2015 ADVANCED TRIAL ADVOCACY INSTITUTE AND CROSS-EXAMINATION

“I attended, participated in and enjoyed the Advanced Trial Advocacy Institute.

It is a comprehensive ‘how to’ demonstration curriculum in which the attendees have an opportunity to observe and then perform everything from voir dire to examination of witnesses to closing argument …”

Ron Ward

President, Washington State Bar Foundation, 2008-2011

President, American Board of Trial Advocates, 2012

Washington State Trial Lawyers Association President’s Award
Super Trial Lawyer since 2003

Save the Dates - June 15-19, 2015 – for the Advanced Trial Advocacy Institute at Seattle University Law School.

The Advanced Trial Advocacy Institute, June 15-19, 2015, is co-sponsored by the American College of Trial Lawyers and the American Board of Trial Advocates. ATAI offers a proven conceptual approach to trial practice combined with premier trial principles and strategies for every phase of trial from preparation through closing argument. During the week-long course, the best of the best trial lawyers and faculty will provide you with lectures and demonstrations of successful trial skills.

Cross-examination is a featured topic  at the ATAI. Attendees will not only have a presentation on Cross-Examination but also a faculty demonstration of cross. Then, attendees will conduct cross-examinations and receive faculty live and video critiques. 

To register and for complete information, click here. 

Who should attend

The course is designed for both beginning and experienced practicing lawyers, who are seeking a firm foundation of the finest trial skills taught by experienced trial lawyers, who will to take their lawyering skills to a higher level. The course is also open to a few select law students who have completed their second year and have taken an Evidence course. Seattle University Law Students will receive two academic credits for successfully completing the course.

Topics to be addressed include:

Developing Case Theories, Themes and Trial Strategies .Courtroom Communication Techniques .Trial Preparation and Planning .Effective Jury Selection .Convincing Opening Statement .Conducting a Compelling Direct Examination .Presenting and Attacking Expert Testimony .Creating Dynamic Trial Visuals .Today's Courtroom Technology .Trial Ethics and Avoiding Pitfalls. Impeachment and Concession Cross-Examination and Persuasive Closing Argument.

Distinguished Faculty Members

Judges

Hon. Terrence A. Carroll, King County Superior Court (ret.)
Hon. John H. Chun, Judge, King County Superior Court
Hon. John P. Erlick, Judge, King County Superior Court
Hon. Dean Lum, Judge, King County Superior Court
Hon. Jack Nevin, Judge, Pierce County Superior Court

Attorneys and Academics

Dan ‘L W. Bridges, McGaughey Bridges Dunlap PLLC
Amy T. Forbis, Bennett, Bigelow & Leedom
Barbara Frost, Adjunct Professor, Seattle University School of Law
Erick D. Gilman, Gordon, Thomas Honeywell
Karen Koehler, Stritmatter Kessler Whelan
Avi Lipman, McNaul Ebel
Thomas A. Lemly, Davis Wright Tremaine
Lisa Marchese, Dorsey Whitney
Simion Osborn, Osborn Machler
Stephen Penner, Chief Deputy Prosecuting Attorney, Pierce County Prosecutor's Office
Jeffrey Robinson, Schroeter Goldmark and Bender
Jeff Tilden, Gordon Tilden Thomas & Cordell
Lish Whitson, Lish Whitson, PLLC

Communication Specialists

R. Craig Smith, Senior Trial Consultant, Best-Witness
Thomas M. O'Toole, Ph.D., President & Consultant, Sound Jury Consulting
Tara Parker, Prolumina

THE RIGHT AND WRONG WAY TO PREPARE YOUR WITNESS FOR DEPOSITON

During a deposition, the trial lawyer mines for gems that can be put on display  during cross-examination. Those precious stones among others include the deponent’s concessions that support the cross-examiner’s case theory, fabrications and self-destructive behavior. How you prepare your witness for the deposition is critical to their performance during the deposition as well as at trial under cross.

