May the Record Reflect

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)

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. 

Topics 

4:02 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 Epstein 

Resources
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. 

Topics

3:30   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)

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)