inaugural women in trial trial advocacy skills...

1

INAUGURAL WOMEN IN TRIAL

TRIAL ADVOCACY SKILLS TRAINING

PROGRAM SCHEDULE February 22 – 23, 2019

Case File: Nita Liquor Commission v. Cut-Rate Liquor Case File

Please review the case file and the program schedule in advance of the

program. We would like to maximize your experience with each of the trial skills, and

the more prepared you are to conduct each exercise, the better the results.

You will be assigned to represent either the Nita Liquor Commission or Cut-Rate

Liquor. If you represent the Liquor Commission, you will direct Investigator James Bier

and cross Dan Jones. If you represent Cut-Rate Liquor, you will direct Dan Jones and

cross Investigator Bier.

Please expect that you will be conducting an opening statement and direct

examination in the workshops on the first day. The workshops will contain fewer

participants so that each person will have an opportunity to perform for 5 to 7 minutes

at a time. You will receive immediate feedback during the workshops on your

performance, and you will also be sent to review your performance by video with an

instructor. After the video review, you will return to the workshop room.

On the second day of the program, you will be expected to conduct direct and

cross examinations, as well as closing arguments. Please be prepared to use exhibits in

each of these exercises.

We look forward to working together.

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Friday, February 22, 2019

8:00 – 9:00 Registration and Breakfast

9:00 – 9:30 Opening Remarks and Introductions

Meet altogether in the Main Lecture Room.

9:30 – 10:15 Lecture/Demonstration: Opening Statement

Remain in the Main Lecture Room.

This lecture will provide instruction about the purpose and utility of

opening statements. It will also demonstrate how to develop and

deliver an effective opening statement to jurors and judges.

10:15 – 10:30 Break

10:30 – 11:00 Lecture/Demonstration: Verbal and Non-Verbal Communication

Skills

Remain in the Main Lecture Room.

Public speaking is among the most anxiety-producing activities for

most people. This lecture will address how to control your body

and voice while speaking in court.

11:00 – 12:00 Workshop #1: Brainstorming – Setting up the case for success.

Break out into prosecution and defense rooms.

It is important to commit to a strategy, theme and theory before

the start of trial. If you don’t have in mind your destination, you will

never get there. During this workshop, we will work through legal

theories, arguments, rhetoric, and themes that will be presented

throughout the trial.

12:00 – 1:30 Working Lunch

Lecture/ Demonstration: Direct & Cross Examinations

Meet in Main Lecture Room.

The lecture portion will be approximately one hour, and it will

address the most effective methods for establishing the elements of

the charge, setting the scene, building or diminishing the credibility

of witnesses, impeachment and controlling the witnesses during

direct and cross examination.

1:30 – 2:45 Workshop #2: Opening Statement

Meet in Breakout Room.

Video Review

Be prepared to deliver an opening statement. You will be given 5

to 7 minutes to complete the opening statement. Keep the

statement factual, but use the order of the facts to create the

point of view that is most favorable to your client.

2:45 – 3:00 Break

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3:00 – 4:30 Workshop #3: Direct Examination


Video Review

Prosecutors direct Investigator Bier and Defense attorneys direct

Dan Jones. Prosecutors, work on building the credibility of the

investigator and the surveillance, as well as eliciting the story that

reveals Dan Jones sold alcohol to an intoxicated person. Defense

attorneys, work on building Dan Jones’ credibility and establishing

his lack of knowledge about an intoxicated patron.

4:30 – 5:15 Lecture/Demonstration: Closing Argument

Meet in Main Lecture Room.

This lecture will provide instruction on how to structure and craft a

winning closing argument.

5:15 – 5:30 Wrap up and Reflections

Reception will immediately follow.

Saturday, February 23, 2019

8:00 – 8:45 Breakfast

8:45 – 9:00 Meet altogether for huddle

Meet in the Main Lecture Room.

Brief discussion about the goals for the day.

9:00 – 10:30 Workshop #4: Cross Examination


Video review

Prosecutors cross Dan Jones and Defense attorneys cross

Investigator Bier. Defense attorneys, work on gaining concessions

that infer Dan Jones would not reasonably know that Watkins was

drunk and that there was no sale. Prosecutors, work on establishing

Dan Jones knew or reasonably should have known of Watkins’

intoxication.

10:30 – 10:45 Break

10:45 – 12:00 Workshop #5: Moving in Exhibits into Evidence on Direct & Cross

Meet altogether in Main Lecture Room.

This interactive drills exercise will teach you how to move in exhibits

into evidence.

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12:00 – 1:30 Working Lunch

Discussion about Jury Selection

Civility Matters: Tips from judges and trial lawyers about conduct in

the courtroom (1 hour Ethics Credit).

Meet altogether in Main Lecture Room.

1:30 – 3:00 Workshop #6: Using Exhibits on Direct & Cross


Video review

This workshop will focus on using visual aids to make the testimony

easier to follow and more compelling.

Prosecutors direct Investigator Bier using the diagram.

Defense attorneys cross Investigator using the diagram.

3:15 – 3:30 Break

3:30 – 5:00 Workshop #7: Closing Arguments


Video review

Deliver a closing argument, using jury instructions, verdict form,

diagrams, and rhetorical devices. You will have 7 minutes.

5:00 – 5:30 Wrap Up, Reflections, Closing Remarks.

i Selected Problems from Problems in Trial Advocacy, 2015 Edition (FBSP1382)

© 2016 National Institute for Trial Advocacy

SELECTED PROBLEM FROM

PROBLEMS IN

TRIAL ADVOCACY

2015 EDITION

Anthony J. Bocchino

Donald H. Beskind

NATIONAL INSTITUTE FOR TRIAL ADVOCACY

ii Selected Problems from Problems in Trial Advocacy, 2015 Edition (FBSP1382)



No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system without the prior written approval of the National Institute for Trial Advocacy unless such copying is expressly permitted by federal copyright law.

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Reproduction Permission National Institute for Trial Advocacy 1685 38th Street, Suite 200 Boulder, CO 80301 (800) 225-6482 Fax (720) 890-7069 [email protected] FBSP1382

iii Selected Problems from Problems in Trial Advocacy, 2015 Edition (FBSP1382)


CONTENTS

Prob. 1 Nita Liquor Commission v. Cut-Rate Liquors and Jones

Direct and Cross-Examination .............................................................................................. 1

Impeachment and Rehabilitation .......................................................................................... 6

Opening Statement ............................................................................................................... 7

Closing Argument ................................................................................................................ 7

1 Selected Problems from Problems in Trial Advocacy, 2015 Edition (FBSP1382)


PROBLEM 1

Nita Liquor Commission v. Cut-Rate Liquor and Jones (James Bier)

DIRECT AND CROSS-EXAMINATION

The Liquor Commission has charged the defendants with a civil violation of Nita Liquor Commission Regulation 3.102 for knowingly selling intoxicating beverages to an intoxicated person. Violation of this regulation carries a maximum penalty of $1,000 for a business and $100 for an individual defendant. The business can also lose its retail sales permit.

The elements of the civil complaint under Regulation 3.102 are: 1. Knowing (defined as knew or should have known) 2. Sale 3. Of intoxicating beverages (beer, wine, fortified wine or spirits) 4. To an intoxicated person (one who is appreciably impaired).

Because this is a civil case, the plaintiff Liquor Commission has the burden of proving each element of Regulation 3.102 by a preponderance of the evidence. Defendants have requested a jury trial.

The Liquor Commission’s complaint alleges that Dan Jones, an employee of Cut-Rate Liquor, knowingly sold a bottle of Thunderbird wine to Walter Watkins, who was at the time intoxicated. Jones and Cut-Rate deny the allegations of the complaint.

The chief witness for the Liquor Commission is Investigator James Bier. Bier is a seven-year veteran of the Liquor Commission. Before serving in this position, he was a police officer for eight years. During his career as a Liquor Commission Investigator, he has investigated the full range of potential violations of the Nita Liquor Commission Regulations.

In answer to discovery requests, the plaintiff provided to the defendants the investigative report that Bier filed on the evening of June 5, 2014. The text of that report is as follows:

Undersigned investigator assigned with partner, Donald Smith, to investigate the complaints by citizens that the Cut-Rate Liquor Store at the intersection of Seventh and Jackson in Nita City was selling liquor to intoxicated persons and to minors. Surveillance begins at 7:30 p.m. on June 5, 2014. Set up surveillance on the east side of Jackson Avenue, across the street and south of the Cut-Rate Liquor Store. From this position could see the entirety of the intersection, and also could see into the subject place of business through a plate glass window that extends most of the frontage of the subject business along Jackson Avenue. View into business somewhat obstructed by advertising in the window.



From 7:45 p.m. until approximately 8:45 p.m., no unusual activity noted. Several customers enter store, make purchases, and exit store. Store clerk, later determined to be Dan Jones, is only one operating the business. At approximately 8:45 p.m., subject, later determined to be Walter Watkins, is observed on the northwest corner of the intersection leaning on lamppost. He appears disheveled, and he is wearing dark pants, white shirt, sneakers, and a wrinkled lightweight tan raincoat. Watkins pushes self off post and proceeds south across the intersection. Watkins staggers badly as he crosses street, and in the center of the street he stumbles, but catches self before falling. Watkins proceeds to curb on southwest corner where he stumbles again and trips while stepping up onto the curb in front of subject store, at which time he puts both hands out in front of himself to brace for the fall, and he manages to regain his balance without actually hitting the pavement.

After tripping and falling at the curb, Watkins straightens himself up, and he walks to the entrance of the Cut-Rate Liquor store, where he pauses for a moment in front of glass door to subject business. He then enters the store. He proceeds to counter where the clerk, Jones, is standing and appears to have a conversation with him. While Watkins is in the store, we can see him and Jones from the shoulders up, due to the obstructing advertising in the window. No other obstructions noted. After brief conversation, Jones turns away from Watkins and goes out of sight for a brief period of time and then returns to the counter in the area of the cash register. After completing his transaction, Watkins exits store holding a brown paper bag that was not in his hand at the time he entered the store.

Partner and I approach Watkins and physically detain him outside the store. From distance of three feet, note an odor of alcohol about the person of subject and note that eyes are glassy and bloodshot. Ask for identification, which is provided. On questioning, subject provides name and address. Note that speech is somewhat slurred. Take bag from subject. Bag contains unopened and sealed bottle of Thunderbird wine. No receipt found in bag. Subject responds to question as to where he purchased the wine and states that it was from the Cut-Rate Liquor store. Perform field sobriety tests. Subject is unable to walk heel-to-toe in a straight line, pick up coins from sidewalk, or touch finger to nose from arms extended out to the side. Subject Watkins is arrested for public intoxication.

Proceed inside store to issue citation to clerk, Dan Jones, and the Cut-Rate Liquor store for a 3.102 violation of knowingly selling intoxicating beverages to an intoxicated person. Jones makes no statement. Note that the entry door to the store is plate glass with steel security bars and alarm system, only decal on the door lists the store hours of operation, and that wall of store facing Seventh Street is also plate glass with some advertising. From vantage point of counter can see northwest corner of intersection and both Seventh and Jackson Streets. Note also the width of the counter (approximately two-and-a-half feet), location of the cash register,



and that store sells Thunderbird wine, which is stored on a shelf, approximately fifteen feet behind counter. Return to vehicle and transport Watkins to Nita City police station for processing. (Diagram attached to report.)

Signed: [Signed] James Bier, Investigator, NLC

Further investigation of the case revealed that Watkins was found guilty of public intoxication in a bench trial and paid a $25 fine. Investigator Bier testified at that hearing consistent with his report.

Dan Jones and the Cut-Rate Liquor Store deny all of the allegations in the complaint and assert that Walter Watkins did not appear to be intoxicated on the evening of June 5 when he was in their store.

Dan Jones was deposed by the plaintiff and gave, in part, the following information:

My name is Dan Jones, and I live at 12 Chelsea Court in Nita City. I work as the night manager (4:00 p.m. to 12:00 a.m.) at the Cut-Rate Liquor store at Seventh and Jackson. I am a high school graduate, fifty years old, and have worked for Cut-Rate since getting out of the Navy in 2009.

I was working the four-to-twelve shift on the evening of June 5, 2014. I don’t know Walter Watkins. I have been shown his picture, and he looks familiar to me. I cannot say that I remember him as ever being a customer on June 5 or any other time. At the same time, I can’t say that he never was a customer of mine. He might have been. I did sell a bottle of inexpensive wine to a gentleman within ten or fifteen minutes of the investigator coming into the store that might have been Watkins. I don’t remember that it was Thunderbird. The man was a little disheveled, but he didn’t appear intoxicated to me. If he had, I would have turned away his business. Our policy is not to serve people who are visibly intoxicated. Our determination is based on observation—looking for typical signs of intoxication, usually slurred speech, odor of alcohol on the breath, bloodshot eyes, uneven gait, stumbling, or staggering.

The evening of June 5, 2014, was moderately busy from 4:00 p.m. to 10:00 p.m. I made a number of sales during that period of time. At no time on that date did I sell liquor to someone who appeared to be drunk. That is against company policy, and I can be fired for doing so. Several years ago I sold some wine to someone who was arrested later for DUI after he hit another car. He wasn’t drunk when I sold him the wine. It was handled by the insurance company. I think they settled for what they called nuisance value. That experience made me very careful about who I sold liquor to at the store. I understand that a couple of our other stores had problems, but I’ve never had any other problems from the Nita Liquor Commission.



On June 5, 2014, I did receive a citation from an Investigator Bier for knowingly selling intoxicating beverages to an intoxicated person, but I deny making such a sale. Bier gave me the citation and asked me if I wanted to make a statement to him. To be honest, he surprised me, and I almost did talk to him, but I remembered our policy at Cut-Rate to make no statements to liquor investigators if ever confronted with an allegation of a violation of liquor regulations. I just accepted the citation and passed it along to my employer.

Signed: [Signed]

Dan Jones

It has been determined that Walter Watkins is no longer in the jurisdiction and will not be available to testify. Investigator Smith is also unavailable.

The case is now at trial. Investigator Bier is the first witness for the Liquor Commission.

Part A

For the plaintiff, conduct the direct examination of Investigator Bier.

For the defendant, conduct the cross-examination of Investigator Bier.

For the plaintiff, conduct any necessary redirect examination.

Part B

For the defendant, conduct the direct examination of Dan Jones.

For the plaintiff, conduct the cross-examination of Dan Jones

For the defendant, conduct any necessary redirect examination.



Exhibit 1

Diagram of Intersection



IMPEACHMENT AND REHABILITATION

Assume that on direct examination, James Bier testified, in part, as follows:

1. he could see Mr. Watkins inside the store from the waist up;

2. he saw Mr. Watkins hand money to the clerk while Watkins was at the counter;

3. He saw Mr. Watkins stumble and stagger inside the store.

Assume that the information in the problem statement constitutes the report prepared by James Bier on the night of June 5, 2014, at approximately 10:00 p.m., which he filed with the Nita Liquor Commission and the local police department that processed Mr. Watkins.

Part A

For the defendant, conduct an impeachment by prior inconsistent statement of James Bier using his report of the incident.

Part B

For the plaintiff, conduct a redirect examination and rehabilitation of James Bier.



OPENING STATEMENT

Part A

For the plaintiff, present an opening statement.

Part B

For the defendant, present an opening statement.

CLOSING ARGUMENT

Part A

For the plaintiff, present a closing argument.

Part B

For the defendant, present a closing argument.

.

OPENING STATEMENT: IT’S ABOUT A STORY

MICHAEL A. KELLY WALKUP MELODIA KELLY & SCHOENBERGER WOMEN IN TRIAL BASF FEBRUARY 2019

Don’t argue inferences, use rhetorical questions, vouch, refer to scripture, cry, plead or beg

Tell a story using facts that you will introduce at trial ( you don’t need adjectives )

Use non –argumentative exhibits and visual aids (get agreement in advance)

Don’t overpromise Do use appropriate gestures, movement,

tone and pace

5 Principles For Opening Statement

Difference between opening statement

and closing argument

IN OPENING STATEMENTS, PARTIES ARE RESTRICTED TO STATING THE FACTS. IN CLOSING ARGUMENTS, THE PARTIES ARE FREE TO ARGUE THE MERITS.

• Tells Compelling Story

• Builds Credibility

• Signals Critical Evidence to Come • Previews Case (1st impression)

PURPOSE OF OPENING STATEMENT

Stories are how we learn as children Stories give pleasure Stories create anticipation Stories organize information Stories get embedded and repeated

WHY PEOPLE LISTEN TO STORIES

A Good Opening Statement Tells a STORY That Weaves In The Following: 1. Identifies the safety rule that defendant broke 2. Tells why that/those rules protect the jurors and

how defendant’s violation of these rules threaten public safety

3. Shows how easy it would have been for defendant to follow the safety rules and avoid harm

4. Defendant’s claims that she/he did nothing wrong are unfounded

5. Jurors have an obligation to justice and apply the law

SERIES OF EVENTS

SEQUENCED

TO MAKE A POINT

Opening Statements Are About A Story

So Roll The Action Don’t Lecture!

Rule 3. Great stories have a character to root for (an underdog) Pixar explains that we as the audience admire a character for trying more than for their success. In other words, it’s more about the character’s journey than it is their actual destination. When your character ( plaintiff ) is battling against all odds, facing adversity, or their back is against the wall, well then, you have yourself the makings of great story.

STORYTELLING ELEMENTS

Stories are about things that happen to

PEOPLE.

When people relate to a plaintiff’s story and fear for themselves, they are

motivated to act.

Plaintiff stories are cautionary tales.

Rhetorical Devices in Opening

Compare Contrast

“All Learning is compared to what”

Rodney Jew

CAUSE For every action, there is an equal and opposite reaction, creating a chain of events.

EFFECT

Nothing is random. The relationship between cause and effect explains people’s motives, behaviors, and consequences.

DETAILS

When a story sucks, it’s usually because it doesn’t feel new. Or because it feels fake. Or because it’s not about something worth taking about in the first place. Ira Glass.

CLIMAX: DEFENDANT’S ACTS MEET PLAINTIFF One event leads to another and builds to conflict

Explains all known facts Explains reasons for behavior Be Told by credible witnesses Be Supported by details Is consistent with common sense Appeals to moral rightness

Every Persuasive Story In Opening must:

The evidence will show that any thinking person could only reach one conclusion: it is obvious the big bad wolf must have eaten little red riding hood at her grandmother’s house because all sighns point that way .

A GOOD STORY IS ABOUT FACTS FACT VS. CONCLUSIONS

The evidence will show that any thinking person could only reach one conclusion: it is obvious the big bad wolf must have eaten little red riding hood at her grandmother’s house because all signs point that way .

A GOOD STORY IS ABOUT FACTS FACT VS. Conclusions/Argument

1.The Big Bad Wolf friended Little Red on Facebook. Her Facebook page said she was going to her grandmother’s house on Tuesday.

2.Grandma ( @Grandma ) tweeted she was visiting the dentist Tuesday morning. Big Bad followed Grandma on Twitter.

3.At 8 a.m. on the 12th Riding Hood texted Jack Spratt she was headed to Grannies. Spratt lives across the street .

4. The Fairyland Uber records show that Bad was dropped off at Grandmas at 8:15 a.m. shortly after she had left the house

5.According to Bad’s ATM records the last time he had purchased food was three days earlier at the .

6.The three Pig Brothers heard screams from Grandma’s house between 9:00 and 9:15 a.m.

7.Mary Muffet saw a large furry creature running away from Grandma’s house at 9:20 a.m. There was blood on his face and he was trailing a red cape and hood.

8.Red Riding hood was never seen again after she headed to Grandmas that lday.

Heirs of Hood vs. BB Wolf Inc.

1.The Big Bad Wolf friended Little Red on Facebook. Her Facebook page said she was going to her grandmother’s house on Tuesday.

2.Grandma ( @Grandma ) tweeted she was visiting the dentist Tuesday morning. Big Bad followed Grandma on Twitter.

3.At 8 a.m. on the 12th Riding Hood texted Jack Spratt she was headed to Grannies. Spratt lives across the street .

4. The Fairyland Uber records show that Bad was dropped off at Grandmas at 8:15 a.m. shortly after she had left the house

5.According to Bad’s ATM records the last time he had purchased food was three days earlier at the .

6.The three Pig Brothers heard screams from Grandma’s house between 9:00 and 9:15 a.m.

7.Mary Muffet saw a large furry creature running away from Grandma’s house at 9:20 a.m. There was blood on his face and he was trailing a red cape and hood.

8.Red Riding hood was never seen again after she headed to Grandmas that day.

Heirs of Hood vs. BB Wolf Inc.

• No "Civics Lessons” • No “Road Maps “ • No “The Evidence

Will Show” • No Disclaimers • No Notes • No Podium Bound

Lecturing • Speak English -

Avoid Legalese

http://www.google.com/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&docid=70sYU3O-3S5YiM&tbnid=0f4dEjxb9OcFUM:&ved=0CAUQjRw&url=http://southernnationalist.com/blog/2012/02/10/something-is-missing-at-cpac/&ei=ObhLUv_UEeqWigKMnIGQBQ&bvm=bv.53371865,d.cGE&psig=AFQjCNEzfE3ZtWpMpERnJg6G8zDSEEyRZg&ust=1380780377682309

Explains all known facts Explains reasons for

behavior Told by credible witnesses Supported by details Is consistent with common

sense Appeals to moral rightness

Key Features of a Persuasive Story

DESCRIBE THE INJURIES AND DAMAGES ….

• Through the lens of the first person who discovered the injuries (e.g. police officer, EMT, good Samaritan witness)

• Through the lens of the treating doctors

• Through the lens of the plaintiff’s caretakers

• Through the plaintiff’s lens

1.) Does my opening statement begin with a moral or legal rule, which identifies what the defendant has done wrong? 2.) Have I crafted an interesting story from the provable facts that tells the jury what happened? 3.) Does the story give the jury a reason to find for my client? 4.) Does my story have too much information? 5.) Is my structure logical, organized, clear and simple? ( Pecha Kucha )

Checklist For Plaintiffs Opening

6.) Have I made promises that I cannot keep? 7.) Have I defaulted to hyperbole? (too many adverbs, conclusions or adjectives)? 8.) Do I refer to any evidence that may be excluded? 9.) Have I used real evidence and non-argumentative visual aids in a way which is compelling and memorable? 10.) Have I chosen a rule, theme, “grabber” that works equally well in final argument as in opening statement?

Checklist For Plaintiffs Opening

LIQUOR COMMISSION WE SERVE AND PROTECT

The elements of the civil complaint under Regulation 3.102 are: 1. Knowing (defined as knew or should have known) 2. Sale 3. Of intoxicating beverages (beer, wine, fortified wine or spirits) 4. To an intoxicated person (one who is appreciably impaired).

Exhibit 1

What We Must Prove Regulation 3.102

Sale Of intoxicating beverage To an intoxicated person Knowingly made

Exhibit 3

Women in Trial

Direct & Cross

Maria Danaher

Doris Cheng

Goals on Direct Exam

Support theory and theme

FOCUS ON THE WITNESS

Introduce evidence / exhibits

Anticipate the opposition

Keep fact-finder’s interest

FORM OF THE QUESTION

Open-ended

WHO, WHAT, WHEN, WHERE, WHY, HOW

EXPLAIN, DESCRIBE

NOT “DID YOU” / “WOULD YOU” Qs

Short

Simple language (no legalese)

Looping

Avoid tag lines

ORGANIZATION

1. Start strong / End strong

2. Tell a story

Accredit the witness

Set the Scene

Move along the action

3. Use headlines for transitions

4. Use Exhibits

ORGANIZATION:

Story Telling

1. Set the scene

2. Break down action sequence (avoid the

broad question: What happened next?)

3. Introduce witnesses within the story

4. Elicit convincing details

5. Elongate on important parts

6. Explain terms of art / unusual concepts

7. Elicit surprising thought or insight

DEMEANOR

ON DIRECT

Sincere, Rapt Interest

No Reading / Make Eye Contact

Appropriate Facial Expressions

Appropriate Gestures

Vary Voice

STAGE & DELIVERY

Position in the courtroom during questioning

Direct – away from center stage

Cross – center stage

How to handle exhibits

Direct – witness approaches the exhibit

Cross – you approach the exhibit

Use of Demonstrations

Direct – witness shows us

Cross – you show us

Purposeful Movement

CROSS EXAM

Goals

Get agreements that help your case

Control the witness

Lay foundation for exhibits

Build credibility of your witnesses

Discredit witness

FORM OF THE QUESTION

LEADING, LEADING, LEADING

SINGLE FACT

SHORT

SIMPLE LANGUAGE

NO CONCLUSIONS

NO ARGUMENT

AVOID REPETITIVE TAG LINES (Isn’t it true,

right?, correct?)

DEMEANOR

ON CROSS

CROSS NEED NOT BE CROSS

NO INTIMIDATING BEHAVIOR

UNHURRIED PACE

REASONABLE TONE

MEASURED PITCH & VOLUME

CONTROLLED GESTURES

THEIR WITNESS; YOUR STORY

Do’s START/END STRONG

PROPER TONE

SHORT, ONE FACT

QUESTIONS TO

CONCLUSION

USE HEADNOTES

ANCHOR TO DOCUMENT

Don’ts LET WITNESS EXPLAIN

RESTATE DIRECT

ARGUE

EXPLORE

GO ON AND ON

USE VALUE QUESTIONS

GET AGREEMENTS

THAT SUPPORT THEORY

FREEBIE POINTS

SUPPORTING FACTS THAT ARE NOT IN

DISPUTE

POINTS YOU EARN

BUILD UP FACTS TO SHOW CONCLUSIONS

POINTS YOU TAKE

IMPEACHMENT

BUILDING THE POINT

1. What do I want to say in closing?

2. What are the most important conclusions?

3. What facts lead to that conclusion?

4. How do I order the facts to suggest the conclusion?

Story telling

Contrast / parallelism

CONTROL TECHNIQUES

POSITION IN THE COURTROOM

POSTURE / FEET / HANDS

VOICE

VOLUME, PITCH, INFLECTION, TONE

QUESTIONING TECHNIQUE

INSIST ON A RESPONSIVE ANSWER

YES / NO

STOP WHEN IT’S TIME TO STOP

DIRECT EXAM

GOALS DEMEANOR & TONE ORGANIZATION STORYTELLING

Support Theme / Theory Attentive Start Strong Create Vignettes

Anticipate Opposition Engaged End Strong Set the Scene

Introduce Exhibits Interested Background Introduce Witnesses

Build Witness’ Credibility Eye Contact Scene by scene Roll the Action

Keep Jury Interested Facial Expressions Use Headnotes Show Cause & Effect

Open Hand Gestures Use Exhibits Elicit Details

Open Body Posture Show, Not Just Tell

Voice Modulation Educate

Insight & Surprise

FORM OF QUESTIONS STAGE & DELIVERY DIFFICULT WITNESS

Open-ended Position at end of jury box Too talkative

Short Move with a purpose - Narrow question

Narrow Exhibits - Hand

Simple language - Your Position: Out of the way - Break down answer

Loop answers questions - Witness’ Position In front of the exhibit - Create lists

Thematic Language Do Not Turn Back to Jury - More inflection

CROSS EXAM

GOALS DEMEANOR & TONE ORGANIZATION FORM OF QUESTION

Control the Witness Reasonable Start Strong Lead, lead, lead

Support Theme / Theory Fair End Strong Single Fact

Anticipate Opposition No intimidating behavior Topical Short

Introduce Exhibits Eye Contact Chronological Simple

Build your witnesses’ credibility

Facial Expressions Use Exhibits No Conclusion

Discredit Witness Closed Hand Gestures Headnotes No adverb/adjectives

Strong Body Posture No taglines (front or back)

Measured Pitch & Volume

Unhurried Pace

BUILD TO A CONCLUSION (i.e. Make a Point)

STORYTELLING DISCREDIT WITNESS DIFFICULT WITNESS

Know the conclusion Create Vignettes Perception Hand

Facts only Set the Scene Memory Eyes

Answer the “why” Introduce Witnesses Mental Capacity Facial Expressions

Order of the facts Roll the Action Prior Inconsistent Statement

Inflection

- Storytelling Show Cause & Effect Bias, prejudice, corruption Repeat, Repeat, Reverse

- Compare/Contrast Elicit Details Non-crim acts bearing on truthfulness

Use Exhibit

Show, Not Just Tell Criminal conviction Illogical Ridiculousness

Educate Stop

Insight & Surprise

STAGE & DELIVERY JUST DON’T

Position closer to witness Repeat the direct exam

Move with a purpose Be hostile

Exhibits Start question with “So…”

- Your Position: In front of the exhibit

- Witness’ Position In witness box

Do Not Turn Back to Jury

Persuasive Closing Arguments

Rich Schoenberger

Walkup, Melodia, Kelly & Schoenberger

Women In Trial Program

February 22, 2019

Exhibit 2

What We Must ProveRegulation 3.102

Sale

Of intoxicating beverage

To an intoxicated person

Knowingly made

Exhibit 1

Your Theme

Frames the issue

Links back to your opening

Provides continuity throughout the case

Themes found in:

Quotes / Statements from opposing party

Rules governing conduct

Undisputed facts in your Case

Literature, fables, movies, history

Jury Instructions &

Verdict Form

Choose the instructions that matter

Decide how you will present them

Highlight the important passages

Use common language

Explain with analogies

Tie them to the facts/verdict

Work through the verdict form

Show jury how to fill out the verdict form

Source: CACI 200

NegligenceWhat was the reasonable thing to do?

