May the Record Reflect

Legal communications specialist David Mann joins the podcast to encourage listeners become masters of persuasion through storytelling. In this episode, David explains that legal case storytelling is not just for trials, tells how to flip the narrative script and align the fact finder with your client, and reveals a trove of writing techniques that help sharpen your writing and storytelling skills.

Content Warning: Mention of sexual assault. A brief, non-graphic discussion of a defendant’s sexual assault case occurring from 20:35 to 22:03.

Topics

2:52     Why boring opening statements are boring
 7:08    The Seven Basic Plots and the stories we tell
10:38  Orienting the “characters” in your legal case story
12:04  Unifying the fact finder — counterintuitively
19:03  Defending the unsympathetic client
23:11  Building context through storytelling
27:16  Where facts and technical information fit into persuasion
29:01  Differences between telling the plaintiff’s story and the defendant’s 
31:42  A daily practice to become a better writer
33:19  Brainstorming and self-editing
38:44  Workshopping your legal case story
42:10  Signoff question

Quote
“This is the fundamental difference between a legal case story told to, say, a jury versus narrative fiction that we watch in movies or read in books. The fundamental difference is that the narrative fiction that we’re used to watching in movies is a finished story. It has a beginning, middle, and end. The credits roll at the end, you walk away – that story is complete. In a legal case story, it isn’t complete because the jury is the end of the story. The story hasn’t been completed yet. They will complete the story.” David Mann

Resources
David Mann (website)

Story Power: Building Persuasive Case Narratives (course)

Presentation and Oral Advocacy Skills for Any Lawyer (course)

The Seven Basic Plots: Why We Tell Stories (Wikipedia)

The Artist’s Way: A Spiritual Path to Higher Creativity (book)

Engaging the Jury in the First Two Minutes (free webcast)

Winning Cases with Better Storytelling (free webcast)

Give ‘em the Ol’ Razzle Dazzle, with Dominic Gianna (podcast)

Metallica (v. Napster) and (v. Guerlain) litigation

Kansas District Court Judge Amy Hanley is joined by UNT Dallas College of Law Professor Cheryl Brown Wattley for a lively discussion of “the tense trio”: objections, cross-examination, and impeachment. Find out what these elements of a trial have in common; why trial lawyers face so much pressure around them; how to overcome the challenges of the tense trio at trial; and what mentorship means to career development. 

 Topics
3:31     What is the “tense trio”?
 3:56    What makes these parts of a trial so tense for lawyers 
 4:41     The pressure of objections
 6:57     Tuning your ear for objections
 8:59     When not to object
10:05  Learning the FRE
11:00  The pressure of cross
12:34  Cinematic moments
14:40  Preparation versus spur of the moment
17:35  Getting out of your own way on cross
22:56  Women and cross
28:34  Ending with a zinger
31:18  The pressure of impeachment
34:20  The 3 C’s of impeachment
36:01  When impeachment backfires
39:20  Common impeachment mistakes
41:05  Preventing rehabilitation 
43:14  Mentorship
50:30  NITA Women in Trial

 Quote

“I have discovered that there’s also a physical hurdle to cross-examination, in that tone and demeanor. And what I’m talking about there is that adrenaline rush that we get from confrontation, and if you’ve been in trial and you’ve done cross-examination, you know what I’m talking about. The blood is pumping, the energy is coursing through you, and I’ve heard communication specialists talk about this and how we really need to burn off some of that excess energy.” Judge Amy Hanley

“I think the other problem area [in impeachment] is oftentimes lawyers want the impeachment to work and they don’t read the second sentence. They don’t read the thing that the witness said either right after, or alternatively right before. So, you pull out that which seems to be a contradiction, but really, if you read the full paragraph, it’s the same explanation. You can’t just focus on the five words.” Cheryl Brown Wattley

