Academy lets lawyers sharpen skills

TRIAL RUN: Stesha Emmanuel, left, attorney for LeClairRyan of Boston,
TRIAL RUN: Stesha Emmanuel, left, attorney for LeClairRyan of Boston, "deposes" actor Chris Stahl during a workshop at the Litigation Academy. / PBN PHOTO/ MICHAEL SALERNO

Providence attorney Matthew Parker is familiar with taking depositions, but a new program that debuted in mid-November gave him a crash course in deposition techniques that he’d been eager to try.
The Litigation Academy – the brainchild of Chief Judge William E. Smith of the U.S. Federal District Court in Providence – held its first intensive, low-cost session from Nov. 13-14 at the courthouse and on Nov. 15 at Roger Williams University Law School.
The partnership between the federal court, the law school and the Federal Bar Association’s Rhode Island chapter is designed to offer courtroom training that Smith and organizers say young lawyers and solo practitioners may not otherwise get to experience. And that’s because lawyers just aren’t going to trial as often as they used to.
The “vanishing trial” phenomenon had been on Smith’s mind for a couple years before he became chief judge in December 2013. Now, he said, he’s in a position to do something about it.
“There are fewer and fewer trials going on in the federal courts,” said Smith. “It is in the interest of all of us – the people that have to come to court, the litigants, the judges, everyone in the bar – that we should try to find some way to get younger lawyers the experience they’re missing.”
Forty years ago, one in 10 federal court cases would go to trial, said Nicki Kuckes, an academy co-director. Now, that number is more like one in 100, said Kuckes, who is also professor of law and assistant dean for strategic planning at RWU Law School.
“A lot more cases go through mediation or get settled,” she added.
Parker, a lawyer with the seven-person firm of Whelan Kinder & Siket LLP of Providence, said he was interested in learning about the “funnel” method of deposing a witness at the Litigation Academy. That technique forces the lawyer to drill down into facts and continuously sharpen the issues for witnesses, as opposed to establishing facts chronologically, Parker said.
Although mentors at a larger law firm he had worked at after he passed the bar in late 2009 coached him on how to conduct a deposition, “I can’t recall having any formal training after I graduated from law school in deposition techniques,” he recalled. “And that’s pretty common.”
“High-caliber training is out there but it costs a lot of money,” Smith said. “It occurred to me that we had a unique opportunity here, [because of] the relationship between the Federal Bar Association and the law school, to bring these three entities together [and offer] skills-based educational programs.” A nonprofit based in Boulder, Colo., the National Institute of Trial Advocacy, offers “excellent” training, he added, but that training costs anywhere from $1,295 to $2,695 and requires traveling to other parts of the country, according to the NITA website.
The Litigation Academy was charging $300 for the first session, which mostly covered the costs of books and materials that NITA is providing. (Smith said he had explored partnering with NITA but decided against it.) The three participating judges and lawyers serving as instructors donated their time, said Smith and Kuckes.
Trinity Repertory Company and Brown University provided fine arts students to act as witnesses in the mock depositions, Kuckes said. The court and law school are also donating the locations for the academy to hold its sessions as they evolve, Smith said.
With 42 lawyers interested in the first session on depositions, and room for only 24, a second session is planned for spring, organizers said. Beyond that, said Kuckes, the academy could offer sessions on such topics as opening statements, closing arguments, conducting cross examinations and jury selection.
Besides parties settling cases and submitting to mediation more often, Smith said the reason for fewer trials also stems from moving over the past two decades “more in a direction of resolving disputes by way of summary judgment. We’re the victims of our own success. And the costs of litigating are more prohibitive; parties do more pretrial work, and that costs money,” he said.
NITA shares Smith’s vision for providing training that lawyers might need and not have exposure to during the course of their career, said Karen Lockwood, the nonprofit’s executive director.
“We absolutely supported the chief judge’s idea of supporting newly minted lawyers,” Lockwood said in a phone interview. “We’re really proud and pleased they’re using our publications. That academy is going to move forward more broadly than our public-service mission. We’re very happy to see that happen. We want people to be learning by doing when they’re going to trial. We hope some of the Rhode Island attendees might extend their learning in programs we provide.”
Jim Murphy, a lawyer with Hanson Curran LLP of Providence, served as one of the instructors. As such, he presented a lecture on the importance of preparing a witness for deposition and critiqued the participants. “Coaching takes place before [a witness] is sworn in,” Murphy explained. “It shouldn’t take place afterward. It’s a role that is difficult to play, particularly if you’re inexperienced.”
J. David Freel, an attorney specializing in insurance and products-liability defense, among other areas, for Higgins, Cavanaugh & Cooney in Providence, has been trained by his colleagues in depositions, but wanted to participate in the academy because “it sounded like it was going to be a very comprehensive look into depositions, more than you would get in a typical, one-hour [continuing legal-education credit].
“I’m looking to hone my litigation skills and receive feedback from other experienced litigators outside of my firm,” he said before the session was held.
Scott Kilpatrick, president of the Federal Bar Association’s Rhode Island chapter, and past-President Brooks R. Magratten, a program organizer, said the program has the potential to become a national model. The U.S. District Court for Western Pennsylvania has a similar program but it is not as intensive or collaborative, Kilpatrick said.
The association chapter has about 160 members, Kilpatrick added.
In Rhode Island, lawyers are required to take 10 hours each year of continuing education as a condition of their bar license. The deposition session will provide more than the annual minimum, Magratten said.
“I do litigation around the country and I haven’t seen a place where you have a federal court, bar association and law school in partnership to offer this kind of program,” Magratten added. “And only in a place like Rhode Island, where everybody knows everybody, only in that kind of environment do you have this kind of development.”
After participating in the academy, Parker said he appreciated the “brush up” lecturers gave on rules, ethics, and the limits that make procedures acceptable or out-of-bounds.
“One thing that came up a lot is how to handle a difficult witness – an evasive witness, a confrontational witness, an emotionally distressed witness or one under the influence of substances,” Parker said. “It’s better to learn about that in a classroom in a simulation than have to learn the hard way in a real deposition that could have real high stakes.” •

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