Law Tips: Experts and the Ethics of Scientific Evidence from Judge Chezem

Scientific evidence is an expanding and challenging field. The popularity of ICLEF’s recent seminar entitled Admissibility of Scientific Evidence and Expert Testimony points directly to the value of lawyers keeping abreast of this topic. Are you aware of the ethical pitfalls lurking on the path of scientific evidence? Fortunately, our Law Tips blog readers have this opportunity to hear from Hon. Linda Chezem on the duties of the attorney in using scientific evidence. I am privileged to present her counsel for you:

The ethical duties of the attorney in the use of scientific evidence are beyond the obvious duties that apply to any evidence proffered by the attorney. The complexity of science and the general lack of science informed lawyers, judges and juries suggest that the lawyer has to consider how to choose an expert for something more than “junk science”. Assuming the science and the expert who will present the science applicable to the case at hand meet the rules of evidence and the expert’s testimony is admitted into evidence, the hard part lies ahead.

The real challenge is facilitation of the comprehension and application of the testimony favorable to the case. How should the lawyer devise adequate communication strategies so that the science is understandable yet reliable and honest? So what is the attorney’s duty? In a Note titled “Lawyer Competence and Neglect” published in 1991, Laura A. Naide states, “The concern of the legal profession regarding the issues of lawyer neglect and incompetence has grown dramatically in recent years.” Ms. Naide continues, explaining that “The issues of neglect and incompetence are closely inter-related. An incompetent attorney is likely to neglect legal matters because of feelings of inadequacy and anxiety. Courts are more likely to sanction an attorney for neglect than incompetence, however, because incompetence is extremely difficult to prove.” (Naide,L., 5 Geo. J. Legal Ethics 191 1991-1992)

An equal factor in the reluctance to characterize the lack of lawyerly or judicial scientific knowledge as incompetence is that- after all these years- some lawyers remain uncomfortable with science and with Daubert, Joiner, Kumho and the federal and state Rules of Evidence. The forests of trees sacrificed and the billions of little electrons inconvenienced by the academic and lawyerly attempts to explain the requirements for scientific evidence support likelihood of a science fear factor. One explanation for a clear reluctance to openly hold lawyers and judges accountable to understand scientific evidence they use to present to or to decide cases is that some lawyers may see themselves at risk.

The Model Rules and the Indiana Rules of Professional Conduct contain the same language in this section. Rule 1.1 Competence: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Arguably, the phrase “thoroughness and preparation reasonably necessary for the representation” includes the study and effort required to thoroughly understand the scientific issues in the case and the proper vetting of the experts. Not that there are many cases out there that address science testimony as a competency issue, however, a portent may be found in California. A proposed opinion from the California State Bar’s Standing Committee on Professional Responsibility and Conduct states that a lawyer engaged in litigation in which e-discovery is sought has an ethical duty of competence for e-discovery. The California Sate Bar would hold the lawyer responsible to recognize and take appropriate action to protect clients in e-discovery. If the e-discovery challenges presented exceed the lawyer’s current command of e-discovery issues, the lawyer must take one of three courses:

  • Take steps to acquire the necessary skills;
  • Retain technical consultants to provide the required skill set; or
  • Decline the representation.

Could this proposed opinion on the competence and use of e-discovery by a small stretch supply a rationale for competence with science evidence?
Judge Nancy Gertner, a former federal district court judge in Massachusetts, expressed her concern regarding The National Academy of Sciences’ call for change in forensic sciences in a law review commentary. “I am concerned that suggestions that focus on changes within the field of forensic science itself, rather than changes in the larger judicial and adversarial culture in which forensic science operates, are doomed to failure. It is unquestionably important to encourage the creation of a research culture – upgrading forensic science journals, developing scientific standards to guide casework, improving access to data, etc. – as the article does, but I do not believe that these efforts can succeed without parallel changes in courts and in advocacy.” (UCLA Law Review at http://www.uclalawreview.org/pdf/58-3-S.pdf)

Judge Gertner entered an order that was intended to require lawyers and judges to more carefully consider the admission of expert testimony. As she addressed the proper consideration of scientific testimony she stated: “The NAS report suggests a different calculus– that admissibility of such evidence ought not to be presumed; that it has to be carefully examined in each case, and tested in the light of the NAS concerns, the concerns of Daubert/Kumho case law, and Rule 702 of the Federal Rules of Evidence.” (Full order below.)

