NITA has announced its participation in an exchange program that will train Mexican scholars how to teach attorney advocacy skills. Initiated by Southwestern Law School and Tecnológico de Monterrey, the U.S. Agency for International Development (USAID) awarded the project a $300,000 grant as part of the U.S.-Mexico Training, Internships, Exchanges, and Scholarships (TIES) Partnership Initiative.

Partners include Southwestern Law School, Tecnológico de Monterrey, Texas Tech University School of Law, the ABA Section on International Law, and NITA, all of which are contributing various funds or time to the advocacy training partnership that began in September 2006.

“NITA continues to be invited to participate in international efforts to improve the justice system through the development of attorney advocacy skills,” said Terre Rushton, NITA Director of In-House Programs. “The USAID project is important to this mission because the Mexican system is moving from a system of written advocacy to oral advocacy and now attorneys will present evidence, witness testimony, argue, and cross-examine witnesses—skills they have never done before.”

Over the next three years, seven Mexican scholars will come to the United States to participate in the project. The scholars will spend a year of study at Southwestern Law School working toward a Masters Degree (LLM) and translate into Spanish a NITA case file that will be used in other areas of the project. Each summer NITA will provide scholarships to the scholars to attend the NITA National Program followed by a NITA Advocacy Teacher Training program.

Additionally, NITA will send four faculty members to Tecnológico de Monterrey in Monterrey, Mexico, to teach 32 attorneys in a five-day advocacy course each summer. The courses will be taught in Spanish and the NITA case file translated by the scholars will be used. In 2009, NITA will also send four faculty members to conduct a teacher training program, attended by participants of the summer advocacy courses. The goal is to create a base of faculty who can teach advocacy, as well as a system which recognizes the role of advocacy in the court system.

Other project activities include video conferencing classes between Southwestern and Tecnológico, professors from each university visiting the other campus for guest lecture and observation, an Interscholastic Trial Advocacy Competition, externships, and attendance at the ABA International Law Section spring meeting and the Higher Education for Development annual conference.

By Mark C. Mazzarella, Esq., Mazzarella Caldarelli LLP and Wendy Patrick Mazzarella, Esq., Deputy District Attorney – Special to NITA Notes

The old man stooped over the fire as it danced across the faces of a dozen, wide-eyed children, who called him “Grandfather.” Their bodies seemed frozen by the night chill as they leaned forward to catch every word he spoke.

His voice was as firm as the giant oak silhouetted against the night sky behind him as he told the story of the wolf and the boy, just as he had heard it told almost a century earlier by an old man he too called “Grandfather.” To the children, that weathered tree, the old man, and the stories he told had been the center of their world for as long as they could remember.

The wolf’s eyes glowed like hot cinders as he stalked the young boy, who watched spellbound as the silver trout danced with a thin red worm the boy had threaded carefully on his hook just minutes before. The meadow was as still as midnight except for the gurgling of the brook as it squeezed through the gaps in the twigs and grass of the dam a family of beavers built just upstream earlier that spring.

The wolf glided over the short grass as quietly as the wind, his eyes set on the boy with the deadly aim of a great warrior’s arrow. At each step, his leathered paws, guided by the eyes of his ancestors, found the soft grass between the dry leaves and twigs. One step after another, the wolf crept forward until he could hear the young boy’s breath and almost taste his soft flesh. The wolf’s every muscle tensed as he plotted each detail of that one last lunge. Suddenly, all his power was released like the jaws of a trap set free from their clasps, and he exploded in a gray blur. The boy faintly heard the whistle of the wind scraping against the wolf’s thick coat as he shot through the air. As the boy turned his head, he saw only the face of the wolf, eyes blazing, teeth bared. ‘It is my time,’ the boy thought as he closed his eyes. But just then….

Storytelling, it dates back to the time when man first formed communities, and with communities, created memories to be passed from generation to generation, lessons to be taught, and cultures to be preserved. Long before the Brothers Grimm, Aesop, or Moses, tens of thousands of years before history was preserved by the first written word or symbol scratched on a cave wall, there were stories and there were storytellers. Then, as now, the best of them were revered and the worst were…well, boring.

