Afleveringen
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The wish to leave the world a better place has long inspired people to attend law school and make a difference in the important ways only trial lawyers can. According to NITA Trustee Angela Vigil and Program Director Henry Su, pro bono publico provides an opportunity both to help those in need of legal counsel and to develop one’s oral advocacy skills. In this episode recognizing both this week's National Celebration of Pro Bono and the fifth anniversary of May the Record Reflect, Angela and Henry discuss a lawyer’s professional responsibilities, the advocacy skillset that pro bono work develops, and how to find pro bono opportunities. They also reveal their favorite tips, common mistakes they see in depositions and trials, and qualities embodied by courtroom superstars.
“I think law school lights a fire in smart and curious people for sure, so when you come out of law school, you have an idea of what kind of ways you want to apply these great new skills. That is definitely true in most recent generations and you just get rejuvenated when you talk with them and learn what they want to accomplish. I also think that, more and more, lawyers are listening and understanding that wellness and bringing your whole self to being part of your community is really important. You can’t just be a lawyer who locks yourself in a room and bills a bunch of hours for decades. It’s not healthy, it doesn’t last, it’s not good for you, it doesn’t encourage diversity and community. So, I think we all—and certainly younger-generation lawyers—are recognizing that you’ve got to bring your humanity to being part of your practice as well.” Angela Vigil
Topics6:25 Model Rule of Professional Conduct 6.1
8:40 Pro Bono's impact on access to justice
13:00 Learning trial skills through pro bono service
16:44 Range of pro bono advocacy work
27:35 Inspiration for doing work that is “advisory”
33:45 Generational desire to make a difference
35:37 Wellness and performance
38:16 Obligation to provide competent representation
42:25 Making time for pro bono
46:15 Witnessing skills growth through pro bono
53:00 Common mistakes in depositions and at trial
56:54 Superstar lawyer qualities
58:51 Favorite insider’s tips
1:00:46 Signoff questions
Angela Vigil (bio)
Henry Su (bio)
ABA Model Rule 6.1 (link)
National Pro Bono Opportunities Guide (state search engine)
ABA Free Legal Answers volunteer (registration)
May the Record Reflect (Episodes 1, 2, 3, 4)
The Resilient Lawyer (podcast episode) -
When people hear the term “rhetoric,” they often think of words full of sound and fury signifying nothing. Yet that is a woeful misunderstanding of the beauty and power of persuasive language and argument. In this episode rife with back-to-school vibes, Temple Law Professor Marian Grace Braccia breaks down the where, how, and why rhetorical devices belong in oral and written advocacy; reveals why rhetorical devices have an massive impact, even on the cellular level, on finders of fact; refreshes your recollection on devices you already know while introducing others that belong in your repertoire; and totally geeks out about how fun, easy, and powerful they are to use.
Topics3:30 The road to rhetoric
7:50 Definition of rhetoric and the Queen Philosophy
10:56 What are rhetorical devices?
11:59 The OGs of ancient rhetoric
18:43 Recent rhetoricians
20:59 Aesthetics of rhetoric
27:10 Where to deploy rhetoric at trial
29:12 Rhetoric in oral and written advocacy
33:00 Taking rhetoric too far
35:55 Easiest rhetorical devices to use
40:23 Obama the rhetorician
45:20 Tricolon and antanagoge
50:33 Sources of inspiration
54:09 Favorite devices
55:19 Wait . . . Taylor Swift?
57:40 Pop villains on trial
1:06:23 Signoff questions
Quote
“On an artistic level, rhetoric and the effective deployment of rhetorical devices give us emotional resonance and memory enhancement and aesthetic pleasure, and even surprise and novelty. Some rhetorical devices like irony or puns introduce the element of surprise and novelty, and they can be amusing or thought provoking, and they make the message more engaging, more memorable.” Marian Grace Braccia
Resources
Marian Grace Braccia (bio)
The Queen Philosophy (webpage)
Henry V: St. Crispin’s Day (video)
Renaissance Man: St. Crispin’s Day (video)
Rhetorical devices worksheet (available for download from Episode 58's show notes under Resources > Podcasts at nita.org)
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Zijn er afleveringen die ontbreken?
