Greetings!
 NITA's program directors have been described by a past chair of the NITA Board of Trustees as "our greatest off the book asset," so it is not hard to understand the important role each of our "PDs" plays in the educational content of our programs, the selection of our excellent faculty, and the nurturing of our participants. Our program directors begin to work with our staff almost nine months before the program date to plan the marketing/advertising, construct the schedule, determine the academic and social content, invite the faculty and fine tune the group assignments. Over the succeeding months, a dialogue is regularly scheduled to insure that every facet of the program is reinforced and refined, and to accommodate all of the changes that occur or could occur. In this respect our PDs are very much like active trial lawyers, developing a case strategy, executing a plan and anticipating possible bumps in the road. Most of what the participants and faculty see is the end result, but the greatest part of the job is in the planning and preparing.
All too often, at the end of the program, we forget to acknowledge the role of the program director so I want to take this opportunity to publicly acknowledge their role, contribution, and value to NITA. Without your hard work and dedication, we could not continue to be the finest advocacy education organization in the world.
I also want to acknowledge another set of contributions by publicly announcing the 2007 NITA award winners.
John Sonsteng, program director for the North Central Regional is the 2007 Hon. Prentice H. Marshall Faculty Award winner, for his innovative teaching methods;
Robert Vanderlaan, of Grand Rapids, MI is the 2007 Hon. Robert E. Keeton Award winner for his outstanding service as a NITA faculty member; and
Marcia Levy, Director of Public Service Education, is the 2007 Robert E. Oliphant Service to NITA award winner, for her long-time dedication to promoting our public service programming.
Please join me in congratulating these dedicated and deserving people for all they do for NITA and advocacy education.
Sincerely,
Laurence M. Rose
President & CEO |
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Best Practices |
 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 Barry Gross of Drinker Biddle & Reath LLP in Philadelphia.
Case Theory and Trial Themes
First Scenario:
Devastating cross! You reduced the prosecution's witness to tears. The exclamations from your client and his supporters in the gallery reverberate through the courtroom as you strut into the hallway. But, two days later the jury returns the verdict, GUILTY of all charges!
Second Scenario:
This is tedious-your cocounsel and half of the jury are rolling their eyes. You ask every witness the same question, even the dozens of witnesses who never mentioned your client. The verdict after six months was guilty of the minor charges and NOT GUILTY of the major charges, which carry an automatic life sentence.
Lessons Learned
Why the vast difference in outcomes? Very simple-case theory and trial themes. How many times have you seen this occur-direct and cross-examinations without any regard to theory or theme?
As discussed in Steven Lubet's, Modern Trial Advocacy, theory is a one-paragraph adaptation of your story and should be logical, simple, speak to the legal elements of your case, and be easy to believe. Lubet states: "To develop and express your theory, ask these three questions: What happened? Why did it happen? Why does that mean that my client should win? If your answer is longer than one paragraph your theory may be logical and true, but it is probably too complicated." Lubet, Modern Trial Advocacy, 9 (NITA 2004).
In the first example, the lawyer focused on destroying the witness by totally ignoring his case theory and trial theme. In the second example, the lawyer had a plan that included a theory and theme that was carried throughout the trial. He wanted to emphasize that although the defendants had been charged with multiple crimes-including crimes of violence-the majority of the offenses were minor and nonviolent.
With virtually every witness (except of course witnesses who could link the defendants to violence), the defense attorney emphasized his case theory and his trial theme clearly. Throughout the prosecution's two-month presentation he never deviated from the plan. Defense counsel asked every witness whose testimony had not referenced any violent crimes, even those who had not mentioned his client during their testimony, if they had ever seen his client engage in violence or discuss violence. On its face it was a risky strategy asking these questions from potentially hostile witnesses, but the attorney was thoroughly prepared and knew that the witnesses could not link his client to violence. Most importantly, everything tied together.
Here is another example: After thirty years as a prosecutor I entered private practice with a law firm. As luck would have it during my second week at the firm, I was asked to assist in a patent infringement jury trial, which was in its second week of testimony. Our firm represented a husband and wife who had invented and patented a device. A multinational company "partnered" with the inventors to increase sales, but the partnership went awry and so we were representing the husband and wife as plaintiffs in a patent infringement and fraud trial against that company.
