May the Record Reflect

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.

Topics

2:35   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)

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. 
Topics

3:42   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)

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 Choi

Resources
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.

Topics

3:27   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)

Theatre wunderkinds and storytelling specialists Kevin Newbury and Kate Douglas join the podcast to tell stories about telling stories. Kevin and Kate discuss how universal themes, conflicts, and archetypes can be used as formulas for brainstorming; suggest some practices you should borrow from writing for the stage; and reveal which pandemic-era guilty pleasure can actually make you a more engaging storyteller.

Topics
4:27    Translating events into a story  
6:11    Why good storytelling is essential to your trial
8:25    Unleashing your creative beast
10:49  Summing up with loglines and taglines 
12:57  Classic conflicts for framing your client’s case 
14:36  Evoking an atmosphere to begin telling a story
16:50  Universal story themes 
20:26  Nourishing your creativity
23:07  Importance of your elevator pitch
24:14  Dramaturgy in trial 
27:59  How a trial is like a tv show
30:10  Defending the unsavory client
33:15  New Orleans Trial program
40:17  Signoff question

 Quote
“When we come [to NITA programs], it’s always so much fun to sit around the table with these incredible lawyers and judges and hear all of their stories. I love to ask all of them, ‘What’s the wildest, strangest case that you’ve had this year?’ and [with] every single one of them it’s like, ‘Well, that’s a good idea for a tv show,’ ‘Well, that should be a movie,’ and I find that a lot of lawyers and judges are good storytellers when they’re recounting the adventures of something they just went through.” Kevin Newbury

Resources
Kevin Newbury (bio)
Kate Douglas (bio)
Deposition Skills & Trial Skills: New Orleans (NITA course)
Sapiens: A Brief History of Humankind (book)
The Seven Basic Plots: Why We Tell Stories (book)
Adam Gopnik in The New Yorker (article)
The Secrets of Persuasive Legal Storytelling, with David Mann (podcast)
Give ‘em the Ol’ Razzle Dazzle, with Dominic Gianna (podcast)

If you’re looking for some resolutions for improving as a trial lawyer, let veteran prosecutor Steve Wood be your guide. In this episode (originally aired in 2021), Steve shares the top ten trial tips that always brought him luck. Any one of these would make for an ideal goal to shoot for in 2023. Steve also talks about public service and his lengthy career in law. 

2:58   Tip #1
5:35   Why law?
7:33   Tip #2
10:46 Recollections of his first trial
13:23 Tip #3
18:23 Favorite part of trial
25:19 Tip #4
27:30 Nerves and anxiety about trial
28:49 Tip #5
33:04 Unwinding after trial
34:31 Tip #6
38:49 Most agonizing career decision
41:04 Public service careers
45:50 Tip #7
48:50 A high-profile case I wish I’d tried
50:11 Tip #8
52:43 Tip #9
54:18 Retirement
54:48 Tip #10
56:41 Signature signoff question

Quote
“Somebody I taught with [at NITA] once said something I thought was brilliant, and it’s this: ‘Time is the measure of importance in the courtroom, whether you want it to be or not.’ And what that means is, we indicate importance by how much time we spend on something.”

Recommended Resources
Steven P. Wood (bio)
NITA On-Demand (free resource)
America’s Constitution: A Biography (book)
So Many Ways to Lose (book)
Geddy Lee’s Big Beautiful Book of Bass (book)

Something that concerns trial lawyers more than ever is seating a juror with intractable explicit biases or who believes in conspiracy theories. King County Senior Deputy Prosecuting Attorney Raam Wong experienced this situation when he prosecuted a high-profile, near-fatal shooting of an antifascist protester during a demonstration in Seattle in 2017. Raam joins the podcast to talk about voir dire and deselection tactics, experts and evidence, and checking your own biases at the courtroom door.  

Topics
5:25     Political violence and Hokoana case
9:57     Factors that contributed to mistrial
14:38  Juror “tells” during voir dire
16:50  Conspiracy theories about a witness
20:17  Digging into social media
20:30  Questions for deselecting jurors
24:36  Willful disregard of evidence, civil versus criminal cases
27:30  Addressing juror attitudes
32:50  Remedying attention span issues
37:50  Believing in or rejecting expert opinion
40:50  Concerns about physical safety at trial 
45:01  Signoff question

Quote
“As trial lawyers, we really have to grapple with [. . .] stereotypes every day in court—the assumptions we have about people and the assumptions that the jury might hold. And at times it can be really effective, as advocates, if our good facts kind of match up, or reinforce, the jury’s preexisting beliefs. But at the same time, as a prosecutor, I’m trying to do justice, and doing justice, in my mind, means ensuring that our courtrooms are open to everyone, and that means not making assumptions about people based on demographics or other characteristics.” Raam Wong

