46. The Secrets of Opening Statements, with Brooke Latta

54. Are You in Control Getting Real about Witnesses, with Judge Amy Hanley and Adrienne Johnson

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)

53. Preparing Your Witness for the Effective Deposition, with Carl Chamberlin and Whitney Untiedt

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)

52. Let's "Speak the Truth" about Voir Dire, with Adam Kendall

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)

51. Depositions: Asked and Answered, with Veronica Finkelstein

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)

50. Persuasion is an Inside Job, with Dominic Gianna

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)