I was given the task of calling the CEO of the defendant company on cross and decided to incorporate a "David versus Goliath" theme. I asked the CEO to describe his company, and he played right into the trap. As he proudly spoke of his company's global reach and billion dollars of sales, I kept pointing to the husband and wife plaintiffs sitting in the gallery and asking if he had explained the true intentions of the company's "partnership" to them. Members of the jury made the contrast between the couple in their late sixties sitting in the courtroom with the smug CEO of a billion dollar company. The verdict-millions in fraud damages for our clients.
The best practice lesson is to weave your case theory and trial theme into every aspect of your presentation. Every question, piece of evidence, and argument must be examined through that prism. Prepare, prepare, prepare and then put your case theory/trial theme into action. |
| Publications and Marketing Departments Earn Top Awards from ACLEA |
 The Association for Continuing Legal Education (ACLEA) honored NITA with the Award for Professional Excellence for its book, Winning at Trial by D. Shane Read and the Award for Outstanding Achievement for its Brand Campaign Design: The Journey. ACLEA grants only fifteen annual awards to competitors representing more than 300 organizations.
The Award for Professional Excellence is the top prize; only one is awarded in each category. ACLEA will formally present the awards to NITA at the Annual Meeting of ACLEA in Vancouver, British Columbia, on August 5, 2008.
 Winning at Trial, the winning text, encapsulates every litigator's fundamental aspiration. The book includes two DVDs containing almost four hours of footage from the O. J. Simpson trial and a focus group deliberating a civil trial (440 pp., two DVDs, 2007, ISBN 978-1-60156-001-8, $75.00).
The "Journey" brand campaign has been a centerpiece of NITA's marketing and communications pieces in 2008. E-mails, brochures, catalogs, and other pieces of collateral have included this theme in both imagery and copy. |
| Loveland, Weaver Elected to NITA Board of Trustees |
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 L. Joseph Loveland (pictured top right), a resident of King and Spaulding's Atlanta office, and Robin G. Weaver (pictured bottom right), partner in Squire, Sanders and Dempsey's Cleveland office were elected to NITA's board of trustees effective May 1, 2008. Both men will serve on the board until the end of 2010.
Loveland, a fellow of the American College of Trial Lawyers, has more than twenty-five years of trial experience defending clients in a variety of business litigation matters. Among the clients he has represented are Coca-Cola, Ernst & Young, and NBC Universal, among others.
 Weaver is a fellow of both the American College of Trial Lawyers and the International Society of Barristers and has represented the likes of Merck, Pfizer, and DuPont, among other noteworthy clients. Weaver focuses his practice exclusively on general civil litigation including complex commercial litigation, complex environmental, and complex product liability.
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| Behind the Scenes of Program Development |
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NITA has trained more than 100,000 attorneys since its first National Session in 1972. Through its public, in-house, public service, and cosponsored events, attorneys from all skill levels and regions have learned from the best legal practitioners in an environment specially designed for an optimal experience. And the designers of this experience, the program directors, are happy to share that blueprint.
The heart of every program
NITA's mission-to promote effective and ethical advocacy-is carried out by every member of the NITA community, but no one has it on the forefront of their minds like a program director. This is seen in the faculty and team leaders they choose, the special touches to each individual program to make it their own, and then of course, the one-on-one interaction with participants.
 "I enjoy program directing because it is a rush to see the participants excited about learning," said The Hon. Nancy Vaidik (pictured left), program director of the Mid-Central Regional. "I learn so much from the participants and faculty every time that I teach or direct a program-it keeps my pencil sharp and requires me to keep up with the cutting edge issues in trial work."
Whether it's the mission or the work, all of NITA's program directors are committed and many have a long history with NITA. Many attended a NITA program in the 1970s or 1980s, including Mike Dale who was a 1983 program participant.
"Even after twenty-five years I always learn something from the faculty and the participants at every program," said Dale program director for the Florida Deposition and Florida Child Advocacy programs. "In fact, I stole a phrase from Mark Caldwell today [at the Rocky Mountain Child Advocacy program]. Mark used the term 'lectern locked' when speaking about appellate lawyers. Although this may not be a new term, it's new to me and I plan to use it."
Dale, who is a professor at Nova Southeastern University's Shepard Broad Law Center, explained that he enjoys teaching, but teaching with the NITA method is the most exciting and fulfilling. "There is an immediate fix in several days or even a half a day," said Dale. "Seeing a participant improve that dramatically is very gratifying."
 Another program director, James Carey (pictured right) who has directed the Midwest Regional for the last nine years, also appreciates the educational process provided through NITA especially earlier on in his career. "As a former public defender who served at a time when training was on-the-job and at the hands of the senior people, I appreciated the obvious need and value of NITA's learning-by-doing method. With this method advocacy skill was 'deconstructed' because we figured out what we were doing that was effective and what was not. At the same time, the NITA ethos emphasized trial advocacy's vital, historic role in our democracy."
Selecting faculty
Each program director is tasked with many duties including developing the schedule and selecting faculty, which is no simple feat. Since it is the goal to have a ratio of one faculty member for every four program participants, a large program of 100 participants requires twenty-five faculty members, some of whom are also team leads. These twenty-five come from a long list (over 1,000) of judges, attorneys, and professors that are well-versed in the NITA method.
Many faculty are chosen based on location, reputation, and most importantly skills. Mark Caldwell-program director for the Rocky Mountain Deposition, Regional, and Child Advocacy programs in addition to the Public Service Attorney Trial Advocacy program-explained that all of his new faculty are chosen based on their skills in the courtroom, ability to be professional and ethical, and their willingness to offer up trade secrets to a participant they may be seeing again on the other side of the aisle in the courtroom.
"I pick people that are paragons of their profession," said Caldwell.
Although there are hundreds of faculty members that are committed and loyal to NITA, it is the intention to encourage new, younger faculty to join the ranks. New faculty are introduced to NITA teaching in a variety of ways.
Program directors often select participants of NITA's Teacher Training programs (held three times a year) that exhibit strong talent in the NITA method. Other faculty members respond to inquiries from individual interested in teaching or contact those that are referred through the network of existing NITA faculty and board members. Some have experienced NITA firsthand as a NITA participant, but almost all individuals come recommended because of their successes and talent in law and teaching.
And yet other faculty members are recruited after a program director witnesses him or her excel in a law school classroom or in a NITA in-house program. Dale explained that in the last year he has encouraged three attorneys that he met through in-house programs to teach at his programs.
Regardless of how someone becomes a NITA faculty member, it is agreed upon by program directors that they must have a high ethical attitude like the rest of the faculty and be able to share in the very strong camaraderie among the NITA community.
Typically, someone that has been invited to teach at a NITA program is prescreened to be sure they are a good fit for the program. If chosen, then they are paired with an experienced faculty member and just like the participants, team leads and program directors critique new faculty on their performances as well.
It is the goal to create diversity among the faculty members. Allen Snyder, one of the program directors for the Pacific Deposition and Pacific Regional programs, explains that having a mix of local and nonlocal faculty is important because it brings a new perspective as does having a mix of age groups, experience levels, and practice areas. He explained that he tries to get a combination of civil attorneys, district attorneys, and public defenders to even the mix.
At every program, there are two team leaders responsible for a group of twenty-four participants. The team leader works with the team throughout their Nita City experience in an effort to keep the participants fired up and to really feel like they are part of the NITA community. Team leaders also teach, and they coordinate the rotation of faculty among their team members.
Each program director works very close with the team leaders and assistant team leaders during and after the program to discuss what works and what doesn't. Carey says that team leaders play a tremendous role.
"It's a question of inspiration," said Carey. "Since they are the key players, I rely on them and give them free reign to make it work. I particularly rely on their institutional knowledge the most since it allows us to continue from year to year successfully."
The past and future of NITA programs
Changes to programs-some small, some not so small-range from a new program director taking over a program to selecting a new case file for the course. Regardless, most everyone will agree that change is important in an ever-evolving marketplace and legal culture, including Caldwell who says the key to longevity is to understand that "If you think it ain't broke, you're wrong. You always need to be thinking about change and talking about it. If we stayed static we [at NITA] would have been dinosaurs a long time ago."
Caldwell explained that he frequently makes small changes to his programs. For example, in recent months he has implemented a new exhibit exercise that works well and fostered new ideas he hadn't seen come up before. He also adopted a new scheme that changed the video review process to triple performance time for each participant. This new process he learned from John Sonsteng, program director of the North Central Regional.
 Other program changes often revolve around technology use including a rather large adaptation recently made to most deposition skills programs. Beginning last February with the Deposition Skills: Houston program, real-time transcription services are now offered to the participant. According to John Baker (pictured left), program director for the Robert F. Hanley Advanced Trial program, NITA has partnered with CaseView Solutions who provides the equipment and reporters at most deposition programs so that each participant can practice using real-time transcript.
