Explorez tous les épisodes du podcast May the Record Reflect

A successful motion argument starts with credibility: earn the judge’s trust through preparation, candor, accuracy, and a clear understanding of the relief you’re seeking. Judge Matt Williams offers practical strategies for making persuasive arguments, from leading with what you want and focusing on the strongest facts to knowing your judge, respecting the court’s time, and addressing weaknesses strategically. He also explores how lawyers can use AI to test arguments while safeguarding client confidentiality and meeting their ethical obligations.

Topics

03:51 “Credibility before the tribunal”
05:44 Rules governing credibility before the tribunal
08:46 First thing to do before the bench
12:21 Next steps
17:03 Particulars of your motion
18:37 Stipulations on time
22:37 Making effective arguments
30:03 Weaknesses in your argument
33:22 Practicing with an AI “judge”
42:52 AI hallucinations destroy expert and case
45:44 Impressing the judge
57:15 Signoff question

Quote

“When we think about AI and we think about its impact on the practice of law, it's easy to say, ‘Oh my gosh, we’ve never been in a place like this.' Well, you know, the reality is technology has been influencing the practice of law for as long as human beings have continued to innovate. We have dealt with the use of digital evidence back in the ’70s and ’80s and early ’90s. The idea of digital evidence that could be manipulated changed ― it caused quite a stir in our community. We found ways that it could be used effectively. The introduction of display tools like PowerPoint, the introduction of remote technologies, especially during COVID. And so, as a very human endeavor, the practice of law has always had to deal with technologies.” Hon. Matt Williams

Resources

Hon. Matt Williams (LinkedIn)
AI for Litigators: Practical Tools to Transform Your Practice (book)
Point Well Made: Persuasive Oral Advocacy (book)
Refreshing Recollection and Impeachment, with John Farrell (podcast episode)
Deposition Skills: New Jersey (program)
Building Trial Skills: New Jersey (program)
Deposition Skills: Houston (program)
Building Trial Skills: Houston (program)

It’s often said that a case is won — or lost — during direct examination. Former prosecutor Steve Wood explores why direct really comes down to effective storytelling, ways to organize your direct examination, and how to ask questions that not only elicit good answers but also help the trier of fact follow the narrative. He also touches on how to cut through the inevitable fog of boredom by introducing purposeful change into the courtroom environment. 

Topics
2:44 Goals of direct examination
3:37 Why storytelling matters in direct
5:16 Storytelling elements
14:01 Breaking through the fog of boredom
23:11 Sequencing your questions
26:05 Using your voice
28:45 Organizing your direct
31:57 Accrediting the witness
36:18 Telling the story
41:17 Honesty and bad facts
44:24 Questioning the witness
47:02 Phrasing your questions
59:39 Word choice
1:02:00 Witness focus
1:05:51 Plain English
1:09:46 Tenacity
1:12:37 Runaway witnesses
1:16:36 Signoff question

Quote
“One of the things that happens in every trial is that there is a contest for credibility between the advocates. I don’t — and can’t — lose that contest. And if a jury hears something bad from the other side first, they might be thinking I was trying to hide something from them.” Steve Wood

Resources
Steve Wood (LinkedIn)
Building Trial Skills: New Jersey (program)
Top 10 Tips that Make a Difference (podcast episode)
“Don’t Be Boring”: Creating Your Commanding Courtroom Presence (podcast episode)
Cross-Examination: Do No Harm (free webcast)

Whether you’re conducting a new client intake, deposing a witness, running a meeting on Zoom, or defending a client in the trial of their life, you must be an effective communicator. In this episode, Maricopa County Superior Court Judge Chris Whitten is joined by legal communications expert Dr. Karen Lisko to break down twelve communication attributes—six verbal and six nonverbal—that you can polish. All it takes is self-awareness and a little practice, and Dr. Lisko and Judge Witten tell you where to start. 

Topics

5:43 Assertive versus aggressive communication styles
7:51  Adopt a conversational pace
10:34  Pause to punctuate your point
14:37  Replace Your Vocal Fillers
23:49  Amplify Your Volume
28:19  Reach Down for Your Deepest Natural Pitch
39:18  End with a Downward Inflection
40:54  Smile
48:10  Make “Kind Dynamite” Eye Contact
52:13 Literally Lean In
54:41 Use Hand Gestures Well
58:33 Have an Active Listening Face
1:00:26 Try “Hinging” Your Head Periodically
1:04:19 Signoff questions

Quotes

“One of the things that I often find when I deal with someone who lacks confidence is that when they do increase their volume, it has some byproduct advantages. And I can’t explain why from a social science perspective, but it I just keep seeing it, where when someone increases their volume, their face gets more animated, their eyes get brighter.” Dr. Karen Lisko

“As a fact finder, when you don’t give me that pause, especially after important evidence comes in, I find myself thinking or having an internal dialogue about what that just meant. And I miss like half of what the next thing you say is. And so those pauses are just so, so welcome for me when I’m listening.” Hon. Chris Whitten

Resources
Hon. Chris Whitten (LinkedIn)
Dr. Karen Lisko (bio)
Twelve Essentials of Assertive Delivery (free download)
Kind Dynamite (book)
NITA Women in Trial (program)
Advanced Trial Skills (program)
Building Trial Skills: San Diego (program)

Opening statement, direct and cross-examination, and closing argument are the most basic elements of advocacy that a trial lawyer must know. To announce that May the Record Reflect can now be heard on YouTube, we revisited the “Core Four” from our archives. NITA faculty members share their best insights and tips on these four critical competencies.

Topics
4:00  Creating your opening statement
6:23  Workshopping the opening
8:38  Struggling with the right story
10:12  Engaging jurors’ imagination during opening
13:26  Using visual aids
16:47  Objections on openings
19:10  Making your case in direct examination
20:16  The challenges of direct
23:56  How to keep direct interesting
26:34  Humanizing a despicable witness
33:52  Fundamentals of a zinger on cross-examination
40:28  Preparation versus spur-of-the-moment
43:08  The challenges of cross
48:28  Women and cross
53:42  Your advantage in closing argument
55:54  When to start thinking about your closing
56:47  Using visual aids
57:45  Jury instructions
1:00:11 Closings for plaintiff versus defendant

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

Resources
May the Record Reflect on YouTube (link)
The Secrets of Opening Statements, with Brooke Latta (podcast episode)
Direct Hit, with Mike Beckwith (podcast episode)
The Tense Trio, with Hon. Amy Hanley and Cheryl Brown Wattley (podcast episode)
Closing Time, with Luke Cass (podcast episode)
NITA Women in Trial (program)

Washington State Supreme Court Justice Sal Mungia shares essential tips for effective trial advocacy, emphasizing credibility, storytelling, and clear communication with jurors. He highlights the importance of authenticity, professionalism, and preparation—from mastering the rules of evidence to building rapport without relying on notes. Blending practical guidance with personal insight, Justice Mungia encourages trial lawyers to practice with integrity, show grace, and ultimately find purpose and enjoyment in their work.

