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On today's episode of May the Record Reflect.
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Too often what we find is that we forget that we are speaking in our own unique language and we don't translate that language to that that lay people can understand.
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We bandy about things, and I'll give you a different example.
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We've all been to the doctor, and the doctors start talking to us in medical parlance.
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And most of us sort of nod our heads, but we don't take it in as exactly what's going on.
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Or maybe more basically, we go to have our car repaired, and the mechanic starts talking to us in mechanic-speak, about what's wrong with our vehicle or something like that.
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And again, we simply nod our head because all we wanna do is get the car fixed.
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But we really don't understand what's going on in that.
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So going back to lawyer speak, the language of the law is specific, but when we fail to help our audience understand the specifics of that language, we fail to educate them in how they can resolve the dispute between the parties.
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That was Mark Caldwell, and this is May the Record Reflect.
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Hello, and welcome to the monthly podcast of the National Institute for Trial Advocacy.
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I'm your host, Marci Mangan, and this month's episode centers around effective oral communication in the courtroom and how not to sound like a TV lawyer.
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Our guest is Mark Caldwell, who is the rare bird who has both taught at NITA programs and has worked on the inside as resource director at NITA.
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He's here to talk about what your courtroom audience needs from you as a communicator, what you shouldn't say, what you should say instead, and he shares a few examples of courtroom portrayals in pop culture that you might want to check out.
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Here's our interview.
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Music Mark Caldwell, welcome to the podcast.
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Thank you, Marsi.
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I am so glad to have you here because you are a legendary legend here at NITA, both as a teacher and as one of our fellow colleagues in the office.
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You're actually here to talk about how not to talk like a lawyer on TV while you're in court.
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Shall we begin?
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We shall.
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Okay.
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The first question that you should always ask yourself before crafting any communication is, who is the audience?
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So my question to you, Mark, is what are the needs of the various audiences in the courtroom?
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And they are the jurors, of course, the judge, of course, but also the witnesses.
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Yes.
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Well...
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In terms of that, I want to take another step back a little bit further, and that would be to consider who we are as we think about communicating with those three audiences.
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And part of the problem that we often find is, as lawyers and advocates, we inject ourselves first over the needs of our client.
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And I want the listeners to step back for a second and consider the word advocate because if we look to the roots of the word, it really means to speak for.
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And in terms of that whole process in speaking for, it's a situation where we put ourselves first and we need to step back because the client can't speak for themselves.
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they're in a situation where they have retained us to be their voice in the courtroom.
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And if we think about being their voice in the courtroom first, it takes us out of the equation.
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And that gives us the opportunity to focus on the needs of the client, but also the needs of the judge and the jurors, and frankly, our witnesses as well, in being able to have them tell the story of the case.
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So within that, let's step back and look at sort of five things that we need to do to effectively communicate.
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First thing we need to do is we need to develop trust.
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And by developing trust, I mean, the witnesses, the judge, and the fact finder or ladies and gentlemen of the jury need to be able to look at us as someone who is skilled and effective, who can zealously represent the needs of the client.
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So building trust with them comes from a number of different things.
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Second piece is their ability to understand us, which means we need to speak in a way that they can understand the information, take it in quickly, and see how it fits the story of the case.
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The third part obviously is the skills we have as trial lawyers, which means we need to be able to do things like ask good questions.
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We need to be able to tell the client's story.
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We need to be able to do things like make persuasive arguments that connect the fact finder to what they've actually heard during the trial.
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We need to be a teacher.
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And as a teacher, we need to do all of the same things that skilled teachers do.
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And that is to present the information in a way that makes the listener successful.
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And finally, the last piece of that is we need to start eliminating clutter, which means taking out All of the things that don't drive the story of the case forward, that don't meet the elements that we have to prove.
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So if we do those five things, we're well on the way to being a better communicator in terms of reaching out to the fact finder.
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All right, fantastic.
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So what does it mean to you to talk like a lawyer, which we might also call speaking in lawyer speak?
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Absolutely.
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the way i look at it is all all of us have spent a lot of money learning to be lawyers we paid tuition for three years and in doing that we wanted to get our money's worth which means the perception of speaking like a lawyer it means analyzing things like a lawyer and problem solving in ways that are different than most lay people And so in doing that, we learn the language of the law.
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And the language of the law is much like other professions.
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It's understanding technical terms of art.
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Too often, what we find is that we forget that we are speaking in our own unique language and we don't translate that language to that lay people can understand we bandy about things and i'll give you a different example we've all been to the doctor and the doctors start talking to us in medical parlance and most of us sort of nod our heads but we don't take it in is exactly what's going on or maybe more basically we go to have our car repaired and the mechanic starts talking to us and mechanics speak about what's wrong with our vehicle or something like that.
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And again, we simply nod our head because all we wanna do is get the car fixed.
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But we really don't understand what's going on in that.
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So going back to lawyer speak, the language of law is specific, but when we fail to help our audience understand the specifics of that language, we fail to educate them in how they can resolve the dispute between the parties.
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The last thing I want to know is going back to the ego problem.
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When we let our ego try and demonstrate to the fact finder how smart we are instead of being the voice of our client, we fail in telling the client's story And it puts the jurors in a situation where they may tune out important things because they just don't understand the parlance of what we're doing.
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Well, that actually touches on something that I wanted to follow up on, which is when a lawyer does use this kind of law speak in the courtroom, what impressions does it lend to the jurors of you as a lawyer?
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How does it affect how you come across to the trier of fact?
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Sort of the bottom line position is by ignoring the needs of the listener, we fail in our ability to persuade.
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Again, we are injecting ourselves into the process instead of helping the fact finder be successful in learning the facts of the case.
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Likewise, when we talk like lawyers, it sounds condescending in many ways.
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we are speaking above them.
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And my good friend Tina Habas often talked about the concept that we need to simplify, not dumbify.
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And it's not about speaking down, it's helping them succeed in listening.
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And the bottom line is oftentimes when we are in that role of being condescending and I'm smarter than you, The jurors may hold that against us, which means they hold it against our client.
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And as we think about it, there's the concept in law of the golden rule, which means as lawyers, we can't ask the fact finder to put themselves in the shoes of the plaintiff or the defendant for that matter.
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And so we have to walk that line.
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Instead, what I want them to do is to take their own life experiences and hear my story, my client's story actually, and move them forward so that they bring their experiences into understanding, but not putting themselves in the shoes.
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Within that, the other thing I think is important is for us not to worry about whether the fact finder likes us or not, All we want them to do is to respect us and to trust what we're saying.
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Take ourselves out of the equation and simply be the narrator of the case so that people understand what's going on.
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Likewise, the same goes for our witnesses.
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If they don't understand what we are trying to get from them, they can't very well give us good answers.
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Back to the old concept, garbage in, garbage out.
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And when we've asked bad questions, whether it's because we're using lawyer speak or jargon or acronyms or any of those things, it makes it more difficult for them.
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And if we think about it, witnesses probably have the toughest job in the courtroom because they're not used to the situation.
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They're uncomfortable.
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They don't wanna be there.
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And if we fail to help them be successful by helping them understand what we want from them, we fail and they don't succeed in the same way.
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Yes, that's an excellent point.
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I'm glad you made that.
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For the lay person who was seated on the jury, trials often seem very complex, both in terms of the procedural aspects of it, but also sometimes the subject matter.
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and maybe even both at the same time.
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So communication can really help out with that.
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So how do we communicate through these procedural and subject matter complexities in a way that will help the jurors understand the case that you were presenting to them?
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Sure.
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You know, sometimes we have to talk like lawyers.
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There are terms of art that the judge needs to hear.
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There are things that jurors understand.
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I mean, after all, they watch television, they've seen movies, they have a sense of what we do as lawyers.
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It may not be correct, but they have this understanding of things that we do, like making objections or something like that.
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But there are times when as lawyers, we just have to follow the rules.
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Things like laying foundations, which in theory you're supposed to make the exhibits trustworthy to the jury, but we have to say things, we have to do that litany of foundation.
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I want people to be thinking about the idea that it's like Alibaba and the 40 Thieves.
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And in that regard, if you say open rye or open wheat, The rock doesn't move and the exhibit doesn't come in.
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You have to say open sesame to make the rock move and to get the exhibit in.
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Jurors somewhat understand that, but as lawyers, we have to follow those rules.
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The same is true when we make objections or we do things like if an objection has been sustained, we still need to get something on the record for the appellate court to understand.
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So when we say, I want to make an offer of proof, jurors may not understand what that means, and it means they get excused from the courtroom.
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Now they're wondering what's going on.
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But we need to do those things to protect our clients' interests.
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Likewise, when...
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Lawyers may say objection or something like that.
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Jurors understand that from what they've seen on television.
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It's important for us, if we're making an objection, to at least state the basis in a way that the jurors understand why we are crying foul.
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By objecting, we're sort of saying the other side is cheating in some way.
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And we want to protect that.
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So we have to do that in a way that's important.
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But likewise, we need to do two things.
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First of all, once the judge is ruled, we need to restate the question if they've ruled in our favor so the information still comes to the juror.
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But if the objection has been sustained, we don't want to leave the information on the table.
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We need to think of a more effective way to communicate what we need from the witness.
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to them.
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So we're doing those things.
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Lastly, within that, we also need to make sure the jurors understand and the record understands that the judge has actually ruled on the objection.
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So some ways that we want to do that to effectively communicate this lawyer speak piece of the trial is to demonstrate to the jurors that we know our way around the courtroom.
