May the Record Reflect

A successful motion argument starts with credibility: earn the judge’s trust through preparation, candor, accuracy, and a clear understanding of the relief you’re seeking. Judge Matt Williams offers practical strategies for making persuasive arguments, from leading with what you want and focusing on the strongest facts to knowing your judge, respecting the court’s time, and addressing weaknesses strategically. He also explores how lawyers can use AI to test arguments while safeguarding client confidentiality and meeting their ethical obligations.

Topics

03:51 “Credibility before the tribunal”
05:44 Rules governing credibility before the tribunal
08:46 First thing to do before the bench
12:21 Next steps
17:03 Particulars of your motion
18:37 Stipulations on time
22:37 Making effective arguments
30:03 Weaknesses in your argument
33:22 Practicing with an AI “judge”
42:52 AI hallucinations destroy expert and case
45:44 Impressing the judge
57:15 Signoff question

Quote

“When we think about AI and we think about its impact on the practice of law, it's easy to say, ‘Oh my gosh, we’ve never been in a place like this.' Well, you know, the reality is technology has been influencing the practice of law for as long as human beings have continued to innovate. We have dealt with the use of digital evidence back in the ’70s and ’80s and early ’90s. The idea of digital evidence that could be manipulated changed ― it caused quite a stir in our community. We found ways that it could be used effectively. The introduction of display tools like PowerPoint, the introduction of remote technologies, especially during COVID. And so, as a very human endeavor, the practice of law has always had to deal with technologies.” Hon. Matt Williams

Resources

Hon. Matt Williams (LinkedIn)
AI for Litigators: Practical Tools to Transform Your Practice (book)
Point Well Made: Persuasive Oral Advocacy (book)
Refreshing Recollection and Impeachment, with John Farrell (podcast episode)
Deposition Skills: New Jersey (program)
Building Trial Skills: New Jersey (program)
Deposition Skills: Houston (program)
Building Trial Skills: Houston (program)

It’s often said that a case is won — or lost — during direct examination. Former prosecutor Steve Wood explores why direct really comes down to effective storytelling, ways to organize your direct examination, and how to ask questions that not only elicit good answers but also help the trier of fact follow the narrative. He also touches on how to cut through the inevitable fog of boredom by introducing purposeful change into the courtroom environment. 

Topics
2:44 Goals of direct examination
3:37 Why storytelling matters in direct
5:16 Storytelling elements
14:01 Breaking through the fog of boredom
23:11 Sequencing your questions
26:05 Using your voice
28:45 Organizing your direct
31:57 Accrediting the witness
36:18 Telling the story
41:17 Honesty and bad facts
44:24 Questioning the witness
47:02 Phrasing your questions
59:39 Word choice
1:02:00 Witness focus
1:05:51 Plain English
1:09:46 Tenacity
1:12:37 Runaway witnesses
1:16:36 Signoff question

Quote
“One of the things that happens in every trial is that there is a contest for credibility between the advocates. I don’t — and can’t — lose that contest. And if a jury hears something bad from the other side first, they might be thinking I was trying to hide something from them.” Steve Wood

Resources
Steve Wood (LinkedIn)
Building Trial Skills: New Jersey (program)
Top 10 Tips that Make a Difference (podcast episode)
“Don’t Be Boring”: Creating Your Commanding Courtroom Presence (podcast episode)
Cross-Examination: Do No Harm (free webcast)

Whether you’re conducting a new client intake, deposing a witness, running a meeting on Zoom, or defending a client in the trial of their life, you must be an effective communicator. In this episode, Maricopa County Superior Court Judge Chris Whitten is joined by legal communications expert Dr. Karen Lisko to break down twelve communication attributes—six verbal and six nonverbal—that you can polish. All it takes is self-awareness and a little practice, and Dr. Lisko and Judge Witten tell you where to start. 