Topics
4:40 Never lose your credibility with the jury or judge
6:59 Tell a compelling, human-centered story
9:33 Speak plainly—avoid legalese and connect clearly
12:32 Professionalism matters—don’t be a jerk
15:39 Show grace, even in high-pressure litigation
19:26 Build rapport—don’t read from notes
21:46 Play by the rules—integrity defines success
23:24 Know the rules of evidence and procedure
25:41 Be yourself—authenticity resonates with juries
27:19 Have fun—find purpose and energy in trial work
28:59 Gaining trial experience
32:42 Signoff question

Quote
“Every time that I tried a case, I was thinking, ‘This is the best thing ever!’ I’m not kidding. ‘I am just eating this thing up. I’m loving this. This is my chance to be creative, to be able to tell my story, to represent my client, to use my wits to figure out whether I should object. If I do object, how do I make that argument? How do I use my exhibits?’ It’s just so much fun. And it’s so nerve-wracking when you’re waiting for the jury, right? That’s when it’s just ‘argh!’ tension-wise. But I always thought, “This was great. I can’t think of anything that I’d rather do.’” Hon. Sal Mungia

Resources
Hon. Sal Mungia (LinkedIn)
Building Trial Skills and Deposition Skills: Seattle (programs)
The Trial of the Chicago 7 (film)
May the Record Reflect on YouTube (link)

In this episode, veteran trial lawyer John Farrell distinguishes between refreshing recollection and impeachment, two essential but sometimes conflated courtroom skills. Learn how to help your own witness recall facts on direct examination through refreshing recollection and how to effectively challenge an opposing witness on cross with a structured, high-impact impeachment technique. Packed with practical language and strategy (and a few demos along the way), this conversation offers clear guidance on when and how to deploy these important skills that every trial lawyer needs to master.

Topics
3:13    Difference between refreshing recollection and impeachment
4:54    What’s wrong with “I don’t know” during examination
6:19    Using documents to refresh recollection
7:24    What’s wrong with “would” during refreshing recollection
8:41   Refreshing recollection demo
10:13 A crucial step to remember
13:21 The point of impeachment
14:37 Step 1 of impeaching by prior inconsistent statement
15:35 Demo
17:52 Why you should sound disappointed
18:50 Demo
19:20 Steps 2–6
23:21 Demo
27:21 Why impeachment better be worth the effort
30:05 Your tone through impeachment
33:16 Impeachment by omission
40:49 Consequences of a bad impeachment
41:56 Again, make impeachment worth your while
44:16 Signoff questions

Quote
“The reason [impeachment] is so important is that if you decide to impeach and you don’t do it correctly or successfully, the witness has just been told they can lie all the time on the stand. You’ve lost control. If you do it really well the first time, and the next time they go off message, they say something else different, and [the witness goes], “Well, no, that’s not right. It was Fact C.” And [you] go, “I don’t think so. Let's go to your depo transcript.” [The witness will] go, “Okay, fine, fine, it was C,” because they don’t want to go through that again. So I think it’s an important tool.” John Farrell

Resources
John Farrell (bio)
Refreshing Recollection and Impeachment (article)
Eight Steps for Handling Deposition Exhibits (podcast)
Deposition articles (1, 2, 3)

Wilmington Law Associate Professor of Law Veronica Finkelstein and law student Dr. Marisa Rauscher discuss what it takes to become an exceptional litigator, from growing your essential hard and soft skills to unconventional ways of developing them, and transforming your personal values into a professional brand. They also explore why maintaining a beginner’s mind — curiosity that never quits — is critical at every stage of a rewarding legal career and recommend their favorite law-related social content that helps them do just that.

Topics
5:24  Why to teach, and why to learn, law
7:60  Lacking skills out of law school
10:01 Various toolkits for trial lawyers 
13:39 What new lawyers should focus on
15:37 Importance of writing and motion practice skills
18:28 Going to trial: present and future
27:35 Professional branding and marketing yourself as a lawyer
33:40 Informal CLE through social media
36:17 Younger lawyers have an advantage
45:35 Signoff question

Quotes

“Being an attorney means having a holistic set of skills. A lot of those skills are variations on each other, so the same skill that will serve you well at that Rule 16 conference, when you meet the judge and opposing counsel for the very first time, is an analog of a skill that you would want to have at trial.” Veronica Finkelstein

“Great minds and well-intentioned people have tried to establish rules to play by, that serve all in a just fashion, and I want to be in that game, I really do. I want to know the law, I want to use the law for good, and I also want to cultivate the soft and hard skills of lawyering so that my advocacy rests on a strong foundation of excellence. That’s the goal. Know more, do more.” Marisa Rauscher

Resources

Veronica Finkelstein (LinkedIn)
Marisa Rauscher (LinkedIn)
Veronica in studio71 (podcast, podcast, webcast)
Additional Advocacy Skills (program calendar)
Law-related podcasts, vlogs, and YouTubes (PDF)

Finding the right storytelling angle can be challenge for any trial lawyer, but for those advocating on the right-hand side of the v, it’s often even more so. In representing clients jurors may not automatically find sympathetic, defense counsel must express empathy for harms the plaintiff has suffered without admitting to their liability and present technical data that is critical to their client’s defense but wearisome for fact finders to follow. Good narrative technique can help, and in this episode, legal storytelling specialist David Mann shares the insights he’s gain in over a decade of working with trial lawyers to develop winning case stories. 

Topics
4:01  Changing defense landscape
7:20  Plaintiff’s automatic emotional hook
9:54  Humanizing the defense client
12:13  Importance of storytelling
17:34 Observing versus opining
20:31  Going granular
24:38  Being engaging and persuasive
28:12  Check your blind spots
30:26 Persuasive presence and turning facts into a story
35:03  Signoff question

Quote
“[Defense lawyers] need to be good storytellers, and they are just beginning to see how important that is and how they are now losing where they used to win. They’re also seeing the nuclear verdict problem. So juries are awarding tens of millions and even hundreds of millions of dollars in cases that just a few years ago that would have been unheard of. And now it’s getting to be more and more regular. So that that’s how high the stakes are for the defense.” David Mann

Resources
David Mann (bio)
Turning Facts into a Story (May, November)
Persuasive Presence (October)
Building Trial Skills: New Orleans (program)
The Secrets of Persuasive Legal Storytelling (podcast episode)
Engaging the Jury in the First Two Minutes (free webcast)
NYT 10-Minute Challenge (gift article)

According to Philadelphia trial lawyers Tom Innes and Mary DeFusco, preparing your witness for testimony is a bit like training a guide dog: the real work happens long before the leash comes off. In this episode, Tom and Mary talk about how to create control in ever-important prep sessions prior to testimony—and they share hands-on, practical tips that will help your witness give their testimony while staying cool and collected, on track, and under control.  
Topics
4:04  Why preparation is the first step
5:38  Deposing Dr. King on The Pitt
8:11  Your witness’s role  
10:30  Organization of testimony, explained
11:50  Under pressure
13:50  Cross prep
15:33  Practice pointers
19:13  Ethical considerations
23:02  Signoff questions

