May the Record Reflect

When people hear the term “rhetoric,” they often think of words full of sound and fury signifying nothing. Yet that is a woeful misunderstanding of the beauty and power of persuasive language and argument. In this episode rife with back-to-school vibes, Temple Law Professor Marian Grace Braccia breaks down the where, how, and why rhetorical devices belong in oral and written advocacy; reveals why rhetorical devices have an massive impact, even on the cellular level, on finders of fact; refreshes your recollection on devices you already know while introducing others that belong in your repertoire; and totally geeks out about how fun, easy, and powerful they are to use. Topics3:30    The road to rhetoric7:50    Definition of rhetoric and the Queen Philosophy10:56    What are rhetorical devices?11:59    The OGs of ancient rhetoric18:43    Recent rhetoricians20:59    Aesthetics of rhetoric27:10    Where to deploy rhetoric at trial29:12    Rhetoric in oral and written advocacy33:00    Taking rhetoric too far35:55    Easiest rhetorical devices to use40:23    Obama the rhetorician45:20    Tricolon and antanagoge50:33    Sources of inspiration54:09    Favorite devices55:19    Wait . . . Taylor Swift?57:40    Pop villains on trial1:06:23  Signoff questions Quote“On an artistic level, rhetoric and the effective deployment of rhetorical devices give us emotional resonance and memory enhancement and aesthetic pleasure, and even surprise and novelty. Some rhetorical devices like irony or puns introduce the element of surprise and novelty, and they can be amusing or thought provoking, and they make the message more engaging, more memorable.” Marian Grace Braccia ResourcesMarian Grace Braccia (bio)The Queen Philosophy (webpage)Henry V: St. Crispin’s Day (video)Renaissance Man: St. Crispin’s Day (video)Rhetorical devices worksheet (available for download from Episode 58's show notes under Resources > Podcasts at nita.org)

Some of the most important heads to get into are those of the jurors seated for your trial. Fortunately, figuring out what makes people tick is both interesting and fun, and Temple University Director of Advocacy Programs Jules Epstein is here to share the lowdown. Whether he’s busting common courtroom myths, revealing how the camera lies, or delving into the cognitive process of jurors (and your very own self), Jules makes the case that knowing a little trial psychology can give you a competitive edge for the good of your clients.  Topics 4:02 Curse of knowledge 10:04 Goldfish attention span 13:47 Slo-mo evidence 19:16 Problems with graphic evidence 24:43 Visuals with words 27:28 Disconnect between science and law 36:30 Camera bias 43:21 Thought processes 48:55 Mythbusting 53:46 Go slow 56:12 Bonus lessons 1:00:15 Collective Wisdom  1:03:55 Signoff questions Quote “A visual guarantees that all twelve, or all eight, or all six jurors will know what something looked like.” Jules Epstein Resources Jules Epstein (bio)  NITA’s free Collective Wisdom articles (link) (latest) Point Well Made: Persuasive Oral Advocacy (book) 

If you’ve ever been baffled by scientific, technological, or financial evidence in your case or wondered how an expert witness arrived at their conclusions, former Gwinnett County Magistrate Judge Ruth McMullin is back on the podcast to share some know-how. In this episode, she talks about why you need to deep-dive into learning about subjects outside of your college major, what fact-finders want to know about forensics and how to make it easier for them to follow, the subtle things you can learn by using subpoenas, and the impact of bias in forensic evidence. Topics3:30   Types of forensic evidence7:40   What’s harder and easier about types of evidence12:03 What fact-finders want from forensic evidence13:25 Judges’ versus jurors’ needs17:33 Simplifying complex evidence for understanding and retention22:57 Using expert reports25:40 Impact in the post-truth era31:43 Judge McMullin’s favorite forensic evidence35:18 When your agency lacks funding for competing experts37:35 Use of subpoenas40:25 Role of bias in forensic evidence44:05 Signoff questions Quote“Does this [expert] report help, does it hurt, or is it neutral? A lot of times, lawyers will see a report from the opposing side and immediately think, ‘This hurts my case.’ But it you look at it and understand the parameters of that report, it may be neutral. You can save yourself a lot of stress and time if you understand how that evidence plays in with your bigger case. It may help your case, and you may look at the report and say, ‘You know what? This actually supports my theory.’ So, the more you [learn about and question forensic evidence], the more you get comfortable with saying, ‘I don’t have an objection to this report from the other side. I actually want it. I’m glad you got it, thank you.’” Judge Ruth McMullin ResourcesJudge Ruth McMullin (bio)The Great Imposter (podcast episode)

