INAUGURAL WOMEN IN TRIAL TRIAL ADVOCACY SKILLS...

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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.

Women in Trial Training

Speakers Bios Doris Cheng

Widely recognized for her legal work and for becoming the 106th President of the San Francisco Bar Association, Ms. Cheng has been ranked as one of the top 50 women lawyers in Northern California. She is listed among the Best Lawyers of America®, SuperLawyers®, and San Francisco Best Lawyers. Specializing in complex injuries caused by third-party negligence, Ms. Cheng has obtained multi-million dollar settlements and verdicts on behalf of disabled citizens throughout California. She completed a $13,500,000 settlement on behalf of 60-year-old gentleman who suffered severe brain damage due to carbon monoxide poisoning; a $6,800,000 award on behalf of a mother and her child for birth injuries resulting in hypoxic-ischemic encephalopathy to the child; and a global $14,250,000

settlement on behalf of a 45-year-old man who suffered severe burn injuries in an industrial accident.

A frequent guest lecturer and adjunct professor, Ms. Cheng has trained lawyers and judges nationally and internationally. As part of the Rule of Law Initiative, she has had the privilege of training trial lawyers and judges in Mexico, Kosovo, and Macedonia. She has also collaborated and trained with civil practitioners in Singapore and Belfast. This past year, she led trial skills training for criminal prosecution offices in Glasgow, Scotland and multiple Caribbean countries.

Ms. Cheng is also the Program Director of the National Institute for Trial Advocacy’s Western Region Advocacy Teacher Training Program. In 2012, she was awarded the Robert E. Keeton Award for outstanding service by the National Institute for Trial Advocacy. She is the 2015 recipient of the University of San Francisco Professional Achievement Award.

Ms. Cheng is involved in local bar associations and community organizations. She is the current President (former Secretary) of the San Francisco Bar Association and immediate Past President of the San Francisco Trial Lawyers Association. She is a former Chair of the Civility Matters! Program and current national representative for the American Board of Trial Advocates (San Francisco Chapter). She is a member of the American College of Trial Lawyers. She serves on the Kaiser Arbitration Oversight Board.

She is a co-author of the eminent Rutter Group California Practice Guide on Personal Injury, and the trial practice guide, Mastering the Mechanics of Civil Jury Trials.

Hon. Angela Bradstreet

In 2010, the Hon. Angela M. Bradstreet was appointed by former governor Arnold Schwarzenegger as a judge for the Superior Court of San Francisco County in California.

In 2016 she received the Tara L. Riedley Barristers Choice Award from the Bar Association in San Francisco for "her extraordinary efforts to educate and encourage young lawyers that are new to the practice of law and the courtroom. In addition, the award recognizes work done outside the courtroom in support of programs of the Barristers Club."

Judge Bradstreet has been a longtime advocate for women's rights and the rights of gays and lesbians. She won a 2003 Diversity Award from the State Bar of California for working to eliminate the glass

ceiling for women lawyers and prohibiting judges from belonging to organizations that discriminate against gays and lesbians.

In 2001 Judge Bradstreet was President of the Bar Association in San Francisco. In 1992 she was President of the California Women Lawyers Association.

Hon. Victor Hwang

Victor Hwang is a judge for the San Francisco County Superior Court in California. He was elected in the general election on November 8, 2016.

Hon. Harold Kahn

Judge of the Superior Court of California, County of San Francisco, 2001-present. Appointed by Governor Gray Davis Current term expires December 2020. Assignments included presiding over all aspects of civil, criminal and family law cases, as well as drug court, criminal domestic violence court and civil domestic violence court.

From January 2015 to the present assigned to civil trials. In February and March 2015 presided over the Pao v. Kleiner Perkins trial, which received daily national publicity. Handling numerous cases as a single assignment judge.

From October 2011 to January 2013 assigned as the sole judge to handle all law and motion and discovery matters in all civil cases

other than asbestos, housing and singly-assigned cases. Established the Court’s discovery pro tem program.

From January 2010 through September 2011 assigned as the sole judge in the newly-created asbestos case management department which included handling of all pretrial matters – including law and motion, discovery, settlement and trial setting and readiness – in all asbestos cases. Eliminated a backlog of over 600 cases, resulting in the first time in almost two decades that the Court was current with its asbestos cases.