Quotes
“Practice having the witness speak to the jury both on direct and cross. Speak to the jury—even if all you can do is set up some empty chairs as a jury box.” Tom Innes

“It’s a really bad look in front of a jury when the witness answers every question promptly on direct but then very slowly on cross.” Mary DeFusco

Resources
Tom Innes (bio)
Mary DeFusco (bio)
Judge L. Felipe Restrepo (bio)
Building Trial Skills: Philadelphia (program)
Cross-Examination Math (podcast episode)

From forensics to financials and the medical to the technical, trial lawyers rely on expert witnesses to help fact finders understand complicated concepts and issues in their case. But dealing with experts is an expert technique in itself, so in this episode NITA Program Director Gene Tanaka breaks down the battle-tested process that has brought him success. First, he lays out the standards for expert testimony and traps to avoid, then shares steps for direct examinations, issues in cross, and persuasive techniques. 

Topics
04:20  Why experts are important
05:54  Breadth of expert opinions
07:24  Expert traps
11:44  Standards for expert testimony  
15:28  Five steps for direct examination: Introduction and teaser
17:48  Qualifications
20:10  Red flags in an expert’s background
21:28  Opinion
25:24  Basis for opinion
27:39  Difference of experts’ opinions
28:50  Conclusion
30:19  Persuasive techniques
34:10  Conducting cross
42:06  Signoff questions

Quote
“One of the things that we [attorneys] often do is we rely too much on credentials. We look at an expert and we think, ‘Well, this person has this certification and this level of education, and therefore they must be better than the other person who doesn’t have that.’ But you know, a lot that is just lost on everybody – the trier of fact. They can’t tell the difference between one credential or the other. But what they can tell the difference is whether someone is likeable and whether they’re understandable.” Gene Tanaka

Resources
Gene Tanaka (LinkedIn)
Expert Testimony slides (PPT)
Modern Trial Advocacy: Analysis and Practice (book)
Federal Rules of Evidence with Objections: As Amended to December 1, 2023 (book)
Expert Testimony: A Guide for Expert Witnesses and the Lawyers Who Examine Them (book)
Effective Expert Testimony (book)

With most cases settling before trial, depositions have become the real battleground—and few people know that better than Carl Chamberlin. Carl has spent decades taking and defending depositions in private practice and teaching the craft for over 30 years. In a reprise of one of May the Record Reflect's most popular episodes, he’s here to share how to kick things off the right way—from setting the stage with introductory matters to navigating preliminary and substantive questions. 

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)
The Effective Deposition, Sixth Edition (book)

Opera and the courtroom might seem worlds apart—but they share a similar stagecraft. In this episode, Anne Fuchs, professional opera singer and Director of Communications for the Indiana Court of Appeals, reveals how posture and breath can transform your voice into a powerful advocacy tool. From mastering vocal control to learning a little Italian, this conversation will help you speak with confidence and command attention when it matters most.

Topics
02:30  Why vocal quality matters
04:03  Assessing your voice and why we hate the sound of it
07:13  Transatlantic accent
08:34  Introverts and extroverts, and skills 
13:42  La Postura
21:16  Appoggio
33:05  Legato
41:26  Chiaroscuro
39:41  Nasality and vocal fry
50:20  Opera and the appellate court
55:23  Signoff questions

Quote
“Confidence is a skill set. It is not a personality trait. And so as much as it might feel like, Wow, that big, loud, bombastic person with that amazing trial experience, and Look at how he just commands the courtroom with that voice—that may be something that’s inherent to him. It may be something that he learned. But it is 100% true that every single person can learn how to use their voice more confidently and more effectively, without being an extrovert, without it being something that just came to them naturally. There are specific skills you can learn, and anybody can do it.” Anne Fuchs

Resources
Anne Fuchs (bio)
Foxy Opera (30-minute private coaching, enter Secret49 for savings)
Vocal Warm-Up Exercises (cheat sheet)
Point Well Made: Persuasive Oral Advocacy (book)

For the first time in history, attorneys from as many as five generations can be found practicing law together. From veteran trial lawyers in their 70s and up to Gen Z associates just starting out, the generational diversity in today’s legal workforce is unprecedented. In this episode, Professor Marian Braccia of Temple University Beasley School of Law discusses how generational identity influences legal practice, challenges stereotypes about Gen Z lawyers, and offers insights into fostering understanding and mentorship across age groups.

Topics
00:58  Generational span in law offices
04:40  Gen Z stereotypes and realities
05:53  Overview of generations in law
08:35  Defining characteristics by generation
26:37  Gen Z values and “sea change”
29:58  Generational mix in legal workforce
32:02  Authority and leadership styles
36:13  Policies and procedures
39:41  Decision-making preferences
42:55  Communication styles
47:58  Feedback and critique preferences
52:30  Generational tensions and perceptions
58:42  Recognition and rewards
01:01:51  Recommendations for law firms
01:07:20  Signoff questions

Quote
“We are talking about the success of the profession, we are talking about the longevity of the profession, and we want that to be something that doesn’t have to be reinvented every generation. We want to see continuity, and the only way we can do that is for there to be meaningful collaboration between the generations when it’s time to pass the baton.” Marian Braccia

Resources
Marian Grace Braccia (bio)
The Generations War Comes to the Law Firm (article)
Why We Mistake the Wholesomeness of Gen Z for Conservative (article)

Rule 30(b)(6) depositions can be a game-changer in litigation—but only if you know how to use them strategically. In this episode, former Assistant U.S. Attorney and current Wilmington Law professor Veronica Finkelstein shares expert guidance on understanding the purpose and power of a 30(b)(6) deposition, identifying the right corporate representative, drafting precise specifications, and preparing your designee for examination. Whether you're deposing a Fortune 500 company or a little mom-and-pop shop, this episode will fine-tune your approach to corporate testimony.