Topics

5:43 Assertive versus aggressive communication styles
7:51  Adopt a conversational pace
10:34  Pause to punctuate your point
14:37  Replace Your Vocal Fillers
23:49  Amplify Your Volume
28:19  Reach Down for Your Deepest Natural Pitch
39:18  End with a Downward Inflection
40:54  Smile
48:10  Make “Kind Dynamite” Eye Contact
52:13 Literally Lean In
54:41 Use Hand Gestures Well
58:33 Have an Active Listening Face
1:00:26 Try “Hinging” Your Head Periodically
1:04:19 Signoff questions

Quotes

“One of the things that I often find when I deal with someone who lacks confidence is that when they do increase their volume, it has some byproduct advantages. And I can’t explain why from a social science perspective, but it I just keep seeing it, where when someone increases their volume, their face gets more animated, their eyes get brighter.” Dr. Karen Lisko

“As a fact finder, when you don’t give me that pause, especially after important evidence comes in, I find myself thinking or having an internal dialogue about what that just meant. And I miss like half of what the next thing you say is. And so those pauses are just so, so welcome for me when I’m listening.” Hon. Chris Whitten

Resources
Hon. Chris Whitten (LinkedIn)
Dr. Karen Lisko (bio)
Twelve Essentials of Assertive Delivery (free download)
Kind Dynamite (book)
NITA Women in Trial (program)
Advanced Trial Skills (program)
Building Trial Skills: San Diego (program)

Opening statement, direct and cross-examination, and closing argument are the most basic elements of advocacy that a trial lawyer must know. To announce that May the Record Reflect can now be heard on YouTube, we revisited the “Core Four” from our archives. NITA faculty members share their best insights and tips on these four critical competencies.

Topics
4:00  Creating your opening statement
6:23  Workshopping the opening
8:38  Struggling with the right story
10:12  Engaging jurors’ imagination during opening
13:26  Using visual aids
16:47  Objections on openings
19:10  Making your case in direct examination
20:16  The challenges of direct
23:56  How to keep direct interesting
26:34  Humanizing a despicable witness
33:52  Fundamentals of a zinger on cross-examination
40:28  Preparation versus spur-of-the-moment
43:08  The challenges of cross
48:28  Women and cross
53:42  Your advantage in closing argument
55:54  When to start thinking about your closing
56:47  Using visual aids
57:45  Jury instructions
1:00:11 Closings for plaintiff versus defendant

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

Resources
May the Record Reflect on YouTube (link)
The Secrets of Opening Statements, with Brooke Latta (podcast episode)
Direct Hit, with Mike Beckwith (podcast episode)
The Tense Trio, with Hon. Amy Hanley and Cheryl Brown Wattley (podcast episode)
Closing Time, with Luke Cass (podcast episode)
NITA Women in Trial (program)

Washington State Supreme Court Justice Sal Mungia shares essential tips for effective trial advocacy, emphasizing credibility, storytelling, and clear communication with jurors. He highlights the importance of authenticity, professionalism, and preparation—from mastering the rules of evidence to building rapport without relying on notes. Blending practical guidance with personal insight, Justice Mungia encourages trial lawyers to practice with integrity, show grace, and ultimately find purpose and enjoyment in their work.

Topics
4:40 Never lose your credibility with the jury or judge
6:59 Tell a compelling, human-centered story
9:33 Speak plainly—avoid legalese and connect clearly
12:32 Professionalism matters—don’t be a jerk
15:39 Show grace, even in high-pressure litigation
19:26 Build rapport—don’t read from notes
21:46 Play by the rules—integrity defines success
23:24 Know the rules of evidence and procedure
25:41 Be yourself—authenticity resonates with juries
27:19 Have fun—find purpose and energy in trial work
28:59 Gaining trial experience
32:42 Signoff question

Quote
“Every time that I tried a case, I was thinking, ‘This is the best thing ever!’ I’m not kidding. ‘I am just eating this thing up. I’m loving this. This is my chance to be creative, to be able to tell my story, to represent my client, to use my wits to figure out whether I should object. If I do object, how do I make that argument? How do I use my exhibits?’ It’s just so much fun. And it’s so nerve-wracking when you’re waiting for the jury, right? That’s when it’s just ‘argh!’ tension-wise. But I always thought, “This was great. I can’t think of anything that I’d rather do.’” Hon. Sal Mungia

