapiens: A Brief History of Humankind (book)Joan of Arc trial (transcript)
In Episode 27 of May the Record Reflect, former federal prosecutor Luke Cass slides into the hot seat to answer questions about closing arguments. He shares what he learned in working civil and criminal cases for the DOJ in Puerto Rico and D.C., with a particular emphasis on reversals on closing: what they are, why they happen, and what happens next. Topics3:39     Closing argument is the time for … 4:04     Advantages and challenges for counsel in closing argument6:44     When to develop your closing  7:18     Visual aids8:19     Jury instructions10:34  Differences in closings for plaintiffs versus defendants 11:50  Rebuttal13:21  Experience with reversals on closing14:28  How reversals happen15:10  Consequences of reversal16:36  Types of misconduct20:32  Why misconduct during closing happens21:50  Predicting reversals23:39  What reversals feel like for counsel and clients25:48  Signature sign-off questionsQuote“To make a closing great, you need to invest a lot of time mastering the facts, the law, your delivery, and the nonverbal communication you want to make with the jury. That nonverbal communication is often as significant as the content of the argument itself.” Luke Cass ResourcesLuke Cass (bio)“Closed Courtrooms: Sixth Amendment and Public Trial Right Implications” (article)The Journal of Appellate Practice and Process (free subscription)
26. Direct Hit, with Mike Beckwith In Episode 26 of May the Record Reflect, we’re joined by trial veteran Mike Beckwith to talk about one of the foundations of trial practice: the direct examination. As a Chief Assistant United States Attorney with the Department of Justice, Mike has litigated hundreds of cases before trial courts in multiple federal districts and the Ninth Circuit. Tune in to find out why he thinks direct examination is crucial to your case, the best way to deal with bad facts and unlikeable witnesses, and how to comport yourself on your feet and in the moment. Topics5:35     Where your case is won6:55     Why direct is harder than it seems10:44  How to keep direct interesting 13:40  Humanizing a despicable witness18:50   Objections from opposing counsel21:08  Visual aids 24:23  Body language27:17  If you’ve stunk up your direct30:17  Introducing bad facts34:43  Redirect36:09  Signature sign-off questionsQuote“With a good witness, you feel like Clarence Darrow. With a bad witness, you feel like a first-year law student. But there are good and bad out there, and so you’ve got to listen, because the good witness will give you something you want to follow up on that you didn’t have in your notes, and the bad witness you really need to be careful with because  there’s a reason why they’re doing what they’re doing and a lot of times you can shift to something that’s going to explain that or you can shift them off a topic that’s irrelevant or is just going to go down a rabbit hole that is going to confuse the jury.”  Mike Beckwith
25: Best of 2021

25: Best of 2021

2021-12-0739:35

In Episode 25 of May the Record Reflect, we take a listen to the best tips we heard from each episode in 2021. To hear the full episodes from which each tip was derived, please visit our podcasts on nita.org  here. Topics1:47     Dick Harpootlian 3:49     Alison Reagan5:57     Dean Marc Miller9:14     Helen Geib11:28  BJ Moore14:35  Alicia Aquino16:22  Shannon Bales 17:35  Hon. Nancy Vaidik20:15  Rebecca Diaz-Bonilla21:59  Judith Gaton23:29  Steve Wood27:16  J.C. Lore29:10  Reuben Guttman30:36  Jo Carol (LaFleur) Nesset Sale32:59  Angela Porter34:10  Dan Kotin36:13  Hon. Ann Claire Williams (Ret.)37:00   Clay Taylor
In Episode 24 of May the Record Reflect, we’re joined by legendary American trial lawyer Dick Harpootlian. He takes a moment out from representing Alex Murdaugh to describe the roundabout way he entered law and became one of the nation’s top trial lawyers, discuss what it was like to work death penalty cases and prosecute an infamous mass murderer, and reveal advocacy tips that have always brought him luck.Topics3:28 The accidental lawyer7:14 Winning . . . and losing8:48 Introducing Pee Wee Gaskins16:02 The life philosophy of a mass murderer20:28 Dick’s tips on jury selection25:18 Owning the courtroom and “the confidence to lose”26:56 Bushido in the courtroom28:36 High-profile cases and managing the media32:39 Traditional media versus social media33:42 The secret to deposing experts35:33 Nerves and emotions36:38 Pleasure reading and favorite shows38:11 Murdaugh case on Netflix?40:05 Volunteering for cases for trial experienceQuote“Check your fly before you get up, gentlemen.” Dick HarpootlianRecommended ResourcesDick Harpootlian (bio)The ‘Murdaugh Murders’: What to Know About the South Carolina Mystery Murdaugh attorney addresses “hysterical theories” in interview with Good Morning AmericaPee Wee GaskinsLincoln’s Last Trial, by Dan Abrams (book)The History of the Bushido Code: Principles of Samurai CultureFargoGoliath