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Some of the most important heads to get into are those of the jurors seated for your trial. Fortunately, figuring out what makes people tick is both interesting and fun, and Temple University Director of Advocacy Programs Jules Epstein is here to share the lowdown. Whether he’s busting common courtroom myths, revealing how the camera lies, or delving into the cognitive process of jurors (and your very own self), Jules makes the case that knowing a little trial psychology can give you a competitive edge for the good of your clients.
Topics4:02 Curse of knowledge
10:04 Goldfish attention span
13:47 Slo-mo evidence
19:16 Problems with graphic evidence
24:43 Visuals with words
27:28 Disconnect between science and law
36:30 Camera bias
43:21 Thought processes
48:55 Mythbusting
53:46 Go slow
56:12 Bonus lessons
1:00:15 Collective Wisdom
1:03:55 Signoff questions
Quote
“A visual guarantees that all twelve, or all eight, or all six jurors will know what something looked like.” Jules EpsteinResources
Jules Epstein (bio)
NITA’s free Collective Wisdom articles (link) (latest)
Point Well Made: Persuasive Oral Advocacy (book) -
If you’ve ever been baffled by scientific, technological, or financial evidence in your case or wondered how an expert witness arrived at their conclusions, former Gwinnett County Magistrate Judge Ruth McMullin is back on the podcast to share some know-how. In this episode, she talks about why you need to deep-dive into learning about subjects outside of your college major, what fact-finders want to know about forensics and how to make it easier for them to follow, the subtle things you can learn by using subpoenas, and the impact of bias in forensic evidence.
Topics3:30 Types of forensic evidence
7:40 What’s harder and easier about types of evidence
12:03 What fact-finders want from forensic evidence
13:25 Judges’ versus jurors’ needs
17:33 Simplifying complex evidence for understanding and retention
22:57 Using expert reports
25:40 Impact in the post-truth era
31:43 Judge McMullin’s favorite forensic evidence
35:18 When your agency lacks funding for competing experts
37:35 Use of subpoenas
40:25 Role of bias in forensic evidence
44:05 Signoff questions
Quote
“Does this [expert] report help, does it hurt, or is it neutral? A lot of times, lawyers will see a report from the opposing side and immediately think, ‘This hurts my case.’ But it you look at it and understand the parameters of that report, it may be neutral. You can save yourself a lot of stress and time if you understand how that evidence plays in with your bigger case. It may help your case, and you may look at the report and say, ‘You know what? This actually supports my theory.’ So, the more you [learn about and question forensic evidence], the more you get comfortable with saying, ‘I don’t have an objection to this report from the other side. I actually want it. I’m glad you got it, thank you.’” Judge Ruth McMullin
Resources
Judge Ruth McMullin (bio)
The Great Imposter (podcast episode)
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Maricopa County Superior Court Judges Randall Warner and Christopher Whitten team up to talk about telling stories to judges. In this episode, the judges, from their unique vantage point on the bench, reveal what they want to hear or read from counsel, what they don’t, how to write briefs that tell a compelling narrative, where they find inspired (and inspiring) storytelling, and the summer vacations they’re dreaming of.
Topics
4:11 Why storytelling matters
7:04 Judges’ versus jurors’ needs
10:35 Storytelling techniques
14:30 Finding inspiration
19:10 Great legal storytellers
21:14 Advantages for both sides of “the v”
24:09 Writing interesting briefs
28:57 Telling the same story at trial as in briefs
30:29 Judges’ pet peeves in briefs
34:40 Opposing counsel’s miscasting your client
38:42 Storytelling about unsympathetic clients
41:47 Signoff questions
Quotes
“Fundamentally, every case is about a story, whether it’s a technical legal dispute or whether it’s a fact dispute at trial, it’s a competition to see whose story resonates more with whoever’s making the decision, whether it’s a judge or jury.” Judge Randall Warner
“Even as we’ve tried cases less and less often, we’ve gotten better and better at collecting facts, and I think that’s made us worse and worse at storytelling.” Judge Christopher Whitten
Resources
Judge Randall Warner (bio) (episode)
Judge Christopher Whitten (bio) (episode)
Building Trial Skills: San Diego (course)
Dominic Gianna on MTRR (episode, episode)
James Brosnahan on MTRR (episode)David Mann storytelling (course) (episode)
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You've probably heard that in direct examination, controlling your witness is all about witness prep, while in cross, leading questions are the key. Those oft-repeated tenets are true, say podcast guests Judge Amy Hanley and NITA faculty member Adrienne Johnson, but they oversimplify the specific control techniques that actually work and how attorney style, hearing type, and venue factor in. Tune in as they get specific about the part of trial over which we have the least control: examining witnesses.
Topics3:48 One task lawyers often overlook
7:08 Prep is not just for the witness
9:50 Practice questions
13:33 Witness crumbles on the stand
18:52 Leading questions on cross
21:00 Using your voice
26:12 Tips for controlling on cross
32:33 Anecdotes about control in the courtroom
36:05 Developing your trial style
38:30 Impact of venue and regions
41:22 Controlling in different types of proceeding
46:06 Script versus bullet points
55:20 Expecting problems
58:16 Examinations gone wrong, and right
1:07:07 Signoff questionsQuote
“I think one of the best tools for witness control is some self-control. I always say that often—most of the time—when you get an answer you don’t like from a witness or that is not responsive, usually that’s a ‘you’ problem. You have not phrased the question well to ask the thing that you want an answer to. So the first thing I always think about when I think of a witness being out of control is whether I did a good job with my questions. Did I lead on cross? Am I introducing one fact and not asking for several facts at a time? Did I leave something up to interpretation?” Adrienne Johnson
Resources
Judge Amy Hanley (LinkedIn)
Adrienne Johnson (LinkedIn)
NITA Women in Trial (course)
Direct Neglect: Where Is the Love?, with Judge Amy Hanley and Dennericka Brooks (episode)
The Tense Trio, with Judge Amy Hanley and Cheryl Brown Wattley (episode)
Justice at Trial, with Jim Brosnahan (episode)
Give ‘em the Ol’ Razzle Dazzle, with Dominic Gianna (episode)
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In our second interview on The Effective Deposition, Program Director and author Carl Chamberlin returns to the podcast to talk about witness preparation. Joining him is NITA Trustee and Program Director Whitney Untiedt, and together they share tips and perspectives on witness prep sessions and how to ready your witness for the procedural and substantive aspects of being deposed. Carl and Whitney also talk about the ethics obligations of counsel and the ramifications of the recent ABA Formal Opinion 508.
7:20 Timing and length of prep sessions
12:52 Tips to optimize prep
21:09 Procedure and process of being deposed
23:07 One concept and three rules
28:37 How witnesses should answer
34:15 Answering after an objection
36:21 Handling opposing counsels’ tactics
45:42 Goal of substantive preparation
49:54 Reluctance to disclose
55:57 Ethics obligations
58:28 Demo|
1:02:20 Implications of ABA Formal Op. 508
1:08:03 Signoff questionsQuote
“We as lawyer operate on ‘our’ time. Our time is valuable, and our time is calculated in six-minute increments, and our time is scheduled to within an inch of our lives, but when we sit down with our witness for a depo prep session, it’s no longer our time. It’s our witness’s time. This is their time to shine.” Whitney UntiedtResources
Carl Chamberlin (LinkedIn)
Whitney Untiedt (LinkedIn)
The Effective Deposition: Techniques and Strategies that Work (book)
Beginning the Effective Deposition, with Carl Chamberlin (podcast)
Whitney Untiedt Puts the “Pro” in Pro Bono (podcast)
Deposition Skills: Florida (course)
ABA Formal Op. 508 (opinion) -
Content warning: Mentions of sexual assault. Brief, non-graphic discussions of questioning the venire about sexual assault occur at 32:20–32:59 and 42:25–44:34.
Experienced trial lawyers are accustomed to being the ones asking the questions, but in this episode, NITA NextGen faculty member Adam Kendall finds himself in the hot seat for once. He’s answering our questions about voir dire: building rapport with the venire through icebreakers and humor, eliciting useful information from potential jurors while introducing bad facts about your case, and what you can glean from jury questionnaires. Adam also talks about the developing trend of limiting or eliminating peremptory strikes.
Topics3:39 Primary goal of voir dire
4:06 What to pay attention to
5:09 “The quiet one”
9:03 Icebreakers to build rapport
11:18 Voir dire by the judge
14:22 Strong personalities among jurors
16;25 Ideal foreperson qualities
17:50 Eliciting strong opinions and reactions
19:19 Introducing bad facts
21:12 Using humor
24:12 Signaling legal issues
26:27 Nationwide changes in peremptory strikes
32:05 Jury questionnaires
35:53 Online research of the venire
41:50 War stories
46:50 Signoff questions
Quote
“People who are too eager to be on a jury scare me.” Adam Kendall
Resources
Adam Kendall (LinkedIn)
Building Trial Skills: New Orleans (course)
Not Just for Trial! How to Use Exhibits from Day One (Register for Adam's live webcast on March 26, 2024) -
Taking a deposition presents enough challenge as it is without the interference of obstreperous or obstructive counsel, yet it happens anyway and you must be prepared to deal with it. Following her appearance on a NITA panel webcast on depositions in November 2023, Assistant U.S. Attorney and Wilmington Law professor Veronica Finkelstein returns to NITA’s studio71 to answer viewers’ questions about how to manage misbehavior in the deposition room. She also reveals how to be a passionate advocate for your client without crossing those lines yourself, to reclaim your time when the opposition wastes it, and to wield the unexpected power of a deposition binder.
Topics4:16 Counsel who won’t control their client
8:36 Witnesses “forgetting” their records
12:14 Counsel who try to confuse your witness
15:46 Disruptive, but not inappropriate, objections
19:21 Tracking time wasted on abusive conduct
23:26 Court reporter tracking wasted time
27:21 Being zealous but not obstreperous
29:37 Speaking objections
35:05 Continuing objections
39:51 Written discovery requests
43:36 “The usual stipulations”
46:58 Contents of a deposition binder
57:07 Signoff questions
Quote
“People get pretty quiet when you have the controlling case in your jurisdiction in your hand and they have nothing.” Veronica Finkelstein
Resources
Veronica Finkelstein (LinkedIn)
Reduce the Abuse: Managing Obstructive Opposing Counsel During Depositions (webcast)
Building Trial Skills: Colorado (course)
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Cognitive bias is a barrier that lawyers must overcome in court—and it’s not just biases of the jurors they must consider, but those, too, of the judge, opposing counsel, expert witnesses, and even one’s own self. New Orleans trial legend Dominic Gianna returns to May the Record Reflect to talk about how persuasion science can help you clear the tricky bias barrier. He presents the five most consequential cognitive biases to trial lawyers, the impact each has on fact finders, and suggests how you can connect with a diversity of jurors in the post-truth era.
Topics4:08 What is cognitive bias?