Resources

Judge Amy Hanley (bio)
Cheryl Brown Wattley (bio)
NITA Women in Trial (program) (video)
Federal Rules of Evidence with Objections (book)
Harnessing Your Power on Cross-Examination (webcast)

Retired federal judge Nancy Gertner and class action lawyer Reuben Guttman discuss the impact of Twombly and Iqbal, two SCOTUS decisions that precipitated critical changes in pleading, class certification, and expert standards that have affected a complaint’s capacity for making it past the motion-to-dismiss stage. In this wide-ranging interview, they talk about the challenges these decisions have on both judges and practitioners and how the landmark case of Brown v. Board might fare under post-Twiqbal standards.

Topics
4:02    Twombly/Iqbal’s impact on pleading standards
7:17    Why process and procedure matter 
10:16  Changes pleading standards
12:43  Changes in class certifications
14:11  Rise of multidistrict litigation
16:20  Changes in expert standards, both criminal and civil
21:47  Experts in the civil rights arena
25:40  Applying today’s pleading and class certification standards to Brown v. Board
29:30  Rules that affect access to justice
33:04  The benefit of a losing Supreme Court case
36:04  Getting around these obstacles
44:11  Judges, lawyers, and the legacy of discrimination cases
48:35  Signoff question

Quote
“I know from having been a criminal defense lawyer and civil rights lawyer and a judge, and now sort of a litigator as well, that what I may find ‘plausible’ may be not what a jury finds ‘plausible.’ That plausibility is, in fact, a contextual analysis—in context. And when I sat on the bench there were numbers of times, in fact, that my law clerk would say to me, ‘Judge, you can get rid of this case. You can get rid of this case. The allegations are not plausible.’ And I would turn to the law clerk and say, ‘To whom? To you? To me? To some of my male colleagues on the bench?’ So essentially, plausibility enabled the judges, who are not the most diverse group in the world, to make their own decisions about whether a case should proceed.” Judge Nancy Gertner

Resources
Judge Nancy Gertner (bio) 
Reuben Guttman (bio)
Representative Opinions of Justice Ruth Bader Ginsburg (book)
From Conley to Twombly to Iqbal (article) 
Brown v. Board of Education complaint (PDF)
Pretrial Advocacy (book) 

As social distancing and K95s finally become visible in the rearview mirror, communications expert Carol Sowers returns to the podcast to coach listeners through the yips of post-lockdown performance anxiety and rusty face-to-face social skills, and to discuss the remote advocacy habits we created that are worth keeping and refining. She also touches on a few subtle ways lawyers inadvertently undermine their authenticity and credibility. 

Topics

2:57  Staring down the yips

9:46  Our best work adaptations and habits  

14:20   Court activities that might remain remote

17:20  Framing yourself

19:45  New rules for eye contact 

22:02   Mumbling the play-by-play

24:00  Preparing for in-person presentations

28:22  Distractions and attention span

30:20  Practice, practice, practice

31:20  Virtual backgrounds

35:56  Signoff questions

Quote

“I know it’s so boring to hear communications specialists talk about practice. It’s what we all say, and what we all have said, and what we all will continue to say. But I think it’s even more vital now. If you’re not practicing, I think you’re doing yourself a disservice, and I think that you’re doing your case and your client a disservice.” Carol Sowers

Resources

NITA 1:1 Coaching (link)

Celebrating Carol Sowers’ Nearly 30 Years with KHQA (YouTube) 

Taste: My Life Through Food, by Stanley Tucci (book)

The Dropout (Hulu)

In Episode 29 of May the Record Reflect, we gather all sorts of admissions—about depositions—from NITA NextGen alumni faculty member Jason Young. After taking and defending thousands of depositions throughout his career, he’s no-nonsense and has figured out how to make the challenges easier on himself, his clients, and his witnesses. Jason also talks about the crucial work–life decisions all lawyers face as they begin their careers. 