This month, the King County Bar Association Bar Bulletin  published Thomas M. O’Toole’s excellent recommendations on how to prepare a deponent. Mr. O’Toole is the President of Sound Jury Consulting, and his following advice is well worth reading and heeding:

            The deposition performance of a key witness is critical to the outcome of any case. Summary judgment motions are often won or lost on the testimony of central witnesses. Even when the case survives summary judgment, unfortunate behavior or answers in depositions can have a detrimental impact at trial, leading jurors to dislike or distrust the witness, which lowers their motivation to want to find in favor of the party that witness represents.

            I often receive calls from attorneys who are looking for a witness preparation session just before trial for a difficult witness.  The typical explanation is that the witness performed poorly in his or her deposition and needs to improve for trial. These calls are frustrating because, while I am happy to help, there is no need for a witness to perform poorly in a deposition. There are a variety of strategies attorneys can use to position a key witness for success in his or her deposition. Unfortunately, these strategies are often not used and attorneys instead rely on deposition preparation sessions with witnesses that create more problems than they do solutions.

            The purpose of this article is to discuss the right and wrong ways to prepare a witness for a deposition. All key witnesses should go through this process. Attorneys should avoid making an assumption that a witness will perform well in a deposition because he or she is smart, sociable, or a good communicator. The trenches of daily life vary greatly from the trenches of a deposition. Skill sets that make a person successful in daily life do not necessarily translate to or prepare a witness for a deposition. There is no greater example of this than former President Bill Clinton. Clinton’s defining trait was his communication skills. He was a smart, charismatic man who was known for his ability to adapt to just about any situation and demonstrate excellent communication skills in the process. When he was deposed in the Paula Jones sexual harassment lawsuit, most expected a solid performance. The American Spectator described Clinton as the kind of witness “who would strike fear into the hearts of opposing lawyers.”  However, his performance was anything but. The American Spectator went on to describe him as “an unsophisticated witness, revealing a desire to please the opposing lawyer, and telling prepared stories that suggested he had lots to hide.”[1]

            In order to understand the right ways to prepare a witness for a deposition, let’s start by looking at the wrong ways to prepare a witness. The typical preparation session between a witness and an attorney involves both of them sitting down in a conference room for a few hours or more and talking through the case. The attorney probes the witness on issues the attorney needs to know more about and gives the witness all sorts of advice on how to talk about different issues in the case. The session usually ends with a homework assignment for the witness requiring him or her to review a bunch of documents and try to remember an unreasonable amount of items.

            There are several reasons this approach fails. First, the witness will not remember the majority of what he or she was told. All of the studies on recollection suggest the witness will remember about 10-20% of what he or she was told in that session. Second, the witness is not given the opportunity to practice the testimony, which is critical. Witnesses need the experience dealing with all of the standard attorney tricks. They learn this through actual practice. Third, all of the tips and advice from the attorney can be overwhelming. Depositions are intimidating enough and now the attorney has piled on all sorts of “important” things the witness “must” remember. In short, this cramming approach does not work and can often backfire. Witnesses perform poorly when they feel overwhelmed and not in control.

            The difference between an ineffective and an effective prep session is what I would describe as an “attorney-centered” approach versus a “witness-centered” approach. The former focuses on the attorney’s needs while the latter focuses on the witness’s needs. The fundamental goal of any prep session should be giving the witness comfort and confidence, which are essential to a successful performance. Everything else derives from these two items. I often joke that witness prep sessions are actually therapy sessions. In this respect, the joke is half-true. Comfort and confidence empower a witness to see clearly and take control of what his happening in the deposition.

            Let’s now look at the practical strategies for giving a witness comfort and confidence.

1.    Determine what the witness can realistically accomplish in his or her deposition. This can vary greatly among witnesses and will impact the approach the attorney should take. For example, the goal for some witnesses may be as simple as not “bombing.” In another instance, the witness may be better suited to carry the weight of the case. An honest assessment is critical here. I have seen attorneys try to get witnesses to take on more than is realistic, which overwhelms them and ultimately leads to poor performances.