Topics
4:23     What is a 30(b)(6) deposition?   
7:11     Why all trial lawyers should know about 30(b)(6) depositions
9:40     How deposing 30(b)(6) witnesses is different
14:27    Meet-and-confer requirement about specifications
17:44    Drafting specifications
20:20    Benefit of taking 30(b)(6) depositions
23:57    Qualities of a desirable corporate designee
25:54    Designees and fact witnesses
29:21    Corporate counsel and deposing counsel preparations
35:40    Who represents the designee?
40:05    Nonresponsive or jerk designees
43:24    Things to be mindful of during examination
45:39    When interrogatories are preferable
46:56    Cases to know: QBE and Marker
49:42    Deposition Skills: Philadelphia
51:53    Sign-off questions

Quote
“This is one of the few times in litigation when you get to pick your witness, so pick somebody good. Don’t pick somebody who’s the CEO of the company who doesn’t have time to get educated. Don’t pick somebody in HR who’s been following the policies wrong for the last 20 years and you’re never gonna unteach. Pick somebody who’s gonna be a really good mouthpiece on behalf of the company who you can educate properly.” Veronica Finkelstein

Resources
Veronica Finkelstein (bio)
J.C. Lore (bio)
Deposition Skills: Philadelphia (program)
NITA Women in Trial (program)
QBE Ins. Corp. v. Jorda Enters. Inc. (case)
Marker v. Union Fidelity Life Ins. Co. (case)
Law 360 article (PDF)

Depositions can be a minefield—and not just because of the facts. In this episode of May the Record Reflect, trial attorney Whitney Untiedt returns to share her expert strategies for navigating the disruptive behaviors of difficult counsel and witnesses. From talkers and interrupters to charmers and egomaniacs, Whitney breaks down the types of jerks you’ll encounter and how to stay focused, professional, and in control. Whether you’re taking or defending a deposition, this episode offers practical tools, real-world stories, and a reminder that your attitude is your greatest ally.

Topics

4:52     Obstreperous behaviors   

9:45      When the jerk is the witness

12:30    Strategies for handling witnesses

16:28    Preparing for opposing counsel

18:27    In-the-moment responses

23:16    Socialized for niceness

27:29    Supporting your client

31:45    What not to do

37:39    Rules about lawyer conduct

43:53    Remote versus in-person depositions

52:51    Why do lawyers act like jerks

57:57    A war story

1:01:01  Florida programs

1:07:01  Signoff questions

Quote

“The worst jerks are the ones that kill you with kindness than the ones who try to come at you with a butcher knife.” Whitney Untiedt

Resources

Whitney Untiedt (bio)

Deposition Skills: Florida (program)

Jayme Cassidy (bio)

Building Trial Skills: Florida (program)

Long hours, heavy caseloads, high stakes—such is the modern trial practice. But when lawyers represent survivors of violent or traumatic incidents, they often experience next-level stress caused by empathetic engagement. In this episode, UNT Dallas College of Law professor and JAMS neutral mediator, arbitrator, and special master Angela Downes introduces listeners to vicarious trauma and its effects on body and mind, how vicarious trauma differs from burnout, and how to recognize compassion fatigue in yourself and your colleagues. Most importantly, Professor Downes discusses effective stress-management strategies that would benefit anyone with a busy trial practice.

Topics
3:46    What is vicarious trauma?   
4:15    Lawyers, vicarious trauma, and burnout
7:31    Indicators of vicarious trauma and getting support
15:49  How firms can help
17:40  Self-care strategies
27:55  ABA studies on lawyer stress
31:02  More strategies
35:09  Recognizing vicarious trauma in others
38:20  New generation attunement to wellness
40:24 Sign-off questions

Quote
“So many of us are defined by the work that we do, and we are more than that. We are more than just … being attorneys and counselors. Although it’s a big part of us, there are so many sides to what we do and who we are as people.” Professor Angela Downes

Resources
Professor Angela Downes (bio)
NITA Women in Trial (program)
Stress, Drink, Leave (article)
ABA Profile of the Legal Profession (article)
ABA Directory of Legal Assistance Programs (resource)

Depositions are a key building block in legal disputes, especially for cases that proceed to trial. According to veteran trial lawyer John Farrell, properly handling an exhibit so it’s admissible at trial is an overlooked skill that can, and should, be practiced until it becomes second nature. In this episode, John reveals eight crucial steps for handling documents that ensure your deposition flows smoothly and exhibits are admitted for trial. He breaks down the process step by step, gives the exact sample language that ensures exhibits are properly marked and admitted, and suggests ways to keep court reporters and judges pleased with your professionalism. 

Topics
3:59  Asking questions before marking a document 
5:35  When witnesses want to see a document first
7:48  Making deposition exhibits admissible at trial
8:30  Eight steps for handling exhibits: Step 1
9:36  Step 2
10:35  Step 3
12:08  Demonstrations of marking different documents
25:26  Step 4 , and helping the court reporter
27:59  Step 5, and the important question to ask your witness
29:12  Step 6, and two more important questions
32:15  Step 7
33:37  Step 8
35:35  Three-article series on depositions
37:23  Signoff questions

Quote
“‘Bears the word’ . . . is the safe phrase that judges like to hear.” John Farrell

Resources
John Farrell (bio)
Deposition articles (1, 2, 3)
Refreshing Recollection and Impeachment (article)

Content Warning: This episode discusses, in non-graphic terms, representing intimate partner violence survivors. 

Being a trial lawyer is one of the toughest, most demanding professions out there, and when you’re representing family members in distress it’s even more so. Hofstra Law professor Barbara Barron discusses advocacy challenges faced by lawyers working with survivors of intimate partner violence, or IPV. Although some details are particular to IPV survivor representation, trial lawyers in nearly every practice area will find Barbara’s reflections on supporting reluctant or intimidated witnesses during testimony, dealing with pro se opposing counsel, and handling emotional witnesses or clients to be applicable to their own high-stakes cases. 

Topics
4:00  What is IPV? 
6:56  How IPV survivors differ from other crime victims
11:23  Implicit biases judges or jurors might have about IPV 
12:24  Types of evidence
14:39  Special accommodations against intimidation
16:09  Defendant as pro se counsel
19:42  Preparing for direct and cross-examination
23:22  Emotions, or none, during testimony
26:12  Preparing for anxiety
29:16  Counsel and vicarious trauma
31:53  Public Interest Award and advocacy programs

 Quote
“In the case of the pro se defendant, and dealing with that person and having to answer questions on cross, the questions may not be as pristine as an experienced or talented trial lawyer’s may be, and it may not be as controlling a situation as anticipated. If the questions are such that it allows the witness to answer more than yes or no, where’s the control?” Barbara Barron

Resources
Barbara Barron (bio)
Building Trial Skills: New York–Hofstra (program)
Half-Day Intensives: Online (programs)

For trial lawyers, “advocacy in a hurry” — injunctions, bail hearings, requests for orders of protection, emergency custody petitions, or immigration orders — calls for making the most of the limited time you have before the court, even if it's just 15 minutes. Former Illinois Eighth Circuit Court Judge Mark Drummond shares seven valuable tips on compressing your case to fit the time available, how to help the judge quickly understand what’s at issue in the proceeding, and what ethics concerns must remain top of mind for all advocates regardless of whether their time before the court is 10 minutes or 10 weeks.