In Episode 23 of the podcast, we’re joined by Jo Carol Nesset-Sale, who as a young woman brought forth a pregnancy discrimination lawsuit that found its way to the United States Supreme Court. Her case, Cleveland Board of Education v. LaFleur, was part of the societal sea change that resulted in women being able to remain in the workforce as their families grew. Jo Carol’s experience lit a fire in her to become a lawyer herself and transform the lives of her clients she serves. Topics2:09     The story behind the SCOTUS case9:47     How pregnant women faced discrimination11:49    Maternity leave, benefits in the 1970s13:05    The lawsuit begins15:07    Why Jo Carol fought back 19:15    Equal rights movements22:28    Legal team’s strategy for SCOTUS24:25    What the Court ruled on 26:25    Impact of ruling30:45    Becoming a lawyer34:18    Jo Carol’s other 15 minutes of fame36:05    Pathways in law41:00    Guidance for law students, new lawyers43:21    Bias in the courtroom44:15    Career advice46:11    Signature sign-off questionQuote“I certainly saw that, at a moment in time, if you can have the intersection of an aggrieved person who’s been unfairly treated and a lawyer who’s willing to take the case and charge no fee, that wonderful things can happen, that change can be made.” Jo Carol (LaFleur) Nesset-Sale Recommended ResourcesJo Carol Nesset-Sale Cleveland Board of Education v. LaFleurFrom Sideline to Frontline: The Making of a Civil Rights PlaintiffShe Was a Teacher. She Got Pregnant. Her Case Ended Up at the Supreme Court 
In Episode 22 of May the Record Reflect, Reuben Guttman and J.C. Lore discuss their new book, Pretrial Advocacy, and why modern litigation practices necessitate early, close attention from practitioners. They discuss the interplay of early discovery with the Federal Rules of Evidence and Civil Procedure, how law schools are responding to “front-loaded” litigation that often results in fewer jury trials, why public interest law matters, and what’s exciting about pretrial.   Topics3:37    The meaning of front-loaded cases6:16    Effects of Iqbal, Twombly, and Daubert on law practice and teaching advocacy10:15  Pretrial advocacy at law school12:14  Is pretrial exciting? 16:56  Settlement versus trial18:21  Why trials are still important23:09  Getting to know the rules29:07  Social media evidence36:20  What’s lost with settlement38:22  Public interest practice41:03  Signature signoff question Quotes“The fun thing I always thought about pretrial advocacy is you get to learn about areas you never knew of. I once met a famous trial lawyer many, many years ago and he’s since passed – Alfred Julien – and he told me that one of the fabulous things about being a trial lawyer is that you get to be a jack of all trades, in some regards, and an expert in none. I always thought it was exciting because it’s a process you get to immerse yourself in and really learn a lot.” (Reuben Guttman)“Certain types of trials aren’t happening anymore because of the huge cost of litigation. But there are courthouses and courtrooms all over this country that are doing trials every single day, on both the civil and the criminal side. You go to landlord–tenant court, you go to family court, you go to municipal court, you go to immigration court—all of these courts are having trials all of the time.” (J.C. Lore)  Recommended ResourcesPretrial Advocacy (book)Reuben Guttman (bio)J.C. Lore (bio)Iqbal v. AshcroftBell Atlantic Corp. v. TwombyConley v. GibsonDaubert v. Merrell Dow Pharmaceuticals, Inc.  Read NITA’s statement on the important of in-person advocacy in courts, here.
In Episode 21 of May the Record Reflect, veteran prosecutor Steve Wood joins us to share his ten favorite trial tips. He also talks about what he remembers about his first trial, his life in public service as the Delaware DOJ’s leading trial attorney, and the other reflections on living the lawyering life. Topics2:43    Tip #15:20    Why law?7:18    Tip #210:31  Recollections of his first trial13:08  Tip #318:08  Favorite part of trial25:04  Tip #427:15  Nerves and anxiety about trial28:34  Tip #532:49  Unwinding after trial34:16  Tip #638:34  Most agonizing career decision40:49  Public service careers45:36  Tip #748:36  A high-profile case I wish I’d tried49:56  Tip #852:28  Tip #954:03  Retirement54:30  Tip #1056:27  Signature signoff questionQuote“Somebody I taught with [at NITA] once said something I thought was brilliant, and it’s this: ‘Time is the measure of importance in the courtroom, whether you want it to be or not.’ And what that means is, we indicate importance by how much time we spend on something.” Recommended ResourcesSteven P. Wood (bio)America’s Constitution: A Biography (book)So Many Ways to Lose (book)Geddy Lee’s Big Beautiful Book of Bass (book) Read NITA’s statement on the important of in-person advocacy in courts, here.
