May the Record Reflect

Something that concerns trial lawyers more than ever is seating a juror with intractable explicit biases or who believes in conspiracy theories. King County Senior Deputy Prosecuting Attorney Raam Wong experienced this situation when he prosecuted a high-profile, near-fatal shooting of an antifascist protester during a demonstration in Seattle in 2017. Raam joins the podcast to talk about voir dire and deselection tactics, experts and evidence, and checking your own biases at the courtroom door.

Topics
5:25 Political violence and Hokoana case
9:57 Factors that contributed to mistrial
14:38 Juror “tells” during voir dire
16:50 Conspiracy theories about a witness
20:17 Digging into social media
20:30 Questions for deselecting jurors
24:36 Willful disregard of evidence, civil versus criminal cases
27:30 Addressing juror attitudes
32:50 Remedying attention span issues
37:50 Believing in or rejecting expert opinion
40:50 Concerns about physical safety at trial
45:01 Signoff question

Quote
“As trial lawyers, we really have to grapple with [. . .] stereotypes every day in court—the assumptions we have about people and the assumptions that the jury might hold. And at times it can be really effective, as advocates, if our good facts kind of match up, or reinforce, the jury’s preexisting beliefs. But at the same time, as a prosecutor, I’m trying to do justice, and doing justice, in my mind, means ensuring that our courtrooms are open to everyone, and that means not making assumptions about people based on demographics or other characteristics.” Raam Wong

Resources
Raam Wong (bio)
State v. Hodgman (case file)
Alt-Right Event in Seattle Devolves into Chaos and Violence, Outside, Truth-Twisting Inside (SPLC Hatewatch)
Righteous or reckless? Trial under way for couple accused in UW shooting during Milo Yiannopoulos speech (Seattle Times)

This month’s episode features advice and observations from some of NITA’s top judges, who serve as faculty, presenters, and board members. They share their reflections on what they’ve seen from their unique vantage point on the bench and dispense helpful tips for the next time you’re in court.
Topics
2:13 What counsel should know before setting foot in my courtroom
10:30 Most common mistake I see lawyers make in my courtroom
17:55 Impressive or memorable things a lawyer has done during trial
22:50 Nuttiest things I’ve seen during jury selection

Resources
50 Tips for 50 Years, Part 1 and 50 Tips for 50 Years, Part 2
Judge Mark Drummond (podcast) (webcast) (webcast)
Justice Lee Edmon (bio)
Judge Marian Gaston (bio) (webcast)
Judge Nancy Gertner (bio) (podcast) (webcast)
Judge Amy Hanley (bio) (podcast) (podcast) (webcast) (webcast) (webcast)
Judge Ruth Rocker McMillan (bio) (podcast)
Judge Sam Sheldon (bio) (webcast)
Judge Mindy Solomon (bio) (webcast)
Judge Christopher Whitten (bio) (webcast) (webcast)

In Episode 6 of the podcast, former tv news anchor Carol Sowers shares her tips for becoming more at ease in the physical side of your courtroom performance: how to speak with confidence, project a pleasing vocal quality, connect with jurors, tame your nerves, and rebound from your mistakes. Carol spent more than thirty years as a broadcast professional for CBA/ABC Affiliate station KHQA in Quincy, Illinois, where she worked as a reporter and main anchor all the way up to vice president for public affairs—and everything in between. When she retired from the news, she began training broadcasters and law enforcement and governmental officials in public speaking. She now offers that same training to trial lawyers at NITA programs across the U.S. and abroad.