The stories that were remembered and retold around the evening fire for generations were those that painted vivid pictures and touched the listeners in a way that triggered an emotional response from which memories were fashioned. Compelling stories, told by captivating storytellers, that created memorable messages, were preserved, in some cases, for thousands of years.

In the days before the printed word, radio, television, books, and the myriad of other substitutes for the skillful storyteller, those who possessed the ability to breathe life into the words from which they fashioned their stories must have been commonplace, at least when compared to our time. But today, just as the oratory skills of the great lawyers and statesmen of past generations have atrophied from neglect, the art of effective storytelling teeters on the brink of extinction, at least in the courtroom. And yet no skill a trial lawyer can master is more fundamental to successful persuasion than the ability to tell his client’s story—and tell it well.

As lawyers, we are trained to think and communicate facts rationally. Without question, we have the ability to present mountains of information logically and argue its legal implications intelligently. These skills are important, even essential, to great lawyering. But without a sense of what makes a story compelling and memorable and without the desire and ability to incorporate this knowledge into our trial presentations, we are left with the courtroom equivalent of a car with a powerful engine but no transmission.

We have all watched beautifully written, acted, and directed movies that leave even the most detached members of the audience rooting for the good guy and loathing the villain. And we’ve also seen poorly written, acted, and directed movies that produce little, if any, emotional response and leave us struggling to remember even the name of the movie a week later. The hero dies—yawn. The heroine’s longing for the love of her life is never quenched—“Oh really, I didn’t notice.” After what was intended to be a tragedy, there is not a wet eye in the house.

Just how tense would the children have been as the old man told the story of the wolf and the little boy, if the old man told it like a typical lawyer all too frequently delivers a closing argument?

The canis lupus, aka wolf, weighing approximately 128 pounds and standing 24 inches at the shoulders, was proceeding westbound at a distance of 120 feet from the juvenile Homo Sapien, without detection of his movement, possibly due to his education, training, and experience in hunting, with a particular emphasis on hunting little boys.

The juvenile was trying to catch a fish, salvelinus fontinalis, or brook trout, with a ten-foot pole made from Arundinaria, also known as bamboo, with a line woven from the hairs of the tail of a equus caballus, commonly referred to as a pinto pony, and manufactured by defendant, Hook Co….

If you’re honest with yourself, you may reach the same conclusion Mark did about his approach to case presentation when he returned full-time to his law practice after he stretched a six-month sabbatical into a three-year quest to understand better how we absorb and process the information from which we make decisions. His search led him to read more than 30,000 pages of both popular and scientific literature on the subject. He worked closely with a behavioral psychologist and a neuropsychologist and learned as much as he could from marketing experts who understand as well as anyone what motivates us to think and act as we do. Perhaps most importantly, he benefited from the phenomenal experience and insights of Jo-Ellan Dimitrius, the jury consultant of O. J. Simpson, Rodney King, Reginald Denney, McMartin Preschool, Richard Ramirez (the Night Stalker), John DuPont, Scott Peterson, and Enron prosecution fame, who has selected nearly 800 juries and debriefed over 10,000 jurors. Somewhere in the process, Mark had an epiphany; even though it was one that he tried his best to suppress.

Mark did not want to admit that he had any fundamental shortcomings as a trial lawyer, let alone a huge hole at the very core of effective advocacy. And he certainly didn’t want to accept that if he were to become the best trial lawyer possible, given his particular mix of gifts and limitations, he would have to completely rethink how he approached virtually every phase of a case, from his first meeting with the client until final settlement or unappealable judgment. But try as he might, the evidence was so overpowering that he had to, and did, yield to what had become increasingly obvious.

The fact is, after years of believing he had to “think like a lawyer” to be effective, Mark realized he had to quit thinking so much like a lawyer and start thinking like public relations, marketing, media, and advertising professionals. In many respects, he had to start thinking like the preacher whose impassioned sermon can move even the most hardened sinner to repentance.