Topics
3:43  What is emergency advocacy?  
8:00  Circumstances calling for emergency advocacy
16:48  Making the most of the little time you have
17:40  Factors you must prove in your state
18:30  Primacy and recency
21:00  Appeal to the judge
21:47  Written offer of proof
23:15  Persuasive use of numbers
23:53  Offer time limits
27:00  Judges triage
27:39  What judges fear
31:02  Two things to be prepared for
34:11  Your duty of candor to the court
38:06  Signoff questions

Quote
“You’ve spent a lot of time going through law school. You’ve built a practice. Clients will come, clients will go. You built your practice brick by brick on the decisions you’ve made, the judgments you’ve made, and the choices you’ve made. And it takes a lifetime to do that. But you know, sometimes like a child that knocks down their wooden block tower, it only takes one time to tear all that down. And no single client is worth that.” Judge Mark Drummond

Resources
Judge Mark Drummond (bio)
"Death Penalty Cases in a Traffic Court Setting" (article)
"What Judges Want" (article)
Ethical duty of candor to the court (newsletter)

As a sitting district court judge and 29-year public defender, NITA Program Director Judge Cynthia McCollum knows a thing or two about jury selection, and in this episode, she opens up about how to get your jurors to open up. She serves up a baker’s dozen of her best tips for getting jurors to talk during voir dire, mistakes she learned from as a public defender, what to know about Batson challenges, and anecdotes about her career trajectory before and on the bench.

Topics
3:50  First tip for getting jurors to open up during voir dire
4:47  Second tip
5:45  Judge’s first time in court as a new lawyer 
9:48. Third tip
14:24  Fourth tip
18:33  Fifth tip
20:08  Being a public defender, then a judge
24:42  Sixth tip
26:39. Seventh tip
29:28  What it’s like to be a judge
31:48  Eighth tip
33:09  Ninth tip
38:25  Tenth tip
41:31  NITA involvement
45:06  Eleventh tip
48:35  Twelfth tip
50:32  Baker’s dozen tip about Batson
52:39  Signoff questions 

Quote
“Everyone needs to work on their jury selection. It’s not a natural for a lot of people, because you get nervous about asking those tough questions.” Judge Cynthia McCollum

Resources
Judge Cynthia McCollum (bio)
Batson bonuses (file)
Minnesota Deposition Skills and Trial Skills (programs) 

NITA Program Director and former Resource Director Mark Caldwell joins the podcast to chat about how to effectively communicate with the various audiences in the courtroom to ensure they get — and comprehend — the information they need from you. He shares how to talk to jurors about unfamiliar courtroom procedures and substantive information, why sounding like a tv lawyer is a huge turn-off to jurors, and recommends some of his favorite lawyers from pop culture whose techniques can help trial lawyers refine their courtroom communication style.

Topics

3:05    The needs of the courtroom audience
7:14    What “talking like a lawyer” means
10:10  Juror impressions of “lawspeak”  
13:53  Communicating procedural and substantive complexity
20:06  How not to sound like a lawyer
27:50  Pop culture examples of legal communication
29:00  Why my cousin Vinny is a great trial lawyer
31:42  Movies and a book to recommend
51:55  Implicit bias training

Quote
“Don’t be a tv lawyer, but take lessons from what you see on television.” Mark Caldwell

Resources
Mark Caldwell (bio)
Colorado Deposition Skills and Trial Skills (programs)
Films, shows, and book (list)

In Episode 62, Philadelphia trial lawyer and NITA Program Director Tom Innes introduces listeners to cross-examination math and how the idea of “less is more” increases the impact of the questions counsel poses to a witness. Control is the name of the game in cross, so Tom also shares how to shepherd witnesses through cross, why to restrict interrogatories in the phrasing of questions, and why less is even more when examining an expert. 

Timestamps & More

Topics
3:06    How to think about cross
3:53    Objectives of cross
5:05    Rules of cross-examination math 
6:41    Why concision helps your finder of fact
9:22    Controlling an adverse or difficult witness
10:15  Cross demo
14:12  Omitting the interrogatory
17:00  Expert versus fact witness
18:11  When to break the “cross math” rule
23:26  Signoff questions

Quote
“Every word you put into a leading question permits the witness to decide which word they will, or they can, disagree with or work around or give you a hard time about.” Tom Innes

Resources
Tom Innes (bio)
Judge L. Felipe Restrepo (bio)
Mary DeFusco (bio)
Building Trial Skills Philadelphia (program)

In 2021, former prosecutor Steve Wood told May the Record Reflect that to grow as a trial advocate, he had to accept that he is “insufferably boring.” What did he mean by that? And, how can it help you grow as an advocate as well? In this self-deprecating but entirely serious conversation, Steve and fellow former prosecutor Laurie Gilbertson talk about the neuroscience of boredom, multisensory engagement in the courtroom, telling a compelling story, and how it all adds up to self-confidence and stronger advocacy for your client. 

Topics
3:27 What it means to be “insufferably boring” in court
5:55 Neuroscience behind boredom
9:06 Why trials are boring
15:11 Bored judges, bored jurors
28:35 Resting postures for hands
37:07 Role of storytelling
42:42 When storytelling is most important
49:36 Repeating yourself without being boring
57:27 Confidence
1:01:36 Preparation, notes, and delivery
1:14:56 Great Hollywood courtroom performances
1:21:00 Signoff questions

Quote
“Our task as trial lawyers, as I see it, is to do three things. One, admit that we’re boring — all of us, all the time. Two, with the aid of people like Laurie, do the things that we can do to be less boring. And then three, never fall prey to the conceit that at any given time a majority of the trier of fact is paying attention. Assume the opposite. But what we can do, most primarily, is introduce change into the courtroom environment. That’s our mission.” Steve Wood

“. . . what I found often is that jurors who have watched so much tv, who have watched so many movies, who have read legal thrillers, who have maybe listened to true-crime podcasts — some of them, if not many of them, expect to be entertained, and when you, as the attorney, are not kind of doing all these things that Steve is talking about in terms of interjecting that change and keeping them entertained, a lot of the jurors are surprised that court is actually that boring. They expect it to be a lot more interesting.” Laurie Gilbertson

Resources
Steve Wood (bio)
Laurie Gilbertson (bio)
Top 10 Tips that Make a Difference, with Steve Wood (episode)
Thinking with Your Hands: The Surprising Science Behind How Gestures Shape Our Thoughts (book)

In this rebroadcast of our 2022 interview, we gather all sorts of admissions—about depositions—from NITA NextGen alumni 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 

3:46 The hard part of taking depositions  

5:55 Federal rules related to depositions 

9:13 Witnesses, both expert and lay   

11:36 Role of social media  

15:10 When to video-record a deposition  

17:35 The hard part of dealing with witnesses 

19:40 Timelines for expert witnesses, plaintiff versus defendant 

22:07 Subpoenas 

25:00 Obnoxious opposing counsel 

30:50 Preparing your witness 

34:42 Protecting your witness 

37:53 Remote depositions 

40:31 Work–life balance and advice for new lawyers 

44:35 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 programs (registration) 

The wish to leave the world a better place has long inspired people to attend law school and make a difference in the important ways only trial lawyers can. According to NITA Trustee Angela Vigil and Program Director Henry Su, pro bono publico provides an opportunity both to help those in need of legal counsel and to develop one’s oral advocacy skills. In this episode recognizing both this week's National Celebration of Pro Bono and the fifth anniversary of May the Record Reflect, Angela and Henry discuss a lawyer’s professional responsibilities, the advocacy skillset that pro bono work develops, and how to find pro bono opportunities. They also reveal their favorite tips, common mistakes they see in depositions and trials, and qualities embodied by courtroom superstars.

