In Episode 24 of May the Record Reflect, we’re joined by legendary American trial lawyer Dick Harpootlian. He takes a moment out from representing Alex Murdaugh to describe the roundabout way he entered law and became one of the nation’s top trial lawyers, discuss what it was like to work death penalty cases and prosecute an infamous mass murderer, and reveal advocacy tips that have always brought him luck.Topics3:28 The accidental lawyer7:14 Winning . . . and losing8:48 Introducing Pee Wee Gaskins16:02 The life philosophy of a mass murderer20:28 Dick’s tips on jury selection25:18 Owning the courtroom and “the confidence to lose”26:56 Bushido in the courtroom28:36 High-profile cases and managing the media32:39 Traditional media versus social media33:42 The secret to deposing experts35:33 Nerves and emotions36:38 Pleasure reading and favorite shows38:11 Murdaugh case on Netflix?40:05 Volunteering for cases for trial experienceQuote“Check your fly before you get up, gentlemen.” Dick HarpootlianRecommended ResourcesDick Harpootlian (bio)The ‘Murdaugh Murders’: What to Know About the South Carolina Mystery Murdaugh attorney addresses “hysterical theories” in interview with Good Morning AmericaPee Wee GaskinsLincoln’s Last Trial, by Dan Abrams (book)The History of the Bushido Code: Principles of Samurai CultureFargoGoliath

May the Record Reflect

24: Tips and Tales, with Legal Legend Dick Harpootlian

In Episode 23 of the podcast, we’re joined by Jo Carol Nesset-Sale, who as a young woman brought forth a pregnancy discrimination lawsuit that found its way to the United States Supreme Court. Her case, Cleveland Board of Education v. LaFleur, was part of the societal sea change that resulted in women being able to remain in the workforce as their families grew. Jo Carol’s experience lit a fire in her to become a lawyer herself and transform the lives of her clients she serves. Topics2:09     The story behind the SCOTUS case9:47     How pregnant women faced discrimination11:49    Maternity leave, benefits in the 1970s13:05    The lawsuit begins15:07    Why Jo Carol fought back 19:15    Equal rights movements22:28    Legal team’s strategy for SCOTUS24:25    What the Court ruled on 26:25    Impact of ruling30:45    Becoming a lawyer34:18    Jo Carol’s other 15 minutes of fame36:05    Pathways in law41:00    Guidance for law students, new lawyers43:21    Bias in the courtroom44:15    Career advice46:11    Signature sign-off questionQuote“I certainly saw that, at a moment in time, if you can have the intersection of an aggrieved person who’s been unfairly treated and a lawyer who’s willing to take the case and charge no fee, that wonderful things can happen, that change can be made.” Jo Carol (LaFleur) Nesset-Sale Recommended ResourcesJo Carol Nesset-Sale Cleveland Board of Education v. LaFleurFrom Sideline to Frontline: The Making of a Civil Rights PlaintiffShe Was a Teacher. She Got Pregnant. Her Case Ended Up at the Supreme Court 

23. My Landmark SCOTUS Case with Jo Carol LaFleur Nesset-Sale

In Episode 22 of May the Record Reflect, Reuben Guttman and J.C. Lore discuss their new book, Pretrial Advocacy, and why modern litigation practices necessitate early, close attention from practitioners. They discuss the interplay of early discovery with the Federal Rules of Evidence and Civil Procedure, how law schools are responding to “front-loaded” litigation that often results in fewer jury trials, why public interest law matters, and what’s exciting about pretrial.   Topics3:37    The meaning of front-loaded cases6:16    Effects of Iqbal, Twombly, and Daubert on law practice and teaching advocacy10:15  Pretrial advocacy at law school12:14  Is pretrial exciting? 16:56  Settlement versus trial18:21  Why trials are still important23:09  Getting to know the rules29:07  Social media evidence36:20  What’s lost with settlement38:22  Public interest practice41:03  Signature signoff question Quotes“The fun thing I always thought about pretrial advocacy is you get to learn about areas you never knew of. I once met a famous trial lawyer many, many years ago and he’s since passed – Alfred Julien – and he told me that one of the fabulous things about being a trial lawyer is that you get to be a jack of all trades, in some regards, and an expert in none. I always thought it was exciting because it’s a process you get to immerse yourself in and really learn a lot.” (Reuben Guttman)“Certain types of trials aren’t happening anymore because of the huge cost of litigation. But there are courthouses and courtrooms all over this country that are doing trials every single day, on both the civil and the criminal side. You go to landlord–tenant court, you go to family court, you go to municipal court, you go to immigration court—all of these courts are having trials all of the time.” (J.C. Lore)  Recommended ResourcesPretrial Advocacy (book)Reuben Guttman (bio)J.C. Lore (bio)Iqbal v. AshcroftBell Atlantic Corp. v. TwombyConley v. GibsonDaubert v. Merrell Dow Pharmaceuticals, Inc.  Read NITA’s statement on the important of in-person advocacy in courts, here.

22. Pretrial Advocacy, with Reuben Guttman and J.C. Lore

In Episode 21 of May the Record Reflect, veteran prosecutor Steve Wood joins us to share his ten favorite trial tips. He also talks about what he remembers about his first trial, his life in public service as the Delaware DOJ’s leading trial attorney, and the other reflections on living the lawyering life. Topics2:43    Tip #15:20    Why law?7:18    Tip #210:31  Recollections of his first trial13:08  Tip #318:08  Favorite part of trial25:04  Tip #427:15  Nerves and anxiety about trial28:34  Tip #532:49  Unwinding after trial34:16  Tip #638:34  Most agonizing career decision40:49  Public service careers45:36  Tip #748:36  A high-profile case I wish I’d tried49:56  Tip #852:28  Tip #954:03  Retirement54:30  Tip #1056:27  Signature signoff questionQuote“Somebody I taught with [at NITA] once said something I thought was brilliant, and it’s this: ‘Time is the measure of importance in the courtroom, whether you want it to be or not.’ And what that means is, we indicate importance by how much time we spend on something.” Recommended ResourcesSteven P. Wood (bio)America’s Constitution: A Biography (book)So Many Ways to Lose (book)Geddy Lee’s Big Beautiful Book of Bass (book) Read NITA’s statement on the important of in-person advocacy in courts, here.

21: Top 10 Trial Tips that Make a Difference, with Steve Wood

In Episode 20 of May the Record Reflect, trial lawyer and wardrobe consultation Judith Gaton joins us to explain why style matters in the courtroom and how to dress for post-pandemic office life at a time when the expected corporate culture—and maybe our bodies—have changed.Topics3:05 Why your clothes matter5:36 But isn’t style frivolous?13:18 Work clothes that no longer “fit”16:22 Evaluating your wardrobe after covid18:45 What pieces to invest in, and what to save on21:48 Pandemic’s impact on dressing for the law office25:15 Menswear options for a more casual office environment27:29 Stanley Tucci’s refined casual style and sprezzatura30:54 Sleek footwear options32:40 Style inspo and options for lawyers and other professionals38:07 Signature signoff questionQuote“We have to sort of make room to be amused by each other as we find our footing and find out what it’s going to look like for all of us as we re-enter society, as we sort of spend more time with each other, as we come back to the office. It doesn’t have to go back to the way it always was. There’s no requirement. This is a beautiful moment for all of us to rethink ‘Did we even like the way it always was? Did we enjoy wearing suits? Did we enjoy being dressed up all the time?’ or would we all collectively prefer to be a little more on the smart-casual side of things, or business casual of things, than to be so dressed up all the time. Each office culture’s going to have to figure that out for itself. I think every courtroom, almost, is going to decide that for itself.” (Judith Gaton)Recommended ResourcesJudith Gaton (bio)How COVID-19 has changed what we wear and how we feel about clothing (Seattle Times)Schedule an Appointment with Those Clothes You Haven’t Worn in a Year (New York Times)Sprezzatura Do’s and Don’tsIn Praise of Stanley Tucci’s TV Travel Uniform (GQ)Berluti wingtip sneakers Berluti double monkstrap sneakersNext Level Wardrobe (Instagram) Read NITA’s statement on the important of in-person advocacy in courts, here. 