6:55 Five common cognitive biases
7:35 Confirmation bias
10:40 Anchoring bias
13:31 Hindsight bias
18:00 Availability bias
24:48 Dom’s mantras for helping jurors process information
25:35 Affinity bias
28:52 Stupid lawyer tricks
32:18 Impact of our own biases
34:36 Biases from the bench
39:42 Appealing to a panel of judges
42:24 Expert witnesses bias impact on testimony, interpretation of evidence
44:09 Cognitive biases of opposing counsel
47:06 Persuasion in the post-truth era
57:51 Signoff questions
Quote
“Jurors don’t vote for the evidence. They vote for their views, and so as advocates, we have the obligation to our clients to try to understand those views. Where did those views come from? Where are they based? What attitudes, beliefs, and values, led these people, this person—this particular person—to a belief system that is so strong that he or she will ignore information that seemingly contradicts that confirmation bias?” Dominic Gianna
Resources
Dominic Gianna (LinkedIn)
Deposition Skills and Trial Skills: New Orleans (courses)
“Give ’em the Ol’ Razzle Dazzle (podcast episode)
“The Secrets of Persuasive Legal Storytelling,” with David Mann (podcast episode)
“Off Broadway and Into Court,” with Kevin Newbury and Kate Douglas (podcast episode)
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Many a young idealist register for law school with visions of Atticus Finch dancing in their heads, but only the rarest few have those dreams come true. NITA Trustee Emeritus and national treasure James Brosnahan is among them. In Episode 49, this legendary legend reflects on a life in law that has included face-to-face encounters with such cognoscenti as Chief Justice Warren Burger, Senator Orrin Hatch, and the Kennedys. He also talks about his viral LinkedIn series on vocal quality and breaks down the six essential qualities of a commanding speaking voice that have served him well over his 60+ years in the courtroom.
4:28 Voice quality videos on LinkedIn
9:05 Evaluating your own voice quality
11:25 Tempo
17:22 Volume
20:53 Tone and mood
25:16 Warmup exercises
28:20 Emphasis and emotion
30:06 Speech harmonizing and collecting voices
35:15 Favorite voices
37:05 Clarity
42:59 Pauses
41:57 Arguing before SCOTUS
52:04 Interrogation by Orrin Hatch
56:21 Controversial representations
1:00:16 Defending the Constitution
1:03:35 Speaking truth to power
1:07:29 Boston Irish and the Kennedy agenda
1:14:39 What Jim has learned at NITA
1:19:03 Signoff questionsQuote
“The goal, which is not easy, is to be like an actor who can throw the voice up into the second balcony. That’s what you want to do. The equivalent in trial is to be sure that every word that you pronounce is heard by Juror 1 in the back row and Juror 6 in the back row, because if they haven’t heard what you’ve said, it’s like it never happened.” Jim Brosnahan
Resources
Jim Brosnahan (bio)
Jim’s video series (LinkedIn)
Justice at Trial: Courtroom Battles and Groundbreaking Cases (book)
Publio Delgado, speech harmonizer (YouTube)
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Every trial advocate enters the courtroom hoping for a “one and done” decision that favors their client. But appeals do happen, and if you’re waiting until the verdict is read before you start thinking about what comes next, you’re already bringing up the rear. Judge Randall Warner of the Superior Court of Arizona in Maricopa County joins the podcast to discuss the potential appeal issues you should be thinking about during litigation, the pretrial phase, and at trial; what issues are ripe for appeal (and which ones aren’t) and their impact on your trial strategy; and how to preserve the record for appeal in real time. He also lets you in on what he says are the most undervalued, hence underutilized, tools in your advocacy kit and how you should be using them to your advantage.
