2021 YLS Skills Institute: Day 1 - Nebraska State Bar ...
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The NSBA’s Young Lawyers Section presents:
2021 YLS Skills Institute: Day 1
Thursday, March 18, 2021
WEBCAST
George Dungan, Lancaster County Public Defender’s Office
Bruce Prenda, Lancaster County Attorney’s Office
Sarah Newell, Nebraska Commission on Public Advocacy
Seth Morris, Berry Law Firm
Claude E. Ducloux, LawPay
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AGENDA
1:00 PM – 2:00 PM Ethics Lines in Criminal Closings
George Dungan, Lancaster County Public Defender’s Office
Bruce Prenda, Lancaster County Attorney’s Office
Sarah Newell, Nebraska Commission on Public Advocacy
This panel discussion will review what a lawyer can and cannot
say during closing arguments, including when a lawyer crosses
the “ethical line,” from both the prosecutorial and defense
perspectives.
2:00 PM – 2:05 PM Break
2:05 PM – 3:05 PM 10 Strategies for Taking Witness Testimony in Depos and Trials
Seth Morris, Berry Law Firm
Though it may look simple when done correctly, witness
testimony is not as easy as creating a list of questions and
asking them in a courtroom. There are many intricacies that go
along with it, including preparation. This session will review 10
strategies attorneys need to know when taking witness
testimony.
3:05 PM – 3:10 PM Break
3:10 PM – 4:10 PM The Psychology of Settlement: Behaviors that Encourage
Opportunities for Resolution
Claude E. Ducloux, LawPay
This session will cover:
The biology of decision-making and cognitive behaviors of
human mind;
The psychology of making decisions when in stress, as in
litigation;
Use of heuristics, and other mental short cuts which
supplant deliberative operations;
Seven Steps to good decisions;
Confirmation Bias;
Determining client objectives and alternatives early to
identify paths of resolution;
Attorney missteps such as underestimating, engaging in
improper conduct; and failure to keep clients informed;
subserving the client’s inappropriate motivations;
Strategies for honest advocacy and civility;
Discussions of the atmosphere for settlement;
Good Client relationships, and respect from court and staff;
Cultivating productive relationships with opposing counsel;
Duties of proactivity to encourage settlement;
Psychology of ADR, and characteristics of effective
“neutrals”;
Using Catharsis v. Directive persuasion;
Improving and Defending your profession; and
What Clients Really Want: the survey results.
SPEAKER BIOS George Dungan, Lancaster County Public Defender’s Office George Dungan is a graduate of the University of Kansas and Washington College of Law. He currently works as a Deputy Public Defender in Lancaster County, Nebraska. Bruce Prenda, Lancaster County Attorney’s Office Bruce Prenda is a graduate of Brown University and Creighton University School of Law. He currently works as Chief Deputy Lancaster County Attorney in Lancaster County, Nebraska. Sarah Newell, Nebraska Commission on Public Advocacy Sarah Newell is a 2001 graduate of the University of Nebraska College of Arts and Sciences and a 2005 graduate of the University of Nebraska Law College; she graduated from both with high distinction. Before starting her legal career, Sarah worked for the Nebraska Legislature in several different capacities and served as a mental health technician at CenterPointe’s dual diagnosis youth residential treatment center. In law school, she clerked for the Lancaster County Public Defenders’ Office and was elected Research Editor of the Nebraska Law Review among other student organizations. After graduation, she clerked for Nebraska Supreme Court Justice William Connolly before returning to the Public Defenders’ Office where she practiced until 2013, handling cases ranging from juvenile court and mental health commitments, to misdemeanor and felony jury trials and appeals. Since 2013, she has practiced at the Nebraska Commission on Public Advocacy, a state agency that provides indigent defense to high-profile, serious felonies across the State. Throughout her career, she has tried more than 45 cases to jury, and handled over 20 cases before the Nebraska Supreme Court including death penalty cases. Seth Morris, Berry Law Firm Seth Morris is an ardent protector of his clients’ rights in the courtroom. Seth has trial experience in civil and criminal cases at both the State and Federal levels. Recently, Seth won a nationally-publicized criminal case where he earned an acquittal for a client wrongly accused of resisting arrest and obstructing a police officer. This case was one of the first in Nebraska in which cameras were allowed in the courtroom. Seth has also been recognized by Super Lawyers as a Great Plains Rising Star, a designation given to only 2.5% of lawyers in the state. He handles a variety of criminal defense cases, including drug crimes, DUI/DWI defense, assault, personal injury, and civil rights violations. Seth received his B.A. from Concordia University, then earned his J.D. from the University of Nebraska College of Law. He is currently a member of the Nebraska Bar Association and an active participant in NORML. Claude E. Ducloux, LawPay Claude E. Ducloux is a Board-Certified by the Texas Board of Legal Specialization in Civil Trial Law and Civil Appellate Law, and former Grievance Prosecutor for the State Bar of Texas (also licensed in CA and CO) and former Chair of the Texas Center for Legal Ethics.
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2021 YLS Skills Institute: Day 1
Ethics Lines in Criminal Closings
George Dungan
Bruce Prenda
Sarah Newell
Thursday, March 18, 2021
WebcastThis page intentionally left blank.
3/16/2021
Ethical Lines in Criminal Closing
Arguments
Bruce J. Prenda
Chief Deputy Lancaster County Attorney
1
Presentation Credit
(for educational
purposes)
• Jim Smith, Chief
Appellate Division Nebraska Attorney General
• Steve Schmidt, Professor
University of Nebraska College of Law
2
13/16/2021
Berger v. United States, 295 U.S. 78 (1935)
• Adversarial Process, but the interest for the government “in a criminal prosecution is not
that it will win a case, but that justice shall be done”
• “guilt shall not escape or innocence suffer”
• “[S]he may prosecute with earnestness and vigor, indeed, [s]he should do so. But, while
[s]he may strike hard blows, [s]he is not at liberty to strike foul ones. It is as much [a] duty
to refrain from improper methods calculated to produce a wrongful conviction as it is to
use every legitimate means to bring about a just one.”