20: Trial Style and Courtroom Confidence, with Judith Gaton

In Episode 19 of May the Record Reflect, Judge Nancy Vaidik of the Indiana Court of Appeals and international communications consultant Rebecca Diaz-Bonilla, are in the hot seat to share insights from their new book, Point Well Made, Persuasive Oral Advocacy. They reveal why oral advocacy still matters in a time when most cases settle before going to trial, how to better know your judge to give yourself a leg up, and what are the highs and lows of ruling from the Zoom bench.   Topics3:56    A learning-by-doing book for oral advocacy6:45    Writing process as co-authors writing remotely9:05    Why trial lawyers should care about oral advocacy11:16  Oral versus written advocacy13:17  Oral advocacy in persuasion16:02  What judges are looking forward to in a proceeding21:24  What to know about your judge23:45  Relationships you need to know about27:45  Appearing before a multi-judge panel30:03  Why rebuttal matters31:31  Judge Vaidik’s experience with remote advocacy35:32  “Soft” things lost in remote hearings40:06  Communication needs that have changed during the pandemic42:25  Signature signoff question Quotes“Oral advocacy is a lot different from written advocacy and our law schools are focusing on written advocacy and not on oral advocacy, and there are differences. In oral advocacy, as an advocate, you can actually listen to the judge’s concerns—or whoever you’re talking to, the listener’s concerns – and adapt your argument. You can’t do that in a written setting. In an oral setting, however, you need to keep attention, the attention of the listener. And in a written advocacy situation, that’s not so much the case because when the reader loses focus, they can go back and re-read the material. You can’t do that in oral advocacy situation.” (Judge Nancy Vaidik)“Judges are people too, and so they’re not immune to the digital age and the lower attention span and the need for people to get to the point and say it clearly, concisely, thematically. All those things are super important, and so old-style argument is not going to be as effective. You have to take into account the digital age and the judges who are going to be listening, especially as younger and younger judges get appointed to the courts. It’s so important to adapt the way we approach oral argument in front of one or multiple judges.” (Rebecca Diaz-Bonilla) Recommended ResourcesPoint Well Made: Persuasive Oral Advocacy (book)Hon. Nancy Vaidik (bio)Rebecca Diaz-Bonilla (bio)Foolproof: The Art of Communication for Lawyers and Professionals, Second Edition (book) Rebecca Diaz-Bonilla’s “Foolproof” Tips for Professional Communication (podcast)Delivering a (Last-Minute) Point Well Made (webcast) Read NITA’s statement on the important of in-person advocacy in courts, 

19: Upleveling Your Oral Advocacy Skills, with Hon. Nancy Vaidik and Rebecca Diaz-Bonilla

In Episode 19 of May the Record Reflect, Judge Nancy Vaidik of the Indiana Court of Appeals and international communications consultant Rebecca Diaz-Bonilla, are in the hot seat to share insights from their new book, Point Well Made, Persuasive Oral Advocacy. They reveal why oral advocacy still matters in a time when most cases settle before going to trial, how to better know your judge to give yourself a leg up, and what are the highs and lows of ruling from the Zoom bench.   Topics3:56    A learning-by-doing book for oral advocacy6:45    Writing process as co-authors writing remotely9:05    Why trial lawyers should care about oral advocacy11:16  Oral versus written advocacy13:17  Oral advocacy in persuasion16:02  What judges are looking forward to in a proceeding21:24  What to know about your judge23:45  Relationships you need to know about27:45  Appearing before a multi-judge panel30:03  Why rebuttal matters31:31  Judge Vaidik’s experience with remote advocacy35:32  “Soft” things lost in remote hearings40:06  Communication needs that have changed during the pandemic42:25  Signature signoff question Quotes“Oral advocacy is a lot different from written advocacy and our law schools are focusing on written advocacy and not on oral advocacy, and there are differences. In oral advocacy, as an advocate, you can actually listen to the judge’s concerns—or whoever you’re talking to, the listener’s concerns – and adapt your argument. You can’t do that in a written setting. In an oral setting, however, you need to keep attention, the attention of the listener. And in a written advocacy situation, that’s not so much the case because when the reader loses focus, they can go back and re-read the material. You can’t do that in oral advocacy situation.” (Judge Nancy Vaidik)“Judges are people too, and so they’re not immune to the digital age and the lower attention span and the need for people to get to the point and say it clearly, concisely, thematically. All those things are super important, and so old-style argument is not going to be as effective. You have to take into account the digital age and the judges who are going to be listening, especially as younger and younger judges get appointed to the courts. It’s so important to adapt the way we approach oral argument in front of one or multiple judges.” (Rebecca Diaz-Bonilla) Recommended ResourcesPoint Well Made: Persuasive Oral Advocacy, Second Edition (book)Hon. Nancy Vaidik (bio)Rebecca Diaz-Bonilla (bio)Foolproof: The Art of Communication for Lawyers and Professionals, Second Edition (book) Rebecca Diaz-Bonilla’s “Foolproof” Tips for Professional Communication (podcast)Delivering a (Last-Minute) Point Well Made (webcast) Read NITA’s statement on the important of in-person advocacy in courts, here.

