Advertise on podcast: May the Record Reflect

Taking a deposition presents enough challenge as it is without the interference of obstreperous or obstructive counsel, yet it happens anyway and you must be prepared to deal with it. Following her appearance on a NITA panel webcast on depositions in November 2023, Assistant U.S. Attorney and Wilmington Law professor Veronica Finkelstein returns to NITA’s studio71 to answer viewers’ questions about how to manage misbehavior in the deposition room. She also reveals how to be a passionate advocate for your client without crossing those lines yourself, to reclaim your time when the opposition wastes it, and to wield the unexpected power of a deposition binder. Topics 4:16    Counsel who won’t control their client 8:36    Witnesses “forgetting” their records 12:14 Counsel who try to confuse your witness 15:46 Disruptive, but not inappropriate, objections 19:21 Tracking time wasted on abusive conduct 23:26 Court reporter tracking wasted time 27:21 Being zealous but not obstreperous 29:37 Speaking objections 35:05 Continuing objections 39:51 Written discovery requests 43:36 “The usual stipulations” 46:58 Contents of a deposition binder 57:07 Signoff questions   Quote “People get pretty quiet when you have the controlling case in your jurisdiction in your hand and they have nothing.” Veronica Finkelstein   Resources Veronica Finkelstein (LinkedIn) Reduce the Abuse: Managing Obstructive Opposing Counsel During Depositions (webcast) Building Trial Skills: Colorado (course)

Cognitive bias is a barrier that lawyers must overcome in court—and it’s not just biases of the jurors they must consider, but those, too, of the judge, opposing counsel, expert witnesses, and even one’s own self. New Orleans trial legend Dominic Gianna returns to May the Record Reflect to talk about how persuasion science can help you clear the tricky bias barrier. He presents the five most consequential cognitive biases to trial lawyers, the impact each has on fact finders, and suggests how you can connect with a diversity of jurors in the post-truth era.  Topics 4:08    What is cognitive bias? 6:55    Five common cognitive biases 7:35    Confirmation bias 10:40 Anchoring bias 13:31 Hindsight bias 18:00 Availability bias 24:48 Dom’s mantras for helping jurors process information 25:35 Affinity bias 28:52 Stupid lawyer tricks 32:18 Impact of our own biases 34:36 Biases from the bench 39:42 Appealing to a panel of judges 42:24 Expert witnesses bias impact on testimony, interpretation of evidence 44:09 Cognitive biases of opposing counsel 47:06 Persuasion in the post-truth era 57:51 Signoff questions   Quote “Jurors don’t vote for the evidence. They vote for their views, and so as advocates, we have the obligation to our clients to try to understand those views. Where did those views come from? Where are they based? What attitudes, beliefs, and values, led these people, this person—this particular person—to a belief system that is so strong that he or she will ignore information that seemingly contradicts that confirmation bias?” Dominic Gianna   Resources Dominic Gianna (LinkedIn) Deposition Skills and Trial Skills: New Orleans (courses) “Give ’em the Ol’ Razzle Dazzle (podcast episode) “The Secrets of Persuasive Legal Storytelling,” with David Mann (podcast episode) “Off Broadway and Into Court,” with Kevin Newbury and Kate Douglas (podcast episode)

Many a young idealist register for law school with visions of Atticus Finch dancing in their heads, but only the rarest few have those dreams come true. NITA Trustee Emeritus and national treasure James Brosnahan is among them. In Episode 49, this legendary legend reflects on a life in law that has included face-to-face encounters with such cognoscenti as Chief Justice Warren Burger, Senator Orrin Hatch, and the Kennedys. He also talks about his viral LinkedIn series on vocal quality and breaks down the six essential qualities of a commanding speaking voice that have served him well over his 60+ years in the courtroom.  4:28   Voice quality videos on LinkedIn 9:05   Evaluating your own voice quality 11:25 Tempo 17:22 Volume 20:53 Tone and mood 25:16 Warmup exercises 28:20 Emphasis and emotion 30:06 Speech harmonizing and collecting voices 35:15 Favorite voices 37:05 Clarity 42:59 Pauses 41:57 Arguing before SCOTUS 52:04 Interrogation by Orrin Hatch 56:21 Controversial representations 1:00:16 Defending the Constitution 1:03:35 Speaking truth to power 1:07:29 Boston Irish and the Kennedy agenda 1:14:39 What Jim has learned at NITA 1:19:03 Signoff questions Quote “The goal, which is not easy, is to be like an actor who can throw the voice up into the second balcony. That’s what you want to do. The equivalent in trial is to be sure that every word that you pronounce is heard by Juror 1 in the back row and Juror 6 in the back row, because if they haven’t heard what you’ve said, it’s like it never happened.” Jim Brosnahan   Resources Jim Brosnahan (bio) Jim’s video series (LinkedIn) Justice at Trial: Courtroom Battles and Groundbreaking Cases (book) Publio Delgado, speech harmonizer (YouTube)

Every trial advocate enters the courtroom hoping for a “one and done” decision that favors their client. But appeals do happen, and if you’re waiting until the verdict is read before you start thinking about what comes next, you’re already bringing up the rear. Judge Randall Warner of the Superior Court of Arizona in Maricopa County joins the podcast to discuss the potential appeal issues you should be thinking about during litigation, the pretrial phase, and at trial; what issues are ripe for appeal (and which ones aren’t) and their impact on your trial strategy; and how to preserve the record for appeal in real time. He also lets you in on what he says are the most undervalued, hence underutilized, tools in your advocacy kit and how you should be using them to your advantage. Topics 3:35   Different considerations for different trials 5:10   Common mistakes 6:13   Basics of appeals 8:59   Reverse-engineering your case 10:24 Appellate specialist on the trial team 11:22 Good appeal issues 13:00 Bundling your issues 14:10 Poor appeal issues 15:06 Pretrial preservation considerations 16:11 Motions in limine} 17:52 Bench memoranda 19:57 Preservation at trial 22:20 Objections and evidence 26:16 Staying in the judge’s good graces 27:17 Jury instructions 31:22 Verdict forms 38:49 Damages 40:38 Bench memorandum for jury instructions 42:12 Motion to acquit 45:26 Career advice to younger self 46:33 Signoff questions  Quote “I’m a fan of bundling issues. So, for example, if you’ve got one issue that’s a sufficiency of evidence issue and another that’s a jury instruction issue and a third issue that’s an evidentiary objection or a couple evidentiary objections, and they all point to the same wrong result, those issues — independent of what the standard of review may be on any one of them — kind of work together to create an argument for prejudice for the case overall.” Judge Randall Warner Resources Judge Randall Warner (bio) “All Mixed Up about Statutes: Distinguishing Interpretation from Application” (article) “All Mixed Up about Mixed Questions” (article) “Efficiency in Motion” (article)

At a time when more cases settle than go to trial, the deposition has become of utmost significance. Our guest Carl Chamberlin draws upon his experience taking and defending depositions in private practice as well as teaching deposition skills for 30 years. As the new author of The Effective Deposition, the topic is top of mind lately for Carl, so he joins us to talk about how to kick off a truly effective deposition with introductory matters and preliminary and substantive questioning techniques—and he even asks a few questions of his own.  Topics 3:22   The purpose of depositions 6:20   Difference between gathering information and obtaining information 10:38 Why depositions are important 12:30 Physical settings for remote depositions 14:15 The “usual stipulations” 17:20 Getting commitments 21:27 Commitments in remote depositions 24:42 Preliminary questions 29:51 Structure of substantive questioning 33:30 First demo 36:57 Key phrases for asking open-ended questions 38:25 And ones to avoid 43:01 Drilling down into a substantive topic 44:18 Second demo 1:04:19 Paying attention and listening 1:06:40 Using exhibits 1:10:15 Dealing with interruptions 1:13:56 Carl’s early depositions 1:16:53 The Effective Deposition 1:21:36 Signoff questions   Quote “We want to make our questions clear and concise. Simple. The clearer the question, the better the answer. The fewer the objections, the more powerful it is.” Carl Chamberlin   Resources Carl Chamberlin (LinkedIn) NITA Publications (book)