• Violations of the “bounds of propriety and fairness” included: improper suggestions and
assertions, introducing personal knowledge into evidence, questioning with
unsupported insinuation, misstating facts, introducing facts not in evidence, bullying and
arguing with witness
• Acting “indecorous and improper”, “undignified and intemperate” amounts to misconduct
3
Rules of Professional Responsibility
Rule 3.8 Special Responsibilities of Prosecutor (Comment 1)
A prosecutor has the responsibility of a minister of justice and not simply that
of an advocate. This responsibility carries with it the specific obligations to see
that the defendant is accorded procedural justice and that guilt is decided
upon the basis of sufficient evidence.
4
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ABA Standards for Criminal Justice
3‐1.2(c) The Function of the Prosecutor
(c) The duty of the prosecutor is to seek justice, not merely to convict.
5
5
Defense Obligations
• United States v. Wade, 388 U.S. 218, 256 (1967) concurring and dissenting:
“Law enforcement officers have the obligation to convict the guilty
and to make sure they do not convict the innocent. They must be
dedicated to making the criminal trial a procedure for the ascertainment
of the true facts surrounding the commission of the crime. To this
extent, our so-called adversary system is not adversary at all; nor should it be.
But defense counsel has no comparable obligation to ascertain or present the truth.
Our system assigns [the defense] a different mission. [It] must be and is interested in preventing the
conviction of the innocent, but, absent a voluntary plea of guilty, we must also insist that [defense
counsel] defend [a] client whether [s]he is innocent or guilty.”
6
33/16/2021
• concurring and dissenting
• “The state has the obligation to present the evidence. Defense Counsel need not present any
witnesses to the police, or reveal any confidences of [a] client, or furnish any other
information to help the prosecutor’s case. If [s]he can confuse a witness, even a truthful
one, or make [the witness] appear at a disadvantage, unsure or indecisive, that will be
[the] normal course. Our interest in not convicting the innocent permits counsel to put the
State to its proof, to put the State’s case in the worst possible light, regardless of what [s]he
thinks or knows to be the truth.”
Justice White on Defense Attorneys
United States v. Wade, 388 U.S. 218, 256 (1967)
7
• No name calling (references to the defendant or counsel)
• “predator” vs. “predatory behavior”
• “gang member” vs. “gang‐related activity”
• “counsel lied” vs. “counsel argued”
• Always be fair
• Don’t lie
• Focus on the Law and the Facts
Bright Lines: Avoiding Prosecutorial Misconduct
8
43/16/2021
Appellate Caselaw for Criminal Cases
• Necessarily skewed
• Who appeals?
• When do they appeal?
• What do they complain of when they appeal?
• Most commonly review prosecutor’s statements and conduct
9
Case examples
Misconduct vs. Error
Cases necessarily arise most often in criminal law based on the conduct of the prosecutor
10
53/16/2021
Prosecutorial Misconduct
• Two Prong Test
1. Did statements mislead or unduly influence jury?
2. Did it prejudice defendant’s right to fair trial?
11
Did it prejudice defendant’s right to fair trial?
Five considerations
1. Degree to which remarks tended to mislead/unduly influence jury
2. Whether remarks were extensive or isolated
3. Whether defense counsel invited the remarks
4. Whether the court provided a curative instruction
5. Strength of evidence supporting conviction
12
63/16/2021
State v. Cullen, 292 Neb. 30 (2015)
(No misconduct)
• Prosecutor’s closing argument comments about defendant’s lack of emotion
during the trial for intentional child abuse resulting in death did not constitute
plain error.
• Prosecutor’s remarks could not have misled or unduly influenced the jurors as
jurors had observed defendant’s demeanor for themselves.
13
State v. Custer, 292 Neb. 88 (2015)
(No misconduct)
• Prosecutor’s closing argument regarding amount of time murder defendant had to
prepare his testimony prior to trial were not improper comments on his silence.
• Argument, which included that defendant “wrapped his story around the forensics
after having 15 months to look at it” and that he “forms his story around the
forensics” were properly directed to credibility of defendant’s testimony.
14
73/16/2021
State v. McSwine,
292 Neb. 565 (2016) (No misconduct)
• No misconduct in prosecutor’s comments during closing and rebuttal argument that there
was no evidence to support defendant’s testimony that text messages sent to his wife and
friend expressing remorse, concerned his actions related to trespass and not to kidnapping
and sexual assault of victim.
• Although prosecutor had knowledge of police reports of trespass, no evidence was presented
at trial about a trespass.
• Jury was instructed that it could only consider evidence received at trial
• Comments were brief in the context of a long closing argument
• Comments during rebuttal were invited by defendant’s long closing in which he referenced a
call to police about trespass, for which no evidence had been offered, and evidence
supporting convictions was strong.
• Supreme Court reversed Court of Appeals(Appeals court erroneously found prosecutor
misconduct, even though prosecutor was correct that there was no evidence to support
defendant’s testimony and jury was instructed to consider only evidence received at trial)
15
2018
1. State v. Cotton 299 Neb. 650
2. State v. Hernandez 299 Neb. 896
3. State v. Tyler 301 Neb. 365
4. State v. Smith 2018 Neb. App. LEXIS 144
5. State v. McCurdy 25 Neb. App. 486
6. State v. Stricklin 300 Neb. 794
16
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State v. Hernandez, 299 Neb. 650 (2018)
• Falls City Murder
• Nebraska Supreme Court Chief Justice questioned prosecutor during oral argument
whether prosecutor’s remarks during closing argument amounted to an ethical violation.
• Did prosecutor’s remarks during closing argument amount to prosecutorial misconduct and
make the trial “unfair”.
• Defense claimed prosecutor made personal attacks on the defendant and offered his own
personal opinion and unduly influenced the jury.
• “I don’t know that there is sufficient words in the dictionary or adjectives in the thesaurus
to describe the selflessness, the senseless, the heartless, the disgusting acts committed not
by just Mr. Hernandez, but, also by the likes of John Hall, Brett Winters, and Dave
McPherson. It honestly, made me sick and it makes me sick that the State had to present
any of those witnesses before you . . .“
• This approach “crossed the line”?