Although it is important to keep with the times, which means being sensitive to time and technology, the core of the NITA method will not change. Advocacy, as an art, is one that stays consistent. The glory of it all is that the NITA method is new to every participant despite the thousands of people that have practiced before them.
According to Snyder the substance of the case used in a program is important, but not as relevant as the presentation. It all lies in the quality of the faculty.
"The challenge is to bring life to the story," said Snyder. "It doesn't take a Hollywood production to do that. The cool factor will require us to use technology, but I don't know that it's necessary. What is necessary is for us to help the participant and for [the] participant to see us as a resource."
Thank you
According to Caldwell the most important part of his job as a program director is say "thank you" to the faculty. "I can't say it enough," he explained.
This is a good example of something everyone can do a little more of. So thank you to all the NITA program directors that keep the NITA method in action.
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| Program Director Q&A: Donald Green |
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 In an effort to highlight and introduce NITA's faculty, program directors, and authors to the NITA community, we will periodically publish a personal interview. In this issue of NITA Notes we are talking to new NITA Program Director Donald Green, Of Counsel forPepper Hamilton in Washington, DC.
NITA: What is your legal background?
Donald Green: After Harvard Law School and service in the U.S. Marine Corps, I spent several years with the U.S. Department of Justice. In 1962, I entered private practice in Washington, DC, initially as an anti-trust lawyer and then a general litigator. For the past ten years I have been primarily an arbitrator and mediator in complex civil litigations.
NITA: How did you come to know NITA; knowledge and experience of the organization's publications and programs?
DG: In an early case I worked on a case with Bob Hanley and thus learned about NITA. Since then I have taken and taught NITA Advocacy courses. For about twelve years I was an adjunct professor at Georgetown Law and used NITA techniques, case files, and other materials. I also brought the NITA techniques (and materials) to my law firm where we run programs similar to the NITA programs.
NITA: How has NITA (or NITA training) played out in your practice?
DG: As a litigator, I know my skills and self-awareness were greatly enhanced by my NITA training and experience. Also, it was interesting to me that by teaching the NITA system to others, I thereby improved my own skills immeasurably.
NITA: Describe your greatest success.
DG: Apart from my four children, my greatest success has been training young litigators to win without losing self-respect. I have won my share of large cases but don't count those victories as important as being able to look back and feel pride in how I conducted the litigation. It is the latter that lives more than counting wins and losses.
NITA: Describe your teaching style in two sentences.
DG: It is pretty traditional. We have honed it over the past eleven years and have a core of actors and faculty who deserve the credit for making it work and work extremely well. We use a NITA case file and teach the faculty the NITA critiquing methods. It is hard for a program leader to mess up when you have all that going for you.
NITA: Why do you think an attorney should attend a NITA program?
DG: Implicit in all of the above answers is the conclusion that self-critiquing coupled with advice from senior litigators is a matchless way to improve one's litigation skills.
NITA: What do you think NITA's impact has been and continues to be?
DG: NITA continues to hold the respect of its audience (litigators) due to the major positive impact it has had. The "secrets" of successful litigators were just that-secrets. NITA has opened up the profession to receiving insights from the best and brightest and that has improved both the young litigator and the seasoned veteran.
NITA: What else do you want the NITA community to know?
DG: Whether one is involved as a faculty member or team leader or program director, participation in the NITA programs is a wonderful way to give to your profession-and by doing so you also inevitably give to yourself as well. If your participation in the NITA programs is a gift, it is a gift that keeps giving back.