Topics

2:58 Breaking up with your notes

4:27 Muscle memory and the mind-body connection

6:30 Preparation and practice

9:00 Writing “for the eye” versus “for the ear”

10:18 Cultivating a pleasing vocal quality

13:10 “Shrill”

14:33 Warming up for a presentation

17:55 Learning about public speaking from trial lawyers

19:40 Communicating while sitting versus standing

22:00 Hand gestures

24:35 Question about Broadcast News

25:25 Looking sharp

27:40 “The Three C’s”

32:08 Effective eye contact

35:15 Using emotion while speaking

38:57 Managing mistakes and anxiety

40:32 How to regroup discreetly

45:20 Communicating in high- and low-context cultures

49:32 Changes in culture

51:46 Signature “softball”

Quote
“I try to use . . . eye contact, especially at the beginning of a presentation, as a way to give myself some confidence. I automatically seek out people who look friendly or look engaged. Maybe they’re smiling at me, maybe they’re nodding their head. Because at the beginning when I’m a little bit nervous, that adrenaline rush is making me feel a little uncomfortable, I like to get that little boost of confidence from those people. So, those are the people I’m going to seek out first, and once I get that little smile or little nod of acknowledgment, then I’m going to move on to other people around the room.” Carol Sowers

Recommended Resources

10 Tips for Presenting Yourself Online—Carol Sowers
Webcast—Remote Advocacy: Representing Your Client during the COVID-19 Pandemic
Carol Sowers LinkedIn
Celebrating Carol Sowers’s Nearly 30 Years with KHQA
NITA Whitepaper: Communication Tips from NITA’s experts
Broadcast News (1987 Movie)
Broadcast News Movie Clip—Aaron Struggles on Air
High-context and low-context cultures
NITA International Programs

Retired federal judge Nancy Gertner and class action lawyer Reuben Guttman discuss the impact of Twombly and Iqbal, two SCOTUS decisions that precipitated critical changes in pleading, class certification, and expert standards that have affected a complaint’s capacity for making it past the motion-to-dismiss stage. In this wide-ranging interview, they talk about the challenges these decisions have on both judges and practitioners and how the landmark case of Brown v. Board might fare under post-Twiqbal standards.
Topics
4:02 Twombly/Iqbal’s impact on pleading standards
7:17 Why process and procedure matter
10:16 Changes pleading standards
12:43 Changes in class certifications
14:11 Rise of multidistrict litigation
16:20 Changes in expert standards, both criminal and civil
21:47 Experts in the civil rights arena
25:40 Applying today’s pleading and class certification standards to Brown v. Board
29:30 Rules that affect access to justice
33:04 The benefit of a losing Supreme Court case
36:04 Getting around these obstacles
44:11 Judges, lawyers, and the legacy of discrimination cases
48:35 Signoff question
Quote
“I know from having been a criminal defense lawyer and civil rights lawyer and a judge, and now sort of a litigator as well, that what I may find ‘plausible’ may be not what a jury finds ‘plausible.’ That plausibility is, in fact, a contextual analysis—in context. And when I sat on the bench there were numbers of times, in fact, that my law clerk would say to me, ‘Judge, you can get rid of this case. You can get rid of this case. The allegations are not plausible.’ And I would turn to the law clerk and say, ‘To whom? To you? To me? To some of my male colleagues on the bench?’ So essentially, plausibility enabled the judges, who are not the most diverse group in the world, to make their own decisions about whether a case should proceed.” Judge Nancy Gertner

Resources
Judge Nancy Gertner (bio)
Reuben Guttman (bio)
Representative Opinions of Justice Ruth Bader Ginsburg (book)
From Conley to Twombly to Iqbal (article)
Brown v. Board of Education complaint (PDF)
Pretrial Advocacy (book)

In Episode 25 of May the Record Reflect, we take a listen to the best tips we heard from each episode in 2021. To hear the full episodes from which each tip was derived, please visit our podcasts on nita.org here.

Topics

1:47 Dick Harpootlian

3:49 Alison Reagan

5:57 Dean Marc Miller

9:14 Helen Geib

11:28 BJ Moore

14:35 Alicia Aquino

16:22 Shannon Bales

17:35 Hon. Nancy Vaidik

20:15 Rebecca Diaz-Bonilla

21:59 Judith Gaton

23:29 Steve Wood

27:16 J.C. Lore

29:10 Reuben Guttman

30:36 Jo Carol (LaFleur) Nesset Sale

32:59 Angela Porter

34:10 Dan Kotin

36:13 Hon. Ann Claire Williams (Ret.)

37:00 Clay Taylor