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We are not wasting their time in doing things.
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So what do we need to do?
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Well, first of all, we need to know what the foundational elements are.
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This is like doing the times tables in fourth grade.
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We need to be able to lay that foundation quickly and smoothly and get it done because the jurors, that's not important to them.
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They want to see the exhibit.
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They want to hear the witness talk about the exhibit.
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but we have to say those magic words.
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If we spend time bumbling with foundations, we lose trust, but also the power of the exhibits disappears.
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We need to appreciate the rules of evidence and the common objections that are made so that we can do that again quickly and smoothly and get back to telling the story of the case.
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Likewise, within that, when we object, we need to do it in a way that shows we know what we're doing.
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That includes standing up, saying objection loud enough to interrupt what's going on, and giving the good reason why not.
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That doesn't mean that we're making a speaking objection, oh, he's putting words in the witness's mouth, but we need to say he's leading the witness by giving the answer.
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Likewise, within that, we need to be strategic in what we're doing.
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Simply because we can object doesn't mean we should object.
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If we understand that the other lawyer is going to fix the bad problem or the evidence is still going to come in at some point in time, we need to think if it's worth anybody's time to simply make objections because too often, When we're objecting and objecting and objecting, jurors believe we're trying to hide something.
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It's not that we're hiding it, we're protecting something, but the jurors don't see it that way.
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So being an effective communicator means thinking through what we have to do in terms of the lawyering process.
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And finally, if we don't know what our judge wants, oftentimes we fail.
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because the judge will give us signals about what they expect and what they don't expect.
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And we need to make sure we know those things.
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All right, well, that was an excellent overview.
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Let's dive more into how not to sound like a TV lawyer.
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Well, there's my soapbox.
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And I think one of the problems is, unlike other common law countries, here in the United States, we don't really have an apprenticeship program.
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As young lawyers, we are often thrown into a matter where we have to take a deposition or we need to make a court appearance.
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And we do not have good modeling, unless we've taken a NITA course, about how we might be doing those things.
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So where does the young lawyer figure out how to do things?
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Where do they see their models?
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The same place the lay public sees it.
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in television shows or in movies.
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And the problem with that is television and movies are dramas or comedies, and they don't really look at the full process of the law.
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So when they watch television, they develop these bad habits that are there for the drama, not for the effective advocacy.
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So some common things you see on a regular basis if you watch television or movies is lawyers use exhibits without any foundations.
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They just run around, they show them to the jury, they just sort of introduce them without making them trustworthy.
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Yes, I've noticed that.
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Yeah.
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Too often, they lead the witness.
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It's their witness.
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They're needing to have the witness tell the story But because of these time constraints in television, they lead the witness and the witness simply says, yes.
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So the lawyer communicates the fact.
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In the real world, one, you wouldn't get away with that.
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And two, it's absolutely not persuasive.
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So we look at that.
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Then we do the whole thing that we've learned on television for the model is when we put our witness on the stand, the first things we say is, State your name and spell it for the record.
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I can't think of anything more off-putting to say to someone who's your witness than to sound so pretentious.
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It's the worst thing in the world.
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And the truth is, it's much easier to do by simply saying, would you introduce yourself to the members of the jury?
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The court reporter already has their name.
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They know how to spell it.
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And it's just sounding TV lawyer-ish.
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It does sound much warmer and casual and welcoming when you ask somebody to introduce themselves.
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Yeah.
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Right.
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And it puts the witness at ease instead of giving them this whole thing that, oh, you're in front of a jury and this is important.
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We want them to be comfortable in having that conversation with us.
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And then sort of the last thing is the idea of saying strike that when we've asked a bad question.
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It does absolutely nothing.
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If you read transcripts, you look at the transcript, the lawyer asks an awful question, says strike that, and then asks a different question.
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The truth is the record still contains all of that.
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Why not be more human and a better communicator by saying, I'm sorry, that's an awful question.
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Let me try this over.
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It humanizes you.
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It makes things sound better.
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And we are a forgiving nation.
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Juries forgive us when we say we've made a mistake.
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When we simply say, strike that and do the pose like you see in Law and Order.
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it looks pretentious as all get out.
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Likewise, law school forces us into that pretentiousness of communication.
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Well, I was wondering about that because I feel like the law school experience does play its part in fostering that kind of stuffed shirt language and pomposity.
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It might even be the ground where the seed is originally planted.
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It
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does.
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part of it is simply because we are immersed in the law as law students right and within that terms of art are bandied about on a regular basis but we don't think about the fact that our listeners may not know what those terms of art mean because they've never heard the thing common thing is Oftentimes we hear either in deposition practice or trial, have you ever had your deposition taken?
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Well, for someone who has never been in the legal process before, they may have no concept of what a deposition is.
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Wouldn't it be so much better to communicate by saying, have you ever had to testify under oath before?
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People understand the concept of having taken an oath and promising to tell the truth, they may not know what a deposition is because they've never been involved in the law.
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Likewise, we do things like trying to avoid objections.
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And the common thing there is on direct examination, lawyers say, what if anything, and then finish the question.
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They do that simply because they want to avoid the objection.
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It lacks foundation.
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But I defy you, anyone who's listening, if they've said that amongst friends or in family or something, what, if anything, were you doing before you came to the party?
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It doesn't happen.
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And it sounds pretentious.
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Instead, Just ask your question, and if the other side's going to object, let them object, and then lay the foundation.
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It makes them look like they're being obstructionist, and it makes our questions much more clear, and the jury doesn't look at us as if we're, again, being overly lawyerish.
00:26:53.198 --> 00:27:08.369
And then finally, within all that, You read all this stuff about laying foundations, and the last thing that we're supposed to do under the terms of art is we say, may I publish that to the jury?
00:27:08.369 --> 00:27:12.233
Juries don't know what publish means.
00:27:12.233 --> 00:27:16.159
They think it has something to do with newspapers or books or something.
00:27:16.159 --> 00:27:21.503
Why not simply say, Your Honor, may I show this to the members of the jury?
00:27:21.503 --> 00:27:26.490
It's just as clear, and now they understand it.
00:27:26.490 --> 00:27:28.112
in terms of process.
00:27:29.373 --> 00:27:30.835
Yeah, publish is a funny one.
00:27:30.835 --> 00:27:33.519
I wonder how that developed in the first place.
00:27:33.519 --> 00:27:37.663
Well, you've told us some of the bad examples.
00:27:37.663 --> 00:27:49.858
I wonder what good communication you can share with us that you've seen in films or TV shows where the communication is effective.
00:27:50.660 --> 00:27:51.300
Absolutely.
00:27:51.300 --> 00:28:00.435
And I take our audience back to what might be my favorite movie in terms of lawyering, and that's My Cousin Vinny.
00:28:00.435 --> 00:28:16.176
And I use it as an example because even though it's a comedy and people sort of laugh at Vinny as the lawyer, if we step back and look at it, he's an extraordinarily effective communicator.
00:28:16.176 --> 00:28:23.226
If we watch the jurors in that, they're understanding, they're nodding their heads, they're doing all those things.
00:28:23.226 --> 00:28:28.443
He comes across as every man instead of the lawyer.
00:28:28.443 --> 00:28:39.099
And when you relate to the jurors like that, when you relate to the witnesses like that, it makes what you're doing more effective.
00:28:39.099 --> 00:28:51.657
It makes it conversational, which helps your witnesses be successful, and it helps the jurors be successful in hearing the information you're trying to do.
00:28:53.665 --> 00:29:00.856
So what are some of the specific things that Vinnie does that make him come across and communicate so well?
00:29:02.358 --> 00:29:07.346
Well, he used demonstrations and exhibits extraordinarily well.
00:29:07.346 --> 00:29:17.261
He uses the exhibits of the photograph of the trees and the dirty screen and all of that with the one witness to show they really couldn't see things.
00:29:17.261 --> 00:29:27.330
He takes a tape measure and walks the distance of the courtroom to show that a witness really couldn't see what she thought she saw.
00:29:27.330 --> 00:29:27.431
Yeah.
00:29:27.431 --> 00:29:32.958
He also does things like making witnesses teachers.
00:29:32.958 --> 00:29:48.557
And the famous scene with Marissa Tomei as the expert witness who's an auto mechanic, he lets her become a teacher and you watch the jurors all nodding their heads because he's helped the witness become a teacher.
00:29:48.557 --> 00:30:10.660
And then sort of the final thing, and this is the one that I think people sometimes miss, is at the very beginning of the trial when he makes his opening statement, he stands up and says, everything that guy said is bullshit, which immediately draws an objection, which is sustained.
00:30:10.660 --> 00:30:27.233
But as the movie goes forward, if you look at everything that he does, he points out, how everything that the other side has done is in fact not exactly true.
00:30:27.233 --> 00:30:32.398
It's not the way they want you to perceive it.
00:30:32.398 --> 00:30:37.824
And in fact, if you want to use his term of art, it really is bullshit.
00:30:37.824 --> 00:30:47.273
And so throughout the movie, he is using that theme to tell the story of the case to the finder of fact.
00:30:47.273 --> 00:30:49.776
Very effective in terms of that.
00:30:50.369 --> 00:30:52.372
Yes, that is very skillful.
00:30:52.372 --> 00:30:57.317
And it's funny because my cousin Vinny comes up so frequently on the podcast.
00:30:57.317 --> 00:31:03.104
I think maybe a half dozen guests have brought it up over the last five years.