Chair of the Collaborative Justice Courts Advisory Committee to the California Judicial Council, 2007-2010. Appointed by California Chief Justice Ronald George.

Hon. Monica Wiley

Monica F. Wiley has been a San Francisco Superior Court judge since 2009. She was appointed by Governor Arnold Schwarzenegger and is the second African American female appointed to the San Francisco Superior Court bench. During her tenure she has as presided in civil, criminal and family law departments in both trial and calendar courtrooms. Judge Wiley has also served as a member of the Court’s Executive Committee, the Alternative Dispute Resolution Committee, the Civil Grand Jury Committee, the Personnel Committee and the Events/Collegiality Committee. She currently presides over a family law calendar department. Judge Wiley also serves on the California Center for Judicial Education and Research (CJER) as

classroom faculty for newly appointed judges in the State of California.

Judge Wiley received her bachelor’s degree from the University of California at Berkeley in 1992 and earned her J.D., Cum Laude, from Howard University School of Law in 1995. She clerked for The Hon. David A. Garcia on the San Francisco Superior Court and joined the San Francisco City Attorney’s Office in 1996 where she spent over 10 years litigating personal injury cases in state court and civil rights claims in federal court. She served as lead trial counsel in 27 jury trials in both state and federal court. In 2007, Judge Wiley joined the San Francisco firm of Carlson, Calladine & Peterson, LLP, where she specialized in complex civil litigation until her appointment to the bench.

Judge Wiley is a member of the California Judge’s Association, the American Judge’s Association, the Wiley Manuel Law Foundation and a lifetime member of the Black Women Lawyers of Northern California, the Charles Houston Bar Association, and the California Association of Black Lawyers.

Justice Tracie Brown

The Honorable Tracie L. Brown has been a Judge on the San Francisco Superior Court since 2013.

Judge Brown graduated magna cum laude from Harvard University in 1992. In 1996, she received a Juris Doctorate from the University of California at Berkeley, Boalt Hall School of Law. Judge Brown clerked for the Honorable M. Margaret McKeown, Judge of the United States Court of Appeals for the Ninth Circuit. She also worked as an associate for Morrison Foerster LLP and Cooley Godward LLP before joining the U.S. Attorney’s Office in 2002. At the U.S. Attorney’s Office, Judge Brown tried numerous civil and criminal cases to verdict, and argued several cases before the Ninth Circuit. As an Assistant U.S. Attorney, she specialized in prosecuting white-collar crimes.

In 2002, Judge Brown received the California State Bar’s Jack Berman Award for Distinguished Service to the Profession and the Public, based on her extensive work on a pro bono case representing San Francisco’s Japanese American community. In 2003, she also received the Asian American Bar Association’s Joe Morozumi Award for Exceptional Legal Advocacy. In 2013, Judge Brown was honored with a United States Department of Justice Director’s Award for her work on a successful trial involving a massive online “pill mill,” through which three defendants unlawfully distributed millions of doses of controlled substances.

In May 2013, Governor Jerry Brown appointed Judge Brown to a position on the San Francisco Superior Court. Since her appointment, Judge Brown has presided over criminal trials, preliminary hearings, and the domestic violence court.

Barbara Barron

Barbara Barron is a professor of skills at Hofstra Law. She received her bachelor of arts degree in Russian from the State University of New York at Albany in 1974 and a master of arts degree in Russian from Columbia University in 1977. She received her Juris Doctor from Hofstra Law in 1984. Prior to attending Hofstra, Professor Barron was a linguist with the United States Department of Defense. She worked on high security level foreign language material.

Professor Barron’s professional legal experience is diverse. Upon graduation from Hofstra in 1984, she became a prosecutor with the New York County Office of the District Attorney. She left the prosecutor’s office in 1987 and was a litigator with firms in the New

York City metropolitan area. She specialized in complex commercial and matrimonial litigation. It was at that time that she began her teaching career as a faculty member for the National Institute of Trial Advocacy’s Basic Skills Northeast Regional Program.

