Current Feed Content from 19 Nov 08 13:35
The Anatomy of a Trial
Tue, 28 Oct 2008 13:42:01 -0500November 10 marks the launch of my newest book, Anatomy of a Trial. Here is a sample from the introduction, which describes why I wrote the book and why it may be of interest.
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In 2004, a University of Wisconsin law professor named Marc Galanter published a revealing report entitled The Vanishing Trial. It documented what so many litigators have witnessed year after year, decade after decade: a drastic decline in cases going to trial.
To give you a sense of how extreme this trend has become, consider these statistics from Galanter’s paper: In 1962, 11.5 percent of all civil dispositions filed in U.S. district courts went to trial; by 2002 that figure had dropped to 1.8 percent. The decline has been steady and steep, and as a result, a whole generation of litigators is moving up in the profession with little or no practical experience trying cases in a courtroom.
The causes of this phenomenon are for another book. This volume has been designed for young trial lawyers eager to gain an appreciation of how to handle real problems encountered during jury trials. Theories about trial advocacy abound and can be read about in numerous books. But as any experienced litigator knows, theory is often complicated, and sometimes compromised, by the realities of an actual trial.
For illustrative purposes, this book considers the key phases of jury trials (opening statements, direct and cross-examination, closing arguments and voir dire) in the light of a particular case: United States of America v. David Rosen. I chose this case in part because of the subjects it involved – campaign finance, national politics, and Hollywood fundraising, among others – but primarily because the trial was rigorous and challenging.
The case arose out of a lavish fundraising event held in Los Angeles during the Democratic National Convention in August 2000. Billed as “A Tribute to William Jefferson Clinton, ” the event involved a dinner and concert that included performances by Cher and Diana Ross, among others; a parade of celebrities attended, contributing tens of thousands of dollars to a joint fundraising committee established in part to support Hillary Clinton’s bid for the U.S. Senate. The ensuing indictment focused on the role a young fundraiser played in organizing the event and whether he caused false reports about its costs to be filed with the Federal Election Commission (FEC). David Rosen, the defendant, was the Clinton campaign staff person who, at the age of 33, went to Los Angeles to coordinate and oversee the gala on behalf of the joint fundraising committee. The entire event was put together in a few weeks.
The violation of law alleged by the government was based on highly complex and arcane rules established by the FEC. Under those rules, the joint committee could legally allow the company, Stan Lee Media, to pay for an unlimited amount of the costs of the event, but whatever amount was paid had to be reported, by the joint committee on its public disclosure reports to the FEC, as an in-kind contribution. Such an in-kind contribution also had to be accounted for by the joint committee in a complicated way that involved transferring funds from the account from which the Clinton campaign would obtain its share of the event’s proceeds.
The Ted Stevens Trial and the Lesson of the Memorable Image
Tue, 21 Oct 2008 15:30:40 -0500There is something to be said about focusing a witness examination around one indelible image. For the prosecution in the trial of Alaskan Senator Ted Stevens, the image of choice was a $2, 695 vibrating Shiatsu massage lounger from Brookstone.
Reporter Dana Milbank narrates the prosecution’s cross-examination of Sen. Stevens in today’s Washington Post. The senator faces seven felony counts charging that he deliberately concealed on Senate ethics forms $250, 000 in goods and services he received for his home in Alaska. He contends that the massage chair, among other items, was borrowed from friends or given despite the fact he declined the offers.
To convince a jury of the merits of a case, attorneys want to provide memorable testimony that will overwhelm competing arguments. The prosecutor in the Stevens trial seems to know this lesson well. Brenda Morris used the massage chair as a prime example of the alleged goodies received by Sen. Stevens, describing the chair in her opening statement as the "expensive massage chair from Brookstone -- you know, that gadget store you see in all the malls."
The chair came up again in multiple witness examinations, most importantly in the cross of the defendant himself. Here is the penultimate moment cited by Milbank:
Prosecutor Brenda Morris, toward the end of her cross-examination of the senator yesterday, settled in for a long discussion about the chair, which Alaska restaurateur Bob Persons bought for Stevens as a gift seven years ago -- but which Stevens never reported on his Senate disclosure forms.