“I think law school lights a fire in smart and curious people for sure, so when you come out of law school, you have an idea of what kind of ways you want to apply these great new skills. That is definitely true in most recent generations and you just get rejuvenated when you talk with them and learn what they want to accomplish. I also think that, more and more, lawyers are listening and understanding that wellness and bringing your whole self to being part of your community is really important. You can’t just be a lawyer who locks yourself in a room and bills a bunch of hours for decades. It’s not healthy, it doesn’t last, it’s not good for you, it doesn’t encourage diversity and community. So, I think we all—and certainly younger-generation lawyers—are recognizing that you’ve got to bring your humanity to being part of your practice as well.” Angela Vigil

Topics

6:25    Model Rule of Professional Conduct 6.1

8:40    Pro Bono's impact on access to justice

13:00  Learning trial skills through pro bono service

16:44  Range of pro bono advocacy work

27:35  Inspiration for doing work that is “advisory”

33:45  Generational desire to make a difference

35:37  Wellness and performance

38:16  Obligation to provide competent representation

42:25  Making time for pro bono

46:15  Witnessing skills growth through pro bono

53:00  Common mistakes in depositions and at trial

56:54  Superstar lawyer qualities

58:51  Favorite insider’s tips

1:00:46  Signoff questions


Angela Vigil (bio)
Henry Su (bio)
ABA Model Rule 6.1 (link)
National Pro Bono Opportunities Guide (state search engine)
ABA Free Legal Answers volunteer (registration)
May the Record Reflect (Episodes 1, 2, 3, 4)
The Resilient Lawyer (podcast episode)

When people hear the term “rhetoric,” they often think of words full of sound and fury signifying nothing. Yet that is a woeful misunderstanding of the beauty and power of persuasive language and argument. In this episode rife with back-to-school vibes, Temple Law Professor Marian Grace Braccia breaks down the where, how, and why rhetorical devices belong in oral and written advocacy; reveals why rhetorical devices have an massive impact, even on the cellular level, on finders of fact; refreshes your recollection on devices you already know while introducing others that belong in your repertoire; and totally geeks out about how fun, easy, and powerful they are to use.

Topics

3:30    The road to rhetoric

7:50    Definition of rhetoric and the Queen Philosophy

10:56    What are rhetorical devices?

11:59    The OGs of ancient rhetoric

18:43    Recent rhetoricians

20:59    Aesthetics of rhetoric

27:10    Where to deploy rhetoric at trial

29:12    Rhetoric in oral and written advocacy

33:00    Taking rhetoric too far

35:55    Easiest rhetorical devices to use

40:23    Obama the rhetorician

45:20    Tricolon and antanagoge

50:33    Sources of inspiration

54:09    Favorite devices

55:19    Wait . . . Taylor Swift?

57:40    Pop villains on trial

1:06:23  Signoff questions

Quote

“On an artistic level, rhetoric and the effective deployment of rhetorical devices give us emotional resonance and memory enhancement and aesthetic pleasure, and even surprise and novelty. Some rhetorical devices like irony or puns introduce the element of surprise and novelty, and they can be amusing or thought provoking, and they make the message more engaging, more memorable.” Marian Grace Braccia

Resources

Marian Grace Braccia (bio)

The Queen Philosophy (webpage)

Henry V: St. Crispin’s Day (video)

Renaissance Man: St. Crispin’s Day (video)

Rhetorical devices worksheet (available for download from Episode 58's show notes under Resources > Podcasts at nita.org)

Some of the most important heads to get into are those of the jurors seated for your trial. Fortunately, figuring out what makes people tick is both interesting and fun, and Temple University Director of Advocacy Programs Jules Epstein is here to share the lowdown. Whether he’s busting common courtroom myths, revealing how the camera lies, or delving into the cognitive process of jurors (and your very own self), Jules makes the case that knowing a little trial psychology can give you a competitive edge for the good of your clients. 

Topics 

4:02 Curse of knowledge 

10:04 Goldfish attention span 

13:47 Slo-mo evidence 

19:16 Problems with graphic evidence 

24:43 Visuals with words 

27:28 Disconnect between science and law 

36:30 Camera bias 

43:21 Thought processes 

48:55 Mythbusting 

53:46 Go slow 

56:12 Bonus lessons 

1:00:15 Collective Wisdom  

1:03:55 Signoff questions 

Quote 
“A visual guarantees that all twelve, or all eight, or all six jurors will know what something looked like.” Jules Epstein 

Resources
Jules Epstein (bio) 
NITA’s free Collective Wisdom articles (link) (latest)
Point Well Made: Persuasive Oral Advocacy (book) 

If you’ve ever been baffled by scientific, technological, or financial evidence in your case or wondered how an expert witness arrived at their conclusions, former Gwinnett County Magistrate Judge Ruth McMullin is back on the podcast to share some know-how. In this episode, she talks about why you need to deep-dive into learning about subjects outside of your college major, what fact-finders want to know about forensics and how to make it easier for them to follow, the subtle things you can learn by using subpoenas, and the impact of bias in forensic evidence. 

Topics

3:30   Types of forensic evidence

7:40   What’s harder and easier about types of evidence

12:03 What fact-finders want from forensic evidence

13:25 Judges’ versus jurors’ needs

17:33 Simplifying complex evidence for understanding and retention

22:57 Using expert reports

25:40 Impact in the post-truth era

31:43 Judge McMullin’s favorite forensic evidence

35:18 When your agency lacks funding for competing experts

37:35 Use of subpoenas

40:25 Role of bias in forensic evidence

44:05 Signoff questions

Quote

“Does this [expert] report help, does it hurt, or is it neutral? A lot of times, lawyers will see a report from the opposing side and immediately think, ‘This hurts my case.’ But it you look at it and understand the parameters of that report, it may be neutral. You can save yourself a lot of stress and time if you understand how that evidence plays in with your bigger case. It may help your case, and you may look at the report and say, ‘You know what? This actually supports my theory.’ So, the more you [learn about and question forensic evidence], the more you get comfortable with saying, ‘I don’t have an objection to this report from the other side. I actually want it. I’m glad you got it, thank you.’” Judge Ruth McMullin

Resources

Judge Ruth McMullin (bio)

The Great Imposter (podcast episode)

David Mann storytelling (course) (episode)

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) 

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)

AvaTax

You may see depositions as your golden opportunity to preserve testimony, elicit admissions, and test theories—but for your witness, depositions are a veritable stewpot of jangled nerves and apprehension. In this episode, Maricopa County Superior Court Judge Christopher Whitten shares what you can do to ensure your witness walks into a deposition feeling at ease with the process and ready to handle even the toughest questions. Judge Whitten reflects on role-playing, using video as a prep tool, broaching difficult topics, responding to objections, and testifying live versus livestream—and that's just for starters.