In Episode 20 of May the Record Reflect, trial lawyer and wardrobe consultation Judith Gaton joins us to explain why style matters in the courtroom and how to dress for post-pandemic office life at a time when the expected corporate culture—and maybe our bodies—have changed.Topics3:05 Why your clothes matter5:36 But isn’t style frivolous?13:18 Work clothes that no longer “fit”16:22 Evaluating your wardrobe after covid18:45 What pieces to invest in, and what to save on21:48 Pandemic’s impact on dressing for the law office25:15 Menswear options for a more casual office environment27:29 Stanley Tucci’s refined casual style and sprezzatura30:54 Sleek footwear options32:40 Style inspo and options for lawyers and other professionals38:07 Signature signoff questionQuote“We have to sort of make room to be amused by each other as we find our footing and find out what it’s going to look like for all of us as we re-enter society, as we sort of spend more time with each other, as we come back to the office. It doesn’t have to go back to the way it always was. There’s no requirement. This is a beautiful moment for all of us to rethink ‘Did we even like the way it always was? Did we enjoy wearing suits? Did we enjoy being dressed up all the time?’ or would we all collectively prefer to be a little more on the smart-casual side of things, or business casual of things, than to be so dressed up all the time. Each office culture’s going to have to figure that out for itself. I think every courtroom, almost, is going to decide that for itself.” (Judith Gaton)Recommended ResourcesJudith Gaton (bio)How COVID-19 has changed what we wear and how we feel about clothing (Seattle Times)Schedule an Appointment with Those Clothes You Haven’t Worn in a Year (New York Times)Sprezzatura Do’s and Don’tsIn Praise of Stanley Tucci’s TV Travel Uniform (GQ)Berluti wingtip sneakers Berluti double monkstrap sneakersNext Level Wardrobe (Instagram) Read NITA’s statement on the important of in-person advocacy in courts, here. 
In Episode 19 of May the Record Reflect, Judge Nancy Vaidik of the Indiana Court of Appeals and international communications consultant Rebecca Diaz-Bonilla, are in the hot seat to share insights from their new book, Point Well Made, Persuasive Oral Advocacy. They reveal why oral advocacy still matters in a time when most cases settle before going to trial, how to better know your judge to give yourself a leg up, and what are the highs and lows of ruling from the Zoom bench.   Topics3:56    A learning-by-doing book for oral advocacy6:45    Writing process as co-authors writing remotely9:05    Why trial lawyers should care about oral advocacy11:16  Oral versus written advocacy13:17  Oral advocacy in persuasion16:02  What judges are looking forward to in a proceeding21:24  What to know about your judge23:45  Relationships you need to know about27:45  Appearing before a multi-judge panel30:03  Why rebuttal matters31:31  Judge Vaidik’s experience with remote advocacy35:32  “Soft” things lost in remote hearings40:06  Communication needs that have changed during the pandemic42:25  Signature signoff question Quotes“Oral advocacy is a lot different from written advocacy and our law schools are focusing on written advocacy and not on oral advocacy, and there are differences. In oral advocacy, as an advocate, you can actually listen to the judge’s concerns—or whoever you’re talking to, the listener’s concerns – and adapt your argument. You can’t do that in a written setting. In an oral setting, however, you need to keep attention, the attention of the listener. And in a written advocacy situation, that’s not so much the case because when the reader loses focus, they can go back and re-read the material. You can’t do that in oral advocacy situation.” (Judge Nancy Vaidik)“Judges are people too, and so they’re not immune to the digital age and the lower attention span and the need for people to get to the point and say it clearly, concisely, thematically. All those things are super important, and so old-style argument is not going to be as effective. You have to take into account the digital age and the judges who are going to be listening, especially as younger and younger judges get appointed to the courts. It’s so important to adapt the way we approach oral argument in front of one or multiple judges.” (Rebecca Diaz-Bonilla) Recommended ResourcesPoint Well Made: Persuasive Oral Advocacy (book)Hon. Nancy Vaidik (bio)Rebecca Diaz-Bonilla (bio)Foolproof: The Art of Communication for Lawyers and Professionals, Second Edition (book) Rebecca Diaz-Bonilla’s “Foolproof” Tips for Professional Communication (podcast)Delivering a (Last-Minute) Point Well Made (webcast) Read NITA’s statement on the important of in-person advocacy in courts, 