Professor Barron returned to Hofstra in 1995 as a professor. Since that time, she has focused her teaching interests on advocacy skills courses. In addition to teaching the first year Legal Writing/Research and Appellate Advocacy courses, she has created and has taught skills oriented simulations courses and trial and appellate advocacy courses. She is currently the co-director of Hofstra’s trial techniques program and has been the law school’s director of student advocacy programs. In addition, she serves as co-director of the National Institute of Trial Advocacy’s (NITA) Basic Skills Northeast Regional Program. She has taught in various trial and pre-trial deposition skills courses as part of the National Institute for Trial Advocacy’s “in-house” private programs. Most recently, she expanded her advocacy teaching to lawyers in other countries. Professor Barron has developed and conducted and/or taught trial advocacy skills programs for the American Bar Association’s Central and Eastern European Law Initiative in Turkey and in the Republic of Georgia, and for the government of Bosnia-Herzogovina in Bosnia. Most recently, she taught in Japan’s first trial advocacy skills programs for members of Japan’s criminal defense bar, as well as in Kosovo, where she taught in a trial advocacy program sponsored by the United States Department of Justice.

James Brosnahan

James J. Brosnahan is named among the top 30 trial lawyers in the United States, according to the Legal 500 US. A lion of the trial bar, he is one of the most respected and recognized trial lawyers in the United States. Jim has been practicing trial and appellate law for over fifty years. He maintains an active practice of civil and criminal cases, very often cases that are going to trial or will be argued in Circuit Courts. In addition to his busy practice, he teaches a class on persuasion at UC Berkeley Law. Fascinated by many aspects of the law, Jim has an insatiable curiosity for many types of cases and will fight for justice, within the rules, for any of his clients. He has tried, to conclusion, 150 cases.

Mr. Brosnahan has received numerous awards and recognition throughout his distinguished career. In 1996, he was inducted into the State Bar of California's "Trial Lawyers Hall of Fame" and was awarded the Samuel E. Gates Award by the American College of Trial Lawyers in 2000 for his "significant, exceptional lasting contribution to the improvement of the litigation process." In 2001, Mr. Brosnahan was named "Trial Lawyer of the Year" by the American Board of Trial Advocates, and the following year, the San Francisco Lawyers' Club honored Mr. Brosnahan with its "Legend of the Law" award. In 2006, he was named one of America's most influential trial lawyers by the National Law Journal. In 2007, he received the American Inns of Court Lewis F. Powell Award for Professionalism and Ethics to recognize a "lifetime devoted to the highest standards of ethical practice, competence, and professionalism." In 2011, he received the Judge Learned Hand Award from the American Jewish Committee. He was recently recognized as a 2012 Lifetime Achiever by The American Lawyer which recognizes outstanding professional success and a devotion to public service. He was also a National Institute of Trial Advocacy (NITA) Teacher of the Year.

Mr. Brosnahan has been recommended as a leading lawyer by Chambers USA every year since its launch and has been inducted into the Lawdragon 500 Hall of Fame. He is also ranked by PLC Which Lawyer?, The Best Lawyers in America, The Legal 500 US, Benchmark Litigation, The Lawdragon Top 3000, The Best of the Best USA Litigation, Euromoney’s Expert Guides, and the top ten in Northern California Super Lawyers since its launch in 2004.

Mr. Brosnahan is active in professional activities and is a past president of the Bar Association of San Francisco, whose Volunteer Lawyers Service Program he founded. He was also a National Institute of Trial Advocacy (NITA) Teacher of the Year.

Mr. Brosnahan has served as special counsel to the California Legislature's Joint Subcommittee on Crude Oil Pricing, the lawyer representative to the Ninth Circuit Judicial Conference and Chairman of the Delegation. Mr. Brosnahan also serves as Master Advocate on the faculty and member of the Board of Trustees of the National Institute for Trial Advocacy.

Monique Carter

Monique attended the University of San Diego School of Law and graduated in 2005. Ever since graduation she has been with the San Diego Office of the Public Defender. She started out with the Central Misdemeanor Unit (CMU) and then defended juveniles at the juvenile delinquency branch for 2 years. She was then sent downtown to do a felony caseload in 2009 where she represented clients charged with serious felonies from drug sales to homicide. Monique conducted dozens of felony trials during this time. In 2014 she was promoted to Assistant Supervisor of the CMU. Here, Monique was in charge of training all of the new interns and attorneys in the San Diego Public Defender’s office. She also created trial academies for the young attorneys in the office. Her goal was to ensure all new attorneys had 3 trial academies within 18

months from hire. Currently, Monique is the Assistant Supervisor to the downtown felony attorneys. She still maintains a caseload while supervising the felony attorneys.

