From March 11 through 15, approximately 40 attorneys from all over the country gathered at Syracuse University College of Law to participate in a five-day trial techniques seminar organized by the New York State Bar Association. Due to the dedication and preparation of faculty, support staff, and attorney-attendees, Trial Academy 2023 was an overwhelming success. Academy attendees of all ages were privileged to hear from both practitioners and judges regarