Greetings!
 One of the cornerstones of the NITA mission is providing opportunities to attend NITA programs to those lawyers who will benefit by attendance but who cannot afford to attend. Clearly, the costs of attending are more than the tuition expenses: travel, lodging, and meals are also necessary, but sometimes the cost of "not being in the office" is the real expense of attendance. For many of our small firm, solo, or public interest attendees, the only way to attend NITA programs and gain the benefit of our education is through the assistance of scholarship support from the NITA Foundation.
Founded in 2003, the NITA Foundation has provided over $1.5 million of tuition support to attendees at NITA public and public service programs. ALL of these funds were provided by donors-alumni, faculty, law firms, relatives, foundations, bar associations, and legal organizations who understand that the gift of a NITA educational experience not only helps the lawyer and the client, but also the system of justice that NITA promotes.
In this issue of NITA Notes you will hear from one of NITA's public service program participants, Jennifer R. Hersh, and from one of our partners at Equal Justice Works, Ericka Hines. Both of these individuals can attest to the great rewards a NITA scholarship can bring. One hundred percent of every dollar donated to the NITA Foundation is dedicated to either scholarship support or public service programming, at the donor's request.
Please contact the Director of Development, Eleni Sarris at esarris@nita.org or 303-953-6853, if you have any questions or want assistance in transmitting your donation.
Help us continue the NITA mission of promoting advocacy and improving our system of justice through supporting scholarships and public service programming.
Sincerely,
Laurence M. Rose
President & CEO
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Best Practices |
 Winning Trial Strategies - Having a Realistic Goal
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 Glenn Bradford of Glenn E. Bradford and Associates PC in Kansas City, Missouri.
An English lady once asked the Lord Chief Justice of England to explain what the necessary elements to win a case were. He replied, "First you need a good case, then you need good evidence, then you need good witnesses, then you need a good judge and then you need a good jury, and then you need good luck."[1]
The first point that ought to be made in any article discussing trial practice is that, in truth, a trial lawyer has only limited control over the outcome of any given trial. Indeed, it has been written that "[t]he British bar seems fairly well agreed" that "[o]f every hundred cases, ninety win themselves, three are won by advocacy, and seven are lost by advocacy."
The best example of the limitations inherent on a trial lawyer might be the career of Abraham Lincoln. Although widely acclaimed during his legal career, Lincoln's courtroom record did not seem to be particularly outstanding, even with his reputation as the "best all-round jury lawyer of his day in Illinois."[2]
Of 87 cases for which the records are available and that Lincoln tried before the court without a jury, decrees were rendered in favor of his clients in 40 and against them in 47. Of 82 actions argued before a jury, verdicts favorable to his clients were returned in 43. [3]
Lincoln's legal career is proof of the proposition that brains, talent, experience, preparation, and a compelling personality do not guarantee perennial success in the courtroom. In the author's experience, effective trial lawyers start with the concept of respecting the facts of the case and respecting the intelligence of the jury. The quickest way to lose a case is to try to oversell it. New York lawyer Francis L. Wellman had these observations:
"There is a fine art in never overstating a case; for if the evidence turns out to be stronger than the (opening) statement, the advocate is sure to secure credit for his candor and modesty. He should avoid, therefore, all exaggerations. Facts should expand on the trial rather than diminish in force." [4]
Clients tend to want to hit a home run in every case. Babe Ruth hit 714 home runs but he also struck out 1,330 times, which was the major league record for many years. Putting litigation in a baseball context, perhaps the wise lawyer will seek to convince the client that it is important to hit what is pitched. Every pitch cannot be hit for a home run. Sometimes it's better to try for a base hit rather than waste an opportunity trying to do something that cannot be done.
Former Chief Mediator of the Second Circuit Court of Appeals, Frank J. Scardilli, put it well, saying "[t]he lawyer must be an agent of reality to the client"[5] and "this implies respect for economic realities, as well as an awareness of the legally achievable."[6] Every plaintiff's case is not a multi-million dollar verdict waiting to happen. Every defense case is not potentially a defense verdict or an acquittal. Don't squander what you do have to work with trying to get a result that realistically cannot be secured. Make something out of what you have to work with.