Monique has been teaching for NITA since 2008. She has taught in Washington, D.C., Ft. Lauderdale, Boulder, San Francisco, San Diego, Guam, Saipan and Dublin. She was NITA’s “NextGen” faculty member in 2013. In addition, she is a Trial Advocacy adjunct professor at the University of San Diego School of Law. She was also an adjunct professor at San Diego State University teaching political science.

Maria Danaher

Maria Greco Danaher regularly represents and counsels companies in employment related matters. She specializes in representing management in labor relations and employment litigation, and in training, counseling, and advising human resource departments and corporate management on these topics. Maria has first chaired trials in both federal and state courts since 1986, and regularly instructs attorneys and students in issues related to trial tactics.

In addition to her litigation experience, Maria regularly acts as a “neutral” for the local federal court’s Alternative Dispute Resolution Program, and was a co-drafter of the local rule related to ADR. She counsels and trains companies on dispute resolution procedures and facilitative communication, and is a member of the firm’s

Diversity Steering Committee. Maria also writes regularly for HR News, a monthly publication of the Society for Human Resource Management, and is on the Advisory Board of “You & the Law,” a publication of the National Institute of Business Management. She is a regular contributor to the Allegheny County Bar Association’s Lawyer’s Journal. She is a presenter for Pennsylvania Bar Institute continuing legal education programs, and is an adjunct professor for the University of Pittsburgh School of Law, and has been named one of the “Best Lawyers in America.”

Annie Deets-McHugh

Annie C. Deets is a Managing Attorney at the Law Office of the Public Defender in DeKalb County, Georgia. She is part of a specialized Behavioral Health Division, where she handles some of the most high-profile criminal cases in Atlanta. She is also part of the Training Division and responsible for developing the skills of the attorneys in her office.

Annie is also an accomplished and experienced trial advocacy instructor. In 2018, she was named as part of NITA’s Next Generation Faculty Development Program. Annie has taught in NITA Trial Programs across the United States and is currently one of the Program Directors of the Atlanta Deposition Skill Program.

As an Adjunct Professor at Emory University School of Law and at Georgia State University College of Law, she teaches advocacy skills classes and courses focusing on mental health issues in the criminal justice system. She is a Team Leader for the Kessler-Eidson Program for Trial Techniques at Emory, where she has been an instructor since 2010. She also coaches mock trial at Emory, where she helped the team to win back to back national championships. Annie has served as an instructor in a trial advocacy program for students from the City University of Hong Kong and members of the Chinese Judiciary as part of a partnership with the Supreme People’s Court.

Annie graduated from Vanderbilt Law School, where her interest in representing the underdog was first stoked and developed while a student working in the Vanderbilt Legal Clinic. While at Vanderbilt, Annie was awarded the Carl J. Ruskowski Clinical Legal Education Award, awarded to the student who demonstrated excellence in practice of law and best exemplified the highest standards of the legal profession.

Michael A. Kelly

Mike Kelly is in his fourth decade as one of the nation’s top personal injury attorneys. Throughout that time he has protected consumers from corporate greed, medical mistakes, dangerous household products, unsafe drugs and devices, roadway accidents and a host of other wrongs. He has tried, arbitrated or settled more than 200 cases where the recovery by his client exceeded $1,000,000.

Kelly is consistently listed among the top tier of lawyers in the country in cases involving personal injury, auto and trucking accidents, wrongful death, brain injury, paralysis and medical malpractice. A member of the prestigious Inner Circle of Advocates, he is currently spearheading the litigation against the giant utility

PG&E for the damage done to local residents by the recent Northern California wildfires and the tragic “Camp” fire in Butte County. He was selected by Super Lawyers as a “Top Ten” honoree for 2017-2018 and by “Best Lawyers” as the 2017 Lawyer of The Year in the area of mass torts.