Topics

2:35   Confident witnesses   

3:53   Is witness prep privileged?

5:30   Procedural comfort

13:54 Objections during testimony

16:06 Substantive prep

22:57 Tough questions and role-playing

24:36 Using video in prep

26:38 Theory and theme testing

29:12 Common pitfalls

32:04 Testimony via Zoom versus face-to-face

38:15 Reluctant witnesses

42:36 Expert witness prep

46:03 Signoff question

Quote

“When you have a problem with the witness, it’s because you didn’t prepare enough.” Hon. Chris Whitten

Resources

Hon. Chris Whitten (bio)

Building Trial Skills: San Diego (course)

The Ins and Outs of Jury Selection (webcast)

En Banc: Judges’ Perspectives on Remote Hearings (webcast)

“Can I Get a Witness?” (video)

How many of us cue up the “sad trombone” every time we think of doing direct examination? Direct is renowned for being a boring slog through facts and faces as we make on our way to the fireworks of cross and closing. Yet, if you’re not using direct to tell a clear, persuasive story, you’re going to lose your case. According to Judge Amy Hanley and Dennericka Brooks, when you approach direct with the same zest as you do cross, you’ll get the best out of your witnesses, avoid rambling or baffling testimony, and tell the tale jurors are keen to hear. 
Topics

3:42   Why don’t people love doing direct?   

6:44   Common mistakes

10:49 Telling the story

12:18 Organizing your direct

14:09 Headnotes

16:29 Exhibits, visuals, and demonstratives

22:36 Witness prep

27:55 Reluctant or difficult witnesses

35:00 Bad facts

40:57 Demeanor

46:00 Redirect

49:55 Signoff question

Quote

“I will say, first and foremost, that you have to be prepared that no matter how well you prepare a witness, they will get on the stand and say something they weren’t supposed to say, something that will throw you off. It’s just going to happen.” Dennericka Brooks

Resources

Hon. Amy Hanley (bio)

Dennericka Brooks (bio)

NITA Women in Trial (course)

The Tense Trio (podcast)

Direct Examination: Being the Guide for Your Jury (webcast)

Harnessing Your Power on Cross-Examination (webcast)

The profession of trial lawyering has a steep, intense learning curve requiring years of practice (and “practice”) before you begin to feel like you’ve got a grip on it. What if you could shave years off that timeline. NITA’s Education Director Rhani Lott Choi rejoins the podcast to talk about how trial lawyers can compress time through wormholes, slipstreams, and mentorship. 

Topics
5:00   Time compression through wormholes
22:30 And slipstreams
29:34 And mentorship
34:22 A word about Parkinson’s Law
42:28 Signoff Question

Quote
“I’ve worked at places where you have formal mentorship, which can be great, but often that does not continue past the employment relationship. And especially these days people change jobs all the time. The mentorship, for me, at NITA has been so valuable because it transcends that. It’s not based on a job or a connection ... NITA just encompasses everything, through career changes, through types of practice . . . .” Rhani Lott Choi

Resources
Rhani Lott Choi (bio)
Slipstream Time Hacking: How to Cheat Time, Live More and Enhance Happiness (book)
Tomato Clock (Chrome extension)
Direct Examinnation: Being the Guide for Your Jury (webcast)

Being a trial lawyer is a challenging job even apart from the actual, technical work of lawyering in the courtroom. Legal advocacy often places emotional burdens upon trial attorneys that can be a lot to manage. Henry Su joins the podcast to dissect the various stressors associated with trial work and offers his insights into managing stress through mindfulness.

Topics

3:27   Occupational hazards of being a trial lawyer 

10:09 Toll of adversarial work

14:11 Basic obligations to the client

16:13 Managing when conflicted

19:33 Role of fear

26:07 Mindfulness training

30:45 Learning from critiques

32:49 Developing distress hardiness

37:15 “Goblin mode”

39:27 Managing electronic intrusions

42:13 Resources on wellness

Quote

“You want to create distance. What you also want to do is to avoid is dissonance. Dissonance is when you allow the work that you’re doing to kind of infect you, such that you have internal conflict. You’re torn up about it. You’re torn up about why you’re doing this, and that this is not ‘you’ and that these aren’t the values that you hold dear. You want to avoid dissonance, you want to maintain distance.” Henry Su

Resources

Henry Su (bio)

Stress Hardiness and Lawyers (article)

Integrating Mindfulness Theory into Trial Advocacy (article)

Institute for Well-Being in Law (website)

The Anxious Lawyer (book)

Motion Skills: Online (April, August)

Deposition Skills: Online (November)

Theatre wunderkinds and storytelling specialists Kevin Newbury and Kate Douglas join the podcast to tell stories about telling stories. Kevin and Kate discuss how universal themes, conflicts, and archetypes can be used as formulas for brainstorming; suggest some practices you should borrow from writing for the stage; and reveal which pandemic-era guilty pleasure can actually make you a more engaging storyteller.

Topics
4:27    Translating events into a story  
6:11    Why good storytelling is essential to your trial
8:25    Unleashing your creative beast
10:49  Summing up with loglines and taglines 
12:57  Classic conflicts for framing your client’s case 
14:36  Evoking an atmosphere to begin telling a story
16:50  Universal story themes 
20:26  Nourishing your creativity
23:07  Importance of your elevator pitch
24:14  Dramaturgy in trial 
27:59  How a trial is like a tv show
30:10  Defending the unsavory client
33:15  New Orleans Trial program
40:17  Signoff question

 Quote
“When we come [to NITA programs], it’s always so much fun to sit around the table with these incredible lawyers and judges and hear all of their stories. I love to ask all of them, ‘What’s the wildest, strangest case that you’ve had this year?’ and [with] every single one of them it’s like, ‘Well, that’s a good idea for a tv show,’ ‘Well, that should be a movie,’ and I find that a lot of lawyers and judges are good storytellers when they’re recounting the adventures of something they just went through.” Kevin Newbury

Resources
Kevin Newbury (bio)
Kate Douglas (bio)
Deposition Skills & Trial Skills: New Orleans (NITA course)
Sapiens: A Brief History of Humankind (book)
The Seven Basic Plots: Why We Tell Stories (book)
Adam Gopnik in The New Yorker (article)
The Secrets of Persuasive Legal Storytelling, with David Mann (podcast)
Give ‘em the Ol’ Razzle Dazzle, with Dominic Gianna (podcast)

If you’re looking for some resolutions for improving as a trial lawyer, let veteran prosecutor Steve Wood be your guide. In this episode (originally aired in 2021), Steve shares the top ten trial tips that always brought him luck. Any one of these would make for an ideal goal to shoot for in 2023. Steve also talks about public service and his lengthy career in law. 

