Depositions are a key building block in legal disputes, especially for cases that proceed to trial. According to veteran trial lawyer John Farrell, properly handling an exhibit so it’s admissible at trial is an overlooked skill that can, and should, be practiced until it becomes second nature. In this episode, John reveals eight crucial steps for handling documents that ensure your deposition flows smoothly and exhibits are admitted for trial. He breaks down the process step by step, gives the exact sample language that ensures exhibits are properly marked and admitted, and suggests ways to keep court reporters and judges pleased with your professionalism. 

Topics
3:59  Asking questions before marking a document 
5:35  When witnesses want to see a document first
7:48  Making deposition exhibits admissible at trial
8:30  Eight steps for handling exhibits: Step 1
9:36  Step 2
10:35  Step 3
12:08  Demonstrations of marking different documents
25:26  Step 4 , and helping the court reporter
27:59  Step 5, and the important question to ask your witness
29:12  Step 6, and two more important questions
32:15  Step 7
33:37  Step 8
35:35  Three-article series on depositions
37:23  Signoff questions

Quote
“‘Bears the word’ . . . is the safe phrase that judges like to hear.” John Farrell

Resources
John Farrell (bio)
Deposition articles (1, 2, 3)
Refreshing Recollection and Impeachment (article)

Content Warning: This episode discusses, in non-graphic terms, representing intimate partner violence survivors. 

Being a trial lawyer is one of the toughest, most demanding professions out there, and when you’re representing family members in distress it’s even more so. Hofstra Law professor Barbara Barron discusses advocacy challenges faced by lawyers working with survivors of intimate partner violence, or IPV. Although some details are particular to IPV survivor representation, trial lawyers in nearly every practice area will find Barbara’s reflections on supporting reluctant or intimidated witnesses during testimony, dealing with pro se opposing counsel, and handling emotional witnesses or clients to be applicable to their own high-stakes cases. 

Topics
4:00  What is IPV? 
6:56  How IPV survivors differ from other crime victims
11:23  Implicit biases judges or jurors might have about IPV 
12:24  Types of evidence
14:39  Special accommodations against intimidation
16:09  Defendant as pro se counsel
19:42  Preparing for direct and cross-examination
23:22  Emotions, or none, during testimony
26:12  Preparing for anxiety
29:16  Counsel and vicarious trauma
31:53  Public Interest Award and advocacy programs

 Quote
“In the case of the pro se defendant, and dealing with that person and having to answer questions on cross, the questions may not be as pristine as an experienced or talented trial lawyer’s may be, and it may not be as controlling a situation as anticipated. If the questions are such that it allows the witness to answer more than yes or no, where’s the control?” Barbara Barron

Resources
Barbara Barron (bio)
Building Trial Skills: New York–Hofstra (program)
Half-Day Intensives: Online (programs)

For trial lawyers, “advocacy in a hurry” — injunctions, bail hearings, requests for orders of protection, emergency custody petitions, or immigration orders — calls for making the most of the limited time you have before the court, even if it's just 15 minutes. Former Illinois Eighth Circuit Court Judge Mark Drummond shares seven valuable tips on compressing your case to fit the time available, how to help the judge quickly understand what’s at issue in the proceeding, and what ethics concerns must remain top of mind for all advocates regardless of whether their time before the court is 10 minutes or 10 weeks.

Topics
3:43  What is emergency advocacy?  
8:00  Circumstances calling for emergency advocacy
16:48  Making the most of the little time you have
17:40  Factors you must prove in your state
18:30  Primacy and recency
21:00  Appeal to the judge
21:47  Written offer of proof
23:15  Persuasive use of numbers
23:53  Offer time limits
27:00  Judges triage
27:39  What judges fear
31:02  Two things to be prepared for
34:11  Your duty of candor to the court
38:06  Signoff questions

Quote
“You’ve spent a lot of time going through law school. You’ve built a practice. Clients will come, clients will go. You built your practice brick by brick on the decisions you’ve made, the judgments you’ve made, and the choices you’ve made. And it takes a lifetime to do that. But you know, sometimes like a child that knocks down their wooden block tower, it only takes one time to tear all that down. And no single client is worth that.” Judge Mark Drummond

Resources
Judge Mark Drummond (bio)
"Death Penalty Cases in a Traffic Court Setting" (article)
"What Judges Want" (article)
Ethical duty of candor to the court (newsletter)

As a sitting district court judge and 29-year public defender, NITA Program Director Judge Cynthia McCollum knows a thing or two about jury selection, and in this episode, she opens up about how to get your jurors to open up. She serves up a baker’s dozen of her best tips for getting jurors to talk during voir dire, mistakes she learned from as a public defender, what to know about Batson challenges, and anecdotes about her career trajectory before and on the bench.