00:31:03.104 --> 00:31:06.567
And it's almost like a prerequisite for listening.
00:31:06.567 --> 00:31:18.121
And I'm sure you know that one of our program directors, Dominic Gianna, he served as the legal consultant for the courtroom scenes in that movie, which is why...
00:31:18.121 --> 00:31:25.605
It just rings so true for everyone who's a lawyer in the courtroom to talk about.
00:31:25.645 --> 00:31:40.945
And he clearly schooled the actors in how to effectively present, which is what makes Dom a great NITA teacher, but also the information he shares with NITA students so effective in being a better communicator.
00:31:40.945 --> 00:31:50.300
Some other things that I like to watch, there's a show that was on from 2010 to 2011 called Harry's Law.
00:31:50.300 --> 00:32:07.340
And in essence, there are things within that that teach good lessons, whether it's ethical lessons about how to behave or how not to behave, but also some ways to think about effective communicating.
00:32:07.340 --> 00:32:25.714
And in that same vein, the first years of the show, The Good Wife, often demonstrate very effective courtroom skills, even though sometimes unethical things happen within that, but it's worthy of watching.
00:32:25.714 --> 00:32:39.231
Last thing I want to share is a book that I recommend to our listeners, and that's a book called Advocacy to Zealousness, Learning Lawyering Skills from Classic Films.
00:32:39.231 --> 00:33:00.332
And what makes it such a great book is It uses films before the current rating code came into effect to talk about how to effectively be a lawyer, not just a courtroom lawyer, but the skills that we need to be a good lawyer.
00:33:00.332 --> 00:33:06.941
And so even though it's not a NITA book, it's something that I think listeners might want to consider.
00:33:06.941 --> 00:33:12.888
And it leads them to watching some really great movies that they may never have seen before.
00:33:13.730 --> 00:33:35.000
Yeah, you know, when you were talking about The Good Wife and you said that there's good lawyering in the courtroom scenes, but then all of these terrible, unethical practices, I was thinking about a show that I just finished watching the most current season of a few days ago, and that's The Lincoln Lawyer, which is on Netflix.
00:33:35.000 --> 00:33:36.461
Have you been watching that, Mark?
00:33:37.323 --> 00:33:38.023
Yes, I have.
00:33:38.444 --> 00:33:41.368
There were times during this last season where the...
00:33:41.368 --> 00:33:50.823
Ethical practices were so disgraceful that if I had been sitting on the sofa actually wearing shoes, I'm sure I would have taken them off and thrown them at the TV.
00:33:50.823 --> 00:33:52.144
It was just so bad.
00:33:52.184 --> 00:34:03.837
You know, again, what I think about there is that television shows and movies are there for the drama.
00:34:03.837 --> 00:34:07.961
They are there for effect.
00:34:07.961 --> 00:34:21.559
And there's a concept that Professor Robert Post has written about, that we do bad in the pursuit of justice.
00:34:21.559 --> 00:34:36.561
And how people forgive doing unethical things as long as the end result provides what is perceived as justice.
00:34:36.561 --> 00:34:40.065
As lawyers, we need to rethink that.
00:34:40.065 --> 00:34:41.704
because we can't.
00:34:41.704 --> 00:34:45.269
We're governed by the rules of professional responsibility.
00:34:45.269 --> 00:34:55.228
And we really want to be perceived by our colleagues and the bench as somebody who cheats.
00:34:55.228 --> 00:35:04.985
So don't fall into those things, much like we see on law and order.
00:35:04.985 --> 00:35:09.103
where the lawyer intentionally asks an improper question.
00:35:09.103 --> 00:35:10.507
It may be argumentative.
00:35:10.507 --> 00:35:14.193
It may have been excluded through other means.
00:35:14.193 --> 00:35:25.371
And as soon as the other side objects and the judge gets all huffy, they say, oh, withdrawn, thinking that that makes everything better.
00:35:25.371 --> 00:35:26.994
It doesn't.
00:35:26.994 --> 00:35:34.378
And in fact, when we do that, we violate the rules of professional responsibility.
00:35:34.378 --> 00:35:36.721
We can't do those kinds of things.
00:35:36.721 --> 00:35:43.228
So don't fall into those kinds of things in terms of doing that.
00:35:43.228 --> 00:35:55.346
And if we want to think about lawyering and ethics, there's one other movie I want to point out to some people, a movie from the 1940s called The Letter.
00:35:55.346 --> 00:36:15.509
And what makes the movie so interesting is the descent of a lawyer from being highly ethical to being unethical in the idea of pursuing justice to make sure that his client is found not guilty of the charge of murder.
00:36:15.509 --> 00:36:28.704
And watching what happens to the lawyer and his struggles as he makes that descent from being ethical to being overly zealous is a fascinating watch.
00:36:29.364 --> 00:36:31.628
That's an old Bette Davis movie, isn't it?
00:36:32.510 --> 00:36:33.172
Yes, it is.
00:36:33.391 --> 00:36:33.853
Okay.
00:36:33.992 --> 00:36:34.534
Yes, it is.
00:36:34.534 --> 00:36:46.492
You'll find it sometimes on Turner Network Classics that appears, but you can also find it online sometimes.
00:36:46.492 --> 00:36:48.737
It's certainly worth the watch.
00:36:49.518 --> 00:36:49.597
Okay.
00:36:49.954 --> 00:37:03.329
Well, since we've been speaking about films and TV shows, one of the questions I always like to ask toward the end of an interview is, what have you been watching on TV or in the movies?
00:37:03.329 --> 00:37:05.331
So what's been in your queue lately, Mark?
00:37:06.932 --> 00:37:07.614
Absolutely.
00:37:07.614 --> 00:37:13.019
What I'm watching on television currently is the new iteration of Matlock.
00:37:13.019 --> 00:37:42.943
And I find it interesting because the main character teaches us the lesson of how as older lawyers or as sometimes women lawyers or something like that, we are conveniently ignored and how you can effectively use that to be successful in terms of what you're doing.
00:37:43.123 --> 00:37:44.365
Oh, that's interesting.
00:37:45.474 --> 00:37:55.007
It's also a great sort of mystery because the plot twists are not what you expect from the traditional lawyer show.
00:37:55.007 --> 00:38:10.050
And so if people are interested, they need to watch from the very, very beginning because it sets the stage in a way that really upsets the apple cart and changes the nature of the whole show in terms of what's going on.
00:38:10.369 --> 00:38:12.952
Well, I haven't been watching the new Matlock.
00:38:12.952 --> 00:38:17.858
Does it have any intersection at all with the old version from what?
00:38:17.858 --> 00:38:18.539
Not at all.
00:38:18.539 --> 00:38:19.460
20, 30 years ago?
00:38:19.601 --> 00:38:20.442
Okay.
00:38:20.442 --> 00:38:30.293
She laughingly refers to the show, but it's nothing like the old television show featuring Andy Griffith.
00:38:30.313 --> 00:38:30.393
Okay.
00:38:30.393 --> 00:38:33.016
What else are you
00:38:33.197 --> 00:38:33.637
watching?
00:38:33.637 --> 00:38:39.965
Two other things that I want to recommend is some things that I've rewatched.
00:38:39.965 --> 00:39:02.235
And first of those is the miniseries on John Adams, especially the very first few episodes, because what we often forget as students of history and the law is that Adams, before he got into politics, was maybe our country's very best trial lawyer.
00:39:02.235 --> 00:39:24.025
And some of the earlier episodes of that miniseries have him confront concepts that I think are worthy of us to think about even today about who we represent and what their reasons why we need to do those things to uphold the nature of the law and the profession.
00:39:24.025 --> 00:39:32.793
One other series that's out there that, again, many people may not have ever heard of is something called Garrow's Law.
00:39:32.793 --> 00:40:09.960
And that's a British show that talks about lawyering really in the early stages of the law and the development of concepts like trial by jury and some things like that and how they were introduced into this system that we use today and so it's it's a great drama but the concepts are those that remind us as lawyers why we do some of the things that we do.
00:40:11.041 --> 00:40:12.603
Well, that sounds like an intriguing show.
00:40:12.603 --> 00:40:14.605
And you're right, I've never heard of that.
00:40:14.605 --> 00:40:16.266
Where did you catch it?
00:40:16.266 --> 00:40:18.289
Where can we catch it if we want to
00:40:18.449 --> 00:40:18.748
watch?
00:40:18.748 --> 00:40:29.619
I think you can find it on something like Netflix, but I actually bought the series from Amazon, so it's readily available.
00:40:29.619 --> 00:40:35.585
And it's good binge-watching.
00:40:36.034 --> 00:40:37.715
Yeah, especially for a lawyer.
00:40:37.715 --> 00:40:45.324
And I can't help but notice that everything that you have named as what you like to watch for pleasure is based on law.
00:40:45.324 --> 00:40:47.286
I think you're absolutely obsessed with law.
00:40:49.108 --> 00:41:00.762
Perhaps too much sometimes, but a number of friends and I have been students of watching lawyer movies because they are so instructive in many ways.
00:41:00.762 --> 00:41:14.041
And you learn lessons So I guess my advice to our listeners are, don't be a TV lawyer, but take lessons from what you see on television.
00:41:14.342 --> 00:41:14.983
I like that.
00:41:14.983 --> 00:41:33.737
Well, I want to get back to the fact that you are a longtime program director for NITA, and you're actually directing a set of programs in Denver this spring, both our deposition skills and our trial skills program.
00:41:33.737 --> 00:41:42.487
And there's always something different I've noticed at different programs that will distinguish it from others that are regional.
00:41:42.487 --> 00:41:54.521
So I wanted to ask you, what would attendees be in for with the Colorado programs that you're running that is different or interesting or otherwise makes them want to take your classes?
00:41:54.940 --> 00:41:55.202
Sure.
00:41:55.202 --> 00:42:14.916
I take pride in the fact that the Colorado programs have often been a test bed for new ideas in teaching and ways to become a better lawyer that we run out in Colorado and that eventually get adopted at other needed programs.
00:42:14.916 --> 00:42:34.045
What we're doing currently in the Colorado program, and I think this is something that's right on the cutting edge of what we're doing, is we are focusing on analysis of all cases and how bias affects what's going on.
00:42:34.045 --> 00:42:47.184
Now, current thinking is it's important for us as lawyers, and I certainly agree with this, to recognize our own biases and try and avoid them in our practice in what we do.
00:42:47.184 --> 00:43:32.786
But What we've done in the Colorado program is to say, all right, as part of what we're analyzing, let's look at the potential biases people might hold against witnesses, against issues in the case, against parties, and how do we deal with those biases in ways that, most importantly, diffuse the bias but also in ways that ethically may point out biases that help us achieve the needs of our clients as long as they are done in a manner that's ethical.
00:43:32.786 --> 00:43:52.659
So as an example, if we're using a case file that relates to a landlord tenant matter in an eviction from public housing, the fact that the defendant lives in public housing is something that people might hold against her.
00:43:52.659 --> 00:44:00.469
And that people think that if you live in public housing, you're on the public dole.
00:44:00.469 --> 00:44:05.396
People are taking care of you and you should be able to take care of yourself.
00:44:05.396 --> 00:44:12.344
That's a bias that a juror might hold against the defendant in this case.
00:44:12.344 --> 00:44:43.690
But if we take the time to say, have the witness explain that she was working a full-time job and was injured so she can't work full-time anymore and needs that assistant to help raise her family, that may defuse that bias because it's not their fault they were horribly injured in a work-related injury and they're doing their best even though they can't work full-time any longer.
00:44:43.690 --> 00:44:53.382
So we're going to see those things So, one thing that we
00:45:01.918 --> 00:45:07.889
haven't mentioned is that you are about to retire from directing programs for NITA.
00:45:08.514 --> 00:45:08.873
Yes.
00:45:09.614 --> 00:45:15.461
Well, you have more than earned your leisure time, and we certainly wish you the very best time of it.
00:45:15.461 --> 00:45:26.653
And I just want to thank you for spending this time with me and Nita this afternoon and passing along, as always, what you know to this new and different audience.
00:45:26.653 --> 00:45:28.876
And that, too, is part of your legacy, Mark.
00:45:28.876 --> 00:45:29.996
So thank you very much.
00:45:31.239 --> 00:45:34.001
Thank you, Marcy, and it's been my honor to speak with you.
00:45:35.943 --> 00:45:37.706
And that is a wrap on this episode.
00:45:37.706 --> 00:45:43.233
Our thanks go to Mark Caldwell for giving his insights into communication in the courtroom.
00:45:43.233 --> 00:45:48.521
Please check the show notes for links to the TV shows and the films that he mentioned.
00:45:48.521 --> 00:45:56.635
And please, everyone, please go watch My Cousin Vinny for Joe Pesci's scenes of effective courtroom advocacy.
00:45:56.635 --> 00:45:57.715
They're amazing.
00:45:57.715 --> 00:46:10.923
As I mentioned earlier, Mark is the director of our Colorado Deposition Skills and Trial Skills programs, which are being held in late April at the law office of Holland and Hart in downtown Denver.
00:46:10.923 --> 00:46:15.413
I just wanted to give a quick shout out there to Holland and Hart for their hospitality.
00:46:15.413 --> 00:46:31.708
We are so looking forward to assembling this national faculty of sitting and former judges, former federal and local prosecutors, trial lawyers, law school professors, and even a legal communication specialist at these two programs.
00:46:31.708 --> 00:46:34.213
And we've got Mark Caldwell at the helm.
00:46:34.213 --> 00:46:37.800
Link is in the show notes if that sounds right up your alley.
00:46:37.800 --> 00:46:49.349
Come back next month when I will be chatting with Judge Cynthia McCollum of Minnesota's Carver County District Court about how to get jurors to open up to you during jury selection.
00:46:49.349 --> 00:46:58.344
Her observations derive from her experiences before the bench as a public defender and behind it as a district court judge.
00:46:58.344 --> 00:47:00.327
Have a great month, everyone.
00:47:00.327 --> 00:47:06.295
May the Record Reflect is a NEDA Studio 71 production.
00:47:06.295 --> 00:47:09.144
NITA.
00:47:09.144 --> 00:47:13.027
We are advocacy-enhanced, mentorship reimagined.
00:47:13.027 --> 00:47:15.782
Welcome to the community.
00:00:07.408 --> 00:00:13.134
On today's episode of May the Record Reflect.
00:00:13.154 --> 00:00:28.893
Too often what we find is that we forget that we are speaking in our own unique language and we don't translate that language to that that lay people can understand.
00:00:28.893 --> 00:00:32.654
We bandy about things, and I'll give you a different example.
00:00:32.654 --> 00:00:39.643
We've all been to the doctor, and the doctors start talking to us in medical parlance.
00:00:39.643 --> 00:00:47.594
And most of us sort of nod our heads, but we don't take it in as exactly what's going on.
00:00:47.594 --> 00:00:59.429
Or maybe more basically, we go to have our car repaired, and the mechanic starts talking to us in mechanic-speak, about what's wrong with our vehicle or something like that.
00:00:59.429 --> 00:01:03.993
And again, we simply nod our head because all we wanna do is get the car fixed.
00:01:03.993 --> 00:01:08.677
But we really don't understand what's going on in that.
00:01:08.677 --> 00:01:33.165
So going back to lawyer speak, the language of the law is specific, but when we fail to help our audience understand the specifics of that language, we fail to educate them in how they can resolve the dispute between the parties.
00:01:34.409 --> 00:01:38.765
That was Mark Caldwell, and this is May the Record Reflect.
00:01:38.765 --> 00:01:56.594
Hello, and welcome to the monthly podcast of the National Institute for Trial Advocacy.
00:01:56.594 --> 00:02:07.305
I'm your host, Marci Mangan, and this month's episode centers around effective oral communication in the courtroom and how not to sound like a TV lawyer.
00:02:07.305 --> 00:02:18.997
Our guest is Mark Caldwell, who is the rare bird who has both taught at NITA programs and has worked on the inside as resource director at NITA.
00:02:18.997 --> 00:02:35.361
He's here to talk about what your courtroom audience needs from you as a communicator, what you shouldn't say, what you should say instead, and he shares a few examples of courtroom portrayals in pop culture that you might want to check out.
00:02:35.361 --> 00:02:37.104
Here's our interview.
00:02:37.104 --> 00:02:44.981
Music Mark Caldwell, welcome to the podcast.
00:02:45.622 --> 00:02:46.424
Thank you, Marsi.
00:02:47.044 --> 00:02:55.459
I am so glad to have you here because you are a legendary legend here at NITA, both as a teacher and as one of our fellow colleagues in the office.
00:02:55.459 --> 00:03:01.348
You're actually here to talk about how not to talk like a lawyer on TV while you're in court.
00:03:01.348 --> 00:03:02.169
Shall we begin?
00:03:02.689 --> 00:03:03.591
We shall.
00:03:04.010 --> 00:03:04.472
Okay.
00:03:04.472 --> 00:03:12.721
The first question that you should always ask yourself before crafting any communication is, who is the audience?
00:03:12.721 --> 00:03:19.048
So my question to you, Mark, is what are the needs of the various audiences in the courtroom?
00:03:19.048 --> 00:03:24.152
And they are the jurors, of course, the judge, of course, but also the witnesses.
00:03:24.954 --> 00:03:25.274
Yes.
00:03:25.274 --> 00:03:27.676
Well...
00:03:27.676 --> 00:03:41.987
In terms of that, I want to take another step back a little bit further, and that would be to consider who we are as we think about communicating with those three audiences.
00:03:41.987 --> 00:03:53.104
And part of the problem that we often find is, as lawyers and advocates, we inject ourselves first over the needs of our client.
00:03:53.104 --> 00:04:07.183
And I want the listeners to step back for a second and consider the word advocate because if we look to the roots of the word, it really means to speak for.
00:04:07.183 --> 00:04:25.302
And in terms of that whole process in speaking for, it's a situation where we put ourselves first and we need to step back because the client can't speak for themselves.
00:04:25.302 --> 00:04:32.916
they're in a situation where they have retained us to be their voice in the courtroom.
00:04:32.916 --> 00:04:41.425
And if we think about being their voice in the courtroom first, it takes us out of the equation.
00:04:41.425 --> 00:04:58.951
And that gives us the opportunity to focus on the needs of the client, but also the needs of the judge and the jurors, and frankly, our witnesses as well, in being able to have them tell the story of the case.
00:04:58.951 --> 00:05:11.572
So within that, let's step back and look at sort of five things that we need to do to effectively communicate.
00:05:11.572 --> 00:05:14.858
First thing we need to do is we need to develop trust.
00:05:14.858 --> 00:05:36.000
And by developing trust, I mean, the witnesses, the judge, and the fact finder or ladies and gentlemen of the jury need to be able to look at us as someone who is skilled and effective, who can zealously represent the needs of the client.
00:05:36.000 --> 00:05:41.009
So building trust with them comes from a number of different things.
00:05:41.009 --> 00:05:59.062
Second piece is their ability to understand us, which means we need to speak in a way that they can understand the information, take it in quickly, and see how it fits the story of the case.
00:05:59.062 --> 00:06:09.553
The third part obviously is the skills we have as trial lawyers, which means we need to be able to do things like ask good questions.
00:06:09.553 --> 00:06:13.038
We need to be able to tell the client's story.
00:06:13.038 --> 00:06:25.137
We need to be able to do things like make persuasive arguments that connect the fact finder to what they've actually heard during the trial.
00:06:25.137 --> 00:06:27.983
We need to be a teacher.
00:06:27.983 --> 00:06:32.971
And as a teacher, we need to do all of the same things that skilled teachers do.
00:06:32.971 --> 00:06:38.800
And that is to present the information in a way that makes the listener successful.
00:06:38.800 --> 00:06:54.586
And finally, the last piece of that is we need to start eliminating clutter, which means taking out All of the things that don't drive the story of the case forward, that don't meet the elements that we have to prove.
00:06:54.586 --> 00:07:03.975
So if we do those five things, we're well on the way to being a better communicator in terms of reaching out to the fact finder.
00:07:04.536 --> 00:07:05.557
All right, fantastic.
00:07:05.557 --> 00:07:13.906
So what does it mean to you to talk like a lawyer, which we might also call speaking in lawyer speak?
00:07:14.687 --> 00:07:15.408
Absolutely.
00:07:15.408 --> 00:07:49.206
the way i look at it is all all of us have spent a lot of money learning to be lawyers we paid tuition for three years and in doing that we wanted to get our money's worth which means the perception of speaking like a lawyer it means analyzing things like a lawyer and problem solving in ways that are different than most lay people And so in doing that, we learn the language of the law.
00:07:49.206 --> 00:07:54.132
And the language of the law is much like other professions.
00:07:54.132 --> 00:07:57.918
It's understanding technical terms of art.
00:07:57.918 --> 00:08:46.374
Too often, what we find is that we forget that we are speaking in our own unique language and we don't translate that language to that lay people can understand we bandy about things and i'll give you a different example we've all been to the doctor and the doctors start talking to us in medical parlance and most of us sort of nod our heads but we don't take it in is exactly what's going on or maybe more basically we go to have our car repaired and the mechanic starts talking to us and mechanics speak about what's wrong with our vehicle or something like that.
00:08:46.374 --> 00:08:50.940
And again, we simply nod our head because all we wanna do is get the car fixed.
00:08:50.940 --> 00:08:55.625
But we really don't understand what's going on in that.
00:08:55.625 --> 00:09:17.030
So going back to lawyer speak, the language of law is specific, but when we fail to help our audience understand the specifics of that language, we fail to educate them in how they can resolve the dispute between the parties.
00:09:17.030 --> 00:09:23.558
The last thing I want to know is going back to the ego problem.
00:09:23.558 --> 00:09:50.417
When we let our ego try and demonstrate to the fact finder how smart we are instead of being the voice of our client, we fail in telling the client's story And it puts the jurors in a situation where they may tune out important things because they just don't understand the parlance of what we're doing.
00:09:51.037 --> 00:10:05.119
Well, that actually touches on something that I wanted to follow up on, which is when a lawyer does use this kind of law speak in the courtroom, what impressions does it lend to the jurors of you as a lawyer?
00:10:05.119 --> 00:10:09.645
How does it affect how you come across to the trier of fact?
00:10:10.594 --> 00:10:19.003
Sort of the bottom line position is by ignoring the needs of the listener, we fail in our ability to persuade.
00:10:19.003 --> 00:10:29.913
Again, we are injecting ourselves into the process instead of helping the fact finder be successful in learning the facts of the case.
00:10:29.913 --> 00:10:36.981
Likewise, when we talk like lawyers, it sounds condescending in many ways.
00:10:36.981 --> 00:10:40.024
we are speaking above them.
00:10:40.024 --> 00:10:48.934
And my good friend Tina Habas often talked about the concept that we need to simplify, not dumbify.
00:10:48.934 --> 00:10:57.804
And it's not about speaking down, it's helping them succeed in listening.
00:10:57.804 --> 00:11:15.451
And the bottom line is oftentimes when we are in that role of being condescending and I'm smarter than you, The jurors may hold that against us, which means they hold it against our client.
00:11:15.451 --> 00:11:33.538
And as we think about it, there's the concept in law of the golden rule, which means as lawyers, we can't ask the fact finder to put themselves in the shoes of the plaintiff or the defendant for that matter.
00:11:33.538 --> 00:11:38.586
And so we have to walk that line.
00:11:38.586 --> 00:11:59.620
Instead, what I want them to do is to take their own life experiences and hear my story, my client's story actually, and move them forward so that they bring their experiences into understanding, but not putting themselves in the shoes.
00:11:59.620 --> 00:12:14.072
Within that, the other thing I think is important is for us not to worry about whether the fact finder likes us or not, All we want them to do is to respect us and to trust what we're saying.
00:12:14.072 --> 00:12:24.690
Take ourselves out of the equation and simply be the narrator of the case so that people understand what's going on.
00:12:24.690 --> 00:12:29.937
Likewise, the same goes for our witnesses.
00:12:29.937 --> 00:12:37.950
If they don't understand what we are trying to get from them, they can't very well give us good answers.
00:12:37.950 --> 00:12:41.870
Back to the old concept, garbage in, garbage out.
00:12:41.870 --> 00:12:56.350
And when we've asked bad questions, whether it's because we're using lawyer speak or jargon or acronyms or any of those things, it makes it more difficult for them.
00:12:56.350 --> 00:13:05.844
And if we think about it, witnesses probably have the toughest job in the courtroom because they're not used to the situation.
00:13:05.844 --> 00:13:06.926
They're uncomfortable.
00:13:06.926 --> 00:13:08.528
They don't wanna be there.
00:13:08.528 --> 00:13:19.565
And if we fail to help them be successful by helping them understand what we want from them, we fail and they don't succeed in the same way.
00:13:20.066 --> 00:13:21.708
Yes, that's an excellent point.
00:13:21.708 --> 00:13:22.809
I'm glad you made that.
00:13:22.809 --> 00:13:35.210
For the lay person who was seated on the jury, trials often seem very complex, both in terms of the procedural aspects of it, but also sometimes the subject matter.
00:13:35.210 --> 00:13:37.368
and maybe even both at the same time.
00:13:37.368 --> 00:13:40.490
So communication can really help out with that.
00:13:40.490 --> 00:13:53.384
So how do we communicate through these procedural and subject matter complexities in a way that will help the jurors understand the case that you were presenting to them?
00:13:54.225 --> 00:13:54.524
Sure.
00:13:54.524 --> 00:13:58.548
You know, sometimes we have to talk like lawyers.
00:13:58.548 --> 00:14:02.734
There are terms of art that the judge needs to hear.
00:14:02.734 --> 00:14:07.379
There are things that jurors understand.
00:14:07.379 --> 00:14:14.749
I mean, after all, they watch television, they've seen movies, they have a sense of what we do as lawyers.
00:14:14.749 --> 00:14:24.360
It may not be correct, but they have this understanding of things that we do, like making objections or something like that.
00:14:24.360 --> 00:14:30.710
But there are times when as lawyers, we just have to follow the rules.
00:14:30.710 --> 00:14:47.113
Things like laying foundations, which in theory you're supposed to make the exhibits trustworthy to the jury, but we have to say things, we have to do that litany of foundation.
00:14:47.113 --> 00:14:55.100
I want people to be thinking about the idea that it's like Alibaba and the 40 Thieves.
00:14:55.100 --> 00:15:04.424
And in that regard, if you say open rye or open wheat, The rock doesn't move and the exhibit doesn't come in.
00:15:04.424 --> 00:15:12.033
You have to say open sesame to make the rock move and to get the exhibit in.
00:15:12.033 --> 00:15:19.101
Jurors somewhat understand that, but as lawyers, we have to follow those rules.
00:15:19.101 --> 00:15:34.432
The same is true when we make objections or we do things like if an objection has been sustained, we still need to get something on the record for the appellate court to understand.
00:15:34.432 --> 00:15:43.143
So when we say, I want to make an offer of proof, jurors may not understand what that means, and it means they get excused from the courtroom.
00:15:43.143 --> 00:15:45.085
Now they're wondering what's going on.
00:15:45.085 --> 00:15:51.273
But we need to do those things to protect our clients' interests.
00:15:51.273 --> 00:15:54.777
Likewise, when...
00:15:54.777 --> 00:15:58.664
Lawyers may say objection or something like that.
00:15:58.664 --> 00:16:01.948
Jurors understand that from what they've seen on television.
00:16:01.948 --> 00:16:14.543
It's important for us, if we're making an objection, to at least state the basis in a way that the jurors understand why we are crying foul.
00:16:14.543 --> 00:16:20.889
By objecting, we're sort of saying the other side is cheating in some way.
00:16:20.889 --> 00:16:23.953
And we want to protect that.
00:16:23.953 --> 00:16:27.398
So we have to do that in a way that's important.
00:16:27.398 --> 00:16:30.623
But likewise, we need to do two things.
00:16:30.623 --> 00:16:42.139
First of all, once the judge is ruled, we need to restate the question if they've ruled in our favor so the information still comes to the juror.
00:16:42.139 --> 00:16:48.250
But if the objection has been sustained, we don't want to leave the information on the table.
00:16:48.250 --> 00:16:53.798
We need to think of a more effective way to communicate what we need from the witness.
00:16:53.798 --> 00:16:54.671
to them.
00:16:54.671 --> 00:16:57.855
So we're doing those things.
00:16:57.855 --> 00:17:08.207
Lastly, within that, we also need to make sure the jurors understand and the record understands that the judge has actually ruled on the objection.
00:17:08.207 --> 00:17:22.945
So some ways that we want to do that to effectively communicate this lawyer speak piece of the trial is to demonstrate to the jurors that we know our way around the courtroom.
00:17:22.945 --> 00:17:27.267
We are not wasting their time in doing things.
00:17:27.267 --> 00:17:28.868
So what do we need to do?
00:17:28.868 --> 00:17:32.634
Well, first of all, we need to know what the foundational elements are.
00:17:32.634 --> 00:17:37.961
This is like doing the times tables in fourth grade.
00:17:37.961 --> 00:17:48.375
We need to be able to lay that foundation quickly and smoothly and get it done because the jurors, that's not important to them.
00:17:48.375 --> 00:17:50.018
They want to see the exhibit.
00:17:50.018 --> 00:17:52.821
They want to hear the witness talk about the exhibit.
00:17:52.821 --> 00:17:55.902
but we have to say those magic words.
00:17:55.902 --> 00:18:06.038
If we spend time bumbling with foundations, we lose trust, but also the power of the exhibits disappears.
00:18:06.038 --> 00:18:20.402
We need to appreciate the rules of evidence and the common objections that are made so that we can do that again quickly and smoothly and get back to telling the story of the case.
00:18:20.402 --> 00:18:28.246
Likewise, within that, when we object, we need to do it in a way that shows we know what we're doing.
00:18:28.246 --> 00:18:37.617
That includes standing up, saying objection loud enough to interrupt what's going on, and giving the good reason why not.
00:18:37.617 --> 00:18:50.894
That doesn't mean that we're making a speaking objection, oh, he's putting words in the witness's mouth, but we need to say he's leading the witness by giving the answer.
00:18:50.894 --> 00:18:57.397
Likewise, within that, we need to be strategic in what we're doing.
00:18:57.397 --> 00:19:01.923
Simply because we can object doesn't mean we should object.
00:19:01.923 --> 00:19:27.451
If we understand that the other lawyer is going to fix the bad problem or the evidence is still going to come in at some point in time, we need to think if it's worth anybody's time to simply make objections because too often, When we're objecting and objecting and objecting, jurors believe we're trying to hide something.
00:19:27.451 --> 00:19:33.279
It's not that we're hiding it, we're protecting something, but the jurors don't see it that way.
00:19:33.279 --> 00:19:43.474
So being an effective communicator means thinking through what we have to do in terms of the lawyering process.
00:19:43.474 --> 00:19:50.786
And finally, if we don't know what our judge wants, oftentimes we fail.
00:19:50.786 --> 00:19:56.472
because the judge will give us signals about what they expect and what they don't expect.
00:19:56.472 --> 00:19:59.317
And we need to make sure we know those things.
00:19:59.999 --> 00:20:02.422
All right, well, that was an excellent overview.
00:20:02.422 --> 00:20:06.949
Let's dive more into how not to sound like a TV lawyer.
00:20:06.989 --> 00:20:09.913
Well, there's my soapbox.
00:20:09.913 --> 00:20:20.670
And I think one of the problems is, unlike other common law countries, here in the United States, we don't really have an apprenticeship program.
00:20:20.670 --> 00:20:30.538
As young lawyers, we are often thrown into a matter where we have to take a deposition or we need to make a court appearance.
00:20:30.538 --> 00:20:39.890
And we do not have good modeling, unless we've taken a NITA course, about how we might be doing those things.
00:20:39.890 --> 00:20:44.556
So where does the young lawyer figure out how to do things?
00:20:44.556 --> 00:20:46.018
Where do they see their models?
00:20:46.018 --> 00:20:49.281
The same place the lay public sees it.
00:20:49.281 --> 00:20:52.212
in television shows or in movies.
00:20:52.212 --> 00:21:04.907
And the problem with that is television and movies are dramas or comedies, and they don't really look at the full process of the law.
00:21:04.907 --> 00:21:16.301
So when they watch television, they develop these bad habits that are there for the drama, not for the effective advocacy.
00:21:16.301 --> 00:21:27.704
So some common things you see on a regular basis if you watch television or movies is lawyers use exhibits without any foundations.
00:21:27.704 --> 00:21:34.714
They just run around, they show them to the jury, they just sort of introduce them without making them trustworthy.
00:21:35.435 --> 00:21:36.438
Yes, I've noticed that.
00:21:37.900 --> 00:21:38.039
Yeah.
00:21:38.039 --> 00:21:40.383
Too often, they lead the witness.
00:21:40.383 --> 00:21:42.165
It's their witness.
00:21:42.165 --> 00:21:52.571
They're needing to have the witness tell the story But because of these time constraints in television, they lead the witness and the witness simply says, yes.
00:21:52.571 --> 00:21:55.194
So the lawyer communicates the fact.
00:21:55.194 --> 00:21:59.320
In the real world, one, you wouldn't get away with that.
00:21:59.320 --> 00:22:02.625
And two, it's absolutely not persuasive.
00:22:02.625 --> 00:22:04.387
So we look at that.
00:22:04.387 --> 00:22:17.760
Then we do the whole thing that we've learned on television for the model is when we put our witness on the stand, the first things we say is, State your name and spell it for the record.
00:22:17.760 --> 00:22:27.451
I can't think of anything more off-putting to say to someone who's your witness than to sound so pretentious.
00:22:27.451 --> 00:22:30.174
It's the worst thing in the world.
00:22:30.174 --> 00:22:39.105
And the truth is, it's much easier to do by simply saying, would you introduce yourself to the members of the jury?
00:22:39.105 --> 00:22:41.808
The court reporter already has their name.
00:22:41.808 --> 00:22:42.990
They know how to spell it.
00:22:42.990 --> 00:22:48.116
And it's just sounding TV lawyer-ish.
00:22:48.576 --> 00:22:54.707
It does sound much warmer and casual and welcoming when you ask somebody to introduce themselves.
00:22:54.707 --> 00:22:55.167
Yeah.
00:22:55.769 --> 00:22:56.088
Right.
00:22:56.088 --> 00:23:06.645
And it puts the witness at ease instead of giving them this whole thing that, oh, you're in front of a jury and this is important.
00:23:06.645 --> 00:23:11.933
We want them to be comfortable in having that conversation with us.
00:23:11.933 --> 00:23:18.673
And then sort of the last thing is the idea of saying strike that when we've asked a bad question.
00:23:18.673 --> 00:23:22.758
It does absolutely nothing.
00:23:22.758 --> 00:23:34.752
If you read transcripts, you look at the transcript, the lawyer asks an awful question, says strike that, and then asks a different question.
00:23:34.752 --> 00:23:38.917
The truth is the record still contains all of that.
00:23:38.917 --> 00:23:48.086
Why not be more human and a better communicator by saying, I'm sorry, that's an awful question.
00:23:48.086 --> 00:23:50.147
Let me try this over.
00:23:50.147 --> 00:23:52.049
It humanizes you.
00:23:52.049 --> 00:23:55.092
It makes things sound better.
00:23:55.092 --> 00:23:59.477
And we are a forgiving nation.
00:23:59.477 --> 00:24:03.559
Juries forgive us when we say we've made a mistake.
00:24:03.559 --> 00:24:09.425
When we simply say, strike that and do the pose like you see in Law and Order.
00:24:09.425 --> 00:24:12.452
it looks pretentious as all get out.
00:24:12.452 --> 00:24:19.020
Likewise, law school forces us into that pretentiousness of communication.
00:24:19.741 --> 00:24:31.376
Well, I was wondering about that because I feel like the law school experience does play its part in fostering that kind of stuffed shirt language and pomposity.
00:24:31.376 --> 00:24:36.583
It might even be the ground where the seed is originally planted.
00:24:36.583 --> 00:24:36.643
It
00:24:37.704 --> 00:24:38.065
does.
00:24:38.065 --> 00:25:12.809
part of it is simply because we are immersed in the law as law students right and within that terms of art are bandied about on a regular basis but we don't think about the fact that our listeners may not know what those terms of art mean because they've never heard the thing common thing is Oftentimes we hear either in deposition practice or trial, have you ever had your deposition taken?
00:25:12.809 --> 00:25:21.941
Well, for someone who has never been in the legal process before, they may have no concept of what a deposition is.
00:25:21.941 --> 00:25:30.191
Wouldn't it be so much better to communicate by saying, have you ever had to testify under oath before?
00:25:30.191 --> 00:25:43.396
People understand the concept of having taken an oath and promising to tell the truth, they may not know what a deposition is because they've never been involved in the law.
00:25:43.396 --> 00:25:51.188
Likewise, we do things like trying to avoid objections.
00:25:51.188 --> 00:26:00.801
And the common thing there is on direct examination, lawyers say, what if anything, and then finish the question.
00:26:00.801 --> 00:26:05.665
They do that simply because they want to avoid the objection.
00:26:05.665 --> 00:26:07.567
It lacks foundation.
00:26:07.567 --> 00:26:21.922
But I defy you, anyone who's listening, if they've said that amongst friends or in family or something, what, if anything, were you doing before you came to the party?
00:26:21.922 --> 00:26:24.005
It doesn't happen.
00:26:24.005 --> 00:26:27.127
And it sounds pretentious.
00:26:27.127 --> 00:26:36.895
Instead, Just ask your question, and if the other side's going to object, let them object, and then lay the foundation.
00:26:36.895 --> 00:26:53.198
It makes them look like they're being obstructionist, and it makes our questions much more clear, and the jury doesn't look at us as if we're, again, being overly lawyerish.
00:26:53.198 --> 00:27:08.369
And then finally, within all that, You read all this stuff about laying foundations, and the last thing that we're supposed to do under the terms of art is we say, may I publish that to the jury?
00:27:08.369 --> 00:27:12.233
Juries don't know what publish means.
00:27:12.233 --> 00:27:16.159
They think it has something to do with newspapers or books or something.
00:27:16.159 --> 00:27:21.503
Why not simply say, Your Honor, may I show this to the members of the jury?
00:27:21.503 --> 00:27:26.490
It's just as clear, and now they understand it.
00:27:26.490 --> 00:27:28.112
in terms of process.
00:27:29.373 --> 00:27:30.835
Yeah, publish is a funny one.
00:27:30.835 --> 00:27:33.519
I wonder how that developed in the first place.
00:27:33.519 --> 00:27:37.663
Well, you've told us some of the bad examples.
00:27:37.663 --> 00:27:49.858
I wonder what good communication you can share with us that you've seen in films or TV shows where the communication is effective.
00:27:50.660 --> 00:27:51.300
Absolutely.
00:27:51.300 --> 00:28:00.435
And I take our audience back to what might be my favorite movie in terms of lawyering, and that's My Cousin Vinny.
00:28:00.435 --> 00:28:16.176
And I use it as an example because even though it's a comedy and people sort of laugh at Vinny as the lawyer, if we step back and look at it, he's an extraordinarily effective communicator.
00:28:16.176 --> 00:28:23.226
If we watch the jurors in that, they're understanding, they're nodding their heads, they're doing all those things.
00:28:23.226 --> 00:28:28.443
He comes across as every man instead of the lawyer.
00:28:28.443 --> 00:28:39.099
And when you relate to the jurors like that, when you relate to the witnesses like that, it makes what you're doing more effective.
00:28:39.099 --> 00:28:51.657
It makes it conversational, which helps your witnesses be successful, and it helps the jurors be successful in hearing the information you're trying to do.
00:28:53.665 --> 00:29:00.856
So what are some of the specific things that Vinnie does that make him come across and communicate so well?
00:29:02.358 --> 00:29:07.346
Well, he used demonstrations and exhibits extraordinarily well.
00:29:07.346 --> 00:29:17.261
He uses the exhibits of the photograph of the trees and the dirty screen and all of that with the one witness to show they really couldn't see things.
00:29:17.261 --> 00:29:27.330
He takes a tape measure and walks the distance of the courtroom to show that a witness really couldn't see what she thought she saw.
00:29:27.330 --> 00:29:27.431
Yeah.
00:29:27.431 --> 00:29:32.958
He also does things like making witnesses teachers.
00:29:32.958 --> 00:29:48.557
And the famous scene with Marissa Tomei as the expert witness who's an auto mechanic, he lets her become a teacher and you watch the jurors all nodding their heads because he's helped the witness become a teacher.
00:29:48.557 --> 00:30:10.660
And then sort of the final thing, and this is the one that I think people sometimes miss, is at the very beginning of the trial when he makes his opening statement, he stands up and says, everything that guy said is bullshit, which immediately draws an objection, which is sustained.
00:30:10.660 --> 00:30:27.233
But as the movie goes forward, if you look at everything that he does, he points out, how everything that the other side has done is in fact not exactly true.
00:30:27.233 --> 00:30:32.398
It's not the way they want you to perceive it.
00:30:32.398 --> 00:30:37.824
And in fact, if you want to use his term of art, it really is bullshit.
00:30:37.824 --> 00:30:47.273
And so throughout the movie, he is using that theme to tell the story of the case to the finder of fact.
00:30:47.273 --> 00:30:49.776
Very effective in terms of that.
00:30:50.369 --> 00:30:52.372
Yes, that is very skillful.
00:30:52.372 --> 00:30:57.317
And it's funny because my cousin Vinny comes up so frequently on the podcast.
00:30:57.317 --> 00:31:03.104
I think maybe a half dozen guests have brought it up over the last five years.
00:31:03.104 --> 00:31:06.567
And it's almost like a prerequisite for listening.
00:31:06.567 --> 00:31:18.121
And I'm sure you know that one of our program directors, Dominic Gianna, he served as the legal consultant for the courtroom scenes in that movie, which is why...
00:31:18.121 --> 00:31:25.605
It just rings so true for everyone who's a lawyer in the courtroom to talk about.
00:31:25.645 --> 00:31:40.945
And he clearly schooled the actors in how to effectively present, which is what makes Dom a great NITA teacher, but also the information he shares with NITA students so effective in being a better communicator.
00:31:40.945 --> 00:31:50.300
Some other things that I like to watch, there's a show that was on from 2010 to 2011 called Harry's Law.
00:31:50.300 --> 00:32:07.340
And in essence, there are things within that that teach good lessons, whether it's ethical lessons about how to behave or how not to behave, but also some ways to think about effective communicating.
00:32:07.340 --> 00:32:25.714
And in that same vein, the first years of the show, The Good Wife, often demonstrate very effective courtroom skills, even though sometimes unethical things happen within that, but it's worthy of watching.
00:32:25.714 --> 00:32:39.231
Last thing I want to share is a book that I recommend to our listeners, and that's a book called Advocacy to Zealousness, Learning Lawyering Skills from Classic Films.
00:32:39.231 --> 00:33:00.332
And what makes it such a great book is It uses films before the current rating code came into effect to talk about how to effectively be a lawyer, not just a courtroom lawyer, but the skills that we need to be a good lawyer.
00:33:00.332 --> 00:33:06.941
And so even though it's not a NITA book, it's something that I think listeners might want to consider.
00:33:06.941 --> 00:33:12.888
And it leads them to watching some really great movies that they may never have seen before.
00:33:13.730 --> 00:33:35.000
Yeah, you know, when you were talking about The Good Wife and you said that there's good lawyering in the courtroom scenes, but then all of these terrible, unethical practices, I was thinking about a show that I just finished watching the most current season of a few days ago, and that's The Lincoln Lawyer, which is on Netflix.
00:33:35.000 --> 00:33:36.461
Have you been watching that, Mark?
00:33:37.323 --> 00:33:38.023
Yes, I have.
00:33:38.444 --> 00:33:41.368
There were times during this last season where the...
00:33:41.368 --> 00:33:50.823
Ethical practices were so disgraceful that if I had been sitting on the sofa actually wearing shoes, I'm sure I would have taken them off and thrown them at the TV.
00:33:50.823 --> 00:33:52.144
It was just so bad.
00:33:52.184 --> 00:34:03.837
You know, again, what I think about there is that television shows and movies are there for the drama.
00:34:03.837 --> 00:34:07.961
They are there for effect.
00:34:07.961 --> 00:34:21.559
And there's a concept that Professor Robert Post has written about, that we do bad in the pursuit of justice.
00:34:21.559 --> 00:34:36.561
And how people forgive doing unethical things as long as the end result provides what is perceived as justice.
00:34:36.561 --> 00:34:40.065
As lawyers, we need to rethink that.
00:34:40.065 --> 00:34:41.704
because we can't.
00:34:41.704 --> 00:34:45.269
We're governed by the rules of professional responsibility.
00:34:45.269 --> 00:34:55.228
And we really want to be perceived by our colleagues and the bench as somebody who cheats.
00:34:55.228 --> 00:35:04.985
So don't fall into those things, much like we see on law and order.
00:35:04.985 --> 00:35:09.103
where the lawyer intentionally asks an improper question.
00:35:09.103 --> 00:35:10.507
It may be argumentative.
00:35:10.507 --> 00:35:14.193
It may have been excluded through other means.
00:35:14.193 --> 00:35:25.371
And as soon as the other side objects and the judge gets all huffy, they say, oh, withdrawn, thinking that that makes everything better.
00:35:25.371 --> 00:35:26.994
It doesn't.
00:35:26.994 --> 00:35:34.378
And in fact, when we do that, we violate the rules of professional responsibility.
00:35:34.378 --> 00:35:36.721
We can't do those kinds of things.
00:35:36.721 --> 00:35:43.228
So don't fall into those kinds of things in terms of doing that.
00:35:43.228 --> 00:35:55.346
And if we want to think about lawyering and ethics, there's one other movie I want to point out to some people, a movie from the 1940s called The Letter.
00:35:55.346 --> 00:36:15.509
And what makes the movie so interesting is the descent of a lawyer from being highly ethical to being unethical in the idea of pursuing justice to make sure that his client is found not guilty of the charge of murder.
00:36:15.509 --> 00:36:28.704
And watching what happens to the lawyer and his struggles as he makes that descent from being ethical to being overly zealous is a fascinating watch.
00:36:29.364 --> 00:36:31.628
That's an old Bette Davis movie, isn't it?
00:36:32.510 --> 00:36:33.172
Yes, it is.
00:36:33.391 --> 00:36:33.853
Okay.
00:36:33.992 --> 00:36:34.534
Yes, it is.
00:36:34.534 --> 00:36:46.492
You'll find it sometimes on Turner Network Classics that appears, but you can also find it online sometimes.
00:36:46.492 --> 00:36:48.737
It's certainly worth the watch.
00:36:49.518 --> 00:36:49.597
Okay.
00:36:49.954 --> 00:37:03.329
Well, since we've been speaking about films and TV shows, one of the questions I always like to ask toward the end of an interview is, what have you been watching on TV or in the movies?
00:37:03.329 --> 00:37:05.331
So what's been in your queue lately, Mark?
00:37:06.932 --> 00:37:07.614
Absolutely.
00:37:07.614 --> 00:37:13.019
What I'm watching on television currently is the new iteration of Matlock.
00:37:13.019 --> 00:37:42.943
And I find it interesting because the main character teaches us the lesson of how as older lawyers or as sometimes women lawyers or something like that, we are conveniently ignored and how you can effectively use that to be successful in terms of what you're doing.
00:37:43.123 --> 00:37:44.365
Oh, that's interesting.
00:37:45.474 --> 00:37:55.007
It's also a great sort of mystery because the plot twists are not what you expect from the traditional lawyer show.
00:37:55.007 --> 00:38:10.050
And so if people are interested, they need to watch from the very, very beginning because it sets the stage in a way that really upsets the apple cart and changes the nature of the whole show in terms of what's going on.
00:38:10.369 --> 00:38:12.952
Well, I haven't been watching the new Matlock.
00:38:12.952 --> 00:38:17.858
Does it have any intersection at all with the old version from what?
00:38:17.858 --> 00:38:18.539
Not at all.
00:38:18.539 --> 00:38:19.460
20, 30 years ago?
00:38:19.601 --> 00:38:20.442
Okay.
00:38:20.442 --> 00:38:30.293
She laughingly refers to the show, but it's nothing like the old television show featuring Andy Griffith.
00:38:30.313 --> 00:38:30.393
Okay.
00:38:30.393 --> 00:38:33.016
What else are you
00:38:33.197 --> 00:38:33.637
watching?
00:38:33.637 --> 00:38:39.965
Two other things that I want to recommend is some things that I've rewatched.
00:38:39.965 --> 00:39:02.235
And first of those is the miniseries on John Adams, especially the very first few episodes, because what we often forget as students of history and the law is that Adams, before he got into politics, was maybe our country's very best trial lawyer.
00:39:02.235 --> 00:39:24.025
And some of the earlier episodes of that miniseries have him confront concepts that I think are worthy of us to think about even today about who we represent and what their reasons why we need to do those things to uphold the nature of the law and the profession.
00:39:24.025 --> 00:39:32.793
One other series that's out there that, again, many people may not have ever heard of is something called Garrow's Law.
00:39:32.793 --> 00:40:09.960
And that's a British show that talks about lawyering really in the early stages of the law and the development of concepts like trial by jury and some things like that and how they were introduced into this system that we use today and so it's it's a great drama but the concepts are those that remind us as lawyers why we do some of the things that we do.
00:40:11.041 --> 00:40:12.603
Well, that sounds like an intriguing show.
00:40:12.603 --> 00:40:14.605
And you're right, I've never heard of that.
00:40:14.605 --> 00:40:16.266
Where did you catch it?
00:40:16.266 --> 00:40:18.289
Where can we catch it if we want to
00:40:18.449 --> 00:40:18.748
watch?
00:40:18.748 --> 00:40:29.619
I think you can find it on something like Netflix, but I actually bought the series from Amazon, so it's readily available.
00:40:29.619 --> 00:40:35.585
And it's good binge-watching.
00:40:36.034 --> 00:40:37.715
Yeah, especially for a lawyer.
00:40:37.715 --> 00:40:45.324
And I can't help but notice that everything that you have named as what you like to watch for pleasure is based on law.
00:40:45.324 --> 00:40:47.286
I think you're absolutely obsessed with law.
00:40:49.108 --> 00:41:00.762
Perhaps too much sometimes, but a number of friends and I have been students of watching lawyer movies because they are so instructive in many ways.
00:41:00.762 --> 00:41:14.041
And you learn lessons So I guess my advice to our listeners are, don't be a TV lawyer, but take lessons from what you see on television.
00:41:14.342 --> 00:41:14.983
I like that.
00:41:14.983 --> 00:41:33.737
Well, I want to get back to the fact that you are a longtime program director for NITA, and you're actually directing a set of programs in Denver this spring, both our deposition skills and our trial skills program.
00:41:33.737 --> 00:41:42.487
And there's always something different I've noticed at different programs that will distinguish it from others that are regional.
00:41:42.487 --> 00:41:54.521
So I wanted to ask you, what would attendees be in for with the Colorado programs that you're running that is different or interesting or otherwise makes them want to take your classes?
00:41:54.940 --> 00:41:55.202
Sure.
00:41:55.202 --> 00:42:14.916
I take pride in the fact that the Colorado programs have often been a test bed for new ideas in teaching and ways to become a better lawyer that we run out in Colorado and that eventually get adopted at other needed programs.
00:42:14.916 --> 00:42:34.045
What we're doing currently in the Colorado program, and I think this is something that's right on the cutting edge of what we're doing, is we are focusing on analysis of all cases and how bias affects what's going on.
00:42:34.045 --> 00:42:47.184
Now, current thinking is it's important for us as lawyers, and I certainly agree with this, to recognize our own biases and try and avoid them in our practice in what we do.
00:42:47.184 --> 00:43:32.786
But What we've done in the Colorado program is to say, all right, as part of what we're analyzing, let's look at the potential biases people might hold against witnesses, against issues in the case, against parties, and how do we deal with those biases in ways that, most importantly, diffuse the bias but also in ways that ethically may point out biases that help us achieve the needs of our clients as long as they are done in a manner that's ethical.
00:43:32.786 --> 00:43:52.659
So as an example, if we're using a case file that relates to a landlord tenant matter in an eviction from public housing, the fact that the defendant lives in public housing is something that people might hold against her.
00:43:52.659 --> 00:44:00.469
And that people think that if you live in public housing, you're on the public dole.
00:44:00.469 --> 00:44:05.396
People are taking care of you and you should be able to take care of yourself.
00:44:05.396 --> 00:44:12.344
That's a bias that a juror might hold against the defendant in this case.
00:44:12.344 --> 00:44:43.690
But if we take the time to say, have the witness explain that she was working a full-time job and was injured so she can't work full-time anymore and needs that assistant to help raise her family, that may defuse that bias because it's not their fault they were horribly injured in a work-related injury and they're doing their best even though they can't work full-time any longer.
00:44:43.690 --> 00:44:53.382
So we're going to see those things So, one thing that we
00:45:01.918 --> 00:45:07.889
haven't mentioned is that you are about to retire from directing programs for NITA.
00:45:08.514 --> 00:45:08.873
Yes.
00:45:09.614 --> 00:45:15.461
Well, you have more than earned your leisure time, and we certainly wish you the very best time of it.
00:45:15.461 --> 00:45:26.653
And I just want to thank you for spending this time with me and Nita this afternoon and passing along, as always, what you know to this new and different audience.
00:45:26.653 --> 00:45:28.876
And that, too, is part of your legacy, Mark.
00:45:28.876 --> 00:45:29.996
So thank you very much.
00:45:31.239 --> 00:45:34.001
Thank you, Marcy, and it's been my honor to speak with you.
00:45:35.943 --> 00:45:37.706
And that is a wrap on this episode.
00:45:37.706 --> 00:45:43.233
Our thanks go to Mark Caldwell for giving his insights into communication in the courtroom.
00:45:43.233 --> 00:45:48.521
Please check the show notes for links to the TV shows and the films that he mentioned.
00:45:48.521 --> 00:45:56.635
And please, everyone, please go watch My Cousin Vinny for Joe Pesci's scenes of effective courtroom advocacy.
00:45:56.635 --> 00:45:57.715
They're amazing.
00:45:57.715 --> 00:46:10.923
As I mentioned earlier, Mark is the director of our Colorado Deposition Skills and Trial Skills programs, which are being held in late April at the law office of Holland and Hart in downtown Denver.
00:46:10.923 --> 00:46:15.413
I just wanted to give a quick shout out there to Holland and Hart for their hospitality.
00:46:15.413 --> 00:46:31.708
We are so looking forward to assembling this national faculty of sitting and former judges, former federal and local prosecutors, trial lawyers, law school professors, and even a legal communication specialist at these two programs.
00:46:31.708 --> 00:46:34.213
And we've got Mark Caldwell at the helm.
00:46:34.213 --> 00:46:37.800
Link is in the show notes if that sounds right up your alley.
00:46:37.800 --> 00:46:49.349
Come back next month when I will be chatting with Judge Cynthia McCollum of Minnesota's Carver County District Court about how to get jurors to open up to you during jury selection.
00:46:49.349 --> 00:46:58.344
Her observations derive from her experiences before the bench as a public defender and behind it as a district court judge.
00:46:58.344 --> 00:47:00.327
Have a great month, everyone.
00:47:00.327 --> 00:47:06.295
May the Record Reflect is a NEDA Studio 71 production.
00:47:06.295 --> 00:47:09.144
NITA.
00:47:09.144 --> 00:47:13.027
We are advocacy-enhanced, mentorship reimagined.
00:47:13.027 --> 00:47:15.782
Welcome to the community.
