Admitting and Using Exhibits in a “Remote” Trial

[This article is a chapter in the newly-published Remote Advocacy: A Guide to Survive and Thrive, NITA 2020.  The entire book can be found at https://www.nita.org/publications/books-dvds/Remote-Advocacy:-A-Guide-to-Survive-and-Thrive ]   Whether in a live or virtual proceeding, at trial or deposition we need exhibits. Sometimes they are the better or best proof. Sometimes they are the only

Narrative or Story – Know The Difference

I suspect that many if not most lawyers are unaware of “narratology,” defined as “the study of structure in narratives” (https://www.merriam-webster.com/dictionary/narratology, last visited April 5, 2020) or “a humanities discipline dedicated to the study of the logic, principles, and practices of narrative representation…” (https://www.lhn.uni-hamburg.de/node/48.html, last visited April 5, 2020).  Yet a definition that itself uses

CROSS NEED NOT BE CROSS [ANGRY]

In his famous [infamous] TEN COMMANDMENTS OF CROSS-EXAMINATION lecture, the late Irving Younger suggested that the cross-examiner need be “tactful” in cross-examination.  He gives the following example: For example, if a witness for the other side was the defendant’s mother testifying in support of his insanity defense…what are you going to say to the jury

THE MEMORY DISCONNECT

Anyone who thinks about the Law of Evidence knows that there are gaps between cognitive psychology and the rules we try cases by.  Excitement may distort or inhibit perception, but we permit and rely upon excited utterances as statements valued for their sincerity and truth.  The dangers of limiting instructions are clear – they sometimes

DUE PROCESS – OR DO IT OVER

Science in the courtroom must be reliable, and to ensure that we want and expect judges to serve as gatekeepers, examining both reliability and relevance; but we also want and need to protect the right to present a defense.  Two cases illustrate the apparent collision of these demands and the result – two new trials.

SLEEPING JUDGES and TRUTH-TWISTING LAWYERS

Two recent decisions reflect remarkably different values in how trials are conducted – one addressing whether we need judges who are awake and alert, the second whether it is permissible to attack defense counsel in a criminal case as a truth-twisting purveyor of information. Let’s start with the judges.  On November 27, 2019, a unanimous

It’s HOW You Say It

Tremendous time and effort are spent on word choice – drafting the perfect motion in limine, opening statement, and/or closing argument.  However, it may be that the more time spent on how the ideas are delivered will enhance persuasion more than the words used. This is brought home in a new research paper, How The

“Flakey” Experts

How do we assess the expert we consult, the one we hire and proffer, or the expert we will be confronting?  If it is the opposing expert there will be a deposition (in a civil case) and testimony from prior cases as well as intelligence gathering from attorneys in your field who have faced the

“Book Learning” and Being An Expert

We think of experts as those who have studied and then put their knowledge to use – they have hands on experience, be it as the treating psychiatrist, the engineer who has built bridges, or the agricultural agent who has worked with farmers foe decades.  And when selecting an expert for deposition or trial –