Since Mark’s “conversion,” he has preached the message to many attorneys that we must quit relying so heavily on our rational brain and pull our emotional brain out of the mothballs where we packed it away in law school. He has found some are willing students, open to new ways of thinking and ready to act upon them. Others, usually those who are most in need of conversion, are skeptical of anything but the linear thinking with which they have become so comfortable and at which they are so adept.

It’s not easy to persuade lawyers to reject their cerebral approach in favor of an abiding respect for the awesome power of the human mind to distort data beyond recognition when necessary to suit our psychological needs. Our ability to do so depends upon our ability to create what those in the “self-help” book business call an “aha moment.” That is the instant when the reader leans back in his chair, raises his eyes in a distant stare, and says to himself, “Yeah!” If light bulbs really lit up above people’s heads, it would be at such “aha moments.”

The “aha moment” that we hope to create is the realization, followed eventually by the acceptance, of the notion that we need to supplement, and hopefully complement, our lawyer-like approach to persuasion with a healthy measure of the techniques that are the bread and butter of every other profession that relies on its ability to influence others’ opinions and actions. And where can we lawyers look for guidance? The answer should appeal to the most linear thinking thinkers among us. We should look to those professions that have spent the most money studying the art of communication and persuasion—the news media and the ad industry.

The news media has spent a fortune to learn how their six o’clock news can capture our interest. A larger audience for their nightly news drives up the ratings not just for the news; it also increases ratings for their programming during the balance of the evening, since it seems many of us are too lazy to change channels.

Billions more have been spent by marketers, who constantly search for new and better ways to persuade us to buy their particular brand when we are in need of such a product and even to motivate us to buy products that we don’t need in the first place. What conclusions have they reached after this enormous investment of time and money? And as lawyers, what can we learn from their experience? If we are open-minded, we will learn the critical importance of communicating emotional brain to emotional brain, and we can learn how to do it and how not to.

Have you seen any beer commercials lately? Beautiful young people, sunny beaches, and smiling faces fill the screen. We make the association between the brand of beer on the TV and the desirable people and activities depicted in the ad. That makes us want a beer, and that beer in particular, so we too can enjoy the experience. This process is not driven by any information intended for our rational brain. In fact, the process is entirely irrational.

How much of a 60-second beer commercial communicates details about the grade of hops or the scientific brewing techniques the company uses? And if you watch the typical advertisement for an automobile, clothing, or virtually any other product, you will find that the marketing approach seldom changes.

Yet, if advertisements were produced by lawyers using the same approach most lawyers favor for closing arguments, instead of seeking emotional responses that will overcome the listener’s rational brain, the opposite would be true. The lawyers’ 60-second advertisement for a pickup truck would not show a shiny new 4x4 winding its way along a beautiful, heavily forested mountain road or perched atop a bluff above the ocean. No, a lawyer would describe in excruciating detail the truck’s wheelbase, curb weight, towing capacity, and every other statistic that could be crammed into the allotted time. Then a lawyer would conclude with a summary of all of the logical reasons we should buy the truck. And you know what? The ad wouldn’t sell many trucks, because as marketers say, “People buy with emotion and justify with facts,” not the other way around. Or as Herman Wheeler wrote 65 years ago, “You don’t sell the steak, you sell the sizzle.” We lawyers are great at selling the steak; but we make little effort to sell the sizzle.

Watch the evening news and you’ll learn a lot about selling sizzle, even in an information-laden context. We have become a visual society. We are bombarded by multimedia presentations. The news anchor no longer sits at a desk in the newsroom against a backdrop of nothing more than a blank screen and the network logo. Today little time passes between an almost constant stream of photographic images, whether still or video, that dominates the screen, while we are further entertained by a variety of audio stimuli. Information about the latest conflict could be conveyed verbally by the news anchor from the TV studio, but instead, it is beamed to us via satellite from as close to the war zone as possible. We can hear the thunder of bombs exploding in the background and see the flash of gunfire. We are addicted to constant entertaining sensual stimulation. Anything less leaves us as satisfied as a hardcore coffee drinker who is served up a lukewarm cup of decaf at breakfast.