In Episode 18 of “May the Record Reflect,” we’re talking about something that’s all too often an afterthought when a case goes to trial: the electronic courtroom presentation. When expertly executed by a trial technologist, a trial presentation will provide you and your fact-finders one shortcut after another that ease courtroom procedures and benefit your client. Trial technologists Shannon Bales and Alicia Aquino share their insights, recommendations, and best practices that will have you convinced that a trial tech is an integral part of a winning team. Topics4:37     Electronic trial presentation today6:55     Why a trial tech is crucial to your outcomes8:45     EDRM, the litigation lifecycle11:43  Bring them in early in the litigation13:14  Why trial presentations matter16:23  How “cat lawyer” memes happen18:17  What trial techs know that you don’t20:10  E-discovery and trial23:57  Fact analysis tools26:20  Best practices for virtual proceedings30:37  Timeline for your tech rehearsal33:15  Exhibit “tutorials” for fact-finders34:25  Becoming a trial tech38:11  Trial Presentation Companion tips39:41  UN War Crimes Tribunal experience41:12  Types of software48:03  A mistake firms make49:39  Outfitting your war room57:17  A note for small firms and solo practitioners59:34  Renting versus owning equipment1:01:17  Helping the opposing team1:07:08   Signature signoff questionQuotes“Trial presentation is an efficiency aid for the court. That’s the number-one thing we’re there to do. We’re hired there, of course, to help our team, but the way that we get through the door is that we’re there to make things efficient for the court so that the proceedings will move along at a quick pace and not waste the court’s time.” (Shannon Bales) “Bring [trial techs] in early on. Let us take a look at the evidence, at the exhibits. I can’t tell you how many times that the attorney is presenting their case and then at the end the judge says, ‘You know, this could have easily been done in a timeline. Do you think you can just put together a timeline? That would’ve saved us four days of testimony,’ and I, probably in the background, was saying, ‘Hey, you know, let’s put together a chart, a timeline. Let’s put graphics. Let’s tell the story a little bit better.’ And when you have somebody on your team that’s able to incorporate the graphics and storytelling, it just makes you look that much more organized.” (Alicia Aquino) Recommended ResourcesShannon Bales (LinkedIn)Alicia Aquino (Aquino Trial Services)The Trial Presentation Companion (book)What Juries Really Think: Practical Guidance for Trial Lawyers (article)Online Courtroom Project(website)COVID, the Court, and the Future of the Jury Trial (webcast)

18: Now Presenting: Why You Need a Trial Tech to Run the Show, with Shannon Bales and Alicia Aquino

In Episode 17 of “May the Record Reflect,” we’re talking about cybersecurity for law firms: why it’s important, how to prevent hackers from accessing your clients’ electronic data, what to do if it happens, and what ethics canons have to say about it. Patent attorney and e-discovery expert Helen Geib and technologist BJ Moore share their tips to help you manage this important and often overlooked aspect of law firm management.  Topics4:00     Why law firms are a rich target for cyberhackers7:45     How our computers are hacked10:15  Security issues raised by working remotely11:12  VPN security via cell phone12:23  Whether hackers can gain access via phone apps13:20  Cell phone security14:30  What to do if your system has been hacked16:00  Lawyer’s obligations around client data security18:30  Range of consequences of a data breach19:40  Technical know-how and legal malpractice20:20  Court decisions in data breaches27:33  ABA Formal Op. 483 highlights32:12  Ethics rules touching on data security34:27  General liability insurance versus cyber insurance coverage36:26  Basic preventative measures against hacking40:50  Steps to take after a data breach42:45  Top-of-the-line “wish list” practices45:27  Signature signoff questionQuotes“There’s a general recognition that there are two pieces to tech competence for lawyers: one is education and lawyers raising the level of their own understanding of security and using basic security practices. The other is to recognize the limits of our own knowledge and to associate with experts and people who really understand this area so that they can help us in the areas we didn’t go to law school for.” (Helen Geib)“Cybercriminals are considered terrorists, so [if you pay a ransom] you’re technically financing a terrorist organization, which is against federal law. You also don’t want it to be profitable for them because as long as it’s profitable, they’re going to keep doing it. The more people pay, the more they’re going to want to do it.” (BJ Moore) Recommended ResourcesHelen Geib, Hoover Hull TurnerBJ Moore, Right Hand IT SolutionsFBI Internet Crime Compliance Center IC3A Guide to Law Firm Cybersecurity Risks & Ethical ComplianceABA Formal Op. 483Cyberattacks Have Become Commonplace – Know the Ethics of Prevention and ResponseWhat Is Cyber Insurance? Do You Need It? Millard v. Doran, No. 153262/2016 (Sup. Ct. N.Y. Cty.)Wengui v. Clark Hill, PLC, (D.D.C. Feb. 20, 2020)Hiscox Ins. Co., Inc. v. Warden Grier, LLP, 474 F. Supp.3d 1004 (W.D. Mo. 2020) 

17: Can You Hack It? Protecting Electronic Client Data, with Helen Geib and BJ Moore

If you’re a litigator or trial lawyer, your life is full—in and out of the courtroom. May the Record Reflect is the podcast of the National Institute for Trial Advocacy, and we know that if something related to lawyering is interesting to us, chances are it’s interesting to you, too. Trial skills, office life, personal development, and more—it’s all fair game on May the Record Reflect.

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May the Record Reflect

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