Noted New York lawyer Emory R. Bucker once said: "The greatest compliment a trial lawyer who has won can receive is to have the jury think and say afterwards that the defeated side had a better lawyer but the successful side had a better case."[7]
[1] Frances L. Wellman, Success in Court 96 (The Macmillan Company 1941).
[2] Albert A. Woldman, Lawyer Lincoln 241 (Carroll & Graff Publishers, Inc., 1936).
[3] Id.
[4] Francis L. Wellman, Success in Court 137 (The Macmillan Company 1941).
[5] Robert D. Rachlin, Esq., Seven Habits of Effective Lawyers, Vermont Bar Journal, Summer 2007, at 25.
[6] Id.
[7] Francis L. Wellman, Success in Court 349 (The MacMillan Company 1941). |
| Partnership with Equal Justice Works Brings Training to Dozens of Fellows |
In 2007 NITA began a partnership with Equal Justice Works, a non-profit based out of Washington, DC that works with law students and new attorneys to promote law practice in the area of public service or equal access to justice. Equal Justice Works has a fellowship program where recent law school graduates agree to work for two years focusing on a particular social justice issue.
As part of NITA's relationship with Equal Justice Works, NITA provides scholarships to a select number of fellows so that they can attend a relevant NITA program. This training is not only well-deserved and needed for many, it is also appreciated.
According to Equal Justice Works' Training Manager, Ericka Hines, the scholarship recipients have benefited immensely from the NITA trainings. "Our fellows have been very happy about their NITA trainings," said Hines. "We routinely hear comments such as 'I found the faculty to be outstanding. They gave helpful, constructive criticism balanced perfectly with compliments.' Or, 'We accomplished so much in such a short period of time because they kept us on task and made sure that we all had a chance to practice our budding skills. The workshops were fantastic-really helpful and insightful.'"
The scholarship recipients are chosen by Equal Justice Works staff based on an application and brief essay describing how the training will be used during their fellowships. In most cases, the recipients are matched with programs in their region.
Equal Justice Works provides fellows with leadership development training. According to Hines, the training focuses on ten core competencies that all new lawyers need in order to be successful in the workplace and as a leader in their communities. Similarly, many new lawyers lack courtroom experience, which is why the NITA programs are so beneficial.
"In being able to get that type of intensive experience through NITA trainings, they become more comfortable and over time more confident in representing their clients and causes," said Hines.
This relationship began because of Equal Justice Works and NITA board member, Judge Ann Williams, who suggested that the two organizations talk about a possible partnership. In 2007 Marcia Levy, a NITA program director and special counsel at Sullivan & Cromwell in New York, developed a special NITA training as part of Equal Justice Works' annual Leadership Development Training. Levy was also key in setting up the relationship.
In 2007 NITA provided twenty program scholarships and so far in 2008 NITA has provided twelve additional scholarships to Equal Justice Works fellows. Both Hines and Eleni Sarris, NITA's director of development, hopes that this partnership continues in 2009 and beyond.
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| NITA's Most Senior Participant Shows True Character, Perseverance |
 Earlier this year a very special program participant attended NITA's Rocky Mountain Regional program using a mission-based scholarship from the NITA Foundation. At 72-years-old, Robert Pierce is one of NITA's most accomplished participants, but not because of his age.
For years Pierce was a hospital administrator, but after two strokes back in the 80s he found himself being a patient in the hospital-not an administrator-for nine weeks. Strokes are the third leading cause of death in the United States and can affect victims in various ways including paralysis, loss of senses, (taste, smell, sight) decreased sensations, and many other consequences. In Pierce's case, the strokes severely affected his speech. So much so that he continued to receive therapy for four years after he was released from the hospital.
During those four years, under the encouragement of his daughter, Pierce went back to school. Law school that is, at St. Louis University. His daughter, a lawyer herself, encouraged Pierce in the hopes that law school would serve as therapy for his speech.