In 2014, he was selected as the “Trial Lawyer of the Year” by the California Chapter of the American Board of Trial Advocates. In 2012 he was honored by the Consumer Attorneys of California with the Robert E. Cartwright award, for his work teaching Trial Advocacy. In 2011 he was honored by the National Institute of Trial Advocacy with the Robert Oliphant Award, recognizing his pro bono contributions to advocacy teaching. He has been selected as the San Francisco Trial Lawyers Association’s “Trial Lawyer of the Year,” an award for which he has been nominated in three different decades.

He holds an “AV” rating (highest rating) from Martindale-Hubbell. He has been elected to the most selective legal honorary societies including the American College of Trial Lawyers, the International Society of Barristers (for whom he served as President in 2012-2013), the International Academy of Trial Lawyers, The Summit Counsel and The Irish 100. He has served on the National Board of ABOTA and the Foundation of ABOTA.

He graduated summa cum laude from St. Mary’s College of California in 1973. He obtained his law degree from the University of California, Hastings College of the Law in 1976. He was an Assistant Professor of Law at Hastings from 1981 – 2001.

Cynthia McGuinn

Cynthia’s skills in the courtroom are the envy of many attorneys and she has the trial record to prove it—a number of her jury trials have resulted in eight figure verdicts and in 2015 she earned the record for the largest personal injury verdict in the history of Sonoma County.

Her ability to read and connect with jurors is second to none and she has the knack of making even the most difficult cases clear to each juror on the panel. Cynthia is often called upon to consult with attorneys who have cases that are going to trial, and to try cases for other attorneys who have worked up a complex case that cannot be resolved.

Cynthia’s client base is diverse; she represents consumers from infants to the elderly. Past clients include industrial workers such as iron workers, operating engineers, boilermakers, fork and crane lift operators, auto and airline mechanics, electricians, plumbers, carpenters, masons, roofers, painters, press operators, tile setters, truck drivers and general laborers. She has also represented other professionals such as computer analysts, IT professionals, nurses, doctors, teachers, judges, and models. A substantial part of her representation involves prosecuting actions for surviving family members in wrongful death cases and in prosecuting actions on behalf of persons sustaining injuries resulting in paraplegia or quadriplegia and brain injuries.

McGuinn was honored as the 2003 Trial Lawyer of the Year by the San Francisco Trial Lawyers Association and has been recognized as a “Top Woman Litigator” in California every year since 2005. She was the first woman president of the San Francisco Chapter and is presently the president of the national organization known as the American Board of Trial Advocates, and is a Fellow of several other invitation-only organizations, including the International Society of Barristers, the American College of Trial Lawyers and the International Academy of Trial Lawyers. The International Academy is limited to 600 members worldwide. Cynthia is also a member of the Consumer Attorneys of California, American Association for Justice, San Francisco Trial Lawyers Association and Bar Association of San Francisco.

While maintaining an active litigation practice, McGuinn writes, lectures and has taught at law schools (UC Berkeley and Harvard) on the subject of trial advocacy. When time permits she likes to bike, dive, and ski and ride her horses.

Cynthia has an A.V. Preeminent® rating for ethics and legal talent rated by Martindale-Hubbell.

Craig Peters

Craig M. Peters is a partner at Altair Law®. He handles complex and catastrophic cases involving severe injury or death. He has experience dealing with product defects, dangerous property conditions, vehicle and machine accidents, and professional negligence. He has a record of success in both settling and trying cases to verdict.

Craig is proud to fight for justice on behalf of his clients and is committed to helping them through a difficult time in their lives. The clients he helps have suffered from brain and spinal cord injuries, neck and back injuries, bone fractures and nerve damage, burn injuries and psychiatric injuries. Craig has extensive trial experience representing families and individuals who are union members and

laborers, service industry workers and white-collar professionals.

When other attorneys are unable to resolve their cases prior to trial, Craig is frequently asked to become trial counsel on their cases. He has regularly been invited to speak on the issue of trial skills by law schools, professional organizations and outside agencies. The international non-profit agency International Bridges to Justice, which seeks to end torture and build criminal justice systems around the globe, invited Craig to help train lawyers in India who are representing the indigent, during a four-day training in New Delhi.

Prior to starting Altair Law, Craig was a trial attorney representing victims of asbestos exposure throughout the State of California. He was a criminal defense attorney for 13 years and went to trial on a full range of cases from misdemeanors to felonies. During the last three years of his criminal defense work, Craig was the Director of Training for the Office of the Public Defender in San Francisco.