The real concern is not that the record is devoid of judicial disapproval or concern about the competent use and presentation of scientific evidence; it is that that client pays the costs of bad science in the courts. The many errors found by the Innocence Project in criminal cases call attention to the science testimony failures. Sometime the order on the post-conviction relief will note the ineffective assistance of counsel in the use of the testimony. Usually, there is no disciplinary sanction for incompetence or at least the sanction is couched in terms other than in competent presentation or rebuttal of scientific evidence. There is no comparable Innocence Project, a true facts type project for civil cases. Once the civil case is done, the practical likelihood of any remedy for the client is none.

The solution is not more lawyer discipline but recognition of the need for lawyers and judges to remedy their science aversions. Instead of catching a horse of scientific injustice, the legal profession should not get out of the barn. Science and the need for rules of evidence have come a long way since Frye.

Thank you for stopping in at Law Tips. Let us know if there are any topics, or specific faculty, you would like to see included in the future. I want to express appreciation to Judge Chezem for bringing her valuable knowledge on the ethics of scientific evidence to our readers. The training she provides as a member of the faculty for ICLEF’s Admissibility of Scientific Evidence and Expert Testimony covers additional relevant topics, such as, choosing an expert witness and preparing the expert report. This seminar is available at your convenience as an On Demand Seminar, Click Here. Setup your personal viewing as your calendar allows. It only takes a few clicks.

_________________________________________________________________________________

FULL ORDER:

ICLEF presentation by Hon. Linda Chezem, The Duty of the Attorney in Using Scientific Evidence:
Order issued by Judge Nancy Gertner, a former federal district court judge in Massachusetts:

Case 1: 08-cr-1 01 04-NG Document 45 Filed 03/10/2010 Page 1 of 3
Case 1: 08-cr-10104-NG Document 45 Filed 03/10/2010 Page 2 of 3

…of the processes used in the forensic science disciplines are … not based on a body of knowledge that recognizes the underlying limitations of the scientific principles and methodologies for problem solving and discovery …. [S]ome of these activities [encompassed by the term "forensic science"] might not have a well developed research base, are not informed by scientific Knowledge, or are not developed within the culture of science.

NRC 2009- 1-3

While the report does not speak to admissibility or inadmissibility in a given case, it raised profound questions that need to be carefully examined in every case prior to trial: “1) the extent to which a particular forensic discipline is founded on a reliable scientific methodology that gives it the capacity to accurately analyze evidence and report findings and (2) the extent to which practitioners in a particular forensic discipline rely on human interpretation that could be tainted by error, the threat ofbias, or the absence of sound operational procedures and robust performance standards.” NRC 2009 S-7.

The Report noted that these fundamental questions have not been “satisfactorily dealt with in judicial decisions pertaining to the admissibility” of evidence. Id. To be sure, the court’s treatment of this evidence relates directly to the adequacy of counsel’s treatment. See, e.g.

Sturgeon v. Quarterman, 615 F. Supp. 2d 546, 572-573 (S.D. Tex. 2009) (defense counsel’s failure to prepare a witness to testify about the unreliability of eyewitness identifications prevented defendant from presenting testimony that would have called into question the only direct evidence against him and was ineffective assistance of counsel warranting habeas relief); Richter v. Hickman, 578 F.3d 944, 946-947 (9th Cir. Cal. 2009) (en bane) (defense counsel’s failure to conduct an adequate forensic investigation with respect to blood spatter, serology, and pathology comprised ineffective assistance of counsel warranting habeas relief). See also United States v. Pena, 586 F. 3d 105 (1st Cir. 2009 affirmed) the court’s decision not to hold a Daubert hearing on fingerprint testimony where counsel offered no expert or evidence. Affirmed.

In the past, the admissibility of this kind of evidence was effectively presumed, largely because of its pedigree– the fact that it had been admitted for decades. As such, counsel rarely challenged it, and if it were challenged, it was rarely excluded or limited. But see United States v. Hines, 55 F. Supp. 2d 62 (D. Mass. 1999) and United States v. Green, 405 F. Supp. 2D 104 (D. Mass. 2005) .

The NAS report suggests a different calculus — that admissibility of such evidence ought not to be presumed; that it has to be carefully examined in each case, and tested in the light of the NAS concerns, the concerns of Daubert/Kumho case law, and Rule 702 of the Federal Rules of Evidence. This order is entered to accomplish that end.