17
• Direct Appeal
• “Misconduct” alleged:
• Prosecutor said
• “It honestly makes me sick… [to call
these witnesses]
Hernandez (2018) • Supreme Court:
• “CLEARLY PROSECUTORIAL MISCONDUCT”
• But overwhelming evidence, so Affirmed
• Counsel for Discipline involved
18
93/16/2021
• Direct Appeal
• “Misconduct” alleged:
• Prosecutor said:
• V is “broken young woman. Not a fighter.”
People don’t report because afraid to go thru
McCurdy (2018) process to get justice. [Defense atty] called her a
liar. She had her words twisted.
• Court said: Not improper plea for sympathy, attempt
to rehabilitate witness.
• Conviction AFFIRMED.
19
• Appeal of Overruled Motion for Post‐
Conviction Relief
• “Misconduct” alleged:
• Prosecutor said regarding disputed phone
records:
Stricklin (2018) • Why are there no more calls? The two
of them are together. And in my
mind… [defendant] turned his phone
off.
20
103/16/2021
• Court said: Not misconduct. Prosecutor properly
responding to defense argument.
• However… “prosecutors would be wise to
avoid language expressing personal opinion on
any matter…”
Stricklin (2018) • “We have emphasized the importance of this
rule [that prosecutor’s shouldn’t give their
personal opinions] and have admonished
prosecutors to avoid using phrases such as “I
believe” or “the State believes” when arguing
their case to the jury.”
• Conviction AFFIRMED.
21
2019/2020 (No misconduct)
• State v. Mrza, 302 Neb. 931 (2019) sexual assault
• Use of interpreter is a “charade” for “sympathy” was an isolated comment
• State v. Cavitte, 28 Neb.App. 601 (2020) domestic violence
• Credibility and inconsistent statements were in issue; prosecutor’s comments were
examined in the full context of the full trial
• State v. Duckworth, 29 Neb.App. 27 (2020) assault/terroristic threats
• “I don’t think”; quoted racial slur; misstate law were all “brief and isolated” and proper
instructions in the law given
• State v. Price, 306 Neb. 38 (2020) robbery/assault
• Comments were inferences drawn from the evidence
• State v. Barrera, (unreported) 10/6/2020 sexual assault
• Use of the word “probably”; “a prosecutor is entitled to draw inferences from the
evidence”
22
113/16/2021
Fairness
• Don’t Comment on Criminal Defendant’s Silence.
• Post‐Arrest
• At Trial
• Don’t Put Jury in Place of Party or Witness.
• Don’t Shift the Burden
• Don’t “Send a Message”
23
Words Can Be a Trap
Don’t let emotion lure you in
24
123/16/2021
Don’t lie or stretch the truth
• Misstating the Evidence
• Misstating the Law
25
Reputation
Last Worst Act Approach
26
133/16/2021
• Comment on the EVIDENCE
• Use the Instructions
• Don’t personalize the facts with the jurors
• Don’t personalize the trial, get emotional, or lose
control or focus
• Trust yourself and the system of justice
Fundamentals
27
• Engage in Spirited Summation in the “rough and tumble “
atmosphere of a trial
• Be Persuasive
• Be Passionate
• Be Professional
• Don’t Mislead, Unduly Influence, or otherwise Prejudice the fair
administration of justice
Make Your Final Argument
28
14CLOSING ARGUMENT ETHICAL GUIDELINES 1. Prosecutors are Held to a Higher Standard: “The prosecutor’s opinion carries with it the imprimatur of the government and may induce the jury to trust the government’s judgment rather than its own view of the evidence.” State v. Gonzales, 294 Neb. 627 (2016); Berger v. U.S., 295 U.S. 78, 88 (1935). 2. Object to Improper Closing Arguments: State v. Cotton, 299 Neb. 650, 688 (2018); State v. Alarcon- Chavez, 284 Neb. 322 (2012). 3. Do Not Express Counsel's Personal Belief/ Opinion: Nebraska Ethical Duties 3-503.4; U.S. v. Young, 470 U.S. 1 (1985); State v. Cotton, 299 Neb. 650 (2018); State v. Gonzales, 294 Neb. 627 (2016) (“liar” v. evidence shows he lied). 4. Do Not Misstate/ Misuse Evidence or Argue Facts Not in Evidence: Ð Standard 3-6.9: Edwards v. Sears, Roebuck & Co., 512 F.2d 276 (5th Cir. 1975). 5. Do Not Infringe Constitutional Rights like Invocation of Counsel, Presumption of Innocence, Right to Jury Trial, or the Right not to Testify: Ð Standard 3-6.8: Griffin v. California, 380 U.S. 609 (1965); Cunningham v. Zant, 928 F.2d 1006 (11th Cir, 1991); Doyle v. Ohio, 426 U.S. 610 (1976); State v. Custer, 292 Neb. 88 (2015). 6. Do Not Inflame the Jury's Passions or Prejudices: Ð Standard 3-S.8(c); Darden v. Wainwright, 477 U.S. 168 (1986); State v. Barfield, 272 Neb. 502, 512-16 (2006); State v. Dubray, 289 Neb. 208 (2014). 7. Do Not Argue the Golden Rule: Hodge v. Hurley, 426 F.3d 368, 377-85 (6th Cir. 2005); U.S. v. Palma, 473 F.3d 899 (8th Cir. 2007). 8. Do Not Misuse Limited Use Evidence: U.S. v. Simpson, 479 F.3d 492 (7th Cir. 2007), abrogated on other grounds, U.S. v. Thomas, 986 F.3d 723 (7th Cir. 2021). 9. Do Not Take Unfair Artistic License with Evidence: U.S. v. Moore, 651 F.3d 30 (D.C. Cir. 2011). 10. Do Not Disparage Opponent: U.S. v. Young, 470 U.S. 1 (1985); State v. Barfield, 272 Neb. 502 (2006). 11. Do Not Argue Religious Beliefs: Cunningham v. Zant, 928 F.2d 1006 (11th Cir. 1991). 12. Do Not Invite Error: Lawn v. U.S., 355 U.S. 339 (1958); Darden v.Wainwright, 477 U.S. 168, 182 (1986); State v. McSwine, 292 Neb. 565 (2016). 13. Do Not Repeat an Error After Court’s Admonishment. State v. Beeder, 270 Neb. 799 (2006). 14. Ask to Withdraw Objectionable Arguments & Ask the Court Order it Disregarded. U. S. v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940).
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2021 YLS Skills Institute: Day 1
10 Strategies for Taking Witness
Testimony in Depos and Trials
Seth Morris
Thursday, March 18, 2021
WebcastThis page intentionally left blank.
3/17/2021
STRATEGIES FOR TAKING WITNESS
TESTIMONY IN DEPOS AND TRIALS
SETH W. MORRIS
1
PRELIMINARY MATTER
Law school is over.
Your successes/shortcomings in academia don’t guarantee
successes/shortcomings in the Courtroom.
The Judge & jury don’t care if you were Top 10%, on Moot Court, or
Gunner of the Year in 2018TM.
You’ve demonstrated competency to pass the bar. Anyone and everyone
can be a successful litigator.
2
13/17/2021
DISCLAIMER
These are general tips and tricks that are true most of the time.
3
TIP # 1: BE YOURSELF
Learn from those around you
Incorporate elements of successful attorneys
Forge your own brand
Everyone can smell an imposter.
4
23/17/2021
TIP # 2: DON’T FEAR FAILURE
We learn by doing. No amount of books or seminars can replace
experience.
Much of that early experience is going to be failure.
Losing sucks. Learn from it.
Remember: Clients don’t know the law, but they do know when
somebody is putting in the work and is fighting for them.
5
TIP #3: DEVELOP A THEME
Before depositions, develop a theme and build your entire case around it. Build
your deposition questions around establishing the elements of that theme.
Jurors love a theme that plays out like a story. They want this to be like TV.
Key: Use the facts as they are, not as you wish they were.
Examples:
DUI/Marijuana: “If the bong wasn’t hit, you must acquit.”
-Drugs found on client. Dirty U/A. Officer said Def. failed SFST’s.
-Jury deliberated 30 minutes = Not Guilty.
Upcoming Trial: “To find my client guilty beyond a reasonable doubt, you have to
find [Alleged Victim] credible beyond a reasonable doubt. Here’s why you won’t…”
6
33/17/2021
TIP #4: UNDERSTAND THE PURPOSE OF A
DEPOSITION
The purpose of a deposition is simple:
1) Discovery/Fact Gathering
2) Lock in Testimony
3) Prepare for a Dispositive Motion (Summary Judgment/Motion to
Suppress)
7
TIP #5: UNDERSTAND WHAT A
DEPOSITION IS NOT
A deposition is not cross examination.
If you treat a deposition like a cross examination, you will have wasted an
invaluable opportunity to question a witness on the record outside the
presence of a jury. Take chances.
Depositions are like a fence: They keep a witness in a certain area
Realistic best case if you treat this like cross exam – you’ve got a good
transcript for one or two “gotcha” questions but have given the opposing
party advanced notice before trial to try and they will find a way to wiggle out
8
43/17/2021
TIP #6: PREPARE (YOURSELF)
No amount of experience excuses a lack of preparation.
Review reports forwards and backwards. Have questions & exhibits prepared.
Anticipate objections. Visualize answers and where deposition will go.
However – don’t be so over-prepared that you become rigid. Be Fluid.
Show up on time. Know where the deposition is being held.
Make sure a Court reporter will be present.
9
TIP #7: PREPARE (YOUR CLIENT)
Explain the ground rules & importance.
Explain how to answer questions
Practice, practice, practice
-Have a co-worker or law clerk cross examine them
Civil Attorneys, advanced tip: Explain Attorney Client Privilege & take
steps to ensure they don’t waive it inadvertently.
-You should be ready to object, but prepare them anyways in case
you are examining an exhibit or fall asleep at the wheel
10
53/17/2021
TIP #8: THERE’S NO “SHOT CLOCK” AT
DEPOSITIONS
Court reporters don’t notate “Seth Morris waited 1 minute 46 seconds
between questions”, they notate words that are being said.
The ultimate goal is to prepare a transcript that can be useful in some
way, shape, or form at trial or a dispositional hearing.
You can’t expect to get a second bite at the apple – take the time you
need to get the questions asked that you want.
11
TIP #9: SET THE STAGE
At the outset of depositions, ask the witness a series of questions that
establish they are in the right state of mind.
Examples:
-Are you under the influence of any drugs or alcohol that would impair
your ability to participate in this deposition?
-Are you feeling OK today?
-Are you able to understand me?
-If you don’t understand my questions, will you let me know so I can re-
phrase or re-state the question?
-If you need a break, let me know.
12
63/17/2021
TIP #10: RE-SET THE STAGE AT
CONCLUSION
Prior to terminating the deposition, re-set the stage. Ensure they are still
in a right state of mind. In addition to the questions previously stated,
ask similar questions to:
-When I asked you questions regarding XXX, did you understand?
-How confident are you in your answers to question YYY?
State the total amount of time in deposition on the record (if brief)
This is your last chance to lock them in. Give them zero wiggle room.
13
TIP #11: BE A LION OR LAMB
If you are defending a deposition: be a lion.
-Anticipate the objectionable questions and act immediately.
-Act aggressively to defend your client.
If you are taking the deposition: be a lamb.
-Extract as much testimony as possible
-The more testimony on paper, the more likely you are to find
inconsistencies and impeachable statements.
14
73/17/2021
TIP #12: LET THE SNARE TRAP WORK
Don’t immediately jump all over a witness who you know is lying.
-They shut down
-Your “Perry Mason” moment won’t be as cool as you think it will be.
Let them walk further and further into the trap.
Marry them to their lie
Oftentimes I never even bring it to the attention of the witness that they just
got ensnared.
Don’t underestimate your jurors. They notice this, and they love to see it.
15
TIP #13: TALK ‘MERICAN
Jurors will fall asleep if you talk too much like a lawyer
Simultaneously they’ll hate you if you talk down to them
When questioning witnesses, talk like you’re a normal person
16
83/17/2021
TIP #14: TREAT WITNESSES W/ RESPECT
When questioning law enforcement, I always ask them how they prefer
to be addressed (Investigator, Detective, etc)
Address Professionals w/ their titles
Everyone is a Mr. or Mrs. (unless they have another pronoun)
17
TIP #15: CONTROL THE WITNESS
Ask simple, concise, direct questions that you know the answer to.
Don’t allow them to evade the question.