The Art of Evading Questions
Tue, 07 Oct 2008 09:16:45 -0500The Washington Post had an interesting piece yesterday on the art of evading questions. The story contrasts Alaska Governor Sarah Palin’s blunt refusal to answer questions during the VP debate last week with Obama, Biden and McCain’s more subtle techniques of evasion.
For advocates caught between a rock and a rhetorical hard place, the article might offer some helpful tips. But judges asking questions in court won’t be fooled the way “Joe six-pack” might. If you have no good answer for a question from the Bench, it is probably wiser to err on the side of honesty, frankly admitting that you cannot respond fully to the question at this time but will submit a supplemental memorandum if the court desires, or state "I am not sure but under the circumstances the answer could only be..." When pushed against the wall you might state, "while I am not certain, my guess would be..."
Best solution, be prepared and know your subject matter. Whatever you do, don't bluff. An evasive answer, even as artful a dodge as Obama’s answer cited in the Post article, will hurt your ethos with a sophisticated listener.
Mandatory Continuing Legal Education
Tue, 30 Sep 2008 15:23:36 -0500My colleague, Paul Bekman, and I have sent this letter to Judge Wilner, Chairperson, Standing Committee on Rules of Practice & Procedure, and I thought I would share it with my readers...
We, members in good standing of the Maryland Bar, respectfully request that the Standing Committee on Rules once again consider recommending to the Court of Appeals mandatory continuing legal education (MCLE) for members of the Maryland Bar.
The challenges confronting the practice of law and our legal system today are more formidable than ever before. The law grows ever more complex, nourished by new statutes, new rules, new opinions by our distinguished courts, and new threats from forces that strain our traditional understanding of the rule of law and individual rights and liberties.
To meet the challenges of modern law practice, lawyers more so than ever before must be competent. The ABA Section of Legal Education and Admission to the Bar defines competency as basic skills, knowledge of the law and legal institutions, and the ability and skill to apply oneself to the task accepted with reasonable proficiency.
Fallacious Arguments
Tue, 23 Sep 2008 13:55:33 -0500For those who plan to tune in to the presidential debate this Friday, here is a cheat sheet on some common logical fallacies. One can only hope these two fine candidates will steer clear of such foibles, but I, for one, am not holding my breath.
Slippery Slope
The “slippery slope” argument falsely assumes that once you take a moderate first step in a particular direction, a catastrophic chain of events will follow. In many cases, a better metaphor would be a staircase with many safe steps along the way.
For instance, one candidate told a radio show that choosing a vice president based on certain non-negotiable positions would send him down a “slippery slope.”
On the other hand, sometimes the slippery slope does exist and can be a legitimate basis for an argument. When you hear language like “opening the floodgates” and “slippery slope” your job is to make certain that the argument is true.
Compound Question
A question like, “Isn’t America tired of Democrats wanting to raise taxes?” is a compound question because it actually involves two or more issues that cannot be accurately answered with a single response. It assumes that Democrats have always wanted to raise taxes and also that you may have a position on the issue. The best response to a compound question is to point out that the questioner has made a false or unwarranted assumption.
Regional Juries Proposed
Mon, 08 Sep 2008 18:07:41 -0500Those who cherish the jury system do so with the full recognition that juries composed of mere mortals are not perfect. We take the good with the bad, always trying to improve. For example in civil cases we now have juries composed of six citizens as opposed to the traditional twelve.
I am grateful that the Abell Foundation has shed new light on the outcome of jury cases in Baltimore City, as reported in yesterday’s Baltimore Sun. But I take issue with the suggestion that we in Maryland create regional juries. Even if the concept were attainable by overcoming legal hurtles, such juries would smack of the same "court packing" attributable to FDR when he proposed that Congress add a tenth justice to the US Supreme Court. President Roosevelt considered the Supreme Court Justices to be in error when they persistently ruled against him.
