May the Record Reflect

In Episode 23 of the podcast, we’re joined by Jo Carol Nesset-Sale, who as a young woman brought forth a pregnancy discrimination lawsuit that found its way to the United States Supreme Court. Her case, Cleveland Board of Education v. LaFleur, was part of the societal sea change that resulted in women being able to remain in the workforce as their families grew. Jo Carol’s experience lit a fire in her to become a lawyer herself and transform the lives of her clients she serves. 

Topics

2:09     The story behind the SCOTUS case
9:47     How pregnant women faced discrimination
11:49    Maternity leave, benefits in the 1970s
13:05    The lawsuit begins
15:07    Why Jo Carol fought back 
19:15    Equal rights movements
22:28    Legal team’s strategy for SCOTUS
24:25    What the Court ruled on 
26:25    Impact of ruling
30:45    Becoming a lawyer
34:18    Jo Carol’s other 15 minutes of fame
36:05    Pathways in law
41:00    Guidance for law students, new lawyers
43:21    Bias in the courtroom
44:15    Career advice
46:11    Signature sign-off question

Quote

“I certainly saw that, at a moment in time, if you can have the intersection of an aggrieved person who’s been unfairly treated and a lawyer who’s willing to take the case and charge no fee, that wonderful things can happen, that change can be made.” Jo Carol (LaFleur) Nesset-Sale

Recommended Resources

Jo Carol Nesset-Sale 

Cleveland Board of Education v. LaFleur

From Sideline to Frontline: The Making of a Civil Rights Plaintiff

She Was a Teacher. She Got Pregnant. Her Case Ended Up at the Supreme Court

In Episode 22 of May the Record Reflect, Reuben Guttman and J.C. Lore discuss their new book, Pretrial Advocacy, and why modern litigation practices necessitate early, close attention from practitioners. They discuss the interplay of early discovery with the Federal Rules of Evidence and Civil Procedure, how law schools are responding to “front-loaded” litigation that often results in fewer jury trials, why public interest law matters, and what’s exciting about pretrial.  

Topics

3:37    The meaning of front-loaded cases
6:16    Effects of Iqbal, Twombly, and Daubert on law practice and teaching advocacy
10:15  Pretrial advocacy at law school
12:14  Is pretrial exciting? 
16:56  Settlement versus trial
18:21  Why trials are still important
23:09  Getting to know the rules
29:07  Social media evidence
36:20  What’s lost with settlement
38:22  Public interest practice
41:03  Signature signoff question

Quotes

“The fun thing I always thought about pretrial advocacy is you get to learn about areas you never knew of. I once met a famous trial lawyer many, many years ago and he’s since passed – Alfred Julien – and he told me that one of the fabulous things about being a trial lawyer is that you get to be a jack of all trades, in some regards, and an expert in none. I always thought it was exciting because it’s a process you get to immerse yourself in and really learn a lot.” (Reuben Guttman)

“Certain types of trials aren’t happening anymore because of the huge cost of litigation. But there are courthouses and courtrooms all over this country that are doing trials every single day, on both the civil and the criminal side. You go to landlord–tenant court, you go to family court, you go to municipal court, you go to immigration court—all of these courts are having trials all of the time.” (J.C. Lore) 

Recommended Resources

Pretrial Advocacy (book)

Reuben Guttman (bio)

J.C. Lore (bio)

Iqbal v. Ashcroft

Bell Atlantic Corp. v. Twomby

Conley v. Gibson

Daubert v. Merrell Dow Pharmaceuticals, Inc.

 Read NITA’s statement on the important of in-person advocacy in courts, here.

In Episode 21 of May the Record Reflect, veteran prosecutor Steve Wood joins us to share his ten favorite trial tips. He also talks about what he remembers about his first trial, his life in public service as the Delaware DOJ’s leading trial attorney, and the other reflections on living the lawyering life. 