SO ORDERED.

Date: March 8, 2010

NANCY GERTNER, U.S.D.C.

_________________________________________________________________________________

About our Law Tips faculty participant:
Hon. Linda L. Chezem is a Professor and Adjunct Professor with Purdue University and Indiana University School of Medicine as well as a former Indiana Appellate Court Judge. She resides in Mooresville, IN. Judge Chezem provides a glimpse at her background: For example, I served as the judicial scholar in residence to the Arizona Supreme Court working in the Judicial Education Division for a semester. Much of my work has been to provide education about underage drinking and impaired driving. The impaired driving assessments (for 15 states) that I chaired are an evaluative mechanism that has been consistently supported by the National Highway Traffic Safety Administration (NHTSA). I surveyed judges and prosecutors to determine their continuing education needs and responses to science content in their education and piloted educational materials with success. I also teach law students, graduate students and lawyers about ethical and legal issues in alcohol research. As a result of an appointment to the Indiana Toxicology Advisory Board, I created a Forensic Science Ethics Class.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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TASC – Trial Advocacy Skills College – Mar. 19-22

THE PROGRAM: TRIAL CAMP
Lawyers who attend this powerful training develop trial skills by practicing under the guidance of some of Indiana`s most experienced lawyers and judges in a simulated, friendly courtroom environment. This program is designed to develop the basic trial advocacy skills for lawyers with limited litigation experience while providing experienced trial lawyers an opportunity to sharpen their skills. The teaching method also uses faculty demonstrations and videotaped critique of each participant`s performance. Participants will need to spend time reviewing the fact pattern and working the case information that is used daily. Both faculty and participants will prepare as they would for trial. To Register for the 2015 TASC, Click Here.

THE EXPERIENCE OF TASC:
While much work is required, the atmosphere is most enjoyable and provides the perfect setting for learning trial skills. Attendees will be introduced to a mix of hands-on, learn-by-doing exercises and lectures to improve trial advocacy in the areas of:

Case Analysis & Communication Skills
 Jury Selection
Opening Statements
Direct & Cross Examination
Examining Expert Witnesses
Evidence
Exhibits & Demonstrative Evidence
Impeachment & Rehabilitation
Closing Arguments
Professional Responsibility (Ethics)

LOCATION & DATE:
March 19-22, 2015 - 28 CLE / 3 E
Live In-Person Only! Robert H. McKinney School of Law, Indianapolis, IN 46202

SCHEDULE:
Thursday, March 19, 2015
7:30 A.M.    Registration in Lobby
8:00 A.M.   Orientation
8:30 A.M.   Skills: Case Analysis, Theme Development, Voir Dire & Opening Statements
5:30 P.M.   Adjourn Day 1

Friday, March 20, 2015
8:30 A.M.   Skills: Introduce Evidence, Direct & Cross Examinations
5:15 P.M.    Adjourn Day 2

Saturday, March 21, 2015
8:30 A.M.    Skills: Direct & Cross Expert Witnesses
5:00 P.M.    Adjourn Day 3

Sunday, March 22, 2015
8:30 A.M.   Skills: Finish Direct & Cross, Refresh Recollection & Impeachment, Final Argument
4:30 P.M.   Program Concludes

FACULTY:
TASC PROGRAM DIRECTORS:

  • Hon. Melissa S. May, Indiana Court of Appeals, Indianapolis, IN
  • F. Anthony Paganelli, Paganelli Law Group, Indianapolis, IN
  • Patrick A. Shoulders, Partner, Ziemer, Stayman, Weitzel & Shoulders, LLP, Evansville, IN

TASC FACULTY MEMBERS:

