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Dear Legal Professional
To paraphrase an old saying: Great lawyers shine in the courtroom; great teachers light up the classroom. And if you are both a great lawyer and a great teacher, you become NITA Faculty.
The backbone of all NITA programs is the faculty. Chosen from the finest lawyers, each undergoes rigorous training, to learn, develop, and perfect the NITA method of critique. Those who continue in the service of NITA recognize that a great NITA teacher is one who mentors inexperienced lawyers, who provides constructive analysis and assistance with a view towards participant improvement, and who always focuses on the participant. Although it is difficult for a great lawyer to block out his or her ego, great NITA faculty understand that the role of the teacher in today's legal society is to ensure that the next generation of lawyers is competent, ethical, and professional. The best NITA faculty recognize that the greatest gift they can provide to a participant is the ability to improve and someday return the favor of teaching at NITA.
Many lawyers want the accolades accorded to NITA teachers: "She was the greatest mentor I ever had, caring but firm, brutally honest but helpful, and she gave of herself." "I can't believe that he gave us a week of his time to help us learn, knowing that some day we might be adversaries in the courtroom." "The faculty were superb. Each gave us a piece of their experience and on any given day I now have the tools to emulate any of them. I now have choices." These are typical of the comments we receive about the NITA faculty after each program.
NITA faculty who continue to receive high evaluations are recognized in a number of ways. One is through the award of the NITA Faculty designation in Martindale Hubbell's lawyer directory. Another is the placement of NITA's faculty logo on their law firm Web site or biography. And another is through the friendships and relationships developed with those who receive the gift of education.
Want to join the ranks of NITA faculty? Come to a NITA Teacher Training Program (we offer three each year) and learn the complete NITA method. Or volunteer to teach at a NITA program (contact faculty@nita.org) and receive an introductory session on teaching at a NITA program before the first time you teach.
Join the ranks of the NITA faculty, the most widely respected and honored branch of the NITA family. You will enjoy those days in Nita City, and you will experience the essence of being a professional lawyer.
See you in NITA City.
Sincerely,
Laurence M. Rose
President & CEO
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Each month NITA Notes features a NITA faculty member or members who provide readers with tips to make their law practice a best practice. This month's featured scholar is Elizabeth J. Sher of Day Pitney in Morristown, New Jersey.
"An Opening Statement is Not Evidence"-Or Is It?
We all learned during our early trial training that opening statements are not evidence, but rather a preview of the evidence that will be presented at trial. Of course, we also are instructed properly not to state as much to the jury when we open, lest the jurors be encouraged to ignore the critical storytelling that a good opening should convey.(1) But what some may not realize is that trial lawyers are not merely puppeteers, and our statements to the court and the jury-including in opening statements and closing arguments-may well be deemed evidentiary admissions with profound consequences at trial and on appeal.
Most of us know the black-letter of the law that, in general, parties are bound by statements made by their attorneys, who are deemed to be their clients' agents. Thus, parties will be bound by admissions made by their counsel on summary judgment motions (2) and stipulations entered into at trial.(3) Parties will also be bound by counsel's allegations during trial, at oral argument, or in a trial brief.(4)
What may not be as well-known is that counsel and clients have also been bound by counsel's statements to the court and the jury in openings and closings, without regard to whether actual evidence supporting such statements was offered during the trial. Examples span the decades and the country:
In a personal injury auto accident case in Missouri in 1930, the defense lawyer argued to the jury: "There is no question about the accident, the only question is how bad is she hurt? That is the only question in this case. I will concede that." The Missouri Court of Appeals held that counsel had conceded liability in his opening statement, noting that "where counsel for plaintiff, in their opening statement, state or admit facts, the existence of which precludes a recovery by their clients, the courts may close the case at once and give judgment against their clients."(5)
The Supreme Court of Kansas in 1943 held that where defense counsel admitted in his opening statement that defendants were engaged in interstate commerce, defendant could not contest that fact on appeal in arguing against the applicability of a federal statute.(6)
A New Jersey trial court in 1967 granted defendants' motion to dismiss the complaint made immediately after plaintiffs' attorney's opening statement, where plaintiffs' attorney stated that the proofs he was prepared to present in the trial were no different in substance from those contained in affidavits previously submitted in support of summary judgment motions. The New Jersey appellate court affirmed the trial court's decision to enter judgment without having heard the anticipated evidence.(7)
In 1996, the Virginia Supreme Court held defense counsel bound by concessions he made during closing argument. Defendants contended on appeal that the trial court erred in awarding attorneys' fees because the evidence showed that the attorneys had been discharged for cause. The Virginia Supreme Court disagreed, quoting defense counsel's closing argument in which he stated that he did not "think for a minute that [the attorneys] should walk out with zero from this case" and he asked the court to apply a reasonable hourly rate and amount of time. Those "unequivocal concessions" during the closing argument precluded counsel from arguing on appeal that the attorneys were dismissed for cause.(8)
These cases serve as a powerful reminder that trial lawyers should assume they are always "on the record" and at risk of creating binding admissions. Such cases are another good reason why we should not tell juries that opening statements are not evidence. Because sometimes they are.