Topics
2:43    Tip #1
5:20    Why law?
7:18    Tip #2
10:31  Recollections of his first trial
13:08  Tip #3
18:08  Favorite part of trial
25:04  Tip #4
27:15  Nerves and anxiety about trial
28:34  Tip #5
32:49  Unwinding after trial
34:16  Tip #6
38:34  Most agonizing career decision
40:49  Public service careers
45:36  Tip #7
48:36  A high-profile case I wish I’d tried
49:56  Tip #8
52:28  Tip #9
54:03  Retirement
54:30  Tip #10
56:27  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)

America’s Constitution: A Biography (book)

So Many Ways to Lose (book)

Geddy Lee’s Big Beautiful Book of Bass (book)

Read NITA’s statement on the important of in-person advocacy in courts, here.

In Episode 20 of May the Record Reflect, trial lawyer and wardrobe consultation Judith Gaton joins us to explain why style matters in the courtroom and how to dress for post-pandemic office life at a time when the expected corporate culture—and maybe our bodies—have changed.

Topics

3:05 Why your clothes matter

5:36 But isn’t style frivolous?

13:18 Work clothes that no longer “fit”

16:22 Evaluating your wardrobe after covid

18:45 What pieces to invest in, and what to save on

21:48 Pandemic’s impact on dressing for the law office

25:15 Menswear options for a more casual office environment

27:29 Stanley Tucci’s refined casual style and sprezzatura

30:54 Sleek footwear options

32:40 Style inspo and options for lawyers and other professionals

38:07 Signature signoff question

Quote

“We have to sort of make room to be amused by each other as we find our footing and find out what it’s going to look like for all of us as we re-enter society, as we sort of spend more time with each other, as we come back to the office. It doesn’t have to go back to the way it always was. There’s no requirement. This is a beautiful moment for all of us to rethink ‘Did we even like the way it always was? Did we enjoy wearing suits? Did we enjoy being dressed up all the time?’ or would we all collectively prefer to be a little more on the smart-casual side of things, or business casual of things, than to be so dressed up all the time. Each office culture’s going to have to figure that out for itself. I think every courtroom, almost, is going to decide that for itself.” (Judith Gaton)

Recommended Resources
Judith Gaton (bio)

How COVID-19 has changed what we wear and how we feel about clothing (Seattle Times)

Schedule an Appointment with Those Clothes You Haven’t Worn in a Year (New York Times)

Sprezzatura Do’s and Don’ts

In Praise of Stanley Tucci’s TV Travel Uniform (GQ)

Berluti wingtip sneakers 

Berluti double monkstrap sneakers

Next Level Wardrobe (Instagram)

Read NITA’s statement on the important of in-person advocacy in courts, here. 

In Episode 19 of May the Record Reflect, Judge Nancy Vaidik of the Indiana Court of Appeals and international communications consultant Rebecca Diaz-Bonilla, are in the hot seat to share insights from their new book, Point Well Made, Persuasive Oral Advocacy. They reveal why oral advocacy still matters in a time when most cases settle before going to trial, how to better know your judge to give yourself a leg up, and what are the highs and lows of ruling from the Zoom bench.  

Topics

3:56    A learning-by-doing book for oral advocacy
6:45    Writing process as co-authors writing remotely
9:05    Why trial lawyers should care about oral advocacy
11:16  Oral versus written advocacy
13:17  Oral advocacy in persuasion
16:02  What judges are looking forward to in a proceeding
21:24  What to know about your judge
23:45  Relationships you need to know about
27:45  Appearing before a multi-judge panel
30:03  Why rebuttal matters
31:31  Judge Vaidik’s experience with remote advocacy
35:32  “Soft” things lost in remote hearings
40:06  Communication needs that have changed during the pandemic
42:25  Signature signoff question

Quotes

“Oral advocacy is a lot different from written advocacy and our law schools are focusing on written advocacy and not on oral advocacy, and there are differences. In oral advocacy, as an advocate, you can actually listen to the judge’s concerns—or whoever you’re talking to, the listener’s concerns – and adapt your argument. You can’t do that in a written setting. In an oral setting, however, you need to keep attention, the attention of the listener. And in a written advocacy situation, that’s not so much the case because when the reader loses focus, they can go back and re-read the material. You can’t do that in oral advocacy situation.” (Judge Nancy Vaidik)