Topics

2:58     The hard part of taking depositions 

5:07     Federal rules related to depositions

8:24     Witnesses, both expert and lay  

10:47  Role of social media 

14:21   When to video-record a deposition 

16:47  The hard part of dealing with witnesses

18:51  Timelines for expert witnesses, plaintiff versus defendant

21:19  Subpoenas

25:10  Obnoxious opposing counsel

30:02  Preparing your witness

34:53  Protecting your witness

37:01  Remote depositions

38:30  Work–life balance and advice for new lawyers

44:50  Signoff questions

Quote

“What a lot of inexperienced deposition lawyers have a problem with is they are terrified of the unknown in depositions and afraid to follow up on things, know how to shut things down, and that really scares a lot of people. And I guess the thinking with depositions a lot of times is, you want to know more. If there’s information that’s going to come out that’s going to hurt me, I want to know it in a deposition. If there’s additional facts I need or something I didn’t know, I’d rather find out in a depo than in trial.” Jason Young

Resources

Jason Young (bio)

Blog interview (The Legal Advocate)

Federal Rules of Evidence with Objections (book)

NITA Deposition courses (registration)

In Episode 28 of May the Record Reflect, New Orleans trial legend Dominic Gianna introduces the concept of “audience-centric advocacy” and how to reach jurors and judges through effective storytelling, psychological insights, and physical performance. This self-professed “Broadway theater kid” talks about stepping into your own personal style, becoming comfortable in your own skin, why you need log lines and tag lines, and how he became the legal consultant on My Cousin Vinny.'

Topics

3:26     What jurors want 

4:44     Audience-centric advocacy

6:37     When jurors are most open to persuasion  

8:41     Two stages of trial: framing and scrutinizing

13:44   Central premise 

19:11  Importance of jury psychologists

21:45  Jurors’ attribution of fault and judgment of parties’ motivation

23:45  Back story

26:15  Storytelling

28:15  Log lines and tag lines

34:08  Non-verbal communication

37:01  Developing your trial style

38:43  Raising your comfort level with performance

42:55  Don’t do this

45:31  Advocacy during covid

54:11  Signature sign-off questions

Quote

“The framing process takes place right away in the beginning, and that is, in most trials, in the opening statement. That’s why we tell our NITA students, ‘Never ever, ever save a good, persuasive piece of evidence for the trial.’ Never do that, because when the framing part of a trial is over, which is usually the end of the opening statement, 85 percent or so of people who are leaning this way as opposed to another way, never, ever, ever change their mind.” Dominic Gianna

Resources

Dominic Gianna (bio)

Deposition to Trial Skills: New Orleans (program)

David Mann (bio)

Dr. Dan Jacks (bio)

Kevin Newbury (bio)

Opening Statements: Winning in the Beginning by Winning the Beginning (book)

Sapiens: A Brief History of Humankind (book)

Joan of Arc trial (transcript)

In Episode 27 of May the Record Reflect, former federal prosecutor Luke Cass slides into the hot seat to answer questions about closing arguments. He shares what he learned in working civil and criminal cases for the DOJ in Puerto Rico and D.C., with a particular emphasis on reversals on closing: what they are, why they happen, and what happens next. 

Topics
3:39     Closing argument is the time for … 
4:04     Advantages and challenges for counsel in closing argument
6:44     When to develop your closing  
7:18     Visual aids
8:19     Jury instructions
10:34  Differences in closings for plaintiffs versus defendants 
11:50  Rebuttal
13:21  Experience with reversals on closing
14:28  How reversals happen
15:10  Consequences of reversal
16:36  Types of misconduct
20:32  Why misconduct during closing happens
21:50  Predicting reversals
23:39  What reversals feel like for counsel and clients
25:48  Signature sign-off questions

Quote
“To make a closing great, you need to invest a lot of time mastering the facts, the law, your delivery, and the nonverbal communication you want to make with the jury. That nonverbal communication is often as significant as the content of the argument itself.” Luke Cass