Topics
3:35 Different considerations for different trials
5:10 Common mistakes
6:13 Basics of appeals
8:59 Reverse-engineering your case
10:24 Appellate specialist on the trial team
11:22 Good appeal issues
13:00 Bundling your issues
14:10 Poor appeal issues
15:06 Pretrial preservation considerations
16:11 Motions in limine}
17:52 Bench memoranda
19:57 Preservation at trial
22:20 Objections and evidence
26:16 Staying in the judge’s good graces
27:17 Jury instructions
31:22 Verdict forms
38:49 Damages
40:38 Bench memorandum for jury instructions
42:12 Motion to acquit
45:26 Career advice to younger self
46:33 Signoff questionsQuote
“I’m a fan of bundling issues. So, for example, if you’ve got one issue that’s a sufficiency of evidence issue and another that’s a jury instruction issue and a third issue that’s an evidentiary objection or a couple evidentiary objections, and they all point to the same wrong result, those issues — independent of what the standard of review may be on any one of them — kind of work together to create an argument for prejudice for the case overall.” Judge Randall WarnerResources
Judge Randall Warner (bio)
“All Mixed Up about Statutes: Distinguishing Interpretation from Application” (article)
“All Mixed Up about Mixed Questions” (article)
“Efficiency in Motion” (article) -
At a time when more cases settle than go to trial, the deposition has become of utmost significance. Our guest Carl Chamberlin draws upon his experience taking and defending depositions in private practice as well as teaching deposition skills for 30 years. As the new author of The Effective Deposition, the topic is top of mind lately for Carl, so he joins us to talk about how to kick off a truly effective deposition with introductory matters and preliminary and substantive questioning techniques—and he even asks a few questions of his own.
Topics3:22 The purpose of depositions
6:20 Difference between gathering information and obtaining information
10:38 Why depositions are important
12:30 Physical settings for remote depositions
14:15 The “usual stipulations”
17:20 Getting commitments
21:27 Commitments in remote depositions
24:42 Preliminary questions
29:51 Structure of substantive questioning
33:30 First demo
36:57 Key phrases for asking open-ended questions
38:25 And ones to avoid
43:01 Drilling down into a substantive topic
44:18 Second demo
1:04:19 Paying attention and listening
1:06:40 Using exhibits
1:10:15 Dealing with interruptions
1:13:56 Carl’s early depositions
1:16:53 The Effective Deposition
1:21:36 Signoff questions
Quote
“We want to make our questions clear and concise. Simple. The clearer the question, the better the answer. The fewer the objections, the more powerful it is.” Carl Chamberlin
Resources
Carl Chamberlin (LinkedIn)
NITA Publications (book)
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Content Warning: A brief, non-graphic mention of a sex crime case occurring from 29:34 to 30:49.
Everyone likes to start off on the right foot, and your opening statement is a crucial place to do it. It’s also Assistant U.S. Attorney Brooke Latta’s favorite part of trial, so she joined the podcast to discuss her best tips on telling the right story, using visual aids for maximum impact, and pulling out all the stops to captivate your jurors. She also talks about some of her own openings at trial and what she holds to be the G.O.A.T. of opening statements.
Timestamps & More
Topics
3:00 What’s fun about openings?
4:07 Rhetorical and legal goals
6:05 Crafting an opening
8:46 Workshopping it
10:54 Figuring out the right story to tell
13:00 Telling auditory stories for visual consumers
14:36 Some good don’ts
15:30 Visual aids
17:10 Court clearance for visual aids
19:01 Objections
21:53 Case weaknesses
23:50 Closing your opening
24:42 Openings and closings, compare and contrast
26:42 Brooke’s favorite example of a great opening
32:35 Signoff questions
Quote
“Something I always do is I talk to jurors like they are a friend that I’m having a martini with and I’m sitting across the table from. And I’m just talking to that friend about something that’s a very serious, very important issue — and I’m keeping it simple, I’m keeping it concise — so it’s a serious tone, but it’s casual.” Brooke Latta
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Without a doubt, knowing your client’s case up one side and down the other and understanding and applying the law are critical to your chances of prevailing at trial. But if your demeanor and presentation style lack polish, you might be getting in your own way. Special Counsel to the New York City MTA Inspector General and NITA Program Director Shareema Abel joins May the Record Reflect to talk about courtroom composure, interpersonal conduct, oral advocacy, self-expression, and so much more.
Topics3:05 What is courtroom demeanor?