Content Warning: A brief, non-graphic mention of a sex crime case occurring from 29:34 to 30:49. Everyone likes to start off on the right foot, and your opening statement is a crucial place to do it. It’s also Assistant U.S. Attorney Brooke Latta’s favorite part of trial, so she joined the podcast to discuss her best tips on telling the right story, using visual aids for maximum impact, and pulling out all the stops to captivate your jurors. She also talks about some of her own openings at trial and what she holds to be the G.O.A.T. of opening statements.  Timestamps & More Topics 3:00   What’s fun about openings? 4:07   Rhetorical and legal goals 6:05   Crafting an opening 8:46   Workshopping it 10:54 Figuring out the right story to tell 13:00  Telling auditory stories for visual consumers 14:36 Some good don’ts 15:30 Visual aids 17:10 Court clearance for visual aids 19:01 Objections 21:53 Case weaknesses 23:50 Closing your opening 24:42 Openings and closings, compare and contrast 26:42 Brooke’s favorite example of a great opening 32:35 Signoff questions   Quote “Something I always do is I talk to jurors like they are a friend that I’m having a martini with and I’m sitting across the table from. And I’m just talking to that friend about something that’s a very serious, very important issue — and I’m keeping it simple, I’m keeping it concise — so it’s a serious tone, but it’s casual.” Brooke Latta

Without a doubt, knowing your client’s case up one side and down the other and understanding and applying the law are critical to your chances of prevailing at trial. But if your demeanor and presentation style lack polish, you might be getting in your own way. Special Counsel to the New York City MTA Inspector General and NITA Program Director Shareema Abel joins May the Record Reflect to talk about courtroom composure, interpersonal conduct, oral advocacy, self-expression, and so much more. Topics 3:05 What is courtroom demeanor? 6:12 Demeanor in challenging situations 8:57 When you know the judge or opposing counsel 12:03 Vocal expression and body language 16:49 Personal style 22:55 Conduct outside the courtroom 26:12 Online proceedings 28:39 Picking yourself up on an off day 32:44 Cross-generational learning at the office 37:45 Neurodivergence 40:16 Feedback on your courtroom demeanor 44:58 Signoff questions Quote “Silence is one of the things that, over the years, I really had to get comfortable with in a courtroom because I remember wanting to fill every second of space and I thought silence was deadly. But as you grow in your career, you realize that you can use silence as a tool, and so oftentimes, especially when you forget a point, it’s ok to have a pregnant pause or use silence, and then return to a podium, to your notes, to remember what you’re saying. Or using silence to make a point after you ask a rhetorical question and using silence when you’re going from topic to topic, because my theory is you should never be talking and moving at the same time.” Shareema Abel Resources Shareema Abel (LinkedIn) NITA Women in Trial (program) Deposition Skills: NYC (program) Building Trial Skills: NYC (program) NITA Women in Trial playlist (Spotify)

NITA Education Director Rhani Lott Choi returns to May the Record Reflect, this time as guest host, to interview trial competition coaches Justin Bernstein and Spencer Pahlke. You may know Justin and Spencer from Unscripted Direct, the trial advocacy podcast for the law school community. Tune in to this blast from your mock trial past to hear about how advocacy skills transfer from law school to law practice to life; the forgotten lessons of mock trial that you should resurrect; and how learning, practicing, and teaching are part of a career-long cycle for the skilled advocate.  Timestamps & More Topics 4:44   Unscripted Direct podcast 5:57   Trial advocacy community 9:58   Tough conversations about DEI 13:11 Building a legal podcast 14:48 Intersection of mock trial and trial practice 16:41 Three important lessons from mock trial 19:03 New practice pointers gleaned from podcasting 22:04 Life lessons from mock trial 26:01 Former students as colleagues 28:10 Things unlearned from mock trial 32:12 Why trial skills are important for all lawyers 33:30 Misconceptions about mock trial’s value 36:47 Keeping skills sharp 39:46 Skills transfer 42:58 Signoff question Quote “The biggest challenge the jurors have is they weren’t there when these things happened, so helping them feel like they are there, they’re watching things, even if it’s just through the narration of a lawyer, is incredibly powerful and it sort of sears into their memory.” Justin Bernstein   Resources Justin Bernstein (bio) Spencer Pahlke (bio) Unscripted Direct (podcast) Episode 5 (Adam Shlahet) Episode 48 (Ben Rubinowitz) Episode 51 (Rhani Lott Choi) AvaTax

