John Cleese of Monty Python fame said, “He who laughs most learns best.” This applies equally to CLE and to persuading others in court. Learn practical tips that will make you more effective, efficient, and persuasive in court. We will hit the best deposition practices, ethical pitfalls in litigation, cross examining like Vinny Gambini, and how to avoid the dreaded bench slap.
9:20am – 9:30am – Introduction
9:30am - 11:30am - Lying and the Law (2 hours ethics)
Model Rules 3.3, 4.1, 8.4. Cases include: Varana v FORBA Holdings, Morris v. Coker, Attorney Grievance Commission of Maryland v. Thomas Patrick Dore and many others.
Case studies of Lawyers facing discipline for engaging in dishonest conduct1
ABA Model Rule 3.3 - Candor towards the Tribunal
ABA Model Rule 4.1 - Truthfulness in Statements to Others
ABA Model Rule 8.4 - Misconduct
Varana v. FORBA Holdings, LLC, 42 Misc. 3d 303; 974 N.Y.S.2d 913 (N.Y. Misc 2013). An insurance company hired a lawyer to monitor a trial involving an insured. This attorney took his job a little too seriously, so much so that the jurors complained to the court that this attorney was “creepy” and “scary”. The court overturned a defense verdict due to the “stalking” actions of this attorney.
In re Hon. John C. Murphy, Florida Judicial Qualifications Commission, Case No. 14-255. The commission found probable cause existed for formal proceedings to be commenced against a judge based on his qualifications to hold the office after he told a public defender “You know if I had a rock, I would throw it at your right now. Stop pissing me off. Just sit down. I’ll take care of this. I don’t need your help. Sit down…. I said sit down. If you want to fight, let’s go out back and I’ll just beat your ass.”
In re Richmond, 996 So. 2d 282, 283 (La.2008). Based on the stipulations and the other evidence in the record, it was undisputed that the attorney filed a notice of candidacy in which he swore under oath that he had been domiciled at a certain address for two years prior to an election for the office of city council. The supreme court found the attorney's statement of domicile in the qualifying form was false, and that after his candidacy for office was challenged, he made similarly false statements regarding his domicile in pleadings and oral testimony in the election contest. Moreover, the supreme court accepted the hearing committee's factual finding that the attorney's misconduct was knowing. The supreme court determined that the attorney had violated La. St. Bar art. XVI, R. 3.3 and 8.4(c). The attorney was suspended from the practice of law for six months. It was further ordered that all but 60 days of the suspension should be deferred.
Morris v. Coker, No. A-11-MC-712-SS, slip op. (W.D. Tex. 2011). In response to a motion to quash subpoenas, a judge ordered the parties to attend a “kindergarten party”, including learning “how to telephone and communicate with a lawyer” and “an advanced seminar on not wasting the time of a busy federal judge and his staff because you are unable to practice law at a level of a first year law student.”
Attorney Grievance Commission of Maryland v. Thomas Patrick Dore, 433 Md. 685; 73 A.3d 161 (Md. App. 2013). Court suspended attorney for violating rule requiring candor to the tribunal when he authorized employees to sign his name to affidavits attesting that he had personal knowledge of the matters in the affidavit.
In re Harrod, Illinois Disciplinary Commission, No. 96 SH 579, slip op. (1997). The commission reinstated an attorney (and previous judge) who had been disbarred. In 1982, the attorney drafted a will which he knew was improperly attested to. He had his own brother sign as an attesting witness when, in fact, his brother was not present. He then filed the will for probate knowing it was invalid. The attorney lied under oath and committed perjury regarding the signing of the will, on three occasions. To make matters worse, in April 1986, while he was on probation for his perjury conviction, the attorney committed retail theft by stealing about $26 worth of merchandise from a K-mart store, to which he plead guilty. The Panel also noted the immature acts of the attorney. For example, a few years prior to his disbarment, he sent anonymous letters to certain attorneys and obtained magazine and book subscriptions for members of the Courts Commission who investigated and ruled against him. (The implication here is that these magazine and book subscriptions were of the adult variety and slightly embarrassing to receive at work.). While the perjury charges and the theft resulted in the attorney’s disbarment, the commission did note his character had improved, and reinstated his license.
In re Alberg, 296 Kan. 795; 294 P.3d 1192 (2013). The attorney began an attorney/client relationship with a woman to represent her in a divorce, and a sexual relationship with the woman. But the attorney failed to secure the financial terms of the attorney/client relationship. The attorney then tried to bill the woman for his services. (We will assume only for the legal services.) The romance fizzled, and the woman wanted an accounting of her money in the trust account. While the attorney provided an accounting, he omitted the money that he had borrowed from time to time. Consequently, the woman sued the attorney and won. The court found the attorney violated his ethical duties (KRPC 1.7(a)(2) and 1.8(k)) by having a sexual relationship with a person after the attorney client relationship was formed. The court found that the attorney violated rule 1.15 by commingling his personal funds with client funds. Because the attorney submitted false billing entries to the court, the court found that he violated rule 3.3 requiring candor towards the tribunal. And if this were not enough, the attorney was busted for growing marijuana. He pled guilty for possession, and the court found that such acts violated rule
8.4 (prohibiting criminal acts that reflect adversely on the lawyer’s honesty, trustworthiness and fitness to be a lawyer). The court disbarred the attorney.
In re Sutton, 265 Kan. 251; 959 P.2d 904 (1998). During the course of the hearing, the attorney whispered to his own witness, the arresting officer, that the judge was acting like a cockroach. The comment was picked up on a tape recording machine that was used in the courtroom. He later got into a bar fight and was charged with disturbing the peace. He pled not guilty and the charges were dropped. On another occasion, he encountered road construction that limited the highway to just one lane. Rather than wait his turn, he tried to drive through the construction. When a road worker waived the stop sign at him, his car hit the stop sign. At which point he got out of his car, yelled at the road worker, and threw a Pepsi bottle at her. He then got in his car and drove through the road construction out of turn. Finally, the attorney attended a seminar and was reimbursed twice for his expenses, once by the county (his employer) and once by the National Association of Prosecutor Coordinators. The panel found no violation of the rules for the allegations that he called a judge a cockroach or for the bar fight. As for the road rage and double expense allegations, the panel recommended public censure, which the court ordered.
Estate of Shelton, 2009 Phila. Ct. Com. Pl. LEXIS 170, 1 (Pa. C.P. 2009). Pa. R. Prof. Conduct 3.3(c) provides that the obligations of an attorney under both Rule 3.3(a) and (b) would trump the attorney's obligations of confidentiality that are set forth in Pa. R. Prof. Conduct 1.6
Model Rules 3.3, 4.1, 8.4, Honest advertising of services and what this says about the profession.
Bank of N.Y. Mellon v. Tarboro, 2013 Phila. Ct. Com. Pl. LEXIS 289, 1, 31 Pa. D. & C.5th 526, 527 (Pa. C.P. 2013). A lawyer has duties of disclosure to a tribunal under Pa. R. Prof. Conduct 3.3(a) that may entail disclosure of information related to the representation. At the same time, in a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.
In re Druten, 297 Kan. 432; 301 P.3d 319 (2013). The court found that an attorney violated rule 3.3 (candor towards the tribunal) when he informed the court that discovery had been signed by the party, when in fact, this had not occurred. The court found that the attorney violated rule 8.4 (professional misconduct) when he lied to his client by telling him he had refiled his complaint, when he had not. The court disbarred the attorney.
In re Ketter, 268 Kan. 146; 992 P.2d 205 (1999). The panel found that the attorney violated KRPC 8.4. He was convicted of indecent exposure when in a Topeka grocery store parking lot, he parked his car and masturbated. The attorney defended himself by saying he was not masturbating, but was suffering from a severe case of “blue balls.” He claimed that he was “merely massaging his testicles to relieve the pain.” Another person saw the incident and reported it. This was not his first experience in public exposure, but had several incidents of similar conduct. The court noted that he had a medical condition and that a treating physician testified that he “had an irresistible compulsion to engage in that behavior which he could not control.” The court ordered him to continue treatment, suspended him for three years, and then placed him on probation.In re Baker, 296 Kan. 696; 294 P.3d 326 (2013). Attorney violated rule 4.1 and 8.4 when he made material misstatements and omissions in trying to obtain investors in a company he formed. He was disbarred.
In re Beck, 298 Kan. 881; 318 P.3d 977 (2014). Attorney was disbarred. Among other infractions, he violated rule 8.4 (“It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”) The attorney forged his secretary’s name and directed his client to sign the mother's name to a trust document and other documents, including a last will and testament.
In re Mintz, 298 Kan. 897; 317 P.3d 756 (2014). Attorney was indefinitely suspended after he lied to investigators about the death of his girlfriend. His girlfriend struggled with alcohol, and had just successfully graduated from a treatment program. Shortly thereafter, the attorney went with his girlfriend to several drinking locations and consumed a lot of alcohol. When he found her dead the next morning from a fall, he deleted text messages, moved her car from a restaurant to her apartment and lied to authorities about his activities the night before. He defended himself by saying he feared what her family would do to him when they found out. While the panel concluded that this was “an isolated incident of dishonest conduct” and dismissed the charges, the court was not so lenient and suspended the attorney indefinitely.
Bracy v. Gramley, 81 F.3d 684 (7th Cir. 1996). A judge is convicted of having accepted bribes from criminal defendants.
People v. Thorton, 80 Mich. App. 746 (1977). Conviction was overturned when prosecutors presented a witness that they knew was lying. The prosecutor also failed to give the changed testimony to the defendants attorney
United States v. Sterba, 22 F.Supp.2d 1333 (M.D. Fla. 1998). Cox, the prosecuting attorney, attempted to shore upon a weak case of soliciting sex with a minor via the internet by concealing the identity of, and presenting false evidence about, the government's informer and participant in the supposed crime.
People v. Jones, 2003 Mich.App.Lexis 2347. Prosecutor offered immunity to witness, who then changed his testimony and testified at trial in a way contrary to the way he testified at first. No rules violation. An attorney can believe his own witness.
Lawyer Regulation: Bar Counsel Insider: Is it Ever Okay for Lawyers to Lie? 44 AZ Attorney 84 (May 2008) – A criminal defense lawyer was referred to the state bar for creating a ruse to serve subpoenas. She learned that they planned to attend a Halloween party on the reservation so she masqueraded as a marketing representative for a new (fictitious) product entitled “Zephyr Lager.” She then offered the tribal members coupons with which to obtain free samples if they identified themselves on her "World Tour 2005" sign-up sheet. When she saw the sought-for signatures, she served the subpoenas.
In re Joe Caramagno, Las Vegas attorney was disbarred after showing up in court run, causing mistrial in kidnapping case.
11:30am - 11:40am - Break
11:40pm – 01:00pm – Using Humor to Persuade
What is humor?
Positive effects of humor
Humor is needed in law!
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Law is about persuasion and persuasion involves educating someone (i.e., court, jury) that you are right.
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Stress abounds in the legal world! o Clients, career demands, deadlines, opposing counsel from hell, family pressures
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Alcoholism is common amongst attorneys – Hazelden Betty Ford Foundation study.
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Job burnout is common – where’s the joy?
Rules for humor in your practice
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No inappropriate jokes
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Do not target the vulnerable
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Recognition/familiarity
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Self-Deprecating jokes are a common triggerpoint
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Absurdity is a common trigger point in court
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Allow the court to be the jokester
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Be yourself
Examples of effective and disasterous uses of humor in Court
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Opening statement
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Closing statement
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Cross examination
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Oral Argument
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Client relations
01:00pm – 01:30pm - Lunch
01:30pm – 03:00pm – Deposition Do’s and Don’ts
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The modern problem with unethical/unprepared depositions
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Rule 1 - Do be prepared; don’t wing it
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Rule 2 - Do own the deposition; don’t be bullied
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Rule 3 - Do use your documents
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Rule 4 - Do use an outline; don’t use a script
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Rule 5 - Do ask open ended questions; don’t ask double negatives
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Rule 6 - Do exhaust and drill down; don’t fail to get an answer
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Rule 7 - Do get impeachment nuggets; don’t disbelieve great admissions
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Rule 8 - Do object as to form; don’t make coaching objections
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Rule 9 - Do take breaks when needed; don’t engage in a witness conference
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Rule 10 - Do read and sign; don’t agree to the usual stipulations
03:00pm – 03:10pm – Break
03:10pm – 04:10pm- Cross examination tips from “My Cousin Vinny”
The Problem with modern cross examinations
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Examples of poor questions
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A poor cross examination can hurt your case – the expectations create the impact
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Your purpose should be to collect points for your summation
Ten Rules for killer cross examination as told by Vinny Gambini
Rule 1 – Keep it short
Rule 2 – Keep it simple stupid
Rule 3 – Lead the horse to water
Rule 4 – Be prepared
Rule 5 – Listen
Rule 6 – Don’t get in a mud fight with a pig
Rule 7 – Resist going back to the well
Rule 8 – Get off the other side’s payroll
Rule 9 – Cross examination is about summation building
Rule 10 – Always be credible
04:10pm – 04:20pm – Break
04:20pm – 05:30pm – The greatest bench slaps and how to avoid them!
Examples of poor oral arguments to be avoided Great oral tips from old wise sayings
To write clearly, you must first think clearly
Clarity, not complexity, is the key to success
If the Court can’t understand your argument, you lose!
Don’t argue. Persuade.
Paul Clement’s 3 P’s to Oral Argument
Walter Dellinger
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Answer the court’s question first with a yes/no answer, then explain
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Always be candid with the court
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When the bench is cold, sit down
Jeffrey Fisher
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Do moots before you file reply brief
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Keep it simple
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Remember the big picture
Chief Justice John Roberts
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Notecard shuffle
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Litigation for dummies
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Get to the goods
05:30pm – End
Speaker:Joel Oster, Comedian of Law
Joel is a seasoned litigator and regular speaker to attorneys and non-attorneys alike. He currently is in private practice in Kansas City, specializing in constitutional litigation, campaign finance, sports law and appellate advocacy. He previously served as senior counsel with Alliance Defending Freedom at its Kansas City Regional Service Center. While at ADF, he was counsel for the Town of Greece, New York in the landmark case Galloway v. Greece. Joel argued the case before the United States District Court for the Western District of New York and the Second Circuit, and was part of the legal team presenting the case to the U.S. Supreme Court where they successfully defended the Town against a challenge to its practice of opening its sessions with an invocation.
Oster regularly litigates First Amendment issues. As lead counsel in Freedom from Religion Foundation v. Obama, Oster skillfully defended the constitutionality of the National Day of Prayer against an Establishment Clause challenge. Before the U.S. Court of Appeals for the 8th Circuit, he successfully defended the right of an organization to have a pro-life specialty license plate in Missouri in Roach v. Stouffer. In Wigg v. Sioux Falls School District, he successful represented an elementary school teacher in obtaining equal access to school facilities after contract time after she was denied that right based on the viewpoint of her speech. In addition, Oster has defended various churches based on the Religious Land Use and Institutionalized Persons Act, against discriminatory zoning codes and regulations. Oster also has defended various individuals, corporations, and political committees against discriminatory and unconstitutional campaign finance regulations.
Joel has also spoken to thousands of attorneys across the United States and has learned from their successful and unsuccessful legal practices. Joel brings this practical perspective to all his seminars.
Oster earned his J.D. in 1997 from the University of Kansas School of Law. Oster is admitted to the bar in Kansas, Missouri, Florida, and numerous federal courts.
Joel is a seasoned litigator and regular speaker to attorneys and non-attorneys alike. He currently is in private practice in Kansas City, specializing in constitutional litigation, campaign finance, sports law and appellate advocacy.
A reservation is required in advance of the program. Registrants will receive a confirmation e-mail the day before the event which will contain a link to join the meeting via Zoom and attachments of the handout material and CLE activity code and instruction on how to file with the Ky Bar Association and Indiana Supreme Court.
Cancellation Policy: All cancellations must be received by the LBA 24 hours in advance to receive a credit or refund. Substitutes will be allowed. This is a LIVE program and any post-event recordings will be subject to the On-Demand fee(s). Technology issues on user end do not qualify for a refund.