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| Lubet Authors New Legal Publication |
 Renowned legal scholar and Williams Memorial Professor of Law at Northwestern University Steven Lubet has released his newest legal publication; The Importance of Being Honest: How Lying, Secrecy, and Hypocrisy Collide with Truth in the Law ($27.95, NYU Press). This new publication tackles a series of subtle and thorny ethical questions that lawyers and judges face each day. With illustration by real-life examples and analysis of less public conundrums, such as what a lawyer should do if they make a mistake, the publication is full of insight and thought provoking questions. Lubet's central concern is with actions that are arguably legal but may also be strategically or morally wrong, and he measures this issue in depth. |
| Rhea Honored as Trial Lawyer of the Year |
 Longstanding NITA faculty member Melissa Rhea was honored by the Trial Lawyers Association of Washington, DC as trial lawyer of the year at their annual awards dinner on May 10. Rhea, a senior trial lawyer with the D.C. malpractice law firm of Jack H. Olender & Associates, was recognized for her work on behalf of people injured by medical malpractice and other negligent acts. Additionally, she was again chosen by her peers for inclusion in Best Lawyers in America 2008 and Washington DC Super Lawyers 2008 by Law & Politics Magazine. |
| Toomey Recipient of Paul R. Dean Award |
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 Longtime NITA Program Director and Faculty Member Dan Toomey received the Dean Paul R. Dean Award presented by Georgetown University Law Center for his continuous and sustained dedication to his alma mater. Toomey has been the director of NITA's DC Advanced Trial Advocacy program for the last four years, and was the former team leader of the Georgetown/NITA program in Basic Trial Advocacy Skills for twenty-five years from 1978 until 2003. He is currently partner in Duane Morris' construction practice group in its Washington DC office. |
| Caulfield to Head Dewey & LeBoeuf's Silicon Valley Office |
 Longtime NITA faculty member and Board Emeritus Trustee, Barbara Caulfield, now heads Dewey & LeBoeuf's Silicon Valley office and will co-chair the firm's intellectual property practice. Caulfield is a former federal judge for the Northern District of California and a top litigator with both Latham & Watkins and Orrick, Herrington & Sutcliffe. | |
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The Docket |
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Trial Advocacy |
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Deposition Skills
Teacher Training
Public Service
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| Featured Program: Deposition Skills, California Coast |
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The upcoming Deposition Skills: California Coast program will provide participants with an extraordinary set of skills to make their next deposition their best. Located in Orange, California, this program will take place July 31-August 2 and will enhance each attorneys questioning style to ensure participants get the most out of witnesses. NITA's learning-by-doing method will prove effective once again as participants receive excellent suggestions and support from acclaimed faculty. Beginning to end, this program will cover it all from witness prep to ethics.
Deposition Skills: California Coast is directed by Larry Silver of Silver & Field in Los Angeles and offers an estimated 21 CLEs including two ethics credits.
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Featured Publication: How To Try A Jury Case |
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How to Try a Jury Case has received positive reviews in the recent months. |
How to Try a Jury Case: Trial Tactics, by John F. Kimberling has been well-received by the legal community since its publication last year. The following reviews underscore that the practical advice it offers deems it an important addition to any trial lawyer's bookshelf.
"-a must-read for all trial lawyers, whether the lawyer is new to the practice or simply want[s] to brush up on some trial techniques-replete with tips that only a seasoned trial advocate can provide."
-Trial, May 2008
"Kimberling's trial manual permits a new trial attorney to gain practical knowledge and insight that can be obtained only from years of success and mistakes as a trial attorney-a highly recommended read."
-The Colorado Lawyer, April 2008
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| The Most Elite Advocates of Our Time |
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The list of all 2007 NITA faculty can now be found on www.nita.org/2007nitafaculty. If you are a faculty member and have taught in the last year, feel free to add this link to your online professional bio along with the NITA logo, which can be downloaded from www.nita.org/banners. Make it known that you are among the country's most elite advocates.
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| Happy Birthday NITA |
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A Milestone: June 11 Marks NITA's 37th Birthday |
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The articles of incorporation for the National Institute for Trial Advocacy were officially signed on June 11, 1971 by Thomas S. Jackson, Frank R. Roberson, and Edward F. Howrey. Happy Birthday NITA.
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| Rule of Law: Taking It Up A Notch |
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Visit the NITA blog to read the thoughts of Jennifer Long, NITA's Development Manager, on the NITA Foundation's work in Rule of Law and how it impacts attorneys internationally.
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| NITA Exhibiting at AALL |
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Representatives of NITA will be exhibiting at the American Association of Law Libraries (AALL) conference on July 12-15 at the Oregon Convention Center in Portland. If you plan to attend the convention, stop by booth number 341 to enter our drawing and review our latest publications.
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| Calling All Volunteers |
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Frequently, NITA recruits volunteers from the community to participate in programs as jurors, focus group members, witnesses, and even attorneys. Although not every program requires volunteer help, the upcoming Teacher Training program (June 26-27) in Louisville is in need of law school students and attorneys who are willing to participate. The role will be based on a simple fact pattern and will require the volunteer to act as an attorney or witness before NITA participants who will then critique each volunteer's performance.
If you are interested in volunteering, please call Katie Strand at 303.953.6811 or e-mail at kstrand@nita.org.
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| About NITA Notes |
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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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