Jury Instruction

Failing to do

the reasonable.

Negligence is the failure to use

reasonable care to prevent harm to

oneself or to others.

A person can be negligent by acting or by

failing to act. A person is negligent if he or

she does something that a reasonably

careful person would not do in the same

situation or fails to do something that a

reasonably careful person would do in

the same situation.

Doing the

unreasonable.

Your Best Facts

Include Logical Inferences

Use Their Witnesses/Undisputed

Evidence/Concessions

Explain Why Important

Tie Facts To Your Theme

Be Selective

Special Verdict

Analogies About Truth

A lie can travel half way around the world

while the truth is putting on its shoes. ~

Mark Twain

No man has a good enough memory to

make a successful liar. ~ Abraham Lincoln

Like Putting A Queen Size Sheet on A King

Size Bed – Me!

Your Weaknesses

ACE:

Acknowledge and Accept

Concede and Conquer

Explain and Eliminate

• Spin?

Econ $$

Physical Pain

Grief

Anxiety

Humiliation

Loss of enjoyment of

life

Physical

impairment

Econ

$$

CACI 3920

Econ $$

Physical Pain

Grief

Anxiety

Humiliation


life

Physical

impairment

Econ

$$

CACI 3920

Past medical

Mickey Bruce

Economic Damages:

Past Medical Expenses $273,037.69

Past Lost Earnings $63,900.00

Lost Future Earnings/Benefits $294,900.00

Future Medical Care $636,474.00

Total Economic Damages: $1,268,311.69

Physical Pain

Grief

Anxiety

Humiliation


life

Physical

impairment

Econ

$$

CACI 3920

Mickey Bruce

Physical Pain

Grief

Anxiety

Humiliation


life

Physical

impairment

Econ

$$

CACI 3920

Mickey Bruce

Physical Pain

Grief

Anxiety

Humiliation


life

Physical

impairment

Econ

$$

CACI 3920

STRUCTURE

1. START STRONG & END STRONG

2. THEME

3. EVIDENCE LINED UP TO REFLECT YOUR THEORY

(INFERENCES & ARGUMENT)

4. SHOW TESTIMONY & EXHIBITS

5. JURY INSTRUCTIONS TO FORTIFY YOUR EVIDENCE & THEORY

6. ARGUE CREDIBILITY OF WITNESSES

7. ANALOGIES & ILLUSTRATIONS TO HELP JURY RELATE TO

YOUR PERSPECTIVE

8. DISCREDIT OPPOSITION (ANALOGIES / RHETORICAL Qs)

9. EMPOWER JURY

10. ASK FOR A VERDICT

CLOSING ARGUMENT WORKSHEET

Law/Jury Instructions

Special Interrogatories/Verdict Form

Analogies/Metaphors/Anecdotes

Exhibits/Visual Aids

Burden of Proof

Anticipate Opposing Argument

Facts Not Proven/Promises Not Kept

Request for Verdict

Conclusion

Rebuttal

Closing ArgumentParts needed . . .

Start Strong

Your Theme/Wave the flag?

Burden of Proof

Jury Instructions

Your Best Facts

Verdict Form

Credibility of Witnesses

Weaknesses

Damages/Positive Substance

End Strong/Symmetrically

DELIVERY

Positioning in the courtroom

Voice modulation

Movement attuned to speech

Clear, concise language

Impact words and images

Visual Aides

Avoid notes

Eye contact

You & The Jury

Talk to them

Empower the jury

Find the moral outrage of the other side’s claim

Appeal to Justice, Fairness, Common Sense – not

prejudice

Use their language – simplify

Don’t ask them to be a party (Golden Rule)

Be Yourself

2 Civility Matters® Civility Matters® 3

Civility Matters ©2016 by the Foundation of the American Board of Trial Advocates.American Board of Trial Advocates 2001 Bryan Street, Suite 3000 Dallas, Texas 75201(800) 93-ABOTA / (214) 871-7523 abota.org

What is Civility Matters®?The Foundation of the American Board of Trial Advocates is proud to present Civility Matters, an effort to promote one of the main tenets of ABOTA’s Constitution:

“To elevate the standards of integrity, honor and courtesy in the legal profession.”

ABOTA created Civility Matters with the hope that the program would be presented at ABOTA educational activities, other bar and professional programs, and, especially, in every law school in the country. The programs feature first-hand lessons and experience from ABOTA members and are intended to instill values and standards that promote high regard for the legal profession.

What is the ABOTA Foundation?The mission of the Foundation is to support the purposes of the American Board of Trial Advocates, to preserve the constitutional vision of equal justice for all Americans, and to preserve our civil justice system for future generations.

Who are ABOTA Members?The American Board of Trial Advocates is an invitation-only membership organization comprising more than 7,500 of the nation’s premier civil trial lawyers equally balanced between plaintiff and defense. Members must complete a requisite number of civil jury trials and maintain high personal character and honorable reputation in their field.

Table of Contents2 ABOTA Code of Professionalism

4 Principles of Civility, Integrity and Professionalism

6 Reference Articles

8 Host a Civility Matters Program

CODE OF PROFESSIONALISM

As a member of the American Board of Trial Advocates, I shall

Always remember that the practice of law is first and foremost a profession.

Encourage respect for the law, the courts, and the right to trial by jury.

Always remember that my word is my bond and honor my responsibilities to serve as an officer of the court and protector of individual rights.

Contribute time and resources to public service, public education, charitable and pro bono activities in my community.

Work with the other members of the bar, including judges, opposing counsel, and those whose practices are different from mine, to make our system of justice more

accessible and responsive.

Resolve matters and disputes expeditiously, without unnecessary expense, and through negotiation whenever possible.

Keep my clients well-informed and involved in making decisions affecting them.

Achieve and maintain proficiency in my practice and continue to expand my knowledge of the law.

Be respectful in my conduct toward my adversaries.

Honor the spirit and intent, as well as the requirements of applicable rules or codes of professional conduct, and shall encourage others to do so.

CODE OF PROFESSIONALISM

Help us spread civility nationwide! Each year, hundreds of Civility Matters programs across the country seek to raise the level of professionalism and respect in the legal community. If your chapter or firm would like to host a Civility Matters program in your area, visit ABOTACivilityMatters.org to obtain the resources, guides and information. Please contact the Foundation if you plan to host or have previously hosted a Civility Matters program. We maintain a list of programs and would like to recognize your efforts.

ABOTA also seeks to have civility language added to the attorney oath in each state. Visit our website for a map of current oaths containing civility language, and for information on getting language added in your state, contact the ABOTA Foundation at (800) 779-5879.

Civility Matters® is a publication of the ABOTA Foundation’s Professional Education Committee. We recognize the vision of David B. Casselman. We thank Wilma J. Gray, Donald J. Winder, and William B. Smith from the Professionalism, Ethics and Civility Committee for their contributions to this program.

