May the Record Reflect

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)

At a time when more cases settle than go to trial, the deposition has become of utmost significance. Our guest Carl Chamberlin draws upon his experience taking and defending depositions in private practice as well as teaching deposition skills for 30 years. As the new author of The Effective Deposition, the topic is top of mind lately for Carl, so he joins us to talk about how to kick off a truly effective deposition with introductory matters and preliminary and substantive questioning techniques—and he even asks a few questions of his own.

Topics

3:22 The purpose of depositions

6:20 Difference between gathering information and obtaining information

10:38 Why depositions are important

12:30 Physical settings for remote depositions

14:15 The “usual stipulations”

17:20 Getting commitments

21:27 Commitments in remote depositions

24:42 Preliminary questions

29:51 Structure of substantive questioning

33:30 First demo

36:57 Key phrases for asking open-ended questions

38:25 And ones to avoid

43:01 Drilling down into a substantive topic

44:18 Second demo

1:04:19 Paying attention and listening

1:06:40 Using exhibits

1:10:15 Dealing with interruptions

1:13:56 Carl’s early depositions

1:16:53 The Effective Deposition

1:21:36 Signoff questions

Quote

“We want to make our questions clear and concise. Simple. The clearer the question, the better the answer. The fewer the objections, the more powerful it is.” Carl Chamberlin

Resources

Carl Chamberlin (LinkedIn)

NITA Publications (book)

Content Warning: A brief, non-graphic mention of a sex crime case occurring from 29:34 to 30:49.

Everyone likes to start off on the right foot, and your opening statement is a crucial place to do it. It’s also Assistant U.S. Attorney Brooke Latta’s favorite part of trial, so she joined the podcast to discuss her best tips on telling the right story, using visual aids for maximum impact, and pulling out all the stops to captivate your jurors. She also talks about some of her own openings at trial and what she holds to be the G.O.A.T. of opening statements.

Timestamps & More

Topics

3:00 What’s fun about openings?

4:07 Rhetorical and legal goals

6:05 Crafting an opening

8:46 Workshopping it

10:54 Figuring out the right story to tell

13:00 Telling auditory stories for visual consumers

14:36 Some good don’ts

15:30 Visual aids

17:10 Court clearance for visual aids

19:01 Objections

21:53 Case weaknesses

23:50 Closing your opening

24:42 Openings and closings, compare and contrast

26:42 Brooke’s favorite example of a great opening

32:35 Signoff questions

Quote

“Something I always do is I talk to jurors like they are a friend that I’m having a martini with and I’m sitting across the table from. And I’m just talking to that friend about something that’s a very serious, very important issue — and I’m keeping it simple, I’m keeping it concise — so it’s a serious tone, but it’s casual.” Brooke Latta

Without a doubt, knowing your client’s case up one side and down the other and understanding and applying the law are critical to your chances of prevailing at trial. But if your demeanor and presentation style lack polish, you might be getting in your own way. Special Counsel to the New York City MTA Inspector General and NITA Program Director Shareema Abel joins May the Record Reflect to talk about courtroom composure, interpersonal conduct, oral advocacy, self-expression, and so much more.

Topics

3:05 What is courtroom demeanor?

6:12 Demeanor in challenging situations

8:57 When you know the judge or opposing counsel

12:03 Vocal expression and body language

16:49 Personal style

22:55 Conduct outside the courtroom

26:12 Online proceedings

28:39 Picking yourself up on an off day

32:44 Cross-generational learning at the office

37:45 Neurodivergence

40:16 Feedback on your courtroom demeanor

44:58 Signoff questions

Quote

“Silence is one of the things that, over the years, I really had to get comfortable with in a courtroom because I remember wanting to fill every second of space and I thought silence was deadly. But as you grow in your career, you realize that you can use silence as a tool, and so oftentimes, especially when you forget a point, it’s ok to have a pregnant pause or use silence, and then return to a podium, to your notes, to remember what you’re saying. Or using silence to make a point after you ask a rhetorical question and using silence when you’re going from topic to topic, because my theory is you should never be talking and moving at the same time.” Shareema Abel

Resources Shareema Abel (LinkedIn) NITA Women in Trial (program) Deposition Skills: NYC (program) Building Trial Skills: NYC (program) NITA Women in Trial playlist (Spotify)

NITA Education Director Rhani Lott Choi returns to May the Record Reflect, this time as guest host, to interview trial competition coaches Justin Bernstein and Spencer Pahlke. You may know Justin and Spencer from Unscripted Direct, the trial advocacy podcast for the law school community. Tune in to this blast from your mock trial past to hear about how advocacy skills transfer from law school to law practice to life; the forgotten lessons of mock trial that you should resurrect; and how learning, practicing, and teaching are part of a career-long cycle for the skilled advocate. 

Timestamps & More

Topics

4:44   Unscripted Direct podcast

5:57   Trial advocacy community

9:58   Tough conversations about DEI

13:11 Building a legal podcast

14:48 Intersection of mock trial and trial practice

16:41 Three important lessons from mock trial

19:03 New practice pointers gleaned from podcasting

22:04 Life lessons from mock trial

26:01 Former students as colleagues

28:10 Things unlearned from mock trial

32:12 Why trial skills are important for all lawyers

33:30 Misconceptions about mock trial’s value

36:47 Keeping skills sharp

39:46 Skills transfer

42:58 Signoff question

Quote

“The biggest challenge the jurors have is they weren’t there when these things happened, so helping them feel like they are there, they’re watching things, even if it’s just through the narration of a lawyer, is incredibly powerful and it sort of sears into their memory.” Justin Bernstein

Resources

Justin Bernstein (bio)

Spencer Pahlke (bio)

Unscripted Direct (podcast)

Episode 5 (Adam Shlahet)

Episode 48 (Ben Rubinowitz)

Episode 51 (Rhani Lott Choi)

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