We must remember our system of government is composed of federal, state and local governments. In Maryland we have twenty-three counties and Baltimore City. Each county and city has its own local laws and customs. The defendants are entitled to juries who live in the community in which the trial unfolds. Those who say that in some counties juries are more likely to convict than juries in Baltimore City seem to write with a preconceived notion that many of those found not guilty are, in fact, guilty. Each case, however, must be judged on its own merits. Perhaps in the city cases, the prosecution did not have the evidence to persuade or were not as experienced as prosecutors in the other counties.
Although I do not believe that we should create regional juries, we should be ever conscious of enhancing the already refined methods of educating new jurors. We should also take steps to assure their confidence in their safety. And, we should let them know they have our respect for the serious work they do and sacrifice they make to serve the public and our democratic way of life.
The Compromised Expert
Wed, 27 Aug 2008 08:43:24 -0500The last post addressed a New York Times piece that aired longstanding criticisms of the U.S. legal system’s use of expert witnesses at trial. The article included a quote I found intriguing from one expert witness: “‘After you come out of court, ’” the witness is quoted as saying, “‘you feel like you need a shower. They’re asking you to be certain of things you can’t be certain of.’”
That’s what I would call a compromised expert. Such experts should be avoided. Courts want specificity in how an expert witness reaches a conclusion and so, too, should the attorney who hires him or her to testify.
This is where selection of an expert witness becomes fundamental to your strategy. The expert, if shown to possess education or experience in a particular field, and if he demonstrates unwavering confidence in his opinion, can save the day and destroy the adversary by rendering a lethal opinion—one that is capable of withstanding a “compromising” question.
Hot Tubbing?
Thu, 21 Aug 2008 17:45:57 -0500Picture you and your opponent’s expert witnesses hashing out the merits of your respective cases in a hot tub. That, one supposes, is the vision implied by the phrase “hot tubbing, ” an intriguing practice mentioned in this excellent New York Times article by Adam Liptak on expert witnesses.
The story points out that in the U.S., unlike in many other democracies where experts are appointed by the court, paid expert witnesses often provide partisan testimony containing “polar opposite” views of the same set of facts. In the United States more than anywhere else, many trials evolve into a so-called “battle of the experts” in which the experts greatly influence the outcome. A distinguished lady or gentleman capable of winning the jury’s confidence can give one side of the other an edge.
The Times article gives proper voice to longstanding international criticism of our system:
“Many foreign lawyers have long questioned the American practice of allowing the parties to present testimony from experts they have chosen and paid. The European judge who visits the United States experiences ‘something bordering on disbelief when he discovers that we extend the sphere of partisan control to the selection and preparation of experts, ’ John H. Langbein, a law professor at Yale, wrote in a classic article in The University of Chicago Law Review more than 20 years ago.”
New York Times Reports on "Journal of Empirical Legal Studies" Article
Mon, 11 Aug 2008 15:54:28 -0500The September issue of The Journal of Empirical Legal Studies will include a report on the risk/reward calculus of going to trial versus settling, and last week’s New York Times story on the subject has predictably excited fans of the latter option. (See Robert J. Ambrogi’s post on Legal Blog Watch.) Though I have not yet read the study in full, I have to take a moment to question the logic of those who see this news as a discredit to the institution of trial-by-jury.
According to the Times story, the researchers looked at 2054 civil cases that went to trial in the state of California between 2000 and 2005. In 61 percent of the cases in which the plaintiff rejected a settlement offer and went to trial or arbitration, they came out with less money than they would have had the taken the opponent’s offer. In 24 percent of the cases when the defendant rejected a settlement offer and went to trial/arbitration, they were forced to pay more than the plaintiff had requested. According to the Times, the “clear lesson” for plaintiffs is that it’s better to make a deal than fight.
The lesson is far from clear. Lawsuits are as individual and idiosyncratic as the people involved in them. To take a sample set of 2054 cases in one state and try to generalize for all litigants is to engage in logical fallacy. And we should acknowledge the study’s implication that 39 percent of plaintiffs in this set and 76 percent of defendants fared better by going to trial.