6:12 Demeanor in challenging situations
8:57 When you know the judge or opposing counsel
12:03 Vocal expression and body language
16:49 Personal style
22:55 Conduct outside the courtroom
26:12 Online proceedings
28:39 Picking yourself up on an off day
32:44 Cross-generational learning at the office
37:45 Neurodivergence
40:16 Feedback on your courtroom demeanor
44:58 Signoff questions
Quote
“Silence is one of the things that, over the years, I really had to get comfortable with in a courtroom because I remember wanting to fill every second of space and I thought silence was deadly. But as you grow in your career, you realize that you can use silence as a tool, and so oftentimes, especially when you forget a point, it’s ok to have a pregnant pause or use silence, and then return to a podium, to your notes, to remember what you’re saying. Or using silence to make a point after you ask a rhetorical question and using silence when you’re going from topic to topic, because my theory is you should never be talking and moving at the same time.” Shareema Abel
Resources Shareema Abel (LinkedIn) NITA Women in Trial (program) Deposition Skills: NYC (program) Building Trial Skills: NYC (program) NITA Women in Trial playlist (Spotify)
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NITA Education Director Rhani Lott Choi returns to May the Record Reflect, this time as guest host, to interview trial competition coaches Justin Bernstein and Spencer Pahlke. You may know Justin and Spencer from Unscripted Direct, the trial advocacy podcast for the law school community. Tune in to this blast from your mock trial past to hear about how advocacy skills transfer from law school to law practice to life; the forgotten lessons of mock trial that you should resurrect; and how learning, practicing, and teaching are part of a career-long cycle for the skilled advocate.
Timestamps & More
Topics
4:44 Unscripted Direct podcast
5:57 Trial advocacy community
9:58 Tough conversations about DEI
13:11 Building a legal podcast
14:48 Intersection of mock trial and trial practice
16:41 Three important lessons from mock trial
19:03 New practice pointers gleaned from podcasting
22:04 Life lessons from mock trial
26:01 Former students as colleagues
28:10 Things unlearned from mock trial
32:12 Why trial skills are important for all lawyers
33:30 Misconceptions about mock trial’s value
36:47 Keeping skills sharp
39:46 Skills transfer
42:58 Signoff question
Quote
“The biggest challenge the jurors have is they weren’t there when these things happened, so helping them feel like they are there, they’re watching things, even if it’s just through the narration of a lawyer, is incredibly powerful and it sort of sears into their memory.” Justin Bernstein
Resources
Justin Bernstein (bio)
Spencer Pahlke (bio)
Unscripted Direct (podcast)
Episode 5 (Adam Shlahet)
Episode 48 (Ben Rubinowitz)
Episode 51 (Rhani Lott Choi)
AvaTax -
You may see depositions as your golden opportunity to preserve testimony, elicit admissions, and test theories—but for your witness, depositions are a veritable stewpot of jangled nerves and apprehension. In this episode, Maricopa County Superior Court Judge Christopher Whitten shares what you can do to ensure your witness walks into a deposition feeling at ease with the process and ready to handle even the toughest questions. Judge Whitten reflects on role-playing, using video as a prep tool, broaching difficult topics, responding to objections, and testifying live versus livestream—and that's just for starters.
Topics2:35 Confident witnesses
3:53 Is witness prep privileged?