[2] See, e.g., First Am. Title Ins. Co. v. Vision Mortgage Corp., 689 A.2d 154, 156 (N.J. Super. Ct. App. Div. 1997); Howard Sav. Bank v. Liberty Mut. Ins. Co., 667 A.2d 390, 393 (N.J. Super. Ct. App. Div. 1995) (counsel bound by concession at oral argument that insured received notice of policy cancellation).
[3] See, e.g., Hartford Fire Ins. Co. v. Riefolo Constr. Co., 410 A.2d 658, 662 (N.J. 1980) (court bound by parties' factual stipulations); Reichle v. Hazie, 71 P.2d 849, 851 (Cal. App. 4th Dist. 1937) (stipulation that intersection was within business district was conclusive and obviated need for introducing evidence as to character of district).
[4] See, e.g., Darakjian v. Hanna, 840 A.2d 959, 964 (N.J. Super. Ct. App. Div. 2004) (plaintiff bound by concession at oral argument regarding issues raised before trial court); Scott v. Salerno, 688 A.2d 614, 619 (N.J. Super. Ct. App. Div. 1997), certif. denied, 694 A.2d 194 (N.J. 1997) (insurance carrier bound by having alleged at trial that defendant was commercial agent of insured); Kast v. Citizens Mut. Ins. Co., 336 N.W.2d 18, 20 (Mich. App. 1983) (defendant bound by statement in trial brief concerning what was not at issue-reason for denial of coverage); Pitts v. Mahan, 382 A.2d 1092, 1094 (Md. App. 1978) (plaintiff's counsel bound by concession to trial court that his client was guilty of contributory negligence); Shreeves v. Caldwell, 97 N.W. 764, 765 (Mich. 1904) (plaintiff's counsel bound by statement of opening of trial limiting controlling issues and need for evidence).
[5] Hampe v. Versen, 32 S.W.2d 793, 796 (Mo. App. 1930), overruled on other grounds by Chandler v. New Moon Homes, Inc., 418 S.W.2d 130 (Mo. 1967).
[6] Bush v. Wilson & Co., 138 P.2d 457, 462 (Kan. 1943).
[7] Muller Fuel Oil Co. v. Insurance Co. of N. Am., 232 A.2d 168, 172-73 (N.J. Super. Ct. App. Div. 1967).
[8] Hughes v. Cole, 465 S.E.2d 820, 831 (Va. 1996).
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Japan To Roll Out New Jury System in 2009
Japan is about to embark on a major transformation in the way justice is arrived at in the courtroom. To aid in the success of this shift, NITA has been called upon to provide training and materials to over twenty-five Japanese law schools and hundreds of Japanese attorneys. Similar to arrangements in other countries around the globe, NITA is the sole international advocacy organization assisting the Japanese bar with this transition.
In the current Japanese judicial system attorneys provide written arguments to a three-judge panel that makes the final ruling without hearing from the accused, victims, witnesses, or attorneys associated with the case. The new Japanese jury system, called "saiban-in," will mimic the U.S. judicial system by requiring a jury-which is composed of three attorneys and six citizens chosen at random-to hear oral arguments from the attorneys on the case.
 In addition to the changes in the jury system, attorneys are now required to achieve a graduate-level law school education when just six years ago there were only undergraduate law schools in place. Prior to 2003, practitioners were required to have a college degree, pass the National Bar Exam, study for one and half years at the Legal Research and Training Institute and then simply choose to be an attorney, judge, or prosecutor.
With this new requirement of advanced law school training, dozens of Japanese law schools have formed in the last few years and are now in great need for proper curriculum development. Enter NITA.
On February 9, representatives from NITA and PSIM Consortium-a panel of Japanese law school professors, deans, and representatives from over twenty-five Japanese law schools-signed the Academic Exchange and Cooperation Agreement in Nagoya, Japan. The goal of the agreement is for NITA to provide its learning-by-doing style training to law school professors and also provide translated NITA publications. Both of these contributions will help develop a law school curriculum focused on oral advocacy, presentation skills, case strategy and management.