Obviously, it is often wiser to settle than fight, but the slim body of evidence collected on this subject should not be the foundation for decision-making. When push comes to shove, the risk/reward calculus is largely about the specific case and its unique circumstances. Good trial lawyers will advise clients well in working through these difficult decisions. If a sample set of plaintiffs did not fare well statistically, we should realize that innumerable determining factors were involved. The lawyers may have misjudged their cases and, in some instance, might not have had a wealth of trial experience. The Times article duly notes that the vast majority of civil cases nationwide do, in fact, settle, which means that many trial lawyers have rare opportunities to hone their skills (see post below!). But if any litigant--plaintiff or defendant--has a strong case that has been well prepared by excellent attorneys, studies like this should not interfere with a prudent and judicious evaluation of the specific situation at hand.
Litigation Institute for Trial Training 2008
Fri, 01 Aug 2008 13:20:15 -0500I recently returned from the Litigation Institute for Trial Training, or LITT, as it is affectionately known. Outside of trying cases, I cannot imagine a better way to hone your litigation skills in such a short period of time.
LITT is an annual, two-day trial training boot camp hosted by the ABA Litigation Section at the DePaul University College of Law in Chicago. The year’s gathering (July 10 and 11, 2008) featured some of the top trial lawyers and judges in the United States. Patrick Fitzgerald, U.S. Attorney for Illinois and prosecutor in the Libby case, explained the art of opening statement. Judge Marvin Aspen of the U.S. District Court for the Northern District of Illinois worked with participants on direct and cross-examination. Steve Susman of Susman Godfrey and Professor Stephen A. Saltzburg of George Washington University Law School presented on closing argument. Also among the faculty were: Chicago federal public defender Terrance MacCarthy, who lectured on cross; jury consultant Jo-Ellan Dimitrius, who talked about mock trials and jury consultants; James J. Brosnahan of Morrison & Foerster, who presented on great trials and great trial lawyers; and Ed Waller of Fowler White Boggs Banker in Tampa, Florida, who offered thoughts on ethics and civility. No aspect of trial practice was left untouched. Yours truly spoke about “twelve secrets of persuasion.”
The program alternated between lectures, demonstrations, and opportunities to perform before peers and faculty. Participants were also exposed to faculty critiques and went home with a video of their own performances for further study.
As expected, we had a full house, with forty young trial lawyers registered. If you are interested in participating next July, contact me ASAP and I will put you on the list. Though it seems we are running out of space quickly, in the case of timely responses, I should be able to guarantee a slot for LITT 2009.
25 Greatest Legal Movies
Tue, 22 Jul 2008 15:33:18 -0500If you're looking for a good movie to rent this summer, check out this list of the "25 Greatest Legal Movies" from the August 2008 issue of the ABA Journal. It includes classics like "To Kill a Mockingbird", "My Cousin Vinny", and "Judgment at Nuremberg." The accompanying article makes the valuable point that trial attorneys often face jurors whose perceptions of the legal system have been influenced, in one way or another, by popular culture. Whether based on fact or fiction, these perceptions matter. And the very best legal films, even if they do turn on untenable plot points, offer valuable lessons for litigators. Who couldn't learn a thing or two about style from watching Gregory Peck in "Mockingbird" or Joe Pesci in "My Cousin Vinny"? Not that anyone should ape Peck's gravitas or Pesci's Brooklyn grit, but the marriage of good storytelling and engaging rhetoric that one finds in such classics is a quality worth striving for.
Sacco and Vanzetti
Mon, 14 Jul 2008 12:55:42 -0500July 14 is a sad date in the annals of American legal history. On that day in 1921, after only five hours of deliberations, a Dedham, Massachusetts jury rendered guilty verdicts against two Italian immigrants, Nicola Sacco and Bartolomeo Vanzetti, for robbery and murder.
The crimes occurred on April 15, 1920 in South Braintree, Massachusetts, a small town south of Boston. Those responsible shot and killed a guard and a shoe factory paymaster carrying over $15, 000 in payroll cash, then made off with the money in a getaway car. Less than a month later, police arrested Sacco and Vanzetti as they were traveling at night on a trolley from Bridgewater to Brockton. Both men were carrying guns when apprehended.