You may see depositions as your golden opportunity to preserve testimony, elicit admissions, and test theories—but for your witness, depositions are a veritable stewpot of jangled nerves and apprehension. In this episode, Maricopa County Superior Court Judge Christopher Whitten shares what you can do to ensure your witness walks into a deposition feeling at ease with the process and ready to handle even the toughest questions. Judge Whitten reflects on role-playing, using video as a prep tool, broaching difficult topics, responding to objections, and testifying live versus livestream—and that's just for starters. Topics 2:35   Confident witnesses    3:53   Is witness prep privileged? 5:30   Procedural comfort 13:54 Objections during testimony 16:06 Substantive prep 22:57 Tough questions and role-playing 24:36 Using video in prep 26:38 Theory and theme testing 29:12 Common pitfalls 32:04 Testimony via Zoom versus face-to-face 38:15 Reluctant witnesses 42:36 Expert witness prep 46:03 Signoff question Quote “When you have a problem with the witness, it’s because you didn’t prepare enough.” Hon. Chris Whitten   Resources Hon. Chris Whitten (bio) Building Trial Skills: San Diego (course) The Ins and Outs of Jury Selection (webcast) En Banc: Judges’ Perspectives on Remote Hearings (webcast) “Can I Get a Witness?” (video)

How many of us cue up the “sad trombone” every time we think of doing direct examination? Direct is renowned for being a boring slog through facts and faces as we make on our way to the fireworks of cross and closing. Yet, if you’re not using direct to tell a clear, persuasive story, you’re going to lose your case. According to Judge Amy Hanley and Dennericka Brooks, when you approach direct with the same zest as you do cross, you’ll get the best out of your witnesses, avoid rambling or baffling testimony, and tell the tale jurors are keen to hear.  Topics 3:42   Why don’t people love doing direct?    6:44   Common mistakes 10:49 Telling the story 12:18 Organizing your direct 14:09 Headnotes 16:29 Exhibits, visuals, and demonstratives 22:36 Witness prep 27:55 Reluctant or difficult witnesses 35:00 Bad facts 40:57 Demeanor 46:00 Redirect 49:55 Signoff question Quote “I will say, first and foremost, that you have to be prepared that no matter how well you prepare a witness, they will get on the stand and say something they weren’t supposed to say, something that will throw you off. It’s just going to happen.” Dennericka Brooks   Resources Hon. Amy Hanley (bio) Dennericka Brooks (bio) NITA Women in Trial (course) The Tense Trio (podcast) Direct Examination: Being the Guide for Your Jury (webcast) Harnessing Your Power on Cross-Examination (webcast)

The profession of trial lawyering has a steep, intense learning curve requiring years of practice (and “practice”) before you begin to feel like you’ve got a grip on it. What if you could shave years off that timeline. NITA’s Education Director Rhani Lott Choi rejoins the podcast to talk about how trial lawyers can compress time through wormholes, slipstreams, and mentorship.  Topics 5:00   Time compression through wormholes 22:30 And slipstreams 29:34 And mentorship 34:22 A word about Parkinson’s Law 42:28 Signoff Question Quote “I’ve worked at places where you have formal mentorship, which can be great, but often that does not continue past the employment relationship. And especially these days people change jobs all the time. The mentorship, for me, at NITA has been so valuable because it transcends that. It’s not based on a job or a connection ... NITA just encompasses everything, through career changes, through types of practice . . . .” Rhani Lott Choi   Resources Rhani Lott Choi (bio) Slipstream Time Hacking: How to Cheat Time, Live More and Enhance Happiness (book) Tomato Clock (Chrome extension) Direct Examinnation: Being the Guide for Your Jury (webcast)

Being a trial lawyer is a challenging job even apart from the actual, technical work of lawyering in the courtroom. Legal advocacy often places emotional burdens upon trial attorneys that can be a lot to manage. Henry Su joins the podcast to dissect the various stressors associated with trial work and offers his insights into managing stress through mindfulness. Topics 3:27   Occupational hazards of being a trial lawyer  10:09 Toll of adversarial work 14:11 Basic obligations to the client 16:13 Managing when conflicted 19:33 Role of fear 26:07 Mindfulness training 30:45 Learning from critiques 32:49 Developing distress hardiness 37:15 “Goblin mode” 39:27 Managing electronic intrusions 42:13 Resources on wellness Quote “You want to create distance. What you also want to do is to avoid is dissonance. Dissonance is when you allow the work that you’re doing to kind of infect you, such that you have internal conflict. You’re torn up about it. You’re torn up about why you’re doing this, and that this is not ‘you’ and that these aren’t the values that you hold dear. You want to avoid dissonance, you want to maintain distance.” Henry Su   Resources Henry Su (bio) Stress Hardiness and Lawyers (article) Integrating Mindfulness Theory into Trial Advocacy (article) Institute for Well-Being in Law (website) The Anxious Lawyer (book) Motion Skills: Online (April, August) Deposition Skills: Online (November)