5:30 Procedural comfort
13:54 Objections during testimony
16:06 Substantive prep
22:57 Tough questions and role-playing
24:36 Using video in prep
26:38 Theory and theme testing
29:12 Common pitfalls
32:04 Testimony via Zoom versus face-to-face
38:15 Reluctant witnesses
42:36 Expert witness prep
46:03 Signoff question
Quote
“When you have a problem with the witness, it’s because you didn’t prepare enough.” Hon. Chris Whitten
Resources
Hon. Chris Whitten (bio)
Building Trial Skills: San Diego (course)
The Ins and Outs of Jury Selection (webcast)
En Banc: Judges’ Perspectives on Remote Hearings (webcast)
“Can I Get a Witness?” (video)
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How many of us cue up the “sad trombone” every time we think of doing direct examination? Direct is renowned for being a boring slog through facts and faces as we make on our way to the fireworks of cross and closing. Yet, if you’re not using direct to tell a clear, persuasive story, you’re going to lose your case. According to Judge Amy Hanley and Dennericka Brooks, when you approach direct with the same zest as you do cross, you’ll get the best out of your witnesses, avoid rambling or baffling testimony, and tell the tale jurors are keen to hear.
Topics3:42 Why don’t people love doing direct?
6:44 Common mistakes
10:49 Telling the story
12:18 Organizing your direct
14:09 Headnotes
16:29 Exhibits, visuals, and demonstratives
22:36 Witness prep
27:55 Reluctant or difficult witnesses
35:00 Bad facts
40:57 Demeanor
46:00 Redirect
49:55 Signoff question
Quote
“I will say, first and foremost, that you have to be prepared that no matter how well you prepare a witness, they will get on the stand and say something they weren’t supposed to say, something that will throw you off. It’s just going to happen.” Dennericka Brooks
Resources
Hon. Amy Hanley (bio)
Dennericka Brooks (bio)
NITA Women in Trial (course)
The Tense Trio (podcast)
Direct Examination: Being the Guide for Your Jury (webcast)
Harnessing Your Power on Cross-Examination (webcast)
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The profession of trial lawyering has a steep, intense learning curve requiring years of practice (and “practice”) before you begin to feel like you’ve got a grip on it. What if you could shave years off that timeline. NITA’s Education Director Rhani Lott Choi rejoins the podcast to talk about how trial lawyers can compress time through wormholes, slipstreams, and mentorship.
Topics
5:00 Time compression through wormholes
22:30 And slipstreams
29:34 And mentorship
34:22 A word about Parkinson’s Law
42:28 Signoff Question
Quote
“I’ve worked at places where you have formal mentorship, which can be great, but often that does not continue past the employment relationship. And especially these days people change jobs all the time. The mentorship, for me, at NITA has been so valuable because it transcends that. It’s not based on a job or a connection ... NITA just encompasses everything, through career changes, through types of practice . . . .” Rhani Lott ChoiResources
Rhani Lott Choi (bio)
Slipstream Time Hacking: How to Cheat Time, Live More and Enhance Happiness (book)
Tomato Clock (Chrome extension)
Direct Examinnation: Being the Guide for Your Jury (webcast) -
Being a trial lawyer is a challenging job even apart from the actual, technical work of lawyering in the courtroom. Legal advocacy often places emotional burdens upon trial attorneys that can be a lot to manage. Henry Su joins the podcast to dissect the various stressors associated with trial work and offers his insights into managing stress through mindfulness.
Topics3:27 Occupational hazards of being a trial lawyer
10:09 Toll of adversarial work
14:11 Basic obligations to the client
16:13 Managing when conflicted
19:33 Role of fear
26:07 Mindfulness training
30:45 Learning from critiques
32:49 Developing distress hardiness
37:15 “Goblin mode”
39:27 Managing electronic intrusions
42:13 Resources on wellness
Quote
“You want to create distance. What you also want to do is to avoid is dissonance. Dissonance is when you allow the work that you’re doing to kind of infect you, such that you have internal conflict. You’re torn up about it. You’re torn up about why you’re doing this, and that this is not ‘you’ and that these aren’t the values that you hold dear. You want to avoid dissonance, you want to maintain distance.” Henry Su
Resources
Henry Su (bio)
Stress Hardiness and Lawyers (article)
Integrating Mindfulness Theory into Trial Advocacy (article)
Institute for Well-Being in Law (website)
The Anxious Lawyer (book)
Motion Skills: Online (April, August)
Deposition Skills: Online (November)
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