Resources
Hon. Sal Mungia (LinkedIn)
Building Trial Skills and Deposition Skills: Seattle (programs)
The Trial of the Chicago 7 (film)
May the Record Reflect on YouTube (link)

In this episode, veteran trial lawyer John Farrell distinguishes between refreshing recollection and impeachment, two essential but sometimes conflated courtroom skills. Learn how to help your own witness recall facts on direct examination through refreshing recollection and how to effectively challenge an opposing witness on cross with a structured, high-impact impeachment technique. Packed with practical language and strategy (and a few demos along the way), this conversation offers clear guidance on when and how to deploy these important skills that every trial lawyer needs to master.

Topics
3:13    Difference between refreshing recollection and impeachment
4:54    What’s wrong with “I don’t know” during examination
6:19    Using documents to refresh recollection
7:24    What’s wrong with “would” during refreshing recollection
8:41   Refreshing recollection demo
10:13 A crucial step to remember
13:21 The point of impeachment
14:37 Step 1 of impeaching by prior inconsistent statement
15:35 Demo
17:52 Why you should sound disappointed
18:50 Demo
19:20 Steps 2–6
23:21 Demo
27:21 Why impeachment better be worth the effort
30:05 Your tone through impeachment
33:16 Impeachment by omission
40:49 Consequences of a bad impeachment
41:56 Again, make impeachment worth your while
44:16 Signoff questions

Quote
“The reason [impeachment] is so important is that if you decide to impeach and you don’t do it correctly or successfully, the witness has just been told they can lie all the time on the stand. You’ve lost control. If you do it really well the first time, and the next time they go off message, they say something else different, and [the witness goes], “Well, no, that’s not right. It was Fact C.” And [you] go, “I don’t think so. Let's go to your depo transcript.” [The witness will] go, “Okay, fine, fine, it was C,” because they don’t want to go through that again. So I think it’s an important tool.” John Farrell

Resources
John Farrell (bio)
Refreshing Recollection and Impeachment (article)
Eight Steps for Handling Deposition Exhibits (podcast)
Deposition articles (1, 2, 3)

Wilmington Law Associate Professor of Law Veronica Finkelstein and law student Dr. Marisa Rauscher discuss what it takes to become an exceptional litigator, from growing your essential hard and soft skills to unconventional ways of developing them, and transforming your personal values into a professional brand. They also explore why maintaining a beginner’s mind — curiosity that never quits — is critical at every stage of a rewarding legal career and recommend their favorite law-related social content that helps them do just that.

Topics
5:24  Why to teach, and why to learn, law
7:60  Lacking skills out of law school
10:01 Various toolkits for trial lawyers 
13:39 What new lawyers should focus on
15:37 Importance of writing and motion practice skills
18:28 Going to trial: present and future
27:35 Professional branding and marketing yourself as a lawyer
33:40 Informal CLE through social media
36:17 Younger lawyers have an advantage
45:35 Signoff question

Quotes

“Being an attorney means having a holistic set of skills. A lot of those skills are variations on each other, so the same skill that will serve you well at that Rule 16 conference, when you meet the judge and opposing counsel for the very first time, is an analog of a skill that you would want to have at trial.” Veronica Finkelstein

“Great minds and well-intentioned people have tried to establish rules to play by, that serve all in a just fashion, and I want to be in that game, I really do. I want to know the law, I want to use the law for good, and I also want to cultivate the soft and hard skills of lawyering so that my advocacy rests on a strong foundation of excellence. That’s the goal. Know more, do more.” Marisa Rauscher

Resources

Veronica Finkelstein (LinkedIn)
Marisa Rauscher (LinkedIn)
Veronica in studio71 (podcast, podcast, webcast)
Additional Advocacy Skills (program calendar)
Law-related podcasts, vlogs, and YouTubes (PDF)

Finding the right storytelling angle can be challenge for any trial lawyer, but for those advocating on the right-hand side of the v, it’s often even more so. In representing clients jurors may not automatically find sympathetic, defense counsel must express empathy for harms the plaintiff has suffered without admitting to their liability and present technical data that is critical to their client’s defense but wearisome for fact finders to follow. Good narrative technique can help, and in this episode, legal storytelling specialist David Mann shares the insights he’s gain in over a decade of working with trial lawyers to develop winning case stories. 

