January 31, 2019 Profile

TIPS/ABOTA Trial Academy: The Real Deal

By Peter J. Neeson and Christopher S. Marks

“My experience at the Trial Academy? What I really got out of it was finally dispelling the myth that I couldn’t try a case.” — 2003 TIPS/ABOTA National Trial Academy student

The above quote from one of the students at the 2003 National Trial Academy (Trial Academy) pretty much cuts to the core issue for every student who attends this annual program. Fear, doubt, indecision, confidence issues—these are just some of the many challenges facing all students as they begin their voyage on this program. The mission of the Trial Academy, which is sponsored by the TIPS Section of the ABA and the American Board of Trial Advocates (ABOTA), is to remove those mental obstacles and provide students with all of the tools essential to courtroom success.

This article is the second of a two-part article about the Trial Academy. The Winter 2018 edition of The Brief presented the history of the origin of the academy, now in its 19th year; the current article delves into the specifics of the program and how it turns out successful trial attorneys.

Overview

The Trial Academy accomplishes its mission by offering what others do not. Many other trial programs obviously do some of what the Trial Academy does, but none of them offers all of what is experienced at the TIPS/ABOTA Trial Academy. The program affectionately has been called the country’s top “boot camp for lawyers.” And for those who have tried cases to verdict, it is easy to understand why the program lives up to that name.

Authenticity. So, how does this academy play out for the student who attends? The judge is real. The jurors are real. And the holstered guns on belts of the sheriff’s deputies? Those are real, too. Welcome to the Trial Academy—TIPS style!

Mentors. With a three-to-one student-faculty mentor ratio, each academy student receives individualized, personal mentoring. The faculty mentors consist of six defense lawyers, six plaintiffs lawyers, district judges, state supreme court justices, jury consultants, professors, and technical engineers who are all seasoned experts in their particular specialties. Collectively, they utilize a wide range of individualized teaching methods and approaches not found anywhere else.

Due to the admirable student-to-mentor ratio and exposure to both plaintiffs lawyers and defense lawyers critiquing presentations every step of the way, every student’s strengths and weaknesses are tested by insights from both sides. In the National Judicial College (NJC), which has a 21st-century courtroom and the latest technology in its classrooms, mentors get two cracks at every student’s presentation: live and then by videotape review.

Nothing escapes the eyes of the mentors. “The mentors were incredibly experienced,” said one former academy student.

You sit here in awe of their talent. What they do differently is highlight the things you need to do to elevate your own presence in the courtroom. Unlike other trial programs I have been to, the mentors helped us develop our own individual style.

Learning opportunities. The academy is built around two separate cases: one that the academy students prepare through practice and then perform at trial itself and one that the faculty mentors present as a training exercise. Interspersed are a variety of trial-related lectures on ethics, civility, and presentation skills, all of which are designed to hone the trial skills of the academy students.

This is a 24/7 program. On most days, students will eat breakfast, lunch, and dinner with their mentors. Like a live trial, the students are in the trenches with their mentors literally from dawn to well into the night, preparing every aspect of a trial for the next day’s presentations.

As there are many ways to learn, students also gain knowledge by watching their “trial masters” perform an opening, direct and cross-examination, and finally a closing of an unrelated case over the first three and a half days of the academy. Collectively, the faculty mentors have spent thousands of hours in front of jurors. Thus, the students gain valuable insight into trial strategy and technique by observing the faculty mentors and discussing what they have observed.

By the last day of the academy, the time has come to transition from learning by example to learning by doing in front of real judges and jurors from Washoe County, where the case that the academy students practiced with the mentors is now tried in two separate courtrooms with every student participating in some aspect of the trial.

Witness preparation. The trial for the academy students involves a brain injury to a child who was riding a roller coaster with his father. Both the plaintiffs and the defendants present evidence from fact witnesses as well as engineering and medical experts.

The academy draws upon the university’s student body to fill the various fact and expert roles, including current engineering students from the university’s engineering department and medical students from the university’s medical school. As a result, the academy students not only get the experience of preparing real experts for direct exam but also get to work with knowledgeable experts to help prepare for the trial cross-examination.

This preparation takes place under conditions that are not unlike those found in actual trials. Academy students must even juggle witness schedules in between all of the other activities surrounding the trial. It is a very intensive process.

Evidence. Just as if they were in a real courtroom, the academy students can use their laptops to retrieve digital exhibits and forward them to the presiding judge’s monitor for consideration and ruling. Not unlike a sportscaster diagramming a play during a televised football game, the attorneys and witnesses may use the courtroom’s LCD touch-screen technology to annotate displayed evidence. If the judge approves the content, the clerk can then disseminate the evidence to the LCD displays stationed in the jury box, the presentation podium, the attorney tables, and the witness stand, as well as the four 60” LCDs situated in the courtroom’s large gallery.

Four and a Half Days to Becoming a Better Trial Lawyer

It is now time for the young lawyer to begin the experience. Let us drill down on each day of the four-and-a-half-day program and see how it feels for the students as they go through the progressions involved in trying a jury trial.

Day 1. The academy students arrive at the NJC midday for lunch on Saturday.