“Judges are people too, and so they’re not immune to the digital age and the lower attention span and the need for people to get to the point and say it clearly, concisely, thematically. All those things are super important, and so old-style argument is not going to be as effective. You have to take into account the digital age and the judges who are going to be listening, especially as younger and younger judges get appointed to the courts. It’s so important to adapt the way we approach oral argument in front of one or multiple judges.” (Rebecca Diaz-Bonilla)

Recommended Resources

Point Well Made: Persuasive Oral Advocacy (book)

Hon. Nancy Vaidik (bio)

Rebecca Diaz-Bonilla (bio)

Foolproof: The Art of Communication for Lawyers and Professionals, Second Edition (book) 

Rebecca Diaz-Bonilla’s “Foolproof” Tips for Professional Communication (podcast)

Delivering a (Last-Minute) Point Well Made (webcast)

 
Read NITA’s statement on the important of in-person advocacy in courts, 

In Episode 18 of “May the Record Reflect,” we’re talking about something that’s all too often an afterthought when a case goes to trial: the electronic courtroom presentation. When expertly executed by a trial technologist, a trial presentation will provide you and your fact-finders one shortcut after another that ease courtroom procedures and benefit your client. Trial technologists Shannon Bales and Alicia Aquino share their insights, recommendations, and best practices that will have you convinced that a trial tech is an integral part of a winning team. 

Topics

4:37     Electronic trial presentation today
6:55     Why a trial tech is crucial to your outcomes
8:45     EDRM, the litigation lifecycle
11:43  Bring them in early in the litigation
13:14  Why trial presentations matter
16:23  How “cat lawyer” memes happen
18:17  What trial techs know that you don’t
20:10  E-discovery and trial
23:57  Fact analysis tools
26:20  Best practices for virtual proceedings
30:37  Timeline for your tech rehearsal
33:15  Exhibit “tutorials” for fact-finders
34:25  Becoming a trial tech
38:11  Trial Presentation Companion tips
39:41  UN War Crimes Tribunal experience
41:12  Types of software
48:03  A mistake firms make
49:39  Outfitting your war room
57:17  A note for small firms and solo practitioners
59:34  Renting versus owning equipment
1:01:17  Helping the opposing team
1:07:08   Signature signoff question

Quotes

“Trial presentation is an efficiency aid for the court. That’s the number-one thing we’re there to do. We’re hired there, of course, to help our team, but the way that we get through the door is that we’re there to make things efficient for the court so that the proceedings will move along at a quick pace and not waste the court’s time.” (Shannon Bales)

 
“Bring [trial techs] in early on. Let us take a look at the evidence, at the exhibits. I can’t tell you how many times that the attorney is presenting their case and then at the end the judge says, ‘You know, this could have easily been done in a timeline. Do you think you can just put together a timeline? That would’ve saved us four days of testimony,’ and I, probably in the background, was saying, ‘Hey, you know, let’s put together a chart, a timeline. Let’s put graphics. Let’s tell the story a little bit better.’ And when you have somebody on your team that’s able to incorporate the graphics and storytelling, it just makes you look that much more organized.” (Alicia Aquino)

Recommended Resources

Shannon Bales (LinkedIn)

Alicia Aquino (Aquino Trial Services)

The Trial Presentation Companion (book)

What Juries Really Think: Practical Guidance for Trial Lawyers (article)

Online Courtroom Project(website)

COVID, the Court, and the Future of the Jury Trial (webcast)

In Episode 17 of “May the Record Reflect,” we’re talking about cybersecurity for law firms: why it’s important, how to prevent hackers from accessing your clients’ electronic data, what to do if it happens, and what ethics canons have to say about it. Patent attorney and e-discovery expert Helen Geib and technologist BJ Moore share their tips to help you manage this important and often overlooked aspect of law firm management.  