"Speaking and writing was the greatest challenge in law school, but the school was very patient with me," said Pierce. He went on to graduate from St. Louis University in 1989.
"I never intended to be a lawyer, but people in my stroke club wanted me to take the bar (which I did) passing Illinois, Missouri, and Colorado," says Pierce who now practices family law in Louisville, Colorado. Today, his greatest challenge is much more emotional than physical. The most difficult part of his job is helping children and mothers cope with divorce.
"If I am successful, it comes from my persistence and the help that my family, friends, and therapists gave me."
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| ADL Installs Karen Steinhauser as Board Chair |
 The Mountain States Regional Office of the Anti-Defamation League (ADL) installed Karen Steinhauser as Regional Board Chair as of June 2. Karen has been a NITA faculty member for eighteen years.
Karen has chaired a number of ADL committees that include Civil Rights, Young Council Leadership Program, Government Relations and many more. In addition, she has received ADL's Torch of Liberty Award, the Fred Silverberg Young Leadership Award, the Colorado Women's Bar Association's Mary Lathrop Award, and others.
Karen is Of Counsel with Isaacson Rosenbaum PC's civil and criminal trial practice. She will serve a two-year term as ADL's Regional Board Chair and replaces former Board Chair Rob Klugman.
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| Two New Programs Designed to Address Arising Needs in the Legal Community |
NITA's program directors work the hardest to make the litigation skills training process as meaningful to the participant as possible. Not only are these individuals striving year after year to make their own programs the best they can possibly be, but they are always closely observing progressing trends in the legal environment and designing new programs tailored to meet these emerging needs. The fruits of these labors currently are the release of two new NITA programs: Jury Selection and Advocacy from Start to Finish.
Jury Selection
We know that jury selection sets the tone of a trial, but what many of us do not think about is how the process of jury selection is truly an art that when done correctly can get the best results for our clients. The problem courts are facing now is that jury selection has begun to dissolve into a process of going through the routine without the right intention behind the lawyer's actions. Why?
The heart of the problem is that many trial lawyers hesitate to become personal with the jurors. Lawyers have become too used to just making arguments in the courtroom and not conversing with the potential jurors in the right way. Because many lawyers have been criticized as doing a consistently bad job, judges have become impatient with the process and as a result now do most of the questioning themselves. In order to retrain lawyers in the art of jury selection two of NITA's program directors, Mark Caldwell and Martin Sabelli, have created one of NITA's newest trial advocacy program, Jury Selection.
The premise of the program focuses on the fact that jury selection sets the stage for the rest of the trial in a variety of ways. First, jury selection gives the jurors the initial and most likely the longest lasting impression of the lawyers and of their relative abilities and personalities. Second, the jury selection process sets the momentum for the lawyer's full-trial performance.
Since jury selection is instrumental to the trial as a whole, lawyers must learn to do it effectively and with ease. Unfortunately, litigators layer on expectations about perfection and control, which generate anxiety and other consequences. These inherent complications are why Sabelli and Caldwell set out to create this program. As Sabelli said, "We need to re-learn what is natural to us: listening and being guided by the potential jurors so that we can determine, as we would in any conversation, which opinions of the juror matter to us." In an ongoing effort lawyers will also need to learn to let go of mistakes, because in conversations there are no mistakes, only the effort to ask questions and listen to the answers.
Jury Selection will take place at the NITA Education Center in Louisville, Colorado from September 11-13. The program offers the choice of either a civil or criminal case file, and participants will work in groups of attorneys who have a similar type of practice. This allows each participant to focus on the jury selection skills applicable to their practice. The program also has specific workshops, which practice excusing jurors that demonstrate actual bias or rehabilitating a juror who the lawyer wishes to keep on the panel. This program qualifies for an estimated twenty-two CLE credits and is one of three classes that qualify participants for the NITA Advocate Designation.
Defending the Art of Complete Advocacy
Trial advocacy can be taught and learned in a variety of ways, but to become a complete advocate, participants must immerse themselves in the whole learning process. As a litigator, learning trial advocacy is not always just about absorbing one part of trial training, but rather learning all the facets of trial advocacy from the beginning to the end. Since the complete experience of learning trial advocacy cannot be confined to the rigorous structure of a one- or two-day seminar, NITA program director, John Sonsteng developed NITA's newest program, Advocacy from Start to Finish, which takes place over the course of an entire week.