Cross-Reference Chart of the Current California Rules to the New RulesSorted by the Current California Rule Number

Cross Reference Chart Rules By Numbering - Final (10-03-18).docx 1

Current Rules of Professional Conduct Operative until October 31, 2018

(Rule Number and Title)

New Rules of Professional Conduct Effective on November 1, 2018


1-100(A) [Rules of Professional Conduct, in General] 1.0 Purpose and Function of the Rules of Professional Conduct

1-100(B) 1.0.1 Terminology

1-100(D) 8.5 Disciplinary Authority; Choice of Law

1-110 Disciplinary Authority of the State Bar 8.1.1 Compliance with Conditions of Discipline and Agreements in Lieu of Discipline

1-120 Assisting, Soliciting, or Inducing Violations 8.4 Misconduct

1-200 False Statement Regarding Admission to the State Bar 8.1 False Statement Regarding Application for Admission to Practice Law

1-300 Unauthorized Practice of Law 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law

1-310 Forming a Partnership With a Non-Lawyer 5.4 Financial and Similar Arrangements with Nonlawyers

1-311 Employment of Disbarred, Suspended, Resigned, or Involuntarily Inactive Members

5.3.1 Employment of Disbarred, Suspended, Resigned, or Involuntarily Inactive Lawyer

1-320(A) 5.4 Financial and Similar Arrangements with Nonlawyers

1-320(A)(4) & (B)-(C) [Financial Arrangements With Non-Lawyer]

7.2(b) Advertising

1-400 Advertising and Solicitation 7.1 Communications Concerning a Lawyer’s Services 7.2 Advertising 7.3 Solicitation of Clients 7.4 Communication of Fields of Practice and Specialization 7.5 Firm Names and Trade Names

1-500 Agreements Restricting a Member's Practice 5.6 Restrictions on a Lawyer’s Right to Practice

1-600 Legal Service Programs 5.4 Financial and Similar Arrangements with Nonlawyers

1-650 Limited Legal Service Programs 6.5 Limited Legal Services Programs

1-700 Member as Candidate for Judicial Office 8.2 Judicial Officials

1-710 Member as Temporary Judge, Referee, or Court-Appointed Arbitrator

2.4.1 Lawyer as Temporary Judge, Referee, or Court-Appointed Arbitrator

2-100 Communication With a Represented Party 4.2 Communication with a Represented Person

2-200(A) Financial Arrangements Among Lawyers 1.5.1 Fee Divisions Among Lawyers

2-200(B) 7.2(b) Advertising

2-300 Sale or Purchase of a Law Practice of a Member, Living or Deceased

1.17 Sale of a Law Practice

2-400 Prohibited Discriminatory Conduct in a Law Practice 8.4.1 Prohibited Discrimination, Harassment and Retaliation

3-100 Confidential Information of a Client 1.6 Confidential Information of a Client

3-110 Failing to Act Competently 1.1 Competence

3-110(B) 1.3 Diligence







3-110, Discussion ¶.1 Rule 5.1 Responsibilities of Managerial and Supervisory Lawyers Rule 5.2 Responsibilities of a Subordinate Lawyer Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

3-120 Sexual Relations With Client 1.8.10 Sexual Relations with Current Client

3-200 Prohibited Objectives of Employment 3.1 Meritorious Claims and Contentions

3-210 Advising the Violation of Law 1.2.1 Advising or Assisting the Violation of Law

3-300 Avoiding Interests Adverse to a Client 1.8.1 Business Transactions with a Client and Pecuniary Interests Adverse to the Client

3-310(B), (C) Avoiding the Representation of Adverse Interests 1.7 Conflict of Interest: Current Clients

3-310(D) 1.8.7 Aggregate Settlements

3-310(E) 1.9 Duties To Former Clients

3-310(F) 1.8.6 Compensation from One Other than Client

3-320 Relationship With Other Party’s Lawyer 1.7(c)(2) Conflict of Interest: Current Clients

3-400 Limiting Liability to Client 1.8.8 Limiting Liability to Client

3-410 Disclosure of Professional Liability Insurance 1.4.2 Disclosure of Professional Liability Insurance

3-500 Communication 1.4 Communication with Clients

3-510 Communication of Settlement Offer 1.4.1 Communication of Settlement Offers

3-600 Organization as Client 1.13 Organization as Client

3-700 Termination of Employment 1.16 Declining or Terminating Representation

4-100 Preserving Identity of Funds and Property of a Client 1.15 Safekeeping Funds and Property of Clients and Other Persons

4-200 Fees for Legal Services 1.5 Fees for Legal Services

4-210 Payment of Personal or Business Expenses Incurred by or for a Client

1.8.5 Payment of Personal or Business Expenses Incurred by or for a Client

4-300 Purchasing Property at a Foreclosure or a Sale Subject to Judicial Review

1.8.9 Purchasing Property at a Foreclosure or a Sale Subject to Judicial Review

4-400 Gifts From Client 1.8.3 Gifts from Client

5-100 Threatening Criminal, Administrative, or Disciplinary Charges

3.10 Threatening Criminal, Administrative, or Disciplinary Charges

5-110 Performing the Duty of Member in Government Service (Note: Rule 5-110 recently was revised effective November 2, 2017.)

3.8 Special Responsibilities of a Prosecutor

5-120 Trial Publicity 3.6 Trial Publicity

5-200(A)-(D) Trial Conduct 3.3 Candor Toward the Tribunal

5-200(E) Trial Conduct 3.4 Fairness to Opposing Party and Counsel

5-210 Member as Witness 3.7 Lawyer as Witness

5-220 Suppression of Evidence 3.4 Fairness to Opposing Party and Counsel(Note: See also Rule 3.8(d) regarding the duties







(Note: Rule 5-220 recently was revised effective May 1, 2017.) of a prosecutor.)

5-300 Contact With Officials 3.5 Contact with Judges, Officials, Employees, and Jurors

5-310 Prohibited Contact With Witnesses 3.4 Fairness to Opposing Party and Counsel

5-320 Contact With Jurors 3.5 Contact with Judges, Officials, Employees, and Jurors

New Rules With No California Counterpart

Rule 1.2 Scope of Representation and Allocation of Authority

Rule 1.8.2 Use of Current Client’s Information1

Rule 1.8.11 Imputation of Prohibitions Under Rules 1.8.1 to 1.8.9

Rule 1.10 Imputation of Conflicts of Interest: General Rule

Rule 1.11 Special Conflicts of Interest for Former and Current Government Officials and Employees

Rule 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral

Rule 1.18 Duties to Prospective Client

Rule 2.1 Advisor

Rule 2.4 Lawyer as Third-Party Neutral

Rule 3.2 Delay of Litigation

Rule 3.9 Advocate in Non-adjudicative Proceedings

Rule 4.1 Truthfulness in Statements to Others

Rule 4.3 Communicating with an Unrepresented Person2

Rule 4.4 Duties Concerning Inadvertently Transmitted Writings

Rule 5.3 Responsibilities of a Subordinate Lawyer

Rule 6.3 Membership in Legal Services Organizations

1 But see Bus. & Prof. Code § 6068(e). 2 But see current rule 3-600(D) regarding similar duties in an organizational context.

