Since 1984, it has been clear that the Sixth Amendment right to “the assistance of counsel for his defense” means the right to effective counsel. This is what is called, in criminal law practice, the Strickland rule. As more than one court has put it, “[r]epresentation by counsel means more than just having a warm
When does an opening statement, meant to be persuasive, veer off into impermissible argument? The line is in some sense indefinable – and it feels like the only formula is like that of obscenity – “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand
When a child dies and there are signs of physical abnormalities—bruises, tearing, etc.—the result may be testimony of “unquestionable” or “unmistaken” signs of sexual abuse. That in turn may lead to criminal prosecution, conviction, and even a sentence of death. Yet both the advance of science and the simple act of paying greater attention to
In a recent article on how to structure and deliver a potent opening statement, the author, Director-Elect of the National Trial Academy, wrote the following: To simplify a case mired in complex terms and evidence, avoid using legalese and overcomplicating the facts and evidence. Simply put, use plain language. Below is an example of two
Too many of us believe that if we do it [in the case of litigators, trying cases] enough, we will become good if not expert at our craft. Irving Younger preached the 20 jury trial threshold; others have written that 10,000 hours of practice [rehearsal] are the sine qua non of moving on to expert
Watching the final day of the Judge Kavanaugh confirmation hearing was dispiriting, both as a citizen and as a teacher (and continual student) of the art of advocacy and persuasion. We saw the obvious trauma suffered by Professor Ford; the inability of many Senators to accept that sexual assault victims may delay disclosure but be
We are lawyers because we were not the strongest at science or math, or so the popular trope goes. But numbers pervade the courtroom – employment discrimination statistics, medical causation analysis, DNA probabilities, and occasionally the likelihood that a particular person committed the crime or that the act was criminal rather than accidental. So it
Rarely if ever will the cross-examining attorney know more about a subject than the expert witness being confronted. Indeed, that is why discovery rules mandate pre-trial disclosure of expert reports – “They allow attorneys, not experts in the fields at issue, to prepare intelligently for trial and to solicit the views of other experts…” Metavante
On October 25, 2018, the Pennsylvania Supreme Court adopted two amendments to the Pennsylvania Rules of Evidence – the definitions of PRESENT SENSE IMPRESSIONS and EXCITED UTTERANCES both had new language added. Each rule now concludes with the following statement: When the declarant is unidentified, the proponent shall show by independent corroborating evidence that the
It is remarkable when lawyers decide that they won’t let the facts get in their way. And when the facts are medical/scientific, and they have no way around them, they hurt their clients when they just say the contrary is true. Instead of “fake news,” these become “fake facts.” What’s the proof? In a recent