2.    Practice the deposition. The attorney should sit across from the witness in a conference room and pretend to be opposing counsel, asking all of the questions and deploying all of the standards tricks one would expect from opposing counsel. The witness should pretend it is the actual deposition. This gives the witness an opportunity to fail and learn from it, which is much more impactful and memorable than merely discussing the case for a few hours. Witnesses need to get used to the environment of a deposition and the failure to practice forces them to learn and adjust during the actual deposition. Conduct this practice in 10-15 minute segments and do not let the witness call “time out” when he or she is uncertain about how to deal with a question. The attorney needs to see how the witness will deal with it when he or she cannot call “time out.” Each 10-15 minute segment should end with a discussion of where the witness can improve as well as what he or she did well. Positive reinforcement in the form of the latter is critical to maintaining the witness’s comfort and confidence.

3.    Identify a few basic ground-rules and try to tie all of the feedback back to them. I usually start my prep sessions by explaining to the witness that depositions can be very easy if the witness just follows a few basic ground-rules. This helps ease stress and creates confidence in the witness that he or she will be able to get through the deposition without any major blunders. I usually provide four ground-rules. First, the fundamental task is to listen to the question and answer only that question as efficiently as possible, while correcting any problematic language or assumptions that need to be corrected. It’s the most painfully simple (but effective) tip for any deposition, yet witnesses get so overwhelmed that they lose sight of this simple, important rule. As part of this, I explain that listening is actually more important than talking in a deposition. Sometimes, I’ll ask witnesses to adopt the habit of rephrasing the question in their answer, which helps ensure they are listening and catching any problematic language or assumptions in the question. Second, I tell them that all of their answers should come from one of three places: what they personally know or remember, what the records show, or what their common practice was. Anything beyond these three sources is speculation and should be avoided at all costs. Third, I tell witnesses to not be afraid of saying “I don’t know” or “I don’t remember” if it is the accurate answer. Many witnesses treat depositions as a test where “I don’t know” or “I don’t remember” is a wrong answer. This leads to speculation and inaccurate answers. Finally, I tell them to own the facts, not run away from them. I will usually highlight what I believe the bullet-point summary of the case is and help them appreciate that there is nothing to run away from, which means a “yes” answer should not become a “yes, but…” answer followed by a lengthy explanation. These “yes, but…” answers sound defensive and suggests insecurity. The simplified, bullet-point summary of the case also helps witnesses understand and talk about the case in a more clear manner. In my experience, the vast majority of problems get back to the witness violating one of these four ground-rules. By keeping it short and simple and trying to tie feedback to these points, the witness will start to realize that he or she does not need to be intimidated or nervous and has the ability to take control of the deposition and perform well.

4.    Let the witness complain or rant. If something is bothering the witness about the case, the parties, or anything else, let him or her rant about it. It can be painful to listen to sometimes, but it is important for the attorney to understand what is going on for the witness and it is even more important for the witness to have an outlet for those concerns. If the attorney does not provide the outlet in the prep session, the deposition becomes the outlet. This results in long, rambling answers that become fodder for opposing counsel’s opening statement.

A whole book could be written about preparing witnesses for their depositions. It is difficult to limit the discussion to the length of an article for the Bar Bulletin since there are so many tips and tactics for improving a witness’s performance in deposition, but hopefully these tips provide attorneys with a good springboard for an effective witness preparation session. The key is practice. It is this experience and feedback that will best arm your witness for success in a deposition.

Thomas M. O’Toole, Ph.D., is president of Sound Jury Consulting, LLC, in Seattle.  You can learn more about Sound Jury Consulting at www.soundjuryconsulting.com.

Reprinted by permission of the author Thomas M. O’Toole. Originally published in the February 2015 issue of the King County Bar Association Bar Bulletin.  Reprinted with permission of the King County Bar Association.

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[1] Michael Craig. “He Talked Too Much Mr. Clinton was an ideal witness--for the other side.” The American Spectator. June, 1998.

Cross-Examining Your Client - Lindbergh Kidnapping Case

Hauptmann’s Counsel Cross-Examines Him

Sometimes as a defense attorney, you find it necessary to “cross-examine” your client in an effort to either prepare him to take the witness stand or to demonstrate for him the hopelessness of his defense. If you find it necessary to cross-examine your client, for whatever reason, you must tread lightly so as not to destroy your rapport with him. If you can do it tactfully enough, you can demonstrate for your client the hopelessness of his case and help him come to the realization that he should accept the state’s magnanimous plea offer and get a lesser sentence. In my Public Defender days, I (Bob Dekle) was able to get a number of clients to appreciate the gravity of the situation they confronted. At other times, I simply succeeded in alienating my client. Oftentimes, when it becomes necessary to cross-examine your client, your best course of action is to enlist the aid of a colleague to do the examination and avoid the risk of ruining your relationship with your client.