Cross-Reference Chart of the New Rules to the Current California RulesSorted by the New Rule Number






1.0 Purpose and Function of the Rules of Professional Conduct 1-100 Rules of Professional Conduct, in General

1.0.1 Terminology 1-100(B)

1.1 Competence 3-110 Failing to Act Competently

1.2 Scope of Representation and Allocation of Authority No California Rule Counterpart

1.2.1 Advising or Assisting the Violation of Law 3-210 Advising the Violation of Law

1.3 Diligence 3-110(B)3

1.4 Communication with Clients 3-500 Communication

1.4.1 Communication of Settlement Offers 3-510 Communication of Settlement Offer

1.4.2 Disclosure of Professional Liability Insurance 3-410 Disclosure of Professional Liability Insurance

1.5 Fees for Legal Services 4-200 Fees for Legal Services

1.5.1 Fee Divisions Among Lawyers 2-200 Financial Arrangements Among Lawyers

1.6 Confidential Information of a Client 3-100 Confidential Information of a Client

1.7 Conflict of Interest: Current Clients 3-310(B),(C) [Avoiding the Representation of Adverse Interests] 3-320 Relationship With Other Party’s Lawyer

1.8.1 Business Transactions with a Client and Pecuniary Interests Adverse to the Client

3-300 Avoiding Interests Adverse to a Client

1.8.2 Use of Current Client’s Information No California Rule Counterpart4

1.8.3 Gifts from Client 4-400 Gifts From Client


4-210 Payment of Personal or Business Expenses Incurred by or for a Client

1.8.6 Compensation from One Other than Client 3-310(F)

1.8.7 Aggregate Settlements 3-310(D)

1.8.8 Limiting Liability to Client 3-400 Limiting Liability to Client

1.8.9 Purchasing Property at a Foreclosure or a Sale Subject to Judicial Review

4-300 Purchasing Property at a Foreclosure or a Sale Subject to Judicial Review

1.8.10 Sexual Relations with Current Client 3-120 Sexual Relations With Client

1.8.11 Imputation of Prohibitions Under Rules 1.8.1 to 1.8.9 No California Rule Counterpart

1.9 Duties To Former Clients 3-310(E)

1.10 Imputation of Conflicts of Interest: General Rule No California Rule Counterpart

1.11 Special Conflicts of Interest for Former and Current Government Officials and Employees

No California Rule Counterpart

3 Rule 3-110(B) provides:

(B) For purposes of this rule, "competence" in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service. (Emphasis added.)

4 But see Cal. Bus. & Prof. Code § 6068(e)(1).







1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral

No California Rule Counterpart

1.13 Organization as Client 3-600 Organization as Client

1.14 [Reserved]5

1.15 Safekeeping Funds and Property of Clients and Other Persons

4-100 Preserving Identity of Funds and Property of a Client

1.16 Declining or Terminating Representation 3-700 Termination of Employment

1.17 Sale of a Law Practice 2-300 Sale or Purchase of a Law Practice of a Member, Living or Deceased

1.18 Duties to Prospective Client No California Rule Counterpart

2.1 Advisor No California Rule Counterpart

2.3 [Reserved]6

2.4 Lawyer as Third-Party Neutral No California Rule Counterpart


1-710 Member as Temporary Judge, Referee, or Court-Appointed Arbitrator

3.1 Meritorious Claims and Contentions 3-200 Prohibited Objectives of Employment

3.2 Delay of Litigation No California Rule Counterpart

3.3 Candor Toward the Tribunal 5-200(A)-(D) Trial Conduct

3.4 Fairness to Opposing Party and Counsel 5-200(E) [Trial Conduct] 5-220 Suppression of Evidence (Note: Rule 5-220 recently was revised effective May 1, 2017.) 5-310 Prohibited Contact With Witnesses (Note: See also Rule 5-110 that recently was revised effective November 2, 2017.)

3.5 Contact with Judges, Officials, Employees, and Jurors 5-300 Contact With Officials 5-320 Contact With Jurors

3.6 Trial Publicity 5-120 Trial Publicity

3.7 Lawyer as Witness 5-210 Member as Witness

3.8 Special Responsibilities of a Prosecutor 5-110 Performing the Duty of Member in Government Service (Note: Rule 5-110 recently was revised effective November 2, 2017.)

3.9 Advocate in Non-adjudicative Proceedings No California Rule Counterpart


5-100 Threatening Criminal, Administrative, or Disciplinary Charges

4.1 Truthfulness in Statements to Others No California Rule Counterpart

4.2 Communication with a Represented Person 2-100 Communication With a Represented Party

4.3 Communicating with an Unrepresented Person No California Rule Counterpart

5 ABA Model Rule 1.14 (“Client With Diminished Capacity”) has not been adopted in California. 6 ABA Model Rule 2.3 (“Evaluation For Use By Third Persons”) has not been adopted in California.







4.4 Duties Concerning Inadvertently Transmitted Writings No California Rule Counterpart

5.1 Responsibilities of Managerial and Supervisory Lawyers No California Rule Counterpart7

5.2 Responsibilities of a Subordinate Lawyer No California Rule Counterpart

5.3 Responsibilities Regarding Nonlawyer Assistants No California Rule Counterpart8


1-311 Employment of Disbarred, Suspended, Resigned, or Involuntarily Inactive Members

5.4 Financial and Similar Arrangements with Nonlawyers 1-310 Forming a Partnership With a Non-Lawyer 1-320 Financial Arrangements With Non-Lawyer 1-600 Legal Service Programs

5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law

1-300 Unauthorized Practice of Law

5.6 Restrictions on a Lawyer’s Right to Practice 1-500 Agreements Restricting a Member's Practice

6.3 Membership in Legal Services Organizations No California Rule Counterpart

6.5 Limited Legal Services Programs 1-650 Limited Legal Service Programs

7.1 Communications Concerning a Lawyer’s Services 1-400 Advertising and Solicitation

7.2 Advertising 1-320(B)-(C) & (A)(4) [Financial Arrangements With Non-Lawyer] 1-400 Advertising and Solicitation 2-200 Financial Arrangements Among Lawyers

7.3 Solicitation of Clients 1-400 Advertising and Solicitation

7.4 Communication of Fields of Practice and Specialization 1-400 Advertising and Solicitation

7.5 Firm Names and Trade Names 1-400 Advertising and Solicitation

7.6 [Reserved]9

8.1 False Statement Regarding Application for Admission to Practice Law

1-200 False Statement Regarding Admission to the State Bar

8.1.1 Compliance with Conditions of Discipline and Agreements in Lieu of Discipline

1-110 Disciplinary Authority of the State Bar

8.2 Judicial Officials 1-700 Member as Candidate for Judicial Office

8.3 [Reserved]10

8.4 Misconduct 1-120 Assisting, Soliciting, or Inducing Violations

8.4.1 Prohibited Discrimination, Harassment and Retaliation 2-400 Prohibited Discriminatory Conduct in a Law Practice

7 But see rule 3-110, Discussion ¶. 1. 8 But see rule 3-110, Discussion ¶. 1. 9 ABA Model Rule 7.6 (“Political Contributions To Obtain Legal Engagements Or Appointments By Judges”) has not been adopted in California. 10 ABA Model Rule 8.3 (“Reporting Professional Misconduct”) has not been adopted in California.