Maricopa County Superior Court Judges Randall Warner and Christopher Whitten team up to talk about telling stories to judges. In this episode, the judges, from their unique vantage point on the bench, reveal what they want to hear or read from counsel, what they don’t, how to write briefs that tell a compelling narrative, where they find inspired (and inspiring) storytelling, and the summer vacations they’re dreaming of. Topics4:11   Why storytelling matters7:04   Judges’ versus jurors’ needs10:35 Storytelling techniques14:30 Finding inspiration19:10 Great legal storytellers21:14 Advantages for both sides of “the v”24:09 Writing interesting briefs28:57 Telling the same story at trial as in briefs30:29 Judges’ pet peeves in briefs34:40 Opposing counsel’s miscasting your client38:42 Storytelling about unsympathetic clients41:47 Signoff questions Quotes“Fundamentally, every case is about a story, whether it’s a technical legal dispute or whether it’s a fact dispute at trial, it’s a competition to see whose story resonates more with whoever’s making the decision, whether it’s a judge or jury.” Judge Randall Warner “Even as we’ve tried cases less and less often, we’ve gotten better and better at collecting facts, and I think that’s made us worse and worse at storytelling.” Judge Christopher Whitten ResourcesJudge Randall Warner (bio) (episode)Judge Christopher Whitten (bio) (episode)Building Trial Skills: San Diego (course)Dominic Gianna on MTRR (episode, episode)James Brosnahan on MTRR (episode)David Mann storytelling (course) (episode)

You've probably heard that in direct examination, controlling your witness is all about witness prep, while in cross, leading questions are the key. Those oft-repeated tenets are true, say podcast guests Judge Amy Hanley and NITA faculty member Adrienne Johnson, but they oversimplify the specific control techniques that actually work and how attorney style, hearing type, and venue factor in. Tune in as they get specific about the part of trial over which we have the least control: examining witnesses.  Topics 3:48 One task lawyers often overlook 7:08 Prep is not just for the witness 9:50 Practice questions 13:33 Witness crumbles on the stand 18:52 Leading questions on cross 21:00 Using your voice 26:12 Tips for controlling on cross 32:33 Anecdotes about control in the courtroom 36:05 Developing your trial style 38:30 Impact of venue and regions 41:22 Controlling in different types of proceeding  46:06 Script versus bullet points 55:20 Expecting problems 58:16 Examinations gone wrong, and right 1:07:07 Signoff questions Quote “I think one of the best tools for witness control is some self-control. I always say that often—most of the time—when you get an answer you don’t like from a witness or that is not responsive, usually that’s a ‘you’ problem. You have not phrased the question well to ask the thing that you want an answer to. So the first thing I always think about when I think of a witness being out of control is whether I did a good job with my questions. Did I lead on cross? Am I introducing one fact and not asking for several facts at a time? Did I leave something up to interpretation?” Adrienne Johnson  Resources Judge Amy Hanley (LinkedIn) Adrienne Johnson (LinkedIn) NITA Women in Trial (course) Direct Neglect: Where Is the Love?, with Judge Amy Hanley and Dennericka Brooks (episode) The Tense Trio, with Judge Amy Hanley and Cheryl Brown Wattley (episode) Justice at Trial, with Jim Brosnahan (episode) Give ‘em the Ol’ Razzle Dazzle, with Dominic Gianna (episode) 