Everyone wants to be entertained. Few truly want to be challenged intellectually. Jurors do not enter a courtroom obsessed with every detail of your case. They are curious. And even after spending countless, boring hours in the jury lounge reading out-of-date magazines, filling out crossword puzzles or trying their best to keep things moving at the office via cell phone, they want to do the right thing. Most jurors take their job very seriously. They are generally intelligent and often have considerably more common sense than the lawyers who appear before them. But even so, like everyone else, they want to be stimulated and like it best when they are entertained. And, they don’t want to have to work any harder than necessary to understand your case. If we don’t deliver what they want and expect, we create an unnecessary challenge for ourselves. But if we do deliver, we gain the advantage. What is difficult to understand is why we lawyers, with all our education and intellect, cannot, or will not, understand and act upon such a simple concept.

Hopefully, we have made a few converts already, and the rest of you are at least curious about how to communicate emotional brain to emotional brain as you present your case. In our next issue, we will discuss the techniques the best storytellers use to tell an emotionally compelling and memorable story. The approach is, as we lawyers would say, “As devoid of difficulty, as easy as dropping vertically from an arboreal protuberance.” Or as everyone else would say, “As easy as falling off a log.”

ABOUT THE AUTHORS:

Mark C. Mazzarella is senior partner of the San Diego Law firm of Mazzarella Caldarelli, LLP. He specializes in complex business litigation, and is also a trial consultant. Over the past six years, he has been asked to showcase his advocacy skills during the mock trial presentations at the annual trial symposia of the Litigation Section of the California State Bar and the American Business Trial Lawyers Association more than any other attorney in California.

Wendy Patrick Mazzarella is a San Diego County Deputy District Attorney assigned to the Family Protection Division. Ms. Mazzarella has her own ethics column in the San Diego Daily Transcript, and has been published in a variety of legal publications both in California and nationwide. She is the Chair of the San Diego County Bar Association Ethics Committee and lectures on ethics on a regular basis both locally, and around the United States.

Share Your News

If you or one of your peers would like to be included in the Hearsay section of NITA Notes, please e-mail us at marketing@nita.org to let us know about your awards, settlements, verdicts, position change, or other accomplishments.

Children are often the ignored or forgotten party in many legal actions. Those who represent the interests of children in matters of dependency and neglect or delinquency all too often are underpaid, have limited resources, and burdened with huge case loads. Even though they are our most precious resource, children are often the ones most abused by the legal system. NITA believes it is imperative to ensure the quality of representation of those handling matters involving children.

Each year NITA coordinates five child advocacy courses including Training the Lawyer to Represent the Whole Child and Rocky Mountain Training Institute: Child Advocacy. These programs focus on legal actions such as juvenile delinquency, dependency and neglect. Some courses are offered with the cooperation of important child advocacy organizations, such as the National Association of Counsel for Children. Because child advocacy programs fall under NITA’s public outreach umbrella these courses are offered at a substantially reduced rate. Additionally, NITA offers scholarships for those that need financial assistance to attend.

NITA offers several case files and texts that focus on children’s advocacy issues, many of which are used in these courses. Participants work through the case files with the assistance of the instructors (the instructors range from child experts, psychologists, social workers, and experienced trial lawyers and judges who work in the child advocacy area) to create solutions to most effectively work to achieve the best interests of the child.

For more information on NITA’s child advocacy programs, see The Docket.

NITA’s South Bend warehouse has officially closed, and all NITA products have moved to a new location in Oregon, Illinois. Kable Product Services is now shipping all publication orders to our customers. We at NITA appreciate the hard work of the South Bend staff and also appreciate the patience of our customers during the move. For information on our new return process, visit our Web site, www.nita.org/returnpolicy.

New design. New publications. New program calendar. The 2007 NITA Catalog should have arrived in your mailbox last week. Take the time to peruse The Catalog because in it you will find:

• Calendar listing of NITA programs through September 2007
• Detailed information on every program including price, location, program director, and CLE credits
• A listing of all 2006 NITA faculty
• Specifics on NITA designations
• Descriptions of all new, forthcoming, and longtime classic NITA publications
• Information on registering for NITA programs and ordering NITA products

If you didn’t receive The Catalog, please e-mail marketing@nita.org to request your copy.