The next training for Japanese law professors will take place at NITA's March 28 Advocacy Teacher Training program in Boston, Massachusetts.
 "The role of standard [Japanese legal] education in enhancing practical skills is considered from multidimensional perspectives," said Ikuo Sugawara, PSIM Consortium Representative and Law Professor at Nagoya University. "We chose NITA as a partner because it has many high quality materials for professional skills training and also a developed, sophisticated teaching methodology."
Sugawara explained that he was introduced to NITA through Board Member Susan Steingass, who is also a professor at the University of Wisconsin Law School. UW Law has a longstanding relationship with Nagoya University.
In addition to NITA's work with the PSIM Consortium, trainings and communications are underway with the Japanese Federation of Bar Associations and the Japan Law Foundation as well. Both law students and practicing attorneys will benefit from the NITA learning-by-doing methods.
"Over the last twenty years, since NITA's venture in South Africa began, our teaching method has been utilized in programs for lawyers throughout the world," said Laurence M. Rose, NITA's President/CEO. "We are frequently asked for the use of our materials, and the loan of our teachers, in countries from Azerbaijan to Zambia. The PSIM Consortium relationship extends that cooperation to teach law students in Japan, which will lead to better-qualified Japanese bar admittees and an increased knowledge of advocacy skills in presentations to the new Japanese saiban-in jury system."
 The Japanese government will maintain control of the production of lawyers by continuing to set the qualifications for the practice of law and the size of the bar. With only a three percent bar passage rate several years ago, the goal now is to admit 3,000 attorneys a year; though, this goal could take some time to reach because curriculum and standards are still being identified.
With the birth of law schools and a revised approach to the National Bar Exam, Japan will benefit from its NITA relationships because of the experience and support the thirty-seven-year-old organization has to offer.
"The Japanese lawyers, judges, and law school faculty are concerned that their law training is too theoretical, and not practical enough," said Terre Rushton, NITA liaison for the PSIM Consortium. "They can produce brilliant students who literally do not know how to begin to try a case. This is why NITA started. They can learn from us and our experiences."
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Law School Services, Twenty Years In The Making
This October marks Jeanne Philotoff's twentieth anniversary here at NITA. In time with the release of NITA's 2008 Law School Catalog and Jeanne's special contribution to NITA Notes, we wanted to take this time to recognize all of Jeanne's time spent working with the law school community. We appreciate all that Jeanne contributes to NITA and law school classrooms everywhere.
Jeanne began in the customer service department of NITA's South Bend office in October 1988, but after several years as the manager of that department she began working in law school services. Today, Jeanne is NITA's sole law school sales representative working from her home office near South Bend and travelling all over the country to meet with law school professors.
Jeanne Philotoff and NITA author Shane Read at the 2007 State Bar of Texas Annual Convention
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Carnegie Report Reinforces the NITA Mission, Brings Publications to the Forefront
A Special Perspective from NITA's Educational Consultant, Jeanne Philotoff
 The Carnegie Foundation for the Advancement of Teaching released a report in March 2007 that reinforces what the McCrate Report found in 1992 and what the NITA faculty and staff have known for decades. The message: legal skills training must become an essential part of law school curriculum. Legal education needs to evolve to become more linked to the practical requirements of practicing law.
Over the years the challenge of law schools has been to incorporate a type of apprenticeship into the study of law. The Socratic case dialogue is no longer the sole means of teaching law, and recognizing this, the committee that wrote The Carnegie Report is calling for an integrated approach in the classroom. Most law schools have created law clinics, trial advocacy classrooms, and sharpened legal analysis with the student, which of course is a step in the right direction, and the results have been dramatic.
Most people familiar with NITA know that we started as a task force of the American Bar Association. The success of NITA was immediate. It must be noted that many of our original programs took place at the law schools where these very discussions on learning-by-doing are taking place today. You could (and in most cases, can still) find us at Hofstra, SMU, Nova Southeastern, Northwestern, Loyola/LA, Loyola/CA, University of Washington, and the University of California at San Diego, to name just a few. We created a mission that organizations believed in and were determined to become apart of. Materials were needed to train our participants and soon the law schools looked to NITA for the role-playing exercises needed to test the skills that faculty were trying to develop in their students.
The trial advocacy classroom is not the only place where our role-playing exercises have been tested successfully. Students needed to be trained in legal analysis, legal research, fact investigation, communication, counseling and negotiation as well as alternative dispute resolution. The practical exercise revolution has spread to these other areas and will continue to grow to meet the demands of the classroom and the profession. Like law school education, NITA education is evolving as well.