Topics

4:00     Why law firms are a rich target for cyberhackers
7:45     How our computers are hacked
10:15  Security issues raised by working remotely
11:12  VPN security via cell phone
12:23  Whether hackers can gain access via phone apps
13:20  Cell phone security
14:30  What to do if your system has been hacked
16:00  Lawyer’s obligations around client data security
18:30  Range of consequences of a data breach
19:40  Technical know-how and legal malpractice
20:20  Court decisions in data breaches
27:33  ABA Formal Op. 483 highlights
32:12  Ethics rules touching on data security
34:27  General liability insurance versus cyber insurance coverage
36:26  Basic preventative measures against hacking
40:50  Steps to take after a data breach
42:45  Top-of-the-line “wish list” practices
45:27  Signature signoff question

Quotes

“There’s a general recognition that there are two pieces to tech competence for lawyers: one is education and lawyers raising the level of their own understanding of security and using basic security practices. The other is to recognize the limits of our own knowledge and to associate with experts and people who really understand this area so that they can help us in the areas we didn’t go to law school for.” (Helen Geib)

“Cybercriminals are considered terrorists, so [if you pay a ransom] you’re technically financing a terrorist organization, which is against federal law. You also don’t want it to be profitable for them because as long as it’s profitable, they’re going to keep doing it. The more people pay, the more they’re going to want to do it.” (BJ Moore)
 

Recommended Resources
Helen Geib, Hoover Hull Turner

BJ Moore, Right Hand IT Solutions

FBI Internet Crime Compliance Center IC3

A Guide to Law Firm Cybersecurity Risks & Ethical Compliance

ABA Formal Op. 483

Cyberattacks Have Become Commonplace – Know the Ethics of Prevention and Response

What Is Cyber Insurance? Do You Need It? 

Millard v. Doran, No. 153262/2016 (Sup. Ct. N.Y. Cty.)

Wengui v. Clark Hill, PLC, (D.D.C. Feb. 20, 2020)

Hiscox Ins. Co., Inc. v. Warden Grier, LLP, 474 F. Supp.3d 1004 (W.D. Mo. 2020)

In this episode of May the Record Reflect, we continue our 50th anniversary celebration by picking up where we left off in Episode 15. Part II of this “50 Tips for 50 Years” mini-series gives you best practices for dealing with nerves at trial, how to improve your public speaking skills, and delivering a sound winning argument, as shared by NITA program directors, faculty members, authors, and members of the Board of Trustees.

1:25    Dealing with nerves at trial—or anywhere

15:11  Getting good at public speaking

23:45  Delivering a sound closing argument

29:53  Signature sign-off question

Recommended Resources

Lagos, the Rule of Law, and Gratitude (Hon. Ann Claire Williams, Hon. Marian Gaston)

Namibia Teacher Training and Trial Advocacy – NITA Public Service Course (Hon. Claire Ann Williams)

Ghana Advocacy Training Programs – NITA Public Service (Hon. Ann Claire Williams)

Building Rapport with a Jury: Lessons in Picking the Jury that’s Right for your Case (Richard Schoenberger)

Persuade, Respond, and Prevail: Essentials of Motions Argument (Terre Rushton)

Ethically Speaking: Meeting the Challenges of Professionalism in Remote Proceedings (Whitney Untiedt)

Serenity Now: Carol Sowers on Being Poised in the Courtroom 

One on One on One, with Judge Mark Drummond and Carol Sowers

15 Tips for Presenting Yourself Online (Carol Sowers)

Rebecca Diaz-Bonilla’s “Foolproof” Tips for Professional Communication 

Foolproof: The Art of Communication for Lawyers and Professionals (Rebecca Diaz-Bonilla)

Maximize the Magic of Online Mediations (Sidney Kanazawa)

Tips for Online Mediation in the Age of Social Distancing (Sidney Kanazawa)

The Articulate Attorney: Public Speaking for Lawyers (Brian Johnson, Marsha Hunter)

NITA webcasts (free)

NITA podcasts (free)

NITA whitepapers (free)

Remote Advocacy Resources

2021 marks fifty years of the National Institute for Trial Advocacy as the nation’s go-to gold standard in All Things Advocacy. Here on the podcast, we wanted to celebrate this year-long occasion with our gift to you: 50 trial tips for each of NITA’s 50 years. In this first episode of a special two-part series, a cross-section of NITA program directors, faculty members, authors, and members of the Board of Trustees share their best tips and tricks for improving trial skills.