Dear NITA,

I took the NITA Trial Advocacy Program this past August 2006 at Hofstra Law School in New York. It was a tough and demanding program. I entered the program with no prior trial experience. My actual litigation experience “out in the field” consisted of depositions, arbitration hearings, court conferences, and oral argument on motions. (I had previously taken the NITA program on depositions; it made a big difference in taking and defending depositions.)

Well, I recently had my first trial. In theory, an experienced, senior trial attorney (“ESTA”) is supposed to work with us when we start doing trial work. This means reviewing the file with you, your arguments and possible counter-arguments; coming to court each day; reviewing what happened; helping you set yourself and your client up for the next day; offering suggestions at the breaks; being a sounding board for your opening and closing, direct, and cross-examinations. After the charge conference was held, we opened. I am defense counsel. On this case, there was a first-named co-defendant who boasted all throughout jury selection about his extensive experience. The plaintiff’s attorney was only slightly more modest. Me? I told the judge that this was my first trial and I would do my best not to screw up. I looked forward to seeing experienced attorneys in action and the support of the “ESTA”.

I had the help of the “ESTA” only for the first day, when we opened. He was called away by the office to handle a trial emergency elsewhere. Making a long story short, I relied on my NITA notes and handbook while doing my trial preparation and throughout the trial, along with a few late night phone calls to my colleagues back in the office.

I was in a state of terror at the start of the trial, but as it went on, I found myself silently critiquing my adversaries, thinking—they could never get away with that at NITA City! There are two highlights that I will mention. The first, the plaintiff tried to get a request to charge for several issues that were never established at trial by any witness (the charge for a lost wage claim, the charge for time missed from work—both would have added a lot of weight to his damages). He did not succeed.

The second highlight was our summations. I did my closing guided by bullet points on one sheet of paper (down from four pages of legal sized yellow paper in tiny writing) without looking at that one sheet of paper. I remembered having my yellow pad at the podium taken away at the NITA program—no barriers between you and the jurors. I learned my lesson: keep it short, cover the points you want to make, pull together the evidence that supports your position in a logical fashion, thank the jurors, shut up, and sit down. Plaintiff and Co-Defendant relied on multiple yellow legal pads and Post-its throughout their closings. They lost the jury right from the beginning—they talked at the jurors, not to the jurors. They rambled on and on, picking up exhibits, then looking at the exhibits as if to say “why did I pick this up,” putting the exhibit down without making any statements about them or connecting the exhibits to their closings. I was watching the jurors; they were watching the clock.

I am so fortunate that I had my NITA training to fall back on. It got me through my first trial. As this was in New York State Supreme Court and not Federal, objections are different. I have a ways to go to be comfortable knowing when to object. Just as in the NITA program, our Judge would call us up and ask, “What is the basis for the objection?” I was surprised to hear that most of the time the attorneys didn’t know why they objected.

Everyone in my office thought that my client would be held 100% responsible for this accident. The jury came back with a verdict of 90% liability on the co-defendant, only 10% on my client. I used the NITA texts and notes on how to prepare the client and this added to his credibility. He really benefited from the time I took with him pre-trial. He was forewarned that cross-examination could get aggressive and not to rise to it, to stay calm, speak calmly, be careful about his answers, know what he said in his deposition, and control the pace by speaking carefully—not to be rushed into giving an answer. He was a terrific witness.

So, a big “thank you” to NITA, to everyone who worked on the Trial Advocacy program this summer, to the honest and direct feedback from all the attorneys and judges, to the hands-on approach to learning by doing.

I am already checking the schedule for the NITA program on Expert Witnesses, waiting for it to come to the New York area.

Kind regards,

Margaret G. Blascetta, Esq.
Kay & Gray
GEICO Staff Counsel

Each month NITA Notes will feature a NITA faculty member, who will provide readers with tips to make their law practice a Best Practice. This month’s featured scholar is courtroom communication consultant, Marsha Hunter.

