“In essence, we’re doing death penalty cases in a traffic court setting,” said immigration court Judge Dana Leigh Marks during the April 1, 2018, edition of Last Week Tonight with John Oliver. She spoke to John Oliver about immigration courts; she now speaks to Litigation News readers, in her capacity as president emeritus of the National Association of Immigration Judges, about persuasion when time is limited.
January 15, 2019 practice points
"Death Penalty Cases in a Traffic Court Setting": Lessons from the Front Lines of Today’s Immigration Courts
Fit the cross to the witness; the witness to the cross
By Hon. Mark A. Drummond
At a recent ABA/National Institute for Trial Advocacy pro bono training for legal services attorneys, for which I was program director, a participant asked for tips on how to pack in as much persuasion as possible when time is limited, noting that sometimes lawyers have as little as 15 minutes at master calendar hearings or interviews with an asylum officer. Another participant brought up Judge Marks’s compelling analogy. So, on behalf of Litigation News, I decided to ask Judge Marks for her best practices. Although she was asked for her best practices on cases where a person’s destiny hangs in the balance, her advice is universal. Judge Marks’s suggestions will be directly quoted, with my two cents directly following.
Organization Is Paramount
“It all goes back to just being extremely well organized,” says Judge Marks. “I think it’s really, really important for people to be prepared and to prepare their clients to understand the theory of the case. Make sure you’ve organized by topic and the point you’re trying to achieve because in any of these situations, whether it’s a judge or even the asylum officer interviewer, they may say, ‘Cut to the chase. I’ve read your preliminary arguments, understand this aspect, and want you to move to the third aspect.’ And I often see new practitioners have the ‘deer-in-headlights’ look.”
I agree, and I believe that a trial notebook is an ideal way to prepare and organize. At the front of the trial notebook is a list of the elements you need to show with citations to the appropriate legal authority. Next comes the chronology, including references to all documents that are connected to any particular date. Also in the notebook are your outline for direct examination, including references to any exhibit to be introduced (try to get them to stipulate to save time), and an outline for your cross with references to any possible impeaching documents.
I also recommend bringing four of each document: the original for the witness and copies for you, the tribunal, and opposing counsel. When time is limited, everybody needs to be looking at the same document at once.
With any document, look to see if there is any way you can make it more understandable or compelling for the reader. Perhaps a section needs to be highlighted or enlarged. Perhaps it would benefit the reader to see two documents side by side on one page. The focus should be on the best way to deliver the message to the tribunal.
Finally, prepare what I call “The Case in a Nutshell.” It is a one-page takeaway for the judge, or to give to your client in advance, which crystallizes the points you want to make in a simple, understandable form. It forces you, the tribunal, and your client to focus on the pieces of evidence that really matter.
Witness Preparation
“It is a rookie mistake to underestimate your client’s ability to understand why a question is being asked,” counsels Judge Marks. “If they’re going to be on cross-exam, they must be able to understand why a question is being asked. Their focus to the question of why they came to the United States may be to respond, ‘For a job,’ thinking it is good to show they’re not going to be a burden on the United States when, in reality, the primary and compelling reason was fleeing persecution.”
“I think a lot of practitioners who haven’t seen these cases don’t quite think through those kinds of issues and educate their clients,” continues Judge Marks. “Clients can be better advocates for themselves by understanding what questions are going to be asked of them.”
Again I agree. Although many advocates begin examinations with background, when time is tight, you may want to consider front-loading your most important questions. Primacy is a great tool, with the proviso that the client must be informed that the critical questions will be the very first questions so they, too, are prepared.
Give the Court What It Needs to Rule in Your Favor
“Another tip I give people is to think about the decision you want the judge to write,” advises Judge Marks. “I’ve often said that immigration law is second in complexity to tax law, but is more complicated since there is no TurboTax for even the most simple immigration issue.”
“So, another tip I give people is to think about the decision you want the tribunal or hearing officer to make,” continues Judge Marks. “Asylum is like a thousand-piece puzzle. You may have one piece that’s problematic so you focus on that, but if you ignore the easy-to-prove pieces, the judge still can’t grant the case because all those pieces need to be there.” Giving the judge a template to rule easily from the bench or write an opinion is the ultimate in concentrating totally on the court or tribunal.
The device of “headlining,” or what some call “signposting,” aids both the client and the tribunal. You may ask, “Ms. Garcia, I am first going to ask you why you are seeking asylum, then to list every reason for that, and finally, if we have time, to ask you some general background questions.” This technique aids both the tribunal and your witness.
Everywhere there are dockets that are crowded, and studies show that our attention spans are shrinking. The luxury of time is decreasing. All of the best practices covered by Judge Marks apply, whether it is an immigration case in which your client’s destiny is on the line or any other case in which you are seeking justice for your client.
Hon. Mark A. Drummond is an associate editor for Litigation News.
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