One hundred witnesses testified during the trial. For every eyewitness who identified the defendants as the culprits, another witness swore to the contrary. Many eyewitnesses for the prosecution were exposed as simply mistaken or not testifying truthfully. The defense presented a straightforward alibi. Vanzetti was in Plymouth selling fish. Sacco was in Boston at the Italian consulate obtaining a passport.
Ronnie White and Due Process
Thu, 03 Jul 2008 17:27:16 -0500The case of Cpl. Richard Scott Findley and Ronnie White in Prince Georges County, Maryland, is heartbreaking and disturbing. While the facts remain somewhat unclear, what we do know is enough to sow painful discord between the citizens of that jurisdiction and their police department for a long time to come. A black man accused of killing a white police officer is murdered while in custody. The fact pattern is familiar, and, predictably, public discussion is focusing a great deal on race, as it usually does when a police brutality case seizes our attention. Race surely matters, but so, too, does a subject rarely mentioned in this cultural context: civic education.
I write this on the eve of July 4, a day to celebrate our independence. It is also a day to celebrate a host of ideas of what it means to be American. A cornerstone of this country's greatness is its faith in due process for all, no matter one's status in society, no matter one's race or creed or country of origin. By all accounts, Findley, the beloved officer who White was accused of killing, was a man with a passion for service and justice. That his death appears to have been avenged with unlawful brutality discredits the PG County police department and causes one to ask whether our law enforcement officers have sufficient reverence for the U.S. Constitution and the criminal justice system.
In truth, the same question should be asked of society as a whole. Americans seem to know precious little about their own public institutions and history. (In 2006 a Zogby poll estimated that more Americans can name the Three Stooges than can name the three branches of our federal government.) For many people, I suspect, justice is a kind of media show, a series of trials-of-the-century spun as morality tales that seldom reveal the complex nature of our criminal justice system or the bedrock principles on which it is based. Cases like the murder of Ronnie White should remind us that American justice is founded on ideas, and unless those ideas are understood, respected and cherished by those charged with enforcing the law, we are continually in danger of losing our way.Karen H. Rothenberg
Fri, 27 Jun 2008 12:44:06 -0500Much news this week from Karen H. Rothenberg, Dean of the University of Maryland School of Law. On Wednesday she offered an excellent op-ed on the importance of law schools' attending to the ethical aspects of the legal profession. And yesterday came word that she will be stepping down as dean and returning to the faculty at the end of next school year.
The law school will miss her leadership. Over the years she has steered the school with the same moral sensibility that is on display in the op-ed, in which she announces that:
Thanks to a $1.6 million investment from the Fetzer Institute, the UM School of Law has recently launched a pioneering initiative that will emphasize ethics, moral formation and leadership development for lawyers.
This is an excellent initiative. In 2003 I attended a meeting of the 4th Circuit Judicial Conference at which several law school deans, including Dean Rothenberg, discussed the future of legal education in the country. Afterwards, I wrote an article for The Daily Record entitled "A Challenge to Law Schools" that addressed this very topic.
Maryland Discovery Problems & Solutions
Mon, 16 Jun 2008 17:29:12 -0500Maryland Discovery Problems & Solutions is a new book co-authored by Chief Magistrate Judge Paul W. Grimm, Charles Fax (of Rifkin, Livingston, Levitan & Silver) and yours truly. We and others offered an unusual seminar based on the book at the Maryland State Bar Association's annual meeting in Ocean City last week. The Daily Record ran this preview of the event.
If you think you know discovery rules inside and out, note Judge Grimm's comment in the article:
Issues Grimm said he sees all too frequently include “non-particularized or generalized boilerplate objections” to discovery requests, which give the judge little insight when ruling on the subsequent motion to compel; lawyers stating facts in motions without supporting them with a citation to any affidavit or document; and lawyers who fail to realize that litigation proceeds in an “adversarial system but in discovery you have to cooperate” and compromise.
For those who want to brush up on MD discovery rules, you're not too late for two upcoming MICPEL programs on the same topic, offered on June 17 and July 16. Details available here.
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