Advocacy as a Motor Skill

Have you ever thought of advocacy as a motor skill? Coordinating your body with your brain and your voice is crucial to effective courtroom communication. Understanding how your body serves you—or doesn’t serve you—is the foundation of great advocacy.

Stance is the literal foundation of good speaking. Finding a comfortable stance is your first order of business. Stand with your feet about shoulder-width apart, distribute your weight evenly on both feet, and don’t lock your knees.

A common problem among speakers is a tendency to fall into “natural” patterns of physical stance. If you were hanging around in my kitchen while I made dinner, you could lean on the counter and stand with your legs casually crossed while we enjoyed a friendly conversation. That same casual stance is not appropriate for the “unnatural” setting of a courtroom. This stance is too informal and compromises your balance. I recently watched a lawyer give an opening, the whole time balancing on one foot. He resembled a well-spoken flamingo. I suspect he frequently stands on one foot in informal settings, and his body simply defaulted to a “natural” stance. Avoid the flamingo pose, or any of its idiosyncratic variations, by consciously finding a balanced stance before you begin to speak. Then, stand still, moving only with a specific purpose when you change topics or tactics.

Next, think about your breathing. As you read this, take a few long, deep breaths. A proper breath comes from the bottom of your lungs, making your rib cage expand outward in all directions. Deep, deliberate breathing regulates your excited heartbeat at the beginning of a presentation, provides oxygen to your brain so you can think more clearly, and powers your voice. Whenever you are anxious about any situation, taking a few moments to breathe consciously will help calm you and organize your thoughts. Several minutes before you stand up to speak, regulate your breathing. As you stand to speak, keep taking deep, relaxed breaths.

You need a good stance and control of your breath because adrenaline will flood your body as you stand to begin speaking. Consider this: when an actor makes her first entrance onstage, she must cope with a rush of adrenaline equal to the amount she might experience in a major automobile accident. Addressing a judge and jury produces no less adrenaline. Understanding and channeling it is one of the most useful things you can do.

Learn to anticipate adrenaline’s effects, both good and bad. Adrenaline is a hormone that provokes the “fight or flight” instinct in humans. It makes your legs and hands tremble, gives you “dry mouth,” and increases your heart rate. Your response to adrenaline is a natural physical response not a personal shortcoming.

Adrenaline’s upside: the infusion you experience at the beginning of any presentation will subside, your legs and hands will stop trembling, and your breathing will return to normal, all within about five minutes of beginning to speak. Adrenaline slows our perception of time, so we feel we have extra seconds to think. Adrenaline can be exhilarating, fueling your energy, enthusiasm, and passion for your client’s case.

Lawyers frequently ask me, “What do I do with my hands?” The answer? The same thing you would do when hanging around in my kitchen: use your own natural gestures.

Everybody gestures. Gesturing is natural and hard-wired into our brains. Research at the University of Chicago has shown that blind children gesture when speaking to one another. If blind kids gesture when speaking to each other, then speaking and gesturing must be innately linked in our brains.

There are prototypical human gestures. Effective “natural” gestures are larger in size and last longer in time. Long, large, smooth gestures project confidence. Most comfortable, effective gestures take place in a “zone of gesturing” about five feet across, located between your waist and your chin. Experiment to find your own natural zone.

Nervous gestures, on the other hand, are tentative, clipped, unfinished. The zone of gesturing shrinks with nerves, and doesn’t provide the expansive space needed for effective communication. Nervous gestures convey a speaker’s discomfort. Practice big, smooth gestures as you prepare for your next trial.

Find your stance, breathe deeply, and channel your adrenaline. Gesture immediately. Get your gestures flowing right from your first words. Then move on to the intellectual challenge of persuasion.

Marsha Hunter teaches The Articulate Advocate at the National Education Center with Brian K. Johnson. Partners in Johnson & Hunter, Inc. they have taught at the NITA National trial skills session in Colorado for many years.