8.5 Disciplinary Authority; Choice of Law 1-100(D) Rules of Professional Conduct, in General

Cross-Reference Chart of the New Rules to the Current ABA Model RulesSorted by the New Rule Number




Current ABA Model Rules (Rule Number and Title)

1.0 Purpose and Function of the Rules of Professional Conduct Preamble and Scope

1.0.1 Terminology 1.0 Terminology

1.1 Competence 1.1 Competence

1.2 Scope of Representation and Allocation of Authority 1.2(a)-(c) Scope of Representation and Allocation of Authority Between Client and Lawyer

1.2.1 Advising or Assisting the Violation of Law 8.4(a)

1.3 Diligence 1.3 Diligence

1.4 Communication with Clients 1.4 Communications

1.4.1 Communication of Settlement Offers No ABA Model Rule Counterpart11

1.4.2 Disclosure of Professional Liability Insurance No ABA Model Rule Counterpart12

1.5 Fees for Legal Services 1.5 Fees

1.5.1 Fee Divisions Among Lawyers 1.5(e)

1.6 Confidential Information of a Client 1.6 Confidentiality of Information

1.7 Conflict of Interest: Current Clients 1.7 Conflict of Interest: Current Clients

1.8 Conflict of Interest: Current Clients: Specific Rules13

1.8.1 Business Transactions with a Client and Pecuniary Interests Adverse to the Client

1.8(a)

1.8.2 Use of Current Client’s Information 1.8(b)

1.8.3 Gifts from Client 1.8(c)

No Rule Counterpart 1.8(d) [Acquisition of client’s literary or media rights]


1.8(e)

1.8.6 Compensation from One Other than Client 1.8(f)

1.8.7 Aggregate Settlements 1.8(g)

1.8.8 Limiting Liability to Client 1.8(h)

No Rule Counterpart 1.8(i)

11 But see Model Rule 1.4, Cmt. [2]. 12 Although there is no counterpart to new rule 1.4.2 in the ABA Model Rules of Professional Conduct, there is an ABA Model Court Rule on Insurance Disclosure. See http://www.americanbar.org/content/dam/aba/migrated/cpr/clientpro/Model_Rule_InsuranceDisclosure.authcheckdam.pdf [Last accessed 3/15/17]. 13 Model Rule 1.8 is a collection of 11 rules that regulate specific conflicts involving current clients. Each rule is assigned a separate paragraph letter but is untitled.

http://www.americanbar.org/content/dam/aba/migrated/cpr/clientpro/Model_Rule_InsuranceDisclosure.authcheckdam.pdf

http://www.americanbar.org/content/dam/aba/migrated/cpr/clientpro/Model_Rule_InsuranceDisclosure.authcheckdam.pdf






1.8.9 Purchasing Property at a Foreclosure or a Sale Subject to Judicial Review14

No ABA Model Rule Counterpart

1.8.10 Sexual Relations with Current Client 1.8(j)

1.8.11 Imputation of Prohibitions Under Rules 1.8.1 to 1.8.9 1.8(k)

1.9 Duties to Former Clients 1.9 Duties to Former Clients

1.10 Imputation of Conflicts of Interest: General Rule 1.10 Imputation of Conflicts of Interest: General Rule

1.11 Special Conflicts of Interest for Former and Current Government Officials and Employees

1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees



1.13 Organization as Client 1.13 Organization as Client

No Rule Counterpart 1.14 Client with Diminished Capacity

1.15 Safekeeping Funds and Property of Clients and Other Persons

1.15 Safekeeping Property

1.16 Declining or Terminating Representation 1.16 Declining or Terminating Representation

1.17 Sale of a Law Practice 1.17 Sale of Law Practice

1.18 Duties to Prospective Client 1.18 Duties to Prospective Client

2.1 Advisor 2.1 Advisor

2.2 [Deleted]15

No Rule Counterpart 2.3 Evaluation for Use by Third Persons

2.4 Lawyer as Third-Party Neutral 2.4 Lawyer Serving as Third-Party Neutral



3.1 Meritorious Claims and Contentions 3.1 Meritorious Claims and Contentions

3.2 Delay of Litigation 3.2 Expediting Litigation

3.3 Candor Toward the Tribunal 3.3 Candor toward the Tribunal

3.4 Fairness to Opposing Party and Counsel 3.4 Fairness to Opposing Party and Counsel

3.5 Contact with Judges, Officials, Employees, and Jurors 3.5 Impartiality and Decorum of the Tribunal

3.6 Trial Publicity 3.6 Trial Publicity

3.7 Lawyer as Witness 3.7 Lawyer as Witness

14 Although new rule 1.8.9 is not a direct counterpart to Model Rule 1.8(i), it has been assigned the number 1.8.9. Model Rule 1.8(i) provides:

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and

(2) contract with a client for a reasonable contingent fee in a civil case. 15 There is no ABA Model Rule 2.2. Although the original Model Rules (1983) included Model Rule 2.2 (“Intermediary”), that rule was rejected by the ABA in 2002 and deleted.






3.8 Special Responsibilities of a Prosecutor 3.8 Special Responsibilities of a Prosecutor

3.9 Advocate in Non-adjudicative Proceedings 3.9 Advocate in Nonadjudicative Proceedings



4.1 Truthfulness in Statements to Others 4.1 Truthfulness in Statements to Others

4.2 Communication with a Represented Person 4.2 Communication with Person Represented by Counsel

4.3 Communicating with an Unrepresented Person 4.3 Dealing with Unrepresented Person

4.4 Duties Concerning Inadvertently Transmitted Writings 4.4(b) Respect for Rights of Third Persons

5.1 Responsibilities of Managerial and Supervisory Lawyers 5.1 Responsibilities of a Partner or Supervisory Lawyer

5.2 Responsibilities of a Subordinate Lawyer 5.2 Responsibilities of a Subordinate Lawyer

5.3 Responsibilities Regarding Nonlawyer Assistants 5.3 Responsibilities Regarding Nonlawyer Assistance



5.4 Financial and Similar Arrangements with Nonlawyers 5.4 Professional Independence of a Lawyer



5.6 Restrictions on a Lawyer’s Right to Practice 5.6 Restrictions on Rights to Practice

No Rule Counterpart 5.7 Responsibilities Regarding Law-related Services

No Rule Counterpart16 6.1 Voluntary Pro Bono Publico Service

No Rule Counterpart 6.2 Accepting Appointments

6.3 Membership in Legal Services Organizations 6.3 Membership in Legal Services Organizations

No Rule Counterpart 6.4 Law Reform Activities Affecting Client Interests

6.5 Limited Legal Services Programs 6.5 Nonprofit and Court Annexed Limited Legal Services Programs

7.1 Communications Concerning a Lawyer’s Services 7.1 Communications Concerning a Lawyer’s Services

7.2 Advertising 7.2 Advertising

7.3 Solicitation of Clients 7.3 Solicitation of Clients

7.4 Communication of Fields of Practice and Specialization 7.4 Communication of Fields of Practice and Specialization

7.5 Firm Names and Trade Names 7.5 Firm Names and Letterhead

No Rule Counterpart 7.6 Political Contributions to Obtain Legal Engagements or Appointments by Judges

16 But see Rule 1.0, Cmt. [5].






8.1 False Statement Regarding Application for Admission to Practice Law

8.1 Bar Admission and Disciplinary Matters

8.1.1 Compliance with Conditions of Discipline and Agreements in Lieu of Discipline


8.2 Judicial Officials 8.2 Judicial and Legal Officials

No Rule Counterpart 8.3 Reporting Professional Misconduct

8.4 Misconduct 8.4 Misconduct

8.4.1 Prohibited Discrimination, Harassment and Retaliation 8.4(g)

8.5 Disciplinary Authority; Choice of Law 8.5 Disciplinary Authority; Choice of Law

inaugural women in trial trial advocacy skills...

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