Training that stays with the lawyer is in-depth coaching, instruction, feedback, and learning-by-doing over a solid time frame. The current problem for many budding attorneys is that firms do not always spend enough time training on subjects such as depositions, court trial, jury trial, expert examination, jury selection, introduction and use of exhibits, technology in the courtroom, and liability and damages when training the new lawyers at the firm. The more of these skills an attorney possesses, the more successful they will be in every litigation phase. To remedy this growing legal education problem, Sonsteng pioneered the idea of an all-encompassing program that takes participants through a complete examination of every phase of litigation.
After practicing all of the skills outlined above, the program will close with half-day trials taking place in courtrooms fitted with state-of-the-art technology including smart boards, computers, and DVD equipment. In addition to the scope of information covered in the program, the case files being used have some new advantages themselves. Darngood v. Landers and PUDS (Picket Up Delivery Service) are used for this program as they contain a new, more realistic format where learning objectives are easily built in.
"This is active, collaborative training," said Sonsteng. "This program allows participants to evaluate their skills in every stage of litigation so they can gauge where they are and then have positive things to build on."
Advocacy from Start to Finish is being offered from September 13-19 in St. Paul, Minnesota. The program offers an estimated fifty-four CLE credits and for those that qualify, NITA offers financial aid and payment plans.
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| 2007 Faculty Award Winners Announced |
NITA recently announced the winners of the organization's 2007 faculty awards. There are three awards in all, each recognizing a different NITA community member who has contributed to the mission in an outstanding sense.
"This year's award winners have all contributed to the teaching of advocacy and the promotion of ethical lawyering," said Laurence M. Rose, NITA's president and CEO. "As gifted teachers, they have implemented methods with enthusiasm, good spirit, and unbounded energy, and for that we are grateful."
All award winners were nominated by other members in the community and then selected by an anonymous committee composed of NITA faculty members and program directors.
 John Sonsteng, program director for NITA's North Central Regional, is the 2007 Honorable Prentice H. Marshall Faculty Award winner for his innovative teaching methods. Sonsteng is a Professor at William Mitchell College of Law in St. Paul, Minnesota. He has been a NITA faculty member since 1974.
"William Mitchell Professor Emeritus Bob Oliphant, former NITA executive director, invited me to take a class in Boulder, Colorado, at NITA headquarters in 1974 because I was helping organize an advocacy school in Bemidji, Minnesota, for county attorneys. It changed my life.
"Because of my NITA experience, I was able to teach all over the world. NITA's outstanding faculty, creative programs, innovation, and excellent learning-by-doing methods have helped us all become better lawyers."
This award is named for the late Prentice Marshall, one of the original teachers at NITA's National Session and a fixture on the NITA faculty. He pioneered efforts to support pro bono advocacy and teaching at major law firms and by the judiciary.
 Robert Vanderlaan, of Grand Rapids, Michigan, is the 2007 Honorable Robert E. Keeton Award winner for his outstanding service as a NITA faculty member. Vanderlaan is the principal attorney at VanderLaan and Associates, P.L.C. He is a nationally-recognized litigator and is also well-versed in alternative dispute resolution. Vanderlaan has been a NITA faculty member since 1983 and focuses much of his time in NITA's various in-house programs and the National Session, Midwest Regional and the Southern Regional.
This award is named for Bob Keeton, one of the original teachers at the National Session and a long-time contributor to many programs. Keeton authored one of the first texts on trial advocacy and was NITA's director from 1973 to 1976.
 Marcia Levy, NITA's 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. Levy is special counsel (pro bono initiative) at Sullivan & Cromwell in New York, New York. She has been a NITA faculty member since 1994, and she currently directs NITA's Building Trial Skills: New York; Deposition Skills: New Jersey; National Disability Rights Network; Equal Justice Works Trial Skills Training; and the Deposition Skills: New York programs.
