David Mann storytelling (course) (episode)

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.  

Topics 

3:48 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 questions 

Quote 

“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) 

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 questions

 Quote
“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 Untiedt

Resources
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.

Topics

3:39   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.

Topics

4:16    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)

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. 

Topics

4:08    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)

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 questions

Quote

“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)

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 questions 

Quote
“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 Warner

Resources
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. 

Topics

3:22   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)

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