In addition to teaching trial skills at Hastings College of Law and University of San Francisco School of Law, Craig has been a professor of Constitutional Law and Evidence at San Francisco Law School. Craig is a member of the International Academy of Trial Lawyers (IATL), American Board of Trial Advocates (ABOTA), the American College of Trial Lawyers (ACTL), a five-time finalist for the SFTLA Trial Lawyer of the Year for the trial results he obtained for his clients in Staedler v. Galu (San Francisco), Doe v. Mazada (Alameda County), Will v. Caterpillar (Monterey County), Duncan v. Velasquez (Solano County) and Martinez v. Herndon Partners (Fresno County), and a finalist for the CAOC’s Consumer Attorney of the Year.

Nancy Pritikin

Nancy Pritikin is a partner in the Labor and Employment Practice Group in the firm's Silicon Valley office.

Ms. Pritikin has extensive courtroom experience and specializes in employment discrimination, wrongful termination, investigations of employee conduct, and sexual harassment matters.

Regarded for her experience as a trial attorney, Nancy is well-versed in high-profile employment class action matters. In addition to representing a police chief in a highly-publicized sexual harassment case and representing the Supreme Court of California in litigation alleging disability discrimination, she has successfully served as lead trial counsel for multiple class action cases, including wage and hour and discrimination claims.

Richard Schoenberger

Richard H. Schoenberger has enjoyed remarkable success in his thirty-three year legal career. His outstanding skills and presence in the courtroom have made him one of the most highly respected trial lawyers in California.

He is “AV” peer review rated by Martindale-Hubbell. Rich has been included in the national publication The Best Lawyers in America for the past eleven years and has been a Super Lawyer in Northern California for every year the designation has existed.

Owing to his many achievements in the courtroom, Rich is an invited member of the most prestigious trial lawyer organizations in the country: The International Academy of Trial Lawyers, The

American College of Trial Lawyers, the International Society of Barristers, and the American Board of Trial Advocates, where he served as President for the San Francisco Chapter during its 50th Anniversary year. He has recently chaired and/or presented at various Masters In Trial programs and other programs for ABOTA.

In June of 2004, The American Bar Association, in concert with the Department of Justice’s Central European Eurasian Law Initiative, invited Rich to the Republic of Georgia where he taught advocacy to 24 selected attorneys whose government had only recently allowed the right to a jury trial. In 2005, he was invited to lead a similar program in Sarajevo. In 2011, he led a trial advocacy program in Belfast for Northern Ireland solicitors.

After graduating from Santa Clara University in 1982, Rich attended the University of California, Hastings College of the Law. He began practice in 1985 as a Deputy District Attorney in the Alameda County District Attorney’s Office, where he prosecuted serious felonies. He joined the Walkup office in August of 1987 and became a partner in 1995. With Walkup, he has tried dozens of cases in more than ten counties throughout the state of California.

Rich is experienced in a wide variety of case types including traumatic brain injury, paralysis, workplace accidents, vehicular and bicycle negligence, medical malpractice, product liability, government liability, aviation disasters and wrongful death claims.

Miranda Kane

The Criminal Division Chief for the United States Attorney’s Office in the Northern District of California from November 2010 – March 2013, Ms. Kane is a respected defense attorney and a distinguished trial lawyer who has tried more than 70 cases in both federal and state courts. In 2012, Ms. Kane was named to the Daily Journal’s list of Top Women Lawyers in California.

After launching a successful solo practice in 2006, Ms. Kane was recruited to return to the US Attorney’s Office to serve as Criminal Chief. As Criminal Chief, Ms. Kane supervised and managed more than 80 Assistant U.S. Attorneys; oversaw all criminal investigations and prosecutions in Northern California, including matters involving securities and health care fraud, money laundering, trade secret theft,

cybercrime, obstruction and violent crimes; collaborated with the US Attorney to set and implement Office policy; and worked closely with Main Justice attorneys, the district court, federal law enforcement agencies, and the defense bar in an effort to foster an open dialogue and collaborative relationships with those constituencies.