18
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TIP #16: HELP YOUR WITNESS SHOW,
NOT TELL, THE JURY
Use photographs, maps, diagrams, videos and other exhibits early and
often.
Jurors are people, and people tend to be visual learners.
Demonstrate when possible.
Judges will let you do a lot more than you think if you just ask.
Example: MMA dummy for massage demonstration.
19
TIP #17: ADDRESS YOUR WEAKNESSES
With a friendly witness, address your weakest points head-on
Own the narrative
Turn bad facts into good facts
Example: Passenger being recorded on a flight cussing at a flight
attendant and a N/G Federal Trial.
20
103/17/2021
TIP #18: PIGS GET FAT, HOGS GET
SLAUGHTERED
Get what you need from a witness, and stop
Don’t gamble on trying to get a more perfect answer and giving the
witness an opportunity to escape
Don’t bully the witness or belabor the point.
21
TIP #19: HANDLE WITH CARE
Each witness needs to be handled appropriately.
You can’t treat a 45 year old construction worker and a 13 year old tik-
tocker the same.
Being overzealous with young, sensitive, and/or under-educated
individuals to demonstrate how smart you are loses jurors.
22
113/17/2021
TIP #20: BE FLUID
Don’t go into a deposition or cross-examination of a witness married
into exactly what needs to happen.
Prepare beforehand.
Take detailed notes during.
Strike where opportunity presents itself.
23
THANK YOU!
Email: sethm@jsberrylaw.com
Cell Phone: 402-948-0420
24
122021 YLS Skills Institute: Day 1
The Psychology of Settlement:
Behaviors that Encourage Opportunities
for Resolution
Claude E. Ducloux
Thursday, March 18, 2021
WebcastThis page intentionally left blank.
CREATING STRONG AND
EFFECTIVE CLIENT
RELATIONS:
The Art of Communication and
Collaboration
Claude E. Ducloux
Attorney at Law
Board Certified- Civil Trial Law
Board Certified – Civil Appellate Law
Texas Board of Legal Specialization
National Director of Education – LawPay
Austin, Texas
claude@lawpay.comCLAUDE E. DUCLOUX
3700 Capital of Texas Highway North, Suite 300
Austin, Texas 78746
Telephone: (512) 716-8580
E-Mail: cducloux@affinipay.com
EDUCATION
University of Texas, Austin, B.A., 1972
St. Mary's University, San Antonio, J.D., December 1976
BAR ADMISSIONS
Texas1977; California 1978, Colorado 2003
Various US District Courts and Circuit Courts of Appeal
EMPLOYMENT
Assistant General Counsel, State Bar of Texas: 1978-1980
Robinson, Felts, Starnes, Angenend & Mashburn; Civil Trial Attorney, 1980-1987
Wood, Lucksinger & Epstein; Civil Trial Attorney, 1987-1989
1989-2016 Hill, Ducloux, Carnes & de la Garza
2016 – pres. Attorney at Law, private practice, and Director of Education, Ethics and Compliance, LawPay
PROFESSIONAL ACTIVITIES
President, Travis County Bar Association (now, Austin Bar Association); 1997-1998; every officer position 92-97;
Chair, Texas Board of Legal Specialization, 1997-1998
Board Certified: Civil Trial Law, 1984; Civil Appellate Law, l987
Chair, Texas Bar Foundation 2005-2006; Secretary-Treasurer (04-05); Trustee 2004-2008
Chair, Texas Center for Legal Ethics and Professionalism: 2004-06, Trustee 2003-07
Chair, College of the State Bar of Texas; 1992-94; Vice-Chair 1990-92; Director, 1988-98,
Chair, State Bar of Texas Annual Meeting (Texas Bar Convention), 2001
Chair, United States Fifth Circuit Judicial Conference, Austin 2004
President, St. Mary’s Law School Alumni Association, 2006-07, Trustee, 2001-2008.
Associate, American Board of Trial Advocates, 1999- pres.
Director, State Bar of Texas; District 9, 1998-2001; Executive Committee 1999-2001
(Outstanding 3rd Year Director Award - 2001)
Director, Austin Lawyers Care (now: Volunteer Legal Services of Central Texas), 86-89
Director, Austin Young Lawyers Association, 1984-1986
Editor, Travis County Practice Handbook, 1984, 1986
Distinguished Mediator, Texas Mediator Credentialing Association, 2010
Appointed by Texas Supreme Court to Committee on Disciplinary Rules and Referenda (3 year term-Dec 2017-20)
PROFESSIONAL HONORS
Distinguished Lawyer Award – Austin Bar Association – Austin Bar Foundation 2019
Pat Nester Award – College of the State Bar of Texas for Outstanding Achievement in CLE 2019 (Statewide Award)
Daniel R. Price Award for Lifetime Contribution to Legal Profession –Texas Bar Foundation 2019 (Statewide)
Luke Soules Award – Litigation Council Award for Outstanding Service to Practice of Law 2019 (Statewide)
Lola Wright Foundation Award for Promotion of Legal Ethics, 2013 (Statewide Award)
Gene Cavin Award for Lifetime Excellence in CLE, State Bar of Texas, 2011 (Statewide Award)
Presidential Citations; State Bar of Texas, 2001 and 2006 (Statewide Award)
Annual Professionalism Award, College of the State Bar of Texas, 2002 (Statewide Award)
W. Frank Newton Award (Annual Pro Bono Award given by State Bar of Texas), 2000 (Statewide Award)
Professionalism Award, Austin Bar Association, 2007
Outstanding Mentor of the Year Award, Austin Young Lawyers Association, 2007
Outstanding Young Lawyer Award, 1987 (Awarded by Austin Young Lawyers Association)
Pro Bono Award, Volunteer Legal Services of Central Texas, 1991, 1993, 1997, 1999
1EFFECTIVE CLIENT RELATIONSHIPS -
Communication, Care and Collaboration
By Claude Ducloux
In my speeches to young lawyers around the country I tell them there is no more
important skill to the successful practice of law than to effectively communicate with all of the
participants in your legal system. This includes your clients, any court or governmental unit
which is involved in your practice, as well as opposing counsel. Your ability to communicate
effectively demonstrates integrity, knowledge, empathy, and continuing thoughtful evaluation of
changing circumstances.
I also personally believe that good communication habits also make you a better lawyer
because effective communication practices require you to constantly evaluate, distill and clarify
positions, changing dynamics, risk, and opportunities for resolution.
Additionally, I preach that lawyers often overlook a crucial element of communication: your
billing invoice! Effective and smart billing communication allows the lawyer to control the
“narrative” of the case for the client. Those bills are every bit as important as a report letter to
the client of what happened at your last hearing. But, I’m getting a bit ahead of myself. Let’s
discuss this in the general chronological order of practice:
Part I: REMEMBER WHAT BUSINESS YOU ARE IN
A. The Client – Always keep in mind that most lawyers rarely encounter a new client in a
celebratory mood. Clients who are coming to see lawyers (just like doctors) are usually
trying to address a stressful failure in their life, perhaps a betrayal, or an unexpected
social condition, or a failure resulting from their own inappropriate decisions, or other
unforeseen event, like an injury or other loss caused by themselves or an opposing party.
Bottom line: new clients are rarely happy.
B. You are a Problem Solver -- Although we all have various skills and expertise,
remember that your initial role is to diagnose and problem-solve. This takes intense
concentration, a respect and appreciation of the stresses which usually have brought the
client to your meeting. Your initial presentation and communications skills can help you
form the “bond” of trust and professionalism which survives long after the representation
is over. So, how to you do that?
C. Initial Presentation: First and foremost, present yourself as a professional. For me,
someone that has been practicing nearly 40 years, I will look like a lawyer, if nothing else
to match my client’s expectation. I want to look like the image that a new client would
expect someone of my age and generation to look like (which generally means, I wear a
2tie). While your own personal style, your age, your cultural orientation may dictate a
different look, the result should be that the Client sees a person who looks professional.
If you present unprofessionally, you add an unnecessary barrier which you must
overcome. We will discuss that in more detail later in this presentation.
D. Be sensitive, attentive, and thorough: As I explain in Part II, a good client interview has
many elements. But in any initial interview, you “begin the healing process.” Devote
100% of your attention to interviewing and sizing up this client. Emotionally, this means
empathizing with their plight, being patient as they unload information (which often may
be more than you actually need), and simply allowing the Client to “vent.” As you will
see, because the goal of this initial interview is “reasonable expectations” on everyone’s
part, you may be required to “push back” on unrealistic expectations, bad facts, etc. You
cannot do that (ie., thoughtfully criticize or push back) with credibility unless you have
thoroughly extracted all the information from the client which will be the basis of your
overall analysis. Further, by being patient, you may discover facts which change your
opinion of the case.
E. The Goal: Reasonable Expectations: Remember, your client is always looking for you
to lead the client to a solution. Lawyers are taught early in law school that a good
contract requires a “meeting of the minds.” This applies to the attorney-client
relationship. The object of a good interview is to result in reasonable expectations: the
scope of work the lawyer will do, the relief or resolution being sought, the alternatives to
be explored, and the basis of the fee.
F. Clearly Establish the Payment Plan: Moreover, the client’s willingness to pay you (as
well as your willingness to continue working) depends on each side honoring this
agreement. Boiled down to its most basic formula the interchanged messages should be:
From Lawyer's perspective: "I will do this for you and you will compensate me by doing
X."
From the client’s perspective: the Client should leave with these thoughts and
understandings: “I understand what you are going to do for me, what my alternatives are,
how long it might take, and how I will compensate you.”
G. Collaboration: The best attorney-client relationships are collaborations towards a goal. If
you achieve reasonable expectations, it allows you to collaborate with the client to
achieve realistic and lawful goals and outcomes. Keep the word "collaboration" in the
front of your mind.
E. Following Through – Once you have communicated and formed a bond of confidence
and an impression in the client’s mind that you are competent to do the work, you need to
follow through. Get started. Do the hard work. Stay late if other things get in your way.
It goes without saying that communication is more than just the spoken or written word.
It is the way you carry yourself, respond, and continue to encourage confidence in your
performance. You destroy that early bond of confidence by immediately delaying work
you promised to do. By contrast, early communication and updates following your initial
3interview "seals" the bond of confidence you are trying to encourage. It says, "You can
count on me."
F. Communication During the Case – A lawyer should always report each event in the case
to clients to keep them informed of each process and allow the client the opportunity to
ask questions. This serves not only to keep the client calm, but protects the lawyer from
a claim of neglect. Obviously, in our adversarial system, not every case will go perfectly.
I have had a habit for 25 years of simply sending newsy updates to the Client even when
nothing is happening. Sending out ten 2-sentence emails to ten clients advising them
briefly of case status is a true winning habit, and sends the client the message: “I’m
thinking about your case.” Those little messages are an effective inoculation against
grievances.
G. Never Withhold Bad News: There can be setbacks in terms of rulings, failures of
evidence, and simply unexpected bad things happening. Each time, however, your
communication can serve to either reassure the client that you have the matter in hand, or
be a harbinger of likely adverse outcomes that militate toward modifying your goal. It is
much better for the client to be warned well in advance of that likelihood long before it
happens. And be aware, some clients recoil at hearing bad news and immediately want to
blame the lawyer. When that inevitably happens, never respond with evidence of
exasperation, frustration or anger. Your communications are critical to the character you
present. The bottom line is never write a letter you’d hate to see on a poster board.
H. Never Let the Client Change the Narrative. Never allow the client to communicate
something you know is untrue: (You promised this whole case would [only take 6
weeks!] [only cost $1500!]) Always respond as soon as possible with the facts. Your
failure to respond is always considered an admission against interest. Remember, you
have the fiduciary duty to the client, and because of that, the surpassing duty to keep the
record straight. I have handled scores of grievance complaints, and it is devastating to
the accused lawyer to show a series of correspondence from the client for which there
was no reply. Don't risk it. Practice defensively when setting the record straight. In this
same vein, if an adverse event is based upon a misrepresentation by the client or someone
acting on the client’s behalf upon which the you, the lawyer, relied in appraising the case,
the reasons for such outcome should be communicated (albeit diplomatically, as
necessary) so that the client can understand the connection between the misrepresentation
and the ultimate outcome. There are many examples of this. The easiest is a client
telling his family lawyer: “My spouse and I have already agreed to everything. How
much will this cost?” This is almost universally false, as the client may not even know
the scope of agreements required. Another example could be if a client assures you that a
particular document will be available to prove timeliness of a condition precedent - and
then the document turns out not to be available or doesn’t support the client’s statement,
the lawyer should reference that disparity in the communication to the client.