In our second interview on The Effective Deposition, Program Director and author Carl Chamberlin returns to the podcast to talk about witness preparation. Joining him is NITA Trustee and Program Director Whitney Untiedt, and together they share tips and perspectives on witness prep sessions and how to ready your witness for the procedural and substantive aspects of being deposed. Carl and Whitney also talk about the ethics obligations of counsel and the ramifications of the recent ABA Formal Opinion 508. 7:20   Timing and length of prep sessions12:52 Tips to optimize prep21:09 Procedure and process of being deposed23:07 One concept and three rules28:37 How witnesses should answer34:15 Answering after an objection36:21 Handling opposing counsels’ tactics45:42 Goal of substantive preparation49:54 Reluctance to disclose55:57 Ethics obligations58:28 Demo|1:02:20  Implications of ABA Formal Op. 5081:08:03  Signoff questions Quote“We as lawyer operate on ‘our’ time. Our time is valuable, and our time is calculated in six-minute increments, and our time is scheduled to within an inch of our lives, but when we sit down with our witness for a depo prep session, it’s no longer our time. It’s our witness’s time. This is their time to shine.” Whitney UntiedtResourcesCarl Chamberlin (LinkedIn)Whitney Untiedt (LinkedIn)The Effective Deposition: Techniques and Strategies that Work (book)Beginning the Effective Deposition, with Carl Chamberlin (podcast)Whitney Untiedt Puts the “Pro” in Pro Bono (podcast)Deposition Skills: Florida (course)ABA Formal Op. 508 (opinion)

Content warning: Mentions of sexual assault. Brief, non-graphic discussions of questioning the venire about sexual assault occur at 32:20–32:59 and 42:25–44:34.Experienced trial lawyers are accustomed to being the ones asking the questions, but in this episode, NITA NextGen faculty member Adam Kendall finds himself in the hot seat for once.  He’s answering our questions about voir dire: building rapport with the venire through icebreakers and humor, eliciting useful information from potential jurors while introducing bad facts about your case, and what you can glean from jury questionnaires. Adam also talks about the developing trend of limiting or eliminating peremptory strikes. Topics3:39   Primary goal of voir dire4:06   What to pay attention to5:09   “The quiet one”9:03   Icebreakers to build rapport11:18 Voir dire by the judge14:22 Strong personalities among jurors16;25 Ideal foreperson qualities17:50 Eliciting strong opinions and reactions19:19 Introducing bad facts21:12 Using humor24:12 Signaling legal issues26:27 Nationwide changes in peremptory strikes32:05 Jury questionnaires35:53 Online research of the venire41:50 War stories46:50 Signoff questions Quote“People who are too eager to be on a jury scare me.” Adam Kendall ResourcesAdam Kendall (LinkedIn)Building Trial Skills: New Orleans (course)Not Just for Trial! How to Use Exhibits from Day One (Register for Adam's live webcast on March 26, 2024)

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.Topics4:16    Counsel who won’t control their client8:36    Witnesses “forgetting” their records12:14 Counsel who try to confuse your witness15:46 Disruptive, but not inappropriate, objections19:21 Tracking time wasted on abusive conduct23:26 Court reporter tracking wasted time27:21 Being zealous but not obstreperous29:37 Speaking objections35:05 Continuing objections39:51 Written discovery requests43:36 “The usual stipulations”46:58 Contents of a deposition binder57:07 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 ResourcesVeronica 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. Topics4:08    What is cognitive bias?6:55    Five common cognitive biases7:35    Confirmation bias10:40 Anchoring bias13:31 Hindsight bias18:00 Availability bias24:48 Dom’s mantras for helping jurors process information25:35 Affinity bias28:52 Stupid lawyer tricks32:18 Impact of our own biases34:36 Biases from the bench39:42 Appealing to a panel of judges42:24 Expert witnesses bias impact on testimony, interpretation of evidence44:09 Cognitive biases of opposing counsel47:06 Persuasion in the post-truth era57:51 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 ResourcesDominic 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 LinkedIn9:05   Evaluating your own voice quality11:25 Tempo17:22 Volume20:53 Tone and mood25:16 Warmup exercises28:20 Emphasis and emotion30:06 Speech harmonizing and collecting voices35:15 Favorite voices37:05 Clarity42:59 Pauses41:57 Arguing before SCOTUS52:04 Interrogation by Orrin Hatch56:21 Controversial representations1:00:16 Defending the Constitution1:03:35 Speaking truth to power1:07:29 Boston Irish and the Kennedy agenda1:14:39 What Jim has learned at NITA1:19:03 Signoff questionsQuote“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 ResourcesJim Brosnahan (bio)Jim’s video series (LinkedIn)Justice at Trial: Courtroom Battles and Groundbreaking Cases (book)Publio Delgado, speech harmonizer (YouTube)