2:58   Tip #1
5:35   Why law?
7:33   Tip #2
10:46 Recollections of his first trial
13:23 Tip #3
18:23 Favorite part of trial
25:19 Tip #4
27:30 Nerves and anxiety about trial
28:49 Tip #5
33:04 Unwinding after trial
34:31 Tip #6
38:49 Most agonizing career decision
41:04 Public service careers
45:50 Tip #7
48:50 A high-profile case I wish I’d tried
50:11 Tip #8
52:43 Tip #9
54:18 Retirement
54:48 Tip #10
56:41 Signature signoff question

Quote
“Somebody I taught with [at NITA] once said something I thought was brilliant, and it’s this: ‘Time is the measure of importance in the courtroom, whether you want it to be or not.’ And what that means is, we indicate importance by how much time we spend on something.”

Recommended Resources
Steven P. Wood (bio)
NITA On-Demand (free resource)
America’s Constitution: A Biography (book)
So Many Ways to Lose (book)
Geddy Lee’s Big Beautiful Book of Bass (book)

Something that concerns trial lawyers more than ever is seating a juror with intractable explicit biases or who believes in conspiracy theories. King County Senior Deputy Prosecuting Attorney Raam Wong experienced this situation when he prosecuted a high-profile, near-fatal shooting of an antifascist protester during a demonstration in Seattle in 2017. Raam joins the podcast to talk about voir dire and deselection tactics, experts and evidence, and checking your own biases at the courtroom door.  

Topics
5:25     Political violence and Hokoana case
9:57     Factors that contributed to mistrial
14:38  Juror “tells” during voir dire
16:50  Conspiracy theories about a witness
20:17  Digging into social media
20:30  Questions for deselecting jurors
24:36  Willful disregard of evidence, civil versus criminal cases
27:30  Addressing juror attitudes
32:50  Remedying attention span issues
37:50  Believing in or rejecting expert opinion
40:50  Concerns about physical safety at trial 
45:01  Signoff question

Quote
“As trial lawyers, we really have to grapple with [. . .] stereotypes every day in court—the assumptions we have about people and the assumptions that the jury might hold. And at times it can be really effective, as advocates, if our good facts kind of match up, or reinforce, the jury’s preexisting beliefs. But at the same time, as a prosecutor, I’m trying to do justice, and doing justice, in my mind, means ensuring that our courtrooms are open to everyone, and that means not making assumptions about people based on demographics or other characteristics.” Raam Wong

 Resources
Raam Wong (bio)
State v. Hodgman (case file)
Alt-Right Event in Seattle Devolves into Chaos and Violence, Outside, Truth-Twisting Inside (SPLC Hatewatch)
Righteous or reckless? Trial under way for couple accused in UW shooting during Milo Yiannopoulos speech (Seattle Times)

This month’s episode features advice and observations from some of NITA’s top judges, who serve as faculty, presenters, and board members. They share their reflections on what they’ve seen from their unique vantage point on the bench and dispense helpful tips for the next time you’re in court.
Topics
2:13     What counsel should know before setting foot in my courtroom
10:30  Most common mistake I see lawyers make in my courtroom
17:55  Impressive or memorable things a lawyer has done during trial
 22:50  Nuttiest things I’ve seen during jury selection

Resources
50 Tips for 50 Years, Part 1 and 50 Tips for 50 Years, Part 2
Judge Mark Drummond (podcast) (webcast) (webcast)
Justice Lee Edmon (bio)
Judge Marian Gaston (bio) (webcast)
Judge Nancy Gertner (bio) (podcast) (webcast)
Judge Amy Hanley (bio) (podcast) (podcast) (webcast) (webcast) (webcast)
Judge Ruth Rocker McMillan (bio) (podcast)
Judge Sam Sheldon (bio) (webcast)
Judge Mindy Solomon (bio) (webcast)
Judge Christopher Whitten (bio) (webcast) (webcast)

Imposter syndrome is a common phenomenon among lawyers, often starting in law school, where self-doubt about your spot among so many wunderkinds can shake your sense of achievement and belonging. Gwinnett County Magistrate Court Judge Ruth Rocker McMullin joins the podcast to discuss what imposter syndrome looks like when it shows up in lawyers’ lives, how she got out of her own way as her legal career pivoted into new directions, what happens at the intersection of imposter syndrome and implicit bias, and how cultivating emotional intelligence just might save you from yourself. 

Topics
3:50     Imposter syndrome 
5:52    Places, spaces of imposter syndrome in law
8:56     Are lawyers more susceptible?
10:37  What imposter syndrome looks like
15:39  Implicit bias and imposter syndrome
20:32  “Glue work”
26:20  Managing implicit bias upwards, sideways
27:16  Calling out implicit bias, letting it slide
29:18  Upside of imposter syndrome 
31:21  Managing your own brain
33:00  Exploring emotional intelligence 
34:38  Developing emotional intelligence
38:58  Signoff question

Quote
“I had to have that conversation with myself when I switched my career from being a public defender to going into private practice, to taking a part-time judicial position. You know: ‘I don’t know if I’m qualified to do this.” I had to tell myself, ‘You handled death penalty cases. Of course you can do this.’” Judge Ruth Rocker McMillan

 Resources
Judge Ruth Rocker McMillan (bio)
The Imposter Phenomenon (article)
Being Glue (article)

The spontaneity of cross-examination and impeachment often intimidates lawyers early in their trial career. NITA Education Director Rhani Lott Choi and Denver trial lawyer Kate Sandlin have been there, done that — and in this episode, they disclose their favorite tips that honed their skills and settled their nerves. Rhani and Kate talk about how to feel at ease in the moment, advance-prep for the “spontaneity” of cross and impeachment, bring wily witnesses to heel, use demonstratives to pin down an answer, and help your witness be ready to take the stand.

Topics

3:05     Cross-examination: what is it good for?  
5:55    How to plan for cross
8:23     Thoughts on your judge
12:28  Learning about your judge
14:47  Single-fact, leading questions
21:09  Demonstration of crossing a bad witness
27:16  Crossing an alleged crime victim
32:03  Using demonstrative exhibits  
34:22  Witness preparation
39:14  Impeachment: what is it good for? 
41:50  Dangers of impeachment
45:34  Demonstration of impeachment
51:16  One best cross tip
53:50  Signoff question

Quote

“Every mistake I’ve made on cross-examination, if I ever go back and look at it, the problems start with my question, and I probably wouldn’t have made that mistake if I’d asked a better question.” Rhani Lott Choi

Resources

Rhani Lott Choi (bio)
Kate Sandlin (bio)
Building Trial Skills: San Diego (course)
Show AND Tell: Using Exhibits Effectively in In-Person and Remote Advocacy (free webcast)