I. Good Lawyers ARE Good Communicators: Here’s the undeniable truth, which I mention
at the outset: Good communication habits make you a better lawyer. By this, I mean
that if you require yourself to have robust client communications, you’ll pay more
4attention to your cases, and accomplish more, and more quickly. If you avoid
communication, it unfailingly leads to neglect, mutual frustration, and a breakdown of
your bond of confidence.
J. Requesting Second Opinions – Some lawyers are threatened by a client’s request in a
case for a second opinion. Do NOT be threatened. I always welcome that opportunity.
It is my theory that if a lawyer with equal or better specialized skills than I have has a
different perspective, I want to hear about it because we are "collaborating" to achieve the
best outcome for a client and not simply preserve our dignity or pride. In my career I
have never had a bad outcome as a result of the client’s request for a second opinion. My
only advice is to have the client ensure that the reviewing attorney has the requisite
experience and skill.
K. Mistakes in Communication - Caveat: Making predications “off the cuff” – A very
dangerous situation presents whenever a client asks you to guess as to the outcome of a
future event. Why? Because the client rarely will remember the “construct” of your
opinion, just the best possible outcome predicted, and will hold you to that fictitious
prediction. Your "guesstimates" frequently rely on unproven facts (facts often suggested
by the client). The best advice I can give is to scrupulously avoid guessing about the
future. The best I will do is to say “My job is to do the best I can for you, and based upon
the facts I know today [e.g., I am comfortable that we are on the right track].”
L. Civility in all Communications – Despite the nastiness you see on lawyer TV shows,
every lawyer has a duty to attempt to keep all the communications civil. Civility is a
process. It avoids unnecessary confrontation and it relies on the Rule of Law. At this
point, you're eyes are glazing over thinking, "blah bla…Rule of Law." But let's talk
about that:
What is the "Rule of Law?" Simply put, it is society’s social compact to resolve issues
within frameworks and rules. To observe neutral methods to achieve best outcomes
based upon fairness, process, and opportunity to present facts. We choose to live in this
society rather than to allow money, or brute force, guns and swords to dictate outcomes.
That is exactly why we need to preserve it. Our first step in that preservation is civility.
M. Civility depends upon communication; that is, keeping in touch and responding. Civility
observes respect of all the participants: your clients, opposing counsel and judicial
system. The most effective way to serve your client generally is maintaining a
productive and problem-solving relationship with the opposing counsel. In this regard,
the words you use matter. Thus:
a. “How do we solve this?” works better than “I demand you do this.”
b. “When may I expect the documents?” works better than “Once again you blew by
the discovery response deadline.”
5Always remember, you should never expect better treatment yourself than you are
offering the other side.
N. Civility is Social Insurance: Finally, remember how dependent you are on the good will
of the other participants of the legal system: clerks, administrators, and other state,
county, or city employees who will review or handle your work. Be kind, gracious and
humble, appreciating that those people often have stressful jobs for unappreciative
citizens.
In my 2001 article about “The Ten Rules of Life and the Practice of Law: or Growing
Balder and Wiser,” - http://claudeducloux.com/entre-nous - I list this lesson within Rule
7: “Friendship is social insurance, and you never know when you need to make a claim.”
Remember that. If you’re a jerk, expect to be treated as a jerk.
O. Nonverbal Communication – As old fashioned as this sounds, please remember that a
client will make an appraisal as to competence and confidence by what they hear and
how they see you being treated. Bad press affecting you and your practice undermines
confidence. If those negative images evoke reminders to a client of how he/she is being
treated, it is likely that client will change counsel.
L. Communication on Billings – As I explain in Part III, you can influence the narrative of
the entire representation of your client with intelligent billing habits and techniques.
Accurate, explanatory billing survives faulty and failed memories and suspicions.
Accuracy in billing increases exponentially when you record time immediately or as
close to the event billed as possible, and increases the likelihood of payment.
If you set proper expectations, prompt billing reminds the Client of his/her end of the
bargain. Not sending billing promptly sends a completely different message: “I’m too rich and
important to get my bills out. And it’s not a priority for my practice.” Good luck expecting
prompt payments. Now, let’s start at the beginning:
PART II: THE ART OF THE INTERVIEW: How to Interview Clients in a Way that
Results in Reasonable Expectations
While interviewing skills are critical to a lawyer's success, few of us are ever trained how
to do it. While colleagues in the medical profession spend a great deal of time learning how to
“take a history” and probe the client for clues as to the source of their ailment or discomfort, few
programs appear to respect the importance of that process for lawyers. The value of properly
interviewing proposed clients is immeasurable. A good interview can result in candor, trust,
credibility, and choosing the most appropriate remedy for the issue presented.
The true purpose of a legal interview should result in the following: realistic expectations
as to the limits of the legal rights involved, timelines and costs, as well as alternatives that may
be available to the client.
6The Incoming Client
A. The Incoming Client: As we discussed above, always keep in mind that as a lawyer you
are first and foremost a problem solver, and that you rarely see people at their best during
a client interview. Think of your own hopefulness when you have a debilitating medical
problem and go to the doctor hoping that he or she will fix it for you. Expect the same
hopeful expectation in the person consulting you: to fix a problem.
All of your technical skills are simply tools for you to solve problems. So, always look at
every legal matter as a problem which requires resolution.
B. Resolve Potential Conflicts of Interest Early: Older lawyers generally have learned the
importance of resolving potential conflicts of interest early into the interview. If you
wait 45 minutes into the interview, after the client has poured out his entire financial,
moral, family history and goals, and only then discover a conflict, you likely have already
formed an attorney-client relationship, regardless of your being paid, or your intention to
handle the matter.
Practice Tip: Remember, whether or not an attorney-client relationship has been formed
is in the mind of the client and not in yours. If, by your action or inaction, you have
encouraged the prospective client to disclose all of his most serious, confidential
information to you and only then do you determine that a potential opposing party is a
client of your or the firm’s, you may be completely conflicted from handling any portion
of that case, even for your existing client.