Most graduates report that they are able to incorporate into practice the legal skills they've developed in school during their summer associate experiences after their first and second years of law school. It is this experience, and the fact they show themselves to be capable in the art of advocacy, that has the greatest influence on their career paths.
The report also suggests that there are two major limitations of legal education that still exist. One is how to use legal thinking in law practice and secondly the school's failure to focus on ethical and social skills young attorneys need to succeed. Both of these drawbacks can be the consequence of relying on academic pedagogy, the case-dialogue method. This is a call to restructure the classroom.
The answer, of course, is different for every school I visit. Whether I go north, south, east, or west, I find that funding can be limited and faculty members pressed for time. To reach these goals, faculty members must be willing to learn new methods of teaching in an already established curriculum. Students need to improve their skills by ongoing practice and by receiving feedback that only the qualified faculty member can provide. The values and ethical considerations of everyday legal practice need to be addressed.
Together we can provide the quality education that our law students need and that their future clients deserve. With NITA products, trainings, and a fundamental shift in law school curriculum, integration has and will continue to be the new standard.
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John Sonsteng's Legal Education Renaissance
NITA Program Director and William Mitchell College of Law Professor, John Sonsteng, has started a comprehensive online resource about what he calls the Legal Education Renaissance. This concept focuses on the changing legal education system that should allow young lawyers to understand what it means to be a lawyer sooner in the process. Visit www.wmitchell.edu/LER to read the articles and learn more.
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Azerbaijan Attorney Given NITA Scholarship
Extortion, corruption, assault, fighting for the benefits due a World War II veteran who had been on the waiting list for nearly forty years, this is a sampling of the work in cases brought to the lawyers at the Legal Advocacy Center in Baku, Azerbaijan. The NITA Foundation is pleased to award a scholarship to attend the March Teacher Training Program in Boston to Mehriban Ovchuyeva, an attorney working for the American Bar Association's Rule of Law Initiative in Baku, Azerbaijan. Working in the Legal Advocacy Center in Baku, which is the capital city of Azerbaijan, Mehriban provides pro-bono legal services for citizens on such issues as human rights, education, family law, and employment law. After completing the NITA program, she will have the necessary skills to train other attorneys in her home country.
In addition to tuition assistance from the Foundation, Michael Kelly, a NITA Trustee and Program Director, also generously contributed mileage awards for roundtrip airfare for Mehriban. In a country where the average annual income is less than $4,000 a year, the cost of a plane ticket is beyond the reach of most Azerbaijani citizens. A special thank you to Mike for making this journey possible for this scholarship recipient. Since our inception in 2003, the NITA Foundation has awarded more than $1.5 million in scholarships to worthy applicants seeking to attend one of NITA's many programs, and our faculty is our most dependable donor base.
The NITA Foundation as a nonprofit, charitable organization is playing an increasingly more important and visible role in the area of promoting justice and human rights in various countries, including Azerbaijan, South Africa, Mexico, China, Liberia, Nigeria, and Kenya. Unfortunately, we have limited funding to support the important work of advocates such as Mehriban, who are advancing change in their home countries. Our scholarship program depends on the generosity of individuals, corporations, and foundations desiring to make an impact in this area. Therefore, we need your support in order to ensure that NITA's mission is fulfilled.
To get involved in the Foundation, please contact us at development@nita.org or 303.953.6853. You can make a contribution by visiting us online at www.nita.org/donate. Please consider pledging mileage awards to our scholarship program to assist with the travel costs of young attorneys from faraway countries. Without these generous gifts, tuition may be covered, but the lawyers would have to forego the scholarship without the ability to pay for the flight to get to the program.
When you make a gift to the Foundation's scholarship program, your act of charity is magnified by the work of each recipient, and, in this case, an attorney working to advance human rights and the rule of law. Consider how your gift to the Foundation's scholarship program has a multiplier effect especially in our international programs.
As always thank you for your support.
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NITA People in the News
ACLU Honors Klinkosum
 The American Civil Liberties Union (ACLU) of North Carolina has announced that NITA faculty member Maitri "Mike" Klinkosum of Raleigh, NC, will be honored with the ACLU of North Carolina Award for his four-year-long legal battle that won the release of his client, Floyd Brown, from a fourteen-year confinement at a state mental hospital. Klinkosum will be honored along with his co-counsel Kelley DeAngelus of the Center for Death Penalty Litigation, and both will be receiving the ACLU of North Carolina award.
