May the Record Reflect National Institute for Trial Advocacy

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)