There is a striking example of an attorney cross-examining his client which comes from the Lindbergh Kidnapping Case. As Bruno Richard Hauptmann’s execution date drew near, Governor Harold Hoffman sent word to the defense team that if Hauptmann would confess and name his accomplices, Hoffman could save him from the electric chair. The Hauptmann defense team enlisted another lawyer for the purpose of sounding Hauptmann out on whether he would confess and name his accomplices. The lawyer they called on was Samuel Leibowitz, who had won fame for his successful defense in the Scottsboro Boys Case.

Leibowitz felt sure that he could get Hauptmann to confess. C. Lloyd Fisher, the leader of the defense team, was just as certain that Leibowitz could do no such thing. Leibowitz had several meetings with Hauptmann on death row at the prison in Trenton, and on his last visit he cross-examined Hauptmann vigorously in an effort to persuade him to confess and save his life. Hauptmann steadfastly affirmed his innocence and refused to confess. Leibowitz quit the defense team in disgust, and then he took an unusual step. He released a transcript of his cross-examination of Hauptmann. His publication of the cross-examination presents us with the dual mysteries of why he did it and how he escaped punishment from the bar for revealing confidential communications with a client. The New York Times reproduced the questioning word-for-word in an article published on February 20, 1936 under the title “Hauptmann Is Resentenced to Die; Leibowitz Suddenly Quits the Case.” It was arguably a better cross than the one performed by Daniel Wilentz, Hauptmann’s lead prosecutor:

[Q: What is your theory of how the kidnapping could have been done?]

A: I never thought about a theory, I never tried to think how it could be done.

Q: How do you think the baby was taken out of the nursery window?

A: Not out the window. Down the stairs. Taken down the stairs.

Q: Then why was the ladder there?

A: Oh, in case it was needed.

Q: Then you believe the baby was deliberately killed?

A: Oh, no, it was an accident.

Q: Listen, Hauptmann, come clean with me. You think the ladder wasn’t used by the kidnappers. The only indication of accidental death was the fact that the ladder broke and the kidnapper and baby fell to the ground. If the baby had been carried down the stairway inside, how do you account for an accident?

A: You are worse as Wilentz.

Q: What would you have done in case of an accident?

A: I would have dropped the baby and run like hell in my automobile.

Q: What would you have done had you got the baby away?

A: I would have taken the baby to a farmhouse close by.

Q: How would you have collected the ransom if you left the baby dead? Would you have taken the sleeping suit? [During ransom negotiations, the kidnapper returned the baby’s sleeping suit to Lindbergh to prove his bona fides.

A: I don’t know. I guess that’s what the kidnappers would have done.

Q: Suppose you are Isidor Fisch with the ransom money. [Hauptmann claimed that Fisch gave him, Hauptmann, some $14,000.00 in Lindbergh ransom money shortly before Fisch, who was terminally ill, left America and died in Germany.] What would you do if you knew that the police all over the world were looking for this money and that if you were caught in this city or on the high seas or in Germany, you would have been brought back and held for the Lindbergh murder?

A: I guess I would leave it in a safety deposit box.

Q: You wouldn’t put it in a paper box and wrap it around with string and leave it with a friend would you? Not even if you knew you were going to die in Germany?

A: I guess I wouldn’t do that. People who are sick like Fisch are never very sure they are going to die.

Q: Hauptmann, did you ever play the numbers game? [Leibowitz here refers to Bolita, an illegal lottery game played during the Depression and afterwards.]

A: No.

Q: You know about it. You know there is about one chance in 600,000 of winning?

A: Yes.

Q: Did you know that there is about the same chance that more than one person will misspell the same word in fifteen different notes? In the ransom notes the word ‘light was spelled “l-i-h-g-t.” What do you think of that?

A: [No intelligible answer.]

Leibowitz did an excellent job of demonstrating to Hauptmann the weaknesses of his defense, but as Fisher predicted, he was unable to get Hauptmann to confess.