This award is given to individuals or organizations for their commitment to preserving and defending civil liberties in North Carolina as well as those who have worked to advance the causes of civil liberties in specific cases. Klinkosum and DeAngelus have certainly succeeded in this regard, ceasing the legal limbo their client would have been in for years to come and casting a light on corruption within our own criminal justice system. We are proud to say that Klinkosum is a featured speaker at our trial advocacy programs presented in North Carolina.
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Schott Awarded for Giving Back
NITA faculty member David Schott was recognized by Denver's ABC Channel 7 as one of "Seven's Everyday Heroes" for his work in the community. Schott volunteers to help mock trial programs at both Regis Jesuit High School and at Bear Creek High School-both near Denver-and undoubtedly changes the lives of tomorrows lawyers and leaders. In addition to volunteering four days a week at both high schools, David also started a nonprofit organization called the Providence Foundation to help high-school students take the law and leadership one step further. To read the full story and to see the video visit http://www.thedenverchannel.com/news/schott
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O'Brien Appointed to University at Buffalo Council
 Christopher J. O'Brien, a principal in the law firm of O'Brien Boyd, located in Williamsville, New York, was appointed as a member of the University at Buffalo Council, the university's local governing council, by Governor Eliot L. Spitzer. This marks a high honor achieved by O'Brien, and the deserved recognition for outstanding achievement on his part. In the past O'Brien has secured multi-million dollar verdicts and settlements in a wide variety of personal injury cases and has represented victims hurt in car crashes, children who have been sexually assaulted, and the estates of people killed by drunk drivers. He is a past president of the Western Region Affiliate of the New York State Trial Lawyers Association and regularly teaches for NITA.
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| Featured Program:
Advocacy Teacher Training for the Best of the Best
Advocacy Teacher Training is an unbeatable NITA program for those who want to learn from the best so they can teach the best. As wise people have said, with experience comes responsibility; and the greater a lawyer's accomplishments, the more complex the work the lawyer takes on. The ability to impart the knowledge gained from this experience is the key to your success as a supervisor, mentor, leader, professor, or NITA faculty member.
Advocacy Teacher Training is being offered in three different locations across the US including:
In Advocacy Teacher Training, participants learn how to deliver specific and constructive critiques, effectively demonstrate key points of critique, teach the group while critiquing the individual, team-teach, critique multiple performances, and critique case analysis. As with all of our programs, Advocacy Teacher Training incorporates the learning-by-doing method and benefits from the instruction of our acclaimed faculty.
For more information on this or other NITA programs visit www.nita.org/programs.
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| Featured Publications
The Learning-by-Doing Method Put to Print
With over 1,000 of the world's finest judges, lawyers and professors on our faculty roster, it's no wonder NITA has looked to this cadre to provide written and recorded materials. With first-hand experience in the NITA classroom, our authors provide a unique perspective for practitioners. NITA currently has over 220 publications on its active list including DVDs, textbooks, and case files by these NITA faculty members:
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Law School Services, NITA Leads The Way
NITA has released the latest version of its well-known law school catalog, and if you are a law school professor, don't miss out. The law school catalog is a one-stop shop for everything about NITA including information on teacher training programs, complimentary review copies, and new and bestselling textbooks and case files for your classroom. NITA is leading the pack in providing relevant and cutting edge legal skills publications.
If you do not receive a copy of The 2008 Law School Catalog, visit www.nita.org/lawschool to download or e-mail marketing@nita.org to request a copy.
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Blogging on Legal
Advocacy
Recently, the NITA marketing team launched The NITA Blog; located at http://thenitablog.blogspot.com. The NITA blog provides a forum for interaction within the extended NITA community and to the legal community as a whole. It's also a way for us to have conversations on the variety of topics that improve the practice of law and advance justice. We plan on growing the blog over time and turning it into a viable and valuable legal resource for the members of the NITA community, but we need your help. Here is what you can do:
1) Visit often and leave comments.
2) If you author your own blog, e-mail the URL and the name of the blog to smusfeldt@nita.org, so we may list your URL on our site and periodically publish portions of your posts.
3) Link to the NITA blog from your personal or professional Web site or blog (http://thenitablog.blogspot.com).
We here at NITA hope you can help us extend NITA's reach into the blogosphere and beyond.
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About NITA Notes
NITA Notes is published monthly by e-mail and covers topics of interest to the NITA community.
To subscribe to the newsletter or to view archived issues of NITA Notes visit www.nita.org.
To submit story ideas, to write for the Best Practices section of NITA Notes, or to publish a professional announcement please contact
Sara Musfeldt at 303.953.6841 or smusfeldt@nita.org.
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