In Episode 18 of “May the Record Reflect,” we’re talking about something that’s all too often an afterthought when a case goes to trial: the electronic courtroom presentation. When expertly executed by a trial technologist, a trial presentation will provide you and your fact-finders one shortcut after another that ease courtroom procedures and benefit your client. Trial technologists Shannon Bales and Alicia Aquino share their insights, recommendations, and best practices that will have you convinced that a trial tech is an integral part of a winning team. Topics4:37     Electronic trial presentation today6:55     Why a trial tech is crucial to your outcomes8:45     EDRM, the litigation lifecycle11:43  Bring them in early in the litigation13:14  Why trial presentations matter16:23  How “cat lawyer” memes happen18:17  What trial techs know that you don’t20:10  E-discovery and trial23:57  Fact analysis tools26:20  Best practices for virtual proceedings30:37  Timeline for your tech rehearsal33:15  Exhibit “tutorials” for fact-finders34:25  Becoming a trial tech38:11  Trial Presentation Companion tips39:41  UN War Crimes Tribunal experience41:12  Types of software48:03  A mistake firms make49:39  Outfitting your war room57:17  A note for small firms and solo practitioners59:34  Renting versus owning equipment1:01:17  Helping the opposing team1:07:08   Signature signoff questionQuotes“Trial presentation is an efficiency aid for the court. That’s the number-one thing we’re there to do. We’re hired there, of course, to help our team, but the way that we get through the door is that we’re there to make things efficient for the court so that the proceedings will move along at a quick pace and not waste the court’s time.” (Shannon Bales) “Bring [trial techs] in early on. Let us take a look at the evidence, at the exhibits. I can’t tell you how many times that the attorney is presenting their case and then at the end the judge says, ‘You know, this could have easily been done in a timeline. Do you think you can just put together a timeline? That would’ve saved us four days of testimony,’ and I, probably in the background, was saying, ‘Hey, you know, let’s put together a chart, a timeline. Let’s put graphics. Let’s tell the story a little bit better.’ And when you have somebody on your team that’s able to incorporate the graphics and storytelling, it just makes you look that much more organized.” (Alicia Aquino) Recommended ResourcesShannon Bales (LinkedIn)Alicia Aquino (Aquino Trial Services)The Trial Presentation Companion (book)What Juries Really Think: Practical Guidance for Trial Lawyers (article)Online Courtroom Project(website)COVID, the Court, and the Future of the Jury Trial (webcast)
In Episode 17 of “May the Record Reflect,” we’re talking about cybersecurity for law firms: why it’s important, how to prevent hackers from accessing your clients’ electronic data, what to do if it happens, and what ethics canons have to say about it. Patent attorney and e-discovery expert Helen Geib and technologist BJ Moore share their tips to help you manage this important and often overlooked aspect of law firm management.  Topics4:00     Why law firms are a rich target for cyberhackers7:45     How our computers are hacked10:15  Security issues raised by working remotely11:12  VPN security via cell phone12:23  Whether hackers can gain access via phone apps13:20  Cell phone security14:30  What to do if your system has been hacked16:00  Lawyer’s obligations around client data security18:30  Range of consequences of a data breach19:40  Technical know-how and legal malpractice20:20  Court decisions in data breaches27:33  ABA Formal Op. 483 highlights32:12  Ethics rules touching on data security34:27  General liability insurance versus cyber insurance coverage36:26  Basic preventative measures against hacking40:50  Steps to take after a data breach42:45  Top-of-the-line “wish list” practices45:27  Signature signoff questionQuotes“There’s a general recognition that there are two pieces to tech competence for lawyers: one is education and lawyers raising the level of their own understanding of security and using basic security practices. The other is to recognize the limits of our own knowledge and to associate with experts and people who really understand this area so that they can help us in the areas we didn’t go to law school for.” (Helen Geib)“Cybercriminals are considered terrorists, so [if you pay a ransom] you’re technically financing a terrorist organization, which is against federal law. You also don’t want it to be profitable for them because as long as it’s profitable, they’re going to keep doing it. The more people pay, the more they’re going to want to do it.” (BJ Moore) Recommended ResourcesHelen Geib, Hoover Hull TurnerBJ Moore, Right Hand IT SolutionsFBI Internet Crime Compliance Center IC3A Guide to Law Firm Cybersecurity Risks & Ethical ComplianceABA Formal Op. 483Cyberattacks Have Become Commonplace – Know the Ethics of Prevention and ResponseWhat Is Cyber Insurance? Do You Need It? Millard v. Doran, No. 153262/2016 (Sup. Ct. N.Y. Cty.)Wengui v. Clark Hill, PLC, (D.D.C. Feb. 20, 2020)Hiscox Ins. Co., Inc. v. Warden Grier, LLP, 474 F. Supp.3d 1004 (W.D. Mo. 2020) 
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