This award honors Bob Oliphant, NITA's first administrator, who has taught at the University of Minnesota and William Mitchell law schools for over 35 years.
For more information on the awards, and for a listing of pervious award winners, please visit www.nita.org/awards.
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| Testimonials Good Enough to Share |
Two days after my return from the Rocky Mountain Child Advocacy Training Institute (RMCATI), I had a battle royale in shelter care in which I had to contest a motion against three other attorneys, and I won. I could see the difference in my own performance after attending RMCATI. I had more clarity in preparation. I was calmer in court because I was more confident. I didn't get flustered when witnesses didn't answer as I expected. I used the direct and cross-examination skills I learned at RMCATI and I gave the closing argument of my life. The true benefit, though, is that a medically fragile infant is in a safe placement today because I went to RMCATI last week.
-Jennifer R. Hersh, Staff Attorney, Legal Aid Society of Southwest Ohio, LLC, Hamilton, Ohio
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The Docket |
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Trial Advocacy |
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Louisville, CO
Teacher Training
Public Service
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| Calling all Spanish and Japanese Speakers |
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NITA's work in Mexico and Japan requires a cadre of FLUENT Spanish and Japanese teachers. If you are already a NITA teacher, or are interested in becoming a member of the NITA faculty, and FLUENT in Spanish or Japanese please e-mail Lonny Rose at lrose@nita.org for more information.
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| Featured Program: Boston Deposition |
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Deposition Skills: Boston highlights all the finer points of taking a great deposition along with providing a broader definition of what you thought you knew about depositions. Using the learning-by-doing method that has served NITA so well in the past, Program Director William Hunt shows you how to take the lead with your depositions and maintain control. Hunt practices civil litigation, commercial law, employment law, and personal injury with Clark Hunt & Embry in Cambridge, Massachusetts.
This program, scheduled for September 25-27, encourages exhaustive answers from your witnesses and focuses on the importance of theory testing. Deposition Skills: Boston is estimated to provide sixteen CLE credits.
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| Featured Publication: Technology in Litigation |
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$ 195, 3 DVDs (180:00), 162 pp. booklet, June 2008, 978-1-60156-018-6
Technology in Litigation by Alvin F. Lindsay is a five video series that features exclusive video footage of the interior of a federal circuit court. The videos, along with the accompanying booklet, present in-depth advice on how to prepare, build, and present a case using technology and the most current e-discovery practices.
This is a valuable resource designed to provide practical information about technology use throughout the life of a case. Software programs, research materials and resources, computer presentation hardware and available peripherals, common courtroom settings and their limitations, and recommended Web sites, to name a few, are all examined in-depth.
Lindsay is a partner in the Miami, Florida, office of Hogan & Hartson LLP where he specializes in litigating complex business disputes. Since the early 1990s, Lindsay has used technology to manage cases and present evidence in court.
The Associated Press calls Lindsay "an expert on technology in litigation," and he was extensively quoted by The Wall Street Journal and hundreds of media outlets throughout the country regarding the famous December 1, 2006, overhaul of the Federal Rules of Civil Procedure to encompass electronically stored evidence.
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| Recent NITA News Coverage |
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In the last month NITA's name has appeared in two different news publications including an article titled "Public Speaking 101" in the Minnesota Lawyer and another article titled "Loyal Loyola Litigators," which appeared in the spring 2008 issue of Loyola Law.
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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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| Obtain a Special NITA Logo on Your Martindale Profile |
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Visit the NITA blog to learn about NITA's special designation program that only NITA program participants are eligible for. Those that qualify will have a special icon attached to their Martindale.com profile. If you are currently on the designation track and would like to confirm your progress, please contact Ruth Williams at rwilliams@nita.org.
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| Bloggers Wanted |
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NITA is seeking bloggers/authors to write on the following topics:
· Common Deposition Questions · The NITA Method · Bench Trials If you are interested in contributing to The NITA Blog, please contact Charley Schollaert at cschollaert@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 Jennifer Long at 303.953.6845 or jlong@nita.org.
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