So, experienced lawyers attempt to discover in the first 5 minutes of an interview the
names of parties or entities that may be involved, and quickly determine whether a
conflict exists. This is a hard lesson, especially for young lawyers who may not have had
but a few dozen clients. Early on, a young lawyer may have few conflicts. But conflicts
frequently become a strong possibility after 35 years of practice, even in a large city.
Anecdotally, I can tell my readers that in my very broad general practice of nearly 40
years I discover conflicts of interest regularly, and if you have a reputation for skill and
special ability in an area of law, your opposing counsel will waste no time trying to
remove you from a case. So, just like checking the gas in the tank before you take off on
a long trip, always check your conflicts before you get too far into an interview.
C. Form an early Bond of Trust: Remember the old adage: you never get a second chance
to make a first impression. This applies to your initial interview. Look like a lawyer.
You want an aura of professionalism, confidence, and dedication. I apologize to those
who will call my thinking old-fashioned, but if you show up in a T-shirt and flip flops to
a first meeting, you are diminishing the client’s assessment of your professionalism, and
setting yourself as perhaps a cheap alternative to a "real" lawyer.
D. Complete Attention to Facts: Next, when the meeting starts, stop checking emails, hold
all your calls. Feel free to make notes (I take very precise notes of the facts) and dedicate
yourself 100% to attending to that client. Take a clue from our psychotherapy
7colleagues, who believe that "healing begins when people believe they are being listened
to." Listen closely, carefully, and make sure the client appreciates your concentrated
efforts to understand their issue.
Another important interview technique I practice is to repeat key facts, dates,
relationships and parties BACK to the client for accuracy. The “meta-communication” of
such repetition is to tell the client: “I am listening carefully, and every fact is important
to my advice as assessment. So be careful.”
If you show interest, concentration, and ask intelligent questions, you very often are
forming not only a attorney-client relationship, but a friend for life.
E. To end with Reasonable Goals, Ask “the Magic Questions”: After you have listened
carefully, your interview must ultimately end with both parties having reasonable goals
and expectations. With regard to goals, you must determine: what do they hope to
achieve? This can tell you a lot about the personality of the client you will be dealing
with. Also, what are their motivations? Are they doing this for the right reasons or to
inflict pain on someone else? After you have listened carefully, I urge that there are two
magic questions you must ask:
First, diplomatically inquire: "What do you think I can do for you?"
Second, if the matter has an opposing party: "If we were listening to the person who is
on the other side of this transaction or claim talk about you, what would he/she be saying
about you?"
The best answer to the first question is some version of: "You're the lawyer, you tell
me." In any event, the answers to these questions will be very illuminating. If, for
example, they have presented a small personal injury or consumer case which you assess
has maybe $20,000 in potential damages, and they express an expectation of $1 Million,
you have a problem that you must resolve before you can take the case, or you must
absolutely pass. You cannot take that case unless you both agree that the goal you are
trying to receive is reasonable and supported by the law and that the client has sufficient
means to get you to the goal line. If you know that this client doesn’t have the means to
take this matter all the way through what could be a long process, hearing or trial, then
your retention by the client should be subject to that agreement and understanding, which
may include some contingency fee for you.
F. “I want to Sue for the Principal of it!” My most serious "red flag" warning is the siren
call of those potential clients who inform you that they "want to sue for the principal of
it." Translation: “I have been wronged, and dagnabbit, I'll show that [wrongdoer] what's
for!” Be aware of this unalterable, immutable, and bitter truth: YOU will never make
that client happy, as they enter the relationship with completely unrealistic expectations,
and they expect you to meet those expectations 100% (and that’s at a minimum). If you
decide to take this on, raise your rate, as you'll earn it. Later, you can send me your
regrets.
8G. Encourage Questions: Also, I think it is very important to encourage the client to ask
you questions. Be prepared that one of their earliest questions will be “Do you do this
[type of legal work]?” If you have not, do not exaggerate your skills or experience, or
there is an 80% - 90% that such exaggeration will come back to haunt you.
H. “What Are My Options?” Whether the client actually asks you this question or NOT,
advice on potential routes of resolution should always be offered. Why? So the client
clearly knows that he directed you to take this route of resolution, and doesn’t blame you
if that route proves expensive, time-consuming and difficult. For example, you might
assess in a consumer case that a partial refund is a reasonably quick possibility, but a full
refund will likely take a lawsuit and all the time and expense that entails. "If you get
80% of your money back now, would that be sufficient? More than that will likely mean
litigation and a much longer and more expensive timeline." Make good notes of those
conversations.
I. Practicing Defensively: As the overall title of this article implies, the single most
important word in the practice of law is communication. Communicate with everyone:
your client, your opposing counsel and the Court at its staff when necessary. Never leave
any stone unturned if there is a possibility of a miscommunication.
You should know by now that I cannot overstate the importance of communication to
grievance avoidance and client relations. By communicating carefully and thoughtfully
with your client, you control the narrative. If you allow your client to respond with a
changed narrative and you do not correct that, you are setting yourself up for problems in
the future. If, for example, you informed the client that the cost of the legal services,
depending upon the response from the opposing party, will be between $1,500 to
$10,000, and the client writes back confirming that you have told the client that you will
do the whole case for $1,500, you are allowing the client to change the narrative. Always
respond quickly, effectively and courteously with the correct information that you have
discussed. As I discussed earlier, your failure the correct that, again, is a huge problem,
and may be presumed to be evidence against you.
J. Clear Expectations Should include a Complete Payment Plan. This is extremely simple:
never get started representing a client without a clear understanding of what you are
charging, and how and when the client is expected to pay. Have modern contracts which
could be put on a power point slide and be understood. Include those matters which the
law now protects and requires.
K. Clear Expectations Result in Good relationships. If your client interview results in
reasonable understandings of what your client wants you to do, your own belief that such
results are achievable, and you have carefully explained time frames and likely range of
costs, you will not only have a client who trusts you, but a friend and a future source of
referrals upon which you can expect more work.
Part III: GETTING PAID: The Lifeblood of Your Law Practice
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