Topics
4:01  Changing defense landscape
7:20  Plaintiff’s automatic emotional hook
9:54  Humanizing the defense client
12:13  Importance of storytelling
17:34 Observing versus opining
20:31  Going granular
24:38  Being engaging and persuasive
28:12  Check your blind spots
30:26 Persuasive presence and turning facts into a story
35:03  Signoff question

Quote
“[Defense lawyers] need to be good storytellers, and they are just beginning to see how important that is and how they are now losing where they used to win. They’re also seeing the nuclear verdict problem. So juries are awarding tens of millions and even hundreds of millions of dollars in cases that just a few years ago that would have been unheard of. And now it’s getting to be more and more regular. So that that’s how high the stakes are for the defense.” David Mann

Resources
David Mann (bio)
Turning Facts into a Story (May, November)
Persuasive Presence (October)
Building Trial Skills: New Orleans (program)
The Secrets of Persuasive Legal Storytelling (podcast episode)
Engaging the Jury in the First Two Minutes (free webcast)
NYT 10-Minute Challenge (gift article)

According to Philadelphia trial lawyers Tom Innes and Mary DeFusco, preparing your witness for testimony is a bit like training a guide dog: the real work happens long before the leash comes off. In this episode, Tom and Mary talk about how to create control in ever-important prep sessions prior to testimony—and they share hands-on, practical tips that will help your witness give their testimony while staying cool and collected, on track, and under control.  
Topics
4:04  Why preparation is the first step
5:38  Deposing Dr. King on The Pitt
8:11  Your witness’s role  
10:30  Organization of testimony, explained
11:50  Under pressure
13:50  Cross prep
15:33  Practice pointers
19:13  Ethical considerations
23:02  Signoff questions

Quotes
“Practice having the witness speak to the jury both on direct and cross. Speak to the jury—even if all you can do is set up some empty chairs as a jury box.” Tom Innes

“It’s a really bad look in front of a jury when the witness answers every question promptly on direct but then very slowly on cross.” Mary DeFusco

Resources
Tom Innes (bio)
Mary DeFusco (bio)
Judge L. Felipe Restrepo (bio)
Building Trial Skills: Philadelphia (program)
Cross-Examination Math (podcast episode)

From forensics to financials and the medical to the technical, trial lawyers rely on expert witnesses to help fact finders understand complicated concepts and issues in their case. But dealing with experts is an expert technique in itself, so in this episode NITA Program Director Gene Tanaka breaks down the battle-tested process that has brought him success. First, he lays out the standards for expert testimony and traps to avoid, then shares steps for direct examinations, issues in cross, and persuasive techniques. 

Topics
04:20  Why experts are important
05:54  Breadth of expert opinions
07:24  Expert traps
11:44  Standards for expert testimony  
15:28  Five steps for direct examination: Introduction and teaser
17:48  Qualifications
20:10  Red flags in an expert’s background
21:28  Opinion
25:24  Basis for opinion
27:39  Difference of experts’ opinions
28:50  Conclusion
30:19  Persuasive techniques
34:10  Conducting cross
42:06  Signoff questions

Quote
“One of the things that we [attorneys] often do is we rely too much on credentials. We look at an expert and we think, ‘Well, this person has this certification and this level of education, and therefore they must be better than the other person who doesn’t have that.’ But you know, a lot that is just lost on everybody – the trier of fact. They can’t tell the difference between one credential or the other. But what they can tell the difference is whether someone is likeable and whether they’re understandable.” Gene Tanaka

Resources
Gene Tanaka (LinkedIn)
Expert Testimony slides (PPT)
Modern Trial Advocacy: Analysis and Practice (book)
Federal Rules of Evidence with Objections: As Amended to December 1, 2023 (book)
Expert Testimony: A Guide for Expert Witnesses and the Lawyers Who Examine Them (book)
Effective Expert Testimony (book)