 Resources
Raam Wong (bio)
State v. Hodgman (case file)
Alt-Right Event in Seattle Devolves into Chaos and Violence, Outside, Truth-Twisting Inside (SPLC Hatewatch)
Righteous or reckless? Trial under way for couple accused in UW shooting during Milo Yiannopoulos speech (Seattle Times)

This month’s episode features advice and observations from some of NITA’s top judges, who serve as faculty, presenters, and board members. They share their reflections on what they’ve seen from their unique vantage point on the bench and dispense helpful tips for the next time you’re in court.
Topics
2:13     What counsel should know before setting foot in my courtroom
10:30  Most common mistake I see lawyers make in my courtroom
17:55  Impressive or memorable things a lawyer has done during trial
 22:50  Nuttiest things I’ve seen during jury selection

Resources
50 Tips for 50 Years, Part 1 and 50 Tips for 50 Years, Part 2
Judge Mark Drummond (podcast) (webcast) (webcast)
Justice Lee Edmon (bio)
Judge Marian Gaston (bio) (webcast)
Judge Nancy Gertner (bio) (podcast) (webcast)
Judge Amy Hanley (bio) (podcast) (podcast) (webcast) (webcast) (webcast)
Judge Ruth Rocker McMillan (bio) (podcast)
Judge Sam Sheldon (bio) (webcast)
Judge Mindy Solomon (bio) (webcast)
Judge Christopher Whitten (bio) (webcast) (webcast)

Imposter syndrome is a common phenomenon among lawyers, often starting in law school, where self-doubt about your spot among so many wunderkinds can shake your sense of achievement and belonging. Gwinnett County Magistrate Court Judge Ruth Rocker McMullin joins the podcast to discuss what imposter syndrome looks like when it shows up in lawyers’ lives, how she got out of her own way as her legal career pivoted into new directions, what happens at the intersection of imposter syndrome and implicit bias, and how cultivating emotional intelligence just might save you from yourself. 

Topics
3:50     Imposter syndrome 
5:52    Places, spaces of imposter syndrome in law
8:56     Are lawyers more susceptible?
10:37  What imposter syndrome looks like
15:39  Implicit bias and imposter syndrome
20:32  “Glue work”
26:20  Managing implicit bias upwards, sideways
27:16  Calling out implicit bias, letting it slide
29:18  Upside of imposter syndrome 
31:21  Managing your own brain
33:00  Exploring emotional intelligence 
34:38  Developing emotional intelligence
38:58  Signoff question

Quote
“I had to have that conversation with myself when I switched my career from being a public defender to going into private practice, to taking a part-time judicial position. You know: ‘I don’t know if I’m qualified to do this.” I had to tell myself, ‘You handled death penalty cases. Of course you can do this.’” Judge Ruth Rocker McMillan

 Resources
Judge Ruth Rocker McMillan (bio)
The Imposter Phenomenon (article)
Being Glue (article)

The spontaneity of cross-examination and impeachment often intimidates lawyers early in their trial career. NITA Education Director Rhani Lott Choi and Denver trial lawyer Kate Sandlin have been there, done that — and in this episode, they disclose their favorite tips that honed their skills and settled their nerves. Rhani and Kate talk about how to feel at ease in the moment, advance-prep for the “spontaneity” of cross and impeachment, bring wily witnesses to heel, use demonstratives to pin down an answer, and help your witness be ready to take the stand.

Topics

3:05     Cross-examination: what is it good for?  
5:55    How to plan for cross
8:23     Thoughts on your judge
12:28  Learning about your judge
14:47  Single-fact, leading questions
21:09  Demonstration of crossing a bad witness
27:16  Crossing an alleged crime victim
32:03  Using demonstrative exhibits  
34:22  Witness preparation
39:14  Impeachment: what is it good for? 
41:50  Dangers of impeachment
45:34  Demonstration of impeachment
51:16  One best cross tip
53:50  Signoff question

Quote

“Every mistake I’ve made on cross-examination, if I ever go back and look at it, the problems start with my question, and I probably wouldn’t have made that mistake if I’d asked a better question.” Rhani Lott Choi

Resources

Rhani Lott Choi (bio)
Kate Sandlin (bio)
Building Trial Skills: San Diego (course)
Show AND Tell: Using Exhibits Effectively in In-Person and Remote Advocacy (free webcast)