  • Hon. Robert R. Altice, Jr., Marion Superior Court, Civil 5, Indianapolis, IN
  • Hon. Elaine B. Brown, Indiana Court of Appeals, Indianapolis, IN
  • Hon. David E. Cook, Judge Pro Tem, Marion Superior Court, Criminal Division, Gresk & Singleton, LLP, Indianapolis, IN
  • Hon. Jane S. Craney, Morgan Superior Court #3, Martinsville, IN
  • Hon. Frances C. Gull, Allen Superior Court, Felony Division, Fort Wayne, IN
  • Hon. Grant W. Hawkins, Marion Superior Court, Criminal 5, Indianapolis, IN
  • Hon. Richard L. Young, U.S. District Court, Southern District of Indiana, Evansville, IN
  • James H. Austen, Starr Austen & Miller, LLP, Logansport, IN
  • Michael P. Bishop, Cohen Garelick & Glazier, Indianapolis, IN
  • Stephanie L. Cassman, Lewis Wagner, LLP, Indianapolis, IN
  • Robert B. Clemens, Bose McKinney & Evans LLP, Hilton Head Island, SC
  • Robert R. Cline, Chief Deputy Prosecutor, Morgan County Prosecutor’s Office, Martinsville, IN
  • Jessie A. Cook, Law Office of Jessie A. Cook, Terre Haute, IN
  • Lynnette Gray, Johnson & Gray, Franklin, IN
  • Betsy K. Greene, Greene & Schultz Trial Lawyers, Bloomington, IN
  • John F. Kautzman, Ruckelshaus, Kautzman, Blackwell, Bemis & Hasbrook, Indianapolis, IN
  • William H. Kelley, Kelley & Belcher, Bloomington, IN
  • Larry A. Landis, Indiana Public Defender Council, Indianapolis, IN
  • Kathy A. Lee, Cline Farrell Christie & Lee P.C., Indianapolis, IN
  • Mark A. Metzger, Metzger Rosta LLP, Noblesville, IN
  • Tammy J. Meyer, Attorney At Law, Indianapolis, IN
  • Richard T. Mullineaux, Kightlinger & Gray, LLP, New Albany, IN
  • Susan W. Rempert, Attorney At Law, Danville, IN
  • Mark W. Rutherford, Thrasher Buschmann & Voelkel, P.C., Indianapolis, IN
  • Richard K. Shoultz, Lewis Wagner, LLP, Indianapolis, IN
  • Ralph W. Staples, Jr., Law Offices of Ralph W. Staples, Jr., LTD, Indianapolis, IN
  • Teresa L. Todd, Attorney At Law, Indianapolis, IN
  • Robert F. Wagner, Lewis Wagner, LLP, Indianapolis, IN
  • L. Alan (Skip) Whaley, Ice Miller LLP, Indianapolis, IN

TASC EXPERT WITNESSES:

  • Dr. Ralph M. Buschbacher, MD, I.U. Physical Medicine & Rehabilitation, Carmel, IN
  • Dr. Van Evanoff, Jr., MD, Brownsburg, IN
  • William E. Dickinson, Wolf Technical Services, Inc., Indianapolis, IN
  • Stuart B. Nightenhelser, Wolf Technical Services, Inc., Indianapolis, IN
  • Allison I. Tharp, Wolf Technical Services, Inc., Indianapolis, IN
  • Zach Wagner, Wolf Technical Services, Inc., Indianapolis, IN

TASC SCHOLARSHIP:
We are pleased to announce that a limited number of partial scholarships are available for attorneys with a financial hardship. Financial support is provided through the generosity of the ICLEF Scholarship Fund, the American Board of Trial Advocates and Ms. Jessie A. Cook. Scholarships are awarded based on financial need, and some preference is given to lawyers with zero to five years experience.

WHAT PEOPLE ARE SAYING!
“This was by far the best seminar I have ever attended! The entire program was excellent. Everything was effective.”

“I don’t know that it could have gotten any better.PRICELESS EXPERIENCE!”

“Thanks for changing my life.”

“Course was excellent & the standards are high! Most HIGHLY recommend this course!”

To Register for the 2015 TASC, Click Here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN 

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Law Tips: A Professional’s Advice on Clarity, Compassion & Confidence in the Courtroom, Part 3: Great Speeches

“In addition to learning from the great legal orators, there is much to be learned from great speeches in art, politics, and business. They share many common qualities that lawyers should adopt as they develop their storytelling and engagement skills.”

It’s a pleasure to continue our Law Tips series offering words of wisdom from David Mann on the skills of storytelling for litigators. If you missed his persuasion and/or voice tips, you will want to keep paging down for those two previous blogs below. As we wind up this festival of communication, here are some illustrative examples of good speech techniques with comments from our storytelling coach:

Great Speeches

Mastery of Images. All the great speakers rely heavily on images to convey their ideas. Martin Luther King inspired generations of followers through his images of freedom, not his data on injustice. A picture truly is worth a thousand words, and remember that pictures can be painted with words too. Use images as often as facts to make a lasting impression through metaphors, analogies, and images of the future.