1:35    Choosing the story of your client’s case
6:35    Overcoming writer’s block
12:02  Breaking up with your notes
24:12  Crafting an opening statement|
32:39  Taking care of yourself during long, arduous trials
36:41  Signature sign-off question

Recommended Resources

“Your Witness, Counsel”: The Ethical, Effective Way to Witness Preparation (Mary Jo Barr)

Virtual Jury Trials: A Concept with No Clear Answer (Dan Kotin and Brian Baloun)

The Opening Statement Song (Jules Epstein)

Collective Wisdom: Whether to Object to the Not-So-Qualified Expert (Jules Epstein)

Win Your Next Motion with These Key Steps (Hon. Carl Chamberlin, Andrew Schepard)

COVID, The Court, and the Future of the Jury Trial (Hon. Mark Drummond, Reuben Guttman)

Whitney Untied Puts the “Pro” in Pro Bono

Ethically Speaking: Meeting the Challenges of Professionalism in Remote Proceedings (Whitney Untiedt)

One on One on One, with Judge Mark Drummond and Carol Sowers

One-on-One Coaching, Remote Hearing or Trial Training

One-on-One Coaching, Remote Deposition Training

Remote Advocacy: Representing Your Client During the COVID-19 Pandemic (Hon. Mark Drummond)

Remote Advocacy 2.0: A Follow-up Q&A on Representing Your Client During the COVID-19 Pandemic (Hon. Mark Drummond)

Best Practices for Remote Hearings (Reuben Guttman)

The Opening Gambit: Learn Opening Statements Through Actual Courtroom Video (Reuben Guttman)

The Art of Memory (book)

Moonwalking with Einstein: The Art and Science of Remembering Everything (book)

“Memory, Agent Starling, is what I have instead of a view.” (clip)

In Episode 14 of “May the Record Reflect,” we gather insight on how to start your legal career against a daunting backdrop of covid, layoffs, and societal change. Listen as Dean Marc Miller of the University of Arizona James E. Rogers College of Law and Allison Regan, professional development director at Houston’s Bracewell law firm, offer their perspectives on being a successful law student and young lawyer during this unique moment in our nation’s history.  

Topics

3:33    Is this a terrible time to go to law school and become a lawyer? 

6:32    Law school, firm response to pandemic

9:25    2020 bar exams

12:29  Difficulties in transitioning to online

18:02  Standing out in Zoom 

19:34  Enrollment deferrals

22:10  On-ramping and training new hires

25:11  Student loan debt

26:33  Two-year J.D.s

28:44  ROI on educational debt

31:38  Practice areas with a bright future

36:25  Silver linings of the pandemic for young lawyers

41:20  Positive workplace changes

44:10  Top three tips for success

49:10  Signature signoff question

 Quotes

“I just filled out reports for U.S. News [& World Report Top Law Schools] and we [Arizona Law] report to the ABA every year and so follow those numbers closely, and we have not only kept tuition down and lowered it – we lowered it after the last economic downturn – and this is my eighth year as dean, and we have not raised tuition either for in-state or out-of-state J.D.s. We have diversified how we fund our enterprise, making both the J.D. accessible and the bright career paths accessible is fundamental to who we are. I know [the average student loan debt of $160,000] is real, but I also know I don’t have to look at my students and wrestle with that.” (Marc Miller)
 
“The practice of law can be hard. It can be grueling, and I think being resilient is really the key and really bouncing back, learning from those situations and being able to not just push harder but kind of pivot – pivot and move to the situation, and I think that we’re all being forced to learn that and I think that will hopefully pay dividends for our young associates over the course of their very long careers.” (Allison Regan)

 Recommended Resources

Dean Marc Miller (bio)

Allison Regan (LinkedIn)

U.S. News & World Report Top Law Schools

A Guide to Transitioning from Law Student to Lawyer