An experienced defense lawyer, Ms. Kane was most recently Of Counsel at Munger, Tolles & Olson in San Francisco, where her practice focused on internal and government investigations, as well as complex civil litigation. Previously, as a partner at Rogers, Joseph, O’Donnell & Phillips, Ms. Kane co-headed the White Collar Criminal Defense Practice Group before embarking upon her solo venture, The Law Office of Miranda Kane, where she catered to both white collar clients and indigent criminal defendants through the Northern District of California’s Criminal Justice Act panel.

During her first stint in the US Attorney’s Office, Ms. Kane served in the Securities Fraud Unit and ultimately led the Office’s White Collar Crime Section. Ms. Kane began her legal career as a Deputy District Attorney in Los Angeles County where she tried over 65 cases to jury. Ms. Kane’s felony trial experience includes homicide, robbery, burglary, arson, narcotics, sex offenses, and domestic violence.

Ms. Kane lectures extensively on federal criminal procedure, attorney ethics, investigative practice, and civil and criminal parallel proceedings; and served as co-chair of the Northern California ABA White Collar Crime Subcommittee from 2008-2010. Ms. Kane also supports her community as a regular volunteer at the SF Marin Food Bank and the BASF mentor program, and as an active volunteer at her children’s schools.

Ms. Kane obtained her J.D. from UC Berkeley School of Law (Boalt Hall), where she was Associate Editor of California Law Review and President of Berkeley Law Foundation, an organization dedicated to providing students and graduates with opportunities in public interest law during and after law school. She obtained her B.A. from the University of California, Berkeley with high honors in English and was Phi Beta Kappa.

Linwood C. Wright

Mr. Wright is an Assistant United States Attorney in the Criminal Division of the United States Attorney=s Office in Philadelphia, Pennsylvania. During his tenure as a prosecutor, he also served for periods as a Senior Litigation Counsel, a Special Assistant United States Attorney in the District of the Virgin Islands and in the District of Delaware, and as an Associate Independent Counsel in Washington, D.C. He has served as a member of the United States Department of Justice’s Capital Case Committee. Prior to joining the United States Attorney's Office, he was a litigation associate at Washington, D.C.=s Steptoe and Johnson, and an Honor=s Program Trial Attorney in the Civil Division, Commercial Litigation Branch of the United States Department of Justice. Mr. Wright is a cum laude

graduate of Howard University School of Law. He is licensed to practice law in Ohio (inactive), Washington, D.C. (inactive), New Jersey, Pennsylvania and the United States Virgin Islands (inactive). Internationally, he is a Solicitor Advocate of the Supreme Court of England and Wales (non-practicing) with higher rights of audience in all criminal proceedings in the higher courts, a Solicitor of the Eastern Caribbean Supreme Court and on the list of counsel of the International Criminal Court.

He has taught advocacy in numerous NITA programs, the Hofstra University Law School Trial Techniques Program, the Emory University Law School Trial Techniques Program, the University of San Francisco Intensive Advocacy Program on behalf of the U.S. Department of Justice in the Attorney General=s Advocacy Institute and to foreign prosecutors in South Africa, Uganda, Malawi, Antigua, Thailand, Trinidad, Macedonia, Nigeria, Guyana and Tanzania. He has also taught advocacy in Singapore to members of its Law Society. He is a member of NITA’s Board of Trustees.

He has tried numerous and diverse cases on the federal level, ranging from white collar crime trials to war crimes/immigration trials to a federal death penalty trial, in locales as varied as Philadelphia, Pennsylvania; Wilmington, Delaware; Helena, Montana; San Antonio, Texas; and Christiansted, St. Croix and Charlotte Amalie, St. Thomas, United States Virgin Islands.

Larry Cirelli

Larry is a trial lawyer and a Fellow of the American College of Trial Lawyers. His practice focuses on complex business litigation, including disputes among shareholders, owners, officers and directors of companies, fiduciary duty, contracts, trade secrets, non-competition agreements and unfair competition claims. He represents clients in partnership and corporate dissolution actions. His experience as a certified public accountant brings a unique skill set and perspective to these types of matters. A significant part of his practice also involves the defense of consumer and business tort actions. In addition, Larry handles professional liability and product liability litigation. He has tried numerous jury and court trials, as well as arbitrations, in a range of cases spanning business torts, commercial contracts, business dissolutions, real estate, insurance, professional liability and products liability.

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)



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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.

.

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