Resources
Luke Cass (bio)
“Closed Courtrooms: Sixth Amendment and Public Trial Right Implications” (article)
The Journal of Appellate Practice and Process (free subscription)

26. Direct Hit, with Mike Beckwith

 In Episode 26 of May the Record Reflect, we’re joined by trial veteran Mike Beckwith to talk about one of the foundations of trial practice: the direct examination. As a Chief Assistant United States Attorney with the Department of Justice, Mike has litigated hundreds of cases before trial courts in multiple federal districts and the Ninth Circuit. Tune in to find out why he thinks direct examination is crucial to your case, the best way to deal with bad facts and unlikeable witnesses, and how to comport yourself on your feet and in the moment. 

Topics
5:35     Where your case is won
6:55     Why direct is harder than it seems
10:44  How to keep direct interesting 
13:40  Humanizing a despicable witness
18:50   Objections from opposing counsel
21:08  Visual aids 
24:23  Body language
27:17  If you’ve stunk up your direct
30:17  Introducing bad facts
34:43  Redirect
36:09  Signature sign-off questions

Quote

“With a good witness, you feel like Clarence Darrow. With a bad witness, you feel like a first-year law student. But there are good and bad out there, and so you’ve got to listen, because the good witness will give you something you want to follow up on that you didn’t have in your notes, and the bad witness you really need to be careful with because  there’s a reason why they’re doing what they’re doing and a lot of times you can shift to something that’s going to explain that or you can shift them off a topic that’s irrelevant or is just going to go down a rabbit hole that is going to confuse the jury.”  Mike Beckwith

In Episode 25 of May the Record Reflect, we take a listen to the best tips we heard from each episode in 2021. To hear the full episodes from which each tip was derived, please visit our podcasts on nita.org  here.

Topics

1:47     Dick Harpootlian 

3:49     Alison Reagan

5:57     Dean Marc Miller

9:14     Helen Geib

11:28  BJ Moore

14:35  Alicia Aquino

16:22  Shannon Bales 

17:35  Hon. Nancy Vaidik

20:15  Rebecca Diaz-Bonilla

21:59  Judith Gaton

23:29  Steve Wood

27:16  J.C. Lore

29:10  Reuben Guttman

30:36  Jo Carol (LaFleur) Nesset Sale

32:59  Angela Porter

34:10  Dan Kotin

36:13  Hon. Ann Claire Williams (Ret.)

37:00   Clay Taylor

In Episode 24 of May the Record Reflect, we’re joined by legendary American trial lawyer Dick Harpootlian. He takes a moment out from representing Alex Murdaugh to describe the roundabout way he entered law and became one of the nation’s top trial lawyers, discuss what it was like to work death penalty cases and prosecute an infamous mass murderer, and reveal advocacy tips that have always brought him luck.

Topics
3:28 The accidental lawyer
7:14 Winning . . . and losing
8:48 Introducing Pee Wee Gaskins
16:02 The life philosophy of a mass murderer
20:28 Dick’s tips on jury selection
25:18 Owning the courtroom and “the confidence to lose”
26:56 Bushido in the courtroom
28:36 High-profile cases and managing the media
32:39 Traditional media versus social media
33:42 The secret to deposing experts
35:33 Nerves and emotions
36:38 Pleasure reading and favorite shows
38:11 Murdaugh case on Netflix?
40:05 Volunteering for cases for trial experience

Quote
“Check your fly before you get up, gentlemen.” Dick Harpootlian

Recommended Resources
Dick Harpootlian (bio)
The ‘Murdaugh Murders’: What to Know About the South Carolina Mystery
Murdaugh attorney addresses “hysterical theories” in interview with Good Morning America
Pee Wee Gaskins
Lincoln’s Last Trial, by Dan Abrams (book)
The History of the Bushido Code: Principles of Samurai Culture
Fargo
Goliath