Topics
3:50  First tip for getting jurors to open up during voir dire
4:47  Second tip
5:45  Judge’s first time in court as a new lawyer 
9:48. Third tip
14:24  Fourth tip
18:33  Fifth tip
20:08  Being a public defender, then a judge
24:42  Sixth tip
26:39. Seventh tip
29:28  What it’s like to be a judge
31:48  Eighth tip
33:09  Ninth tip
38:25  Tenth tip
41:31  NITA involvement
45:06  Eleventh tip
48:35  Twelfth tip
50:32  Baker’s dozen tip about Batson
52:39  Signoff questions 

Quote
“Everyone needs to work on their jury selection. It’s not a natural for a lot of people, because you get nervous about asking those tough questions.” Judge Cynthia McCollum

Resources
Judge Cynthia McCollum (bio)
Batson bonuses (file)
Minnesota Deposition Skills and Trial Skills (programs) 

NITA Program Director and former Resource Director Mark Caldwell joins the podcast to chat about how to effectively communicate with the various audiences in the courtroom to ensure they get — and comprehend — the information they need from you. He shares how to talk to jurors about unfamiliar courtroom procedures and substantive information, why sounding like a tv lawyer is a huge turn-off to jurors, and recommends some of his favorite lawyers from pop culture whose techniques can help trial lawyers refine their courtroom communication style.

Topics

3:05    The needs of the courtroom audience
7:14    What “talking like a lawyer” means
10:10  Juror impressions of “lawspeak”  
13:53  Communicating procedural and substantive complexity
20:06  How not to sound like a lawyer
27:50  Pop culture examples of legal communication
29:00  Why my cousin Vinny is a great trial lawyer
31:42  Movies and a book to recommend
51:55  Implicit bias training

Quote
“Don’t be a tv lawyer, but take lessons from what you see on television.” Mark Caldwell

Resources
Mark Caldwell (bio)
Colorado Deposition Skills and Trial Skills (programs)
Films, shows, and book (list)

In Episode 62, Philadelphia trial lawyer and NITA Program Director Tom Innes introduces listeners to cross-examination math and how the idea of “less is more” increases the impact of the questions counsel poses to a witness. Control is the name of the game in cross, so Tom also shares how to shepherd witnesses through cross, why to restrict interrogatories in the phrasing of questions, and why less is even more when examining an expert. 

Timestamps & More

Topics
3:06    How to think about cross
3:53    Objectives of cross
5:05    Rules of cross-examination math 
6:41    Why concision helps your finder of fact
9:22    Controlling an adverse or difficult witness
10:15  Cross demo
14:12  Omitting the interrogatory
17:00  Expert versus fact witness
18:11  When to break the “cross math” rule
23:26  Signoff questions

Quote
“Every word you put into a leading question permits the witness to decide which word they will, or they can, disagree with or work around or give you a hard time about.” Tom Innes

Resources
Tom Innes (bio)
Judge L. Felipe Restrepo (bio)
Mary DeFusco (bio)
Building Trial Skills Philadelphia (program)

In 2021, former prosecutor Steve Wood told May the Record Reflect that to grow as a trial advocate, he had to accept that he is “insufferably boring.” What did he mean by that? And, how can it help you grow as an advocate as well? In this self-deprecating but entirely serious conversation, Steve and fellow former prosecutor Laurie Gilbertson talk about the neuroscience of boredom, multisensory engagement in the courtroom, telling a compelling story, and how it all adds up to self-confidence and stronger advocacy for your client. 

Topics
3:27 What it means to be “insufferably boring” in court
5:55 Neuroscience behind boredom
9:06 Why trials are boring
15:11 Bored judges, bored jurors
28:35 Resting postures for hands
37:07 Role of storytelling
42:42 When storytelling is most important
49:36 Repeating yourself without being boring
57:27 Confidence
1:01:36 Preparation, notes, and delivery
1:14:56 Great Hollywood courtroom performances
1:21:00 Signoff questions

Quote
“Our task as trial lawyers, as I see it, is to do three things. One, admit that we’re boring — all of us, all the time. Two, with the aid of people like Laurie, do the things that we can do to be less boring. And then three, never fall prey to the conceit that at any given time a majority of the trier of fact is paying attention. Assume the opposite. But what we can do, most primarily, is introduce change into the courtroom environment. That’s our mission.” Steve Wood

“. . . what I found often is that jurors who have watched so much tv, who have watched so many movies, who have read legal thrillers, who have maybe listened to true-crime podcasts — some of them, if not many of them, expect to be entertained, and when you, as the attorney, are not kind of doing all these things that Steve is talking about in terms of interjecting that change and keeping them entertained, a lot of the jurors are surprised that court is actually that boring. They expect it to be a lot more interesting.” Laurie Gilbertson

Resources
Steve Wood (bio)
Laurie Gilbertson (bio)
Top 10 Tips that Make a Difference, with Steve Wood (episode)
Thinking with Your Hands: The Surprising Science Behind How Gestures Shape Our Thoughts (book)

In this rebroadcast of our 2022 interview, we gather all sorts of admissions—about depositions—from NITA NextGen alumni 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.

Topics 

3:46 The hard part of taking depositions  

5:55 Federal rules related to depositions 

9:13 Witnesses, both expert and lay   

11:36 Role of social media  

15:10 When to video-record a deposition  

17:35 The hard part of dealing with witnesses 

19:40 Timelines for expert witnesses, plaintiff versus defendant 

22:07 Subpoenas 

25:00 Obnoxious opposing counsel 

30:50 Preparing your witness 

34:42 Protecting your witness 

37:53 Remote depositions 

40:31 Work–life balance and advice for new lawyers 

44:35 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 

Resources
Jason Young (bio)
Blog interview (The Legal Advocate)
Federal Rules of Evidence with Objections (book)
NITA Deposition programs (registration) 

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

Topics

6:25    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.

Topics

3:30    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)