However, their preparations began well before that. The academy students are preassigned to either the plaintiff team or the defense team. By the time they arrive, the academy students have had the discovery materials for their case in hand for some weeks. The academy students already have written and submitted motions in limine before landing in Reno, so they are familiar with the case and are expected to have outlined a path to victory. That plan changes, of course, as the academy students progress through the program and have the benefit of observing the faculty mentors in action and receiving individualized feedback from numerous small-group practice sessions.

By the time the bus leaves the NJC for the hotel at 7:15 p.m. that first evening, the academy students have practiced, under pressure, admitting evidence at trial; observed the opening statements of the faculty mentors; and met as part of either the plaintiff team or the defense team to discuss the strategy for student trial.

Not surprisingly, Saturday night is spent revising plans that had been outlined over the previous weeks.

Day 2. Sunday morning comes early. Most students have worked late into the night reworking their opening statements.

The bus takes the faculty mentors and academy students to the NJC, where the faculty mentors and academy students break into small groups to prepare further for opening statements. The academy students practice within those small groups and get feedback from their faculty mentors.

Each academy student is then paired with an opposing academy student to give opening statements. Each pair also gets to watch at least one other student pair perform. The faculty mentors for each student then give feedback for all to hear.

Later, the faculty mentors and academy student watch the videotaped opening for even more precise feedback. This is a process that continues throughout the week as each student collects on a flash drive each of his or her performances. One former Trial Academy student said as follows:

Watching your own tape of your presentation is really scary. I couldn’t believe that I looked and sounded like that. Watching those tapes allows you to change and improve your presentation almost instantaneously.

Not unlike an actual trial, the presentation of evidence begins immediately. Here, that means right after lunch. The academy students adjourn to the courtroom to watch the faculty mentors present witnesses in the faculty mentor case.

Having watched how the faculty mentors have reinforced the trial themes from the previous day’s opening statements through the witness examinations, the academy students regroup with their respective faculty mentors to reassess various strategies for handling their own witnesses. Then it is back to the small groups to meet with the individual University of Nevada, Reno, students who will play the various fact witnesses at trial. The academy students, under the guidance of the faculty mentors, prepare each witness for direct and cross-examination.

Then it is time to practice again. Each student is again paired up with an opposing student for the direct and cross-examination of the fact witness. Just as with the opening statements, the faculty mentors provide feedback to each pair and then go over the videotaped performance with each academy student.

By the time the bus departs for the hotel at 7:00 p.m., it has been a very long day. Each student has given an opening statement and either presented a direct examination with a fact witness or cross-examined a fact witness.

With the presentation of experts scheduled for the following day, it is another late night back at the hotel for the students.

Day 3. Monday is a big day, and, like the previous day, it comes early.

The bus departs the hotel at 7:30 a.m. for the NJC, where the students spend the morning preparing for the examination of the first expert. Half of the students will do a direct examination of an engineering expert; the other half will cross-examine an engineering expert.

After defense team and plaintiff team group strategy meetings, the students and their individual faculty mentors break up into small groups to meet and prepare the University of Nevada, Reno, engineering students who are playing the parts of the experts. Not only do the academy students work with the expert witnesses on substantive testimony, they also provide the experts with presentation tips for the examinations. This includes the selection of exhibits, use of demonstratives, and ways in which the witnesses can refresh their recollection from a report or discovery materials. The academy students also help the experts refine the presentation of their opinions so that they will be relatable to the jurors. This can include helping the experts overcome real-life challenges like communication barriers and simple nervousness.

The academy students are paired once again with opposing counsel and undertake either a direct examination or a cross-examination of the engineering expert. The examinations are videotaped so that the academy students can review their performances with their faculty mentors on an individual basis after receiving feedback from both faculty mentors in the small-group format.

As tired as they are by 3:00 p.m., the day is really only half over. Following another expert direct and cross-examination by the faculty mentors, the academy students again break into plaintiff and defense teams to meet and discuss strategy with the medical experts—medical students from the University of Nevada, Reno, School of Medicine. For academy students who do not have a background in medicine or trial work involving medical issues, the presentation and cross-examination of the medical expert can be the most challenging part of the trial. Not only do the academy students need to understand all of the issues involving medical causation in the case, they also must formulate a presentation of that complicated evidence so that it can be understood by the jurors.

The student trial is designed so that neither side has a distinct advantage based on the facts. However, the university’s medical students who play the roles of the treating physicians and medical experts bring a level of realism as they correlate the facts of the mock trial to their own experiences practicing medicine. This makes the cross-examinations very challenging.

Day 4. It is another 7:30 a.m. departure from the hotel. Tuesday follows the familiar pattern from Monday.

In small groups, individual academy students are paired up against an opposing academy student either to present the direct of a medical expert or treating physician or to perform the cross-examination. The examinations are videotaped, once again, to permit individual assessment following the notes that each faculty mentor gives in the small-group format. This takes up the morning.

After lunch, the academy students watch two faculty mentors deliver closing arguments in the faculty case before presenting their own closing arguments, again in a small-group format, after being matched up with an opposing academy student. Following the closing arguments, the faculty mentors go over the videotaped performances with their academy students.

But the now-familiar pattern of observation, practice, and individual evaluation is interrupted by preliminary matters for the actual trial that will begin the following morning. Two sitting judges from the Washoe County Courthouse in Reno arrive after lunch to hear oral argument on the various motions in limine that the academy students had submitted weeks earlier. These are the same two judges who will preside over the two academy student trials that will take place the following morning. The judges then make their rulings that will apply in each trial and cover any final pretrial issues.

The academy students receive their trial assignments for one of the two trials and then disperse with their trial teams to prepare for the following day.

Day 5. It has been a long three and a half days. The academy students have attended various lectures on several aspects of trial presentation. They have watched the faculty mentors present an entire case and have had the opportunity to discuss the various styles and strategic decisions with the faculty mentors. Each academy student has given an opening and a closing. Each academy student has presented a direct of or cross-examined a fact witness. Each academy student has presented a direct of or cross-examined an expert. They have watched other academy students do the same. They have—with some pain—watched themselves on video over and over again. And they have received feedback from their faculty mentors.

Rehearsal is now over, and it is time to put together everything that they have learned. The entire Trial Academy has been building toward Wednesday. It is finally showtime!

The academy students will now pick an actual jury, present evidence to those jurors, and then wait for a verdict after arguing the case in closing. The two Washoe County judges have returned, with the Washoe County sheriff’s deputies who guard them and the jurors that day, to preside over the two trials that will take place simultaneously, one in the upstairs courtroom for the twenty-first century discussed previously and one downstairs in an enlarged double-sized classroom fitted with a judge’s bench, jury box, witness chair, and other courtroom accoutrements. Both judges and all counsel from both sets of trial teams are assembled in the courtroom. They are told to rise. In walk 20 Washoe County citizens who, having relinquished their mobile devices to the sheriff’s deputies when they assembled in the jury room that morning, are responding to the juror summons that was issued by the clerk of Washoe County. Instead of reporting to the Washoe County Courthouse, however, these jurors have been asked to report to the NJC. In return for their participation as mock jurors in the two trials, the presiding judge of Washoe County has excused them from further jury service for the year. It is the authenticity of this final day that distinguishes the TIPS/ABOTA Trial Academy from so many others. With the conclusion of voir dire, the jurors are separated into two groups of 10, with one group representing the jurors chosen and the second group representing the jurors who were struck by one side or the other.

The academy students get to put together everything that they have learned over the past several days and take risks. This time, however, they get more than notes from the faculty mentors. At the conclusion of the trial, the academy students get to watch the jurors deliberate through a live video feed from the jury room and, after the deliberations, get feedback from the jurors in the form of a verdict. This permits the academy students the unique opportunity to see how the choices that they made during the presentation of the evidence and closing argument played out in the minds of those who needed to be persuaded.

In the end, the students’ relief and satisfaction of their hard work begin to hit them. The academy students realize that the juries’ decisions are less important than the fact that they now have the confidence to go home and try a case on their own. Mission accomplished!

Conclusion

Year in and year out, academy students are changed by their experiences at the TIPS/ABOTA Trial Academy and become better trial lawyers because of those experiences. Watching the exponential growth, development, and confidence of these students in just four and a half days is a marvelous thing, as is knowing that, as a mentor, you have made a difference in their professional lives and hopefully a positive impact on the legal profession as the years go by. It is truly remarkable to witness this very personal and individual transformation—and it is the principle reason why so many of the Trial Academy’s mentors go back year after year to teach these young lawyers how to try a case.

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By Peter J. Neeson and Christopher S. Marks

Peter J. Neeson is a partner at Rawle & Henderson L.L.P. in Philadelphia, Pennsylvania, where he is chair of the firm’s Environmental, Toxic, and Mass Torts Department and concentrates his practice in those areas, defending numerous toxic tort matters in multidistrict and class action cases in both state and federal courts. He is the editor and coauthor of The Reference Handbook on the Comprehensive General Liability Policy (ABA 1995); former TIPS Section chair (2006–2007) and TIPS Council member; founder and co-inaugurator of the TIPS Leadership Academy; and past chair of TIPS’s Products, General Liability and Consumer Law Committee. In 2000, he spearheaded TIPS’s development of the National Trial Academy in conjunction with the National Judicial College in Reno, Nevada. He has been a member of the college’s board of directors since 2009 and served as chair of the board in 2014–2015. He may be reached at pneeson@rawle.com. Christopher S. Marks is the managing partner of the Seattle, Washington, office of Tanenbaum Keale LLP, a boutique litigation firm, where he focuses his practice on defending high-exposure cases involving products liability and toxic torts. He is admitted to practice law in California, Oregon, and Washington and has tried cases to verdict in courtrooms across the country. Prior to joining Tanenbaum Keale LLP, Marks was a partner with Sedgwick LLP and the managing partner of that firm’s Seattle office and cochair of the firm’s environmental and toxic tort practice. He is a former chair of TIPS’s Toxic Torts and Environmental Law Committee and a former chair of the Automobile Law Committee. Marks is the immediate past chair of the National Trial Academy, for which he has served as a faculty member for several years. He may be reached at cmarks@tktrial.com.