Mastery of Moment. Great speeches are memorable over time because of how well they exist in the present moment. When Marc Antony addresses the hostile romans in Julius Caesar, he cleverly uses a simple repetitive device to persuade them to his point of view. When President Reagan addressed the nation after the shuttle disaster, he made the moment his own through a very personal appeal.

Mastery of Style. Skilled orators know that the sound is every bit as important as the words. So they consciously use parallelism, antithesis, anaphora, and many other rhetorical devices to “package” their ideas in a way that makes far more impact that the raw idea alone ever could. President Kennedy didn’t deliver a long lecture on civil service; instead he uttered the far more potent phrase, “Ask not what your country can do for you – ask what you can do for your country.”

When President Obama was campaigning, he often roused audiences with a series of questions that all ended with “Yes we can.” These devices work, and all lawyers should master them if they want to be persuasive with a jury.

Rhetoric in Great Speeches

Ronald Reagan, Shuttle Disaster Speech, 1986 (excerpts)

As eulogist and fellow mourner:

Ladies and Gentlemen, I’d planned to speak to you tonight to report on the state of the Union, but the events of earlier today have led me to change those plans. Today is a day for mourning and remembering. Nancy and I are pained to the core by the tragedy of the shuttle Challenger. We know we share this mourner pain with all of the people of our country. This is truly a national loss.

As representative of America’s feelings

For the families of the seven, we cannot bear, as you do, the full impact of this tragedy. But we feel the loss, and we’re thinking about you so very much. Your loved ones were daring and brave, and they had that special grace, that special spirit that says, “Give me a challenge, and I’ll meet it with joy.” They had a hunger to explore the universe and discover its truths. They wished to serve, and they did. They served all of us.

As a wise, caring father

And I want to say something to the schoolchildren of America who were watching the live coverage of the shuttle’s take-off. I know it’s hard to understand, but sometimes painful things like this happen. It’s all part of the process of exploration and discovery. It’s all part of taking a chance and expanding man’s horizons. The future doesn’t belong to the fainthearted; it belongs to the brave. The Challenger crew was pulling us into the future, and we’ll continue to follow them.

Rhetoric of the rule of three, metaphor and antithesis in Shakespeare’s writing of Marc Antony’s funeral oration for Julius Caesar:

Friends, Romans, countrymen, lend me your ears;

I come to bury Caesar, not to praise him.

The evil that men do lives after them;

The good is oft interred with their bones;

Where better to end this Law Tips series than with Shakespeare! I have enjoyed learning about storytelling from David Mann and appreciate his contributions to the Law Tips blog. His advice on communicating with clarity, compassion and confidence can serve us all well.

There is an opportunity for you to earn CLE credits through Mr. Mann’s ICLEF training.  Enroll for our On Demand online presentation of the Advanced Skills of Storytelling and Persuasion for Litigators seminar through our website by Clicking Here.

_________________________________________________________________________________

About our Law Tips faculty participant:
David Mann is a speaker, trainer, and professional actor/director. He has a specialized focus on persuasive presentation for lawyers, and he is on the faculty of NITA (National Institute for Trial Advocacy) and Loyola School of Law.  A professional theater artist for over two decades, David has performed or directed for many recognized theatre companies.  He has written and performed five critically acclaimed one-man shows, and he is a recipient of a Bush Artist Fellowship for Storytelling.  David is a graduate of Northwestern University, and the London Academy of Music and Dramatic Art.  If you have questions for David or would like to inquire about his coaching, contact him at david@davidcmann.com. For speaking engagements go to the Professional Education Group at proedgroup.com.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: A Professional’s Advice on Clarity, Compassion & Confidence in the Courtroom, Part 2: Managing Your Voice

Juries listen to ideas, not individual words…The human connection happens between the words, so respect that with your phrasing…

I’m pleased to have David Mann, our storytelling for litigators coach, returning to Law Tips with more advice on the three principles of persuasive power: clarity, compassion and confidence. If you’d like to reread last week’s tips on effective communication with the jury, you’ll find that article at the bottom of this page.

During Mr. Mann’s training he advises: “There are many areas where a lawyer’s persuasive power will increase by managing the two tools of rhetorical delivery: voice and body.” Could you use a brush up on vocal communication? David offers these pointers:

Voice is the actor’s primary expressive tool. Study of vocal technique for actors can take many years, but the three essential ingredients are very simple:

  • TONE- the pitch and emotional quality of the voice
  • PACE- the rate of speech and the use of silence
  • VOLUME- the energy of the voice

Use natural phrasing. Juries listen to ideas, not individual words. So make sure to speak in clusters of thought and place your pauses naturally between the ideas. Pauses can be used for effect, but only very sparingly. People catch on to that technique quickly and can become numb to it. The jury needs to get the sense that you are communicating a series of concepts that add up to a story. Unnatural phrasing can have a negative impact, cause confusion, and cost you valuable relationship currency with the jury.

Emphasize antithesis. Facts, of course, become much clearer when contrasted with opposing facts. Simply stating that contrast isn’t enough, however- it has to be emphasized with your voice. In order to make a lasting impression on the jury, it’s important to paint the picture with your inflection: “right” and “wrong” must sound different. “Mrs. Smith” and “that corporation” must have two distinct inflections that communicate your subtext.

Slow down and let the words live.The human connection happens between the words, so respect that with your phrasing. When used sparingly, pauses can be a chance to build a sense of trust between you and the jury. Speaking slowly and confidently gives the jury a chance to process what you’re saying as you say it. Of course there’s a limit- speaking too slow isn’t good either. So think of your rate of speech in walking terms as a stroll- not a jog and not a crawl. Maintain energy to end of line.

Question like you mean it.Very easy to forget, especially after rehearsing for a long time. Questions (especially questions you already know the answer to) can become rote and disengaged. But remembering to question in an interested tone can make an enormous difference in the answer. Witnesses need to be encouraged to elaborate (if that’s what you want), so question like you truly care about the answer. It can create a conversation out of what would otherwise be an interrogation.

Eliminate verbal filler. Cluttering your speech with “OK, and … “ or “you know” or “like” or a lot of “um, ah, er” will only make it look like you don’t trust yourself, which makes it virtually impossible for the jury to trust you. This is why it’s vital that you know your words cold and practice your material. By the time you’re in the courtroom, it’s too late to tell yourself to stop adding filler.

Practice out loud. There is no substitute for this. You can feel confident and think confidently, but unless you practice it you’ll never appear confident to a jury. You can know what you’re going to say and have it written out very clearly, but speaking it in a large room under intense scrutiny is a very different matter. In preparing for a trial, your voice needs as much practice as your mind. Only making a cursory effort at practice (doing it quickly in a whisper, paraphrasing to save time, rehearsing “in your head” but not out loud) will result in you giving the impression that you’re not prepared or confident- even if you are.

Avoid the Clarity Killers. There are a few tonal habits speakers adopt accidentally, and they can have a negative impact on how you are perceived. “The Chop” is the habit of turning a normal sentence into a series of short statements. It’s usually intended to sound dramatic and important (think political stump speech) but it only serves to confuse the listener. “The Nose Dive” is the habit of beginning each sentence with energy and letting it dissipate to a whisper by the end. The next sentence has exactly the same downward-inflected sound, and eventually the listener gets put to sleep. “Question Speak” is the habit of upward-inflecting every few words as if to say “know what I mean?” It’s a pattern associated with teenagers, and if it accidentally creeps into a lawyer’s speech it will instantly diminish credibility.

I thank David Mann for providing his tested insights into the value of honing verbal skills. Fortunately, there’s more of his expertise to come. Have you been thinking of people you know who capture the courtroom or notable speeches in history that illustrate David’s points above? You’ll want to check back in with Law Tips next week for his examples of successful rhetoric techniques used over time by great orators.

There is an opportunity for you to earn CLE credits through Mr. Mann’s ICLEF training.  Enroll for our On Demand online presentation of the Advanced Skills of Storytelling and Persuasion for Litigators seminar through our website by Clicking Here.

_________________________________________________________________________________

About our Law Tips faculty participant:
David Mann is a speaker, trainer, and professional actor/director. He has a specialized focus on persuasive presentation for lawyers, and he is on the faculty of NITA (National Institute for Trial Advocacy) and Loyola School of Law.  A professional theater artist for over two decades, David has performed or directed for many recognized theatre companies.  He has written and performed five critically acclaimed one-man shows, and he is a recipient of a Bush Artist Fellowship for Storytelling.  David is a graduate of Northwestern University, and the London Academy of Music and Dramatic Art.  If you have questions for David or would like to inquire about his coaching, contact him at david@davidcmann.com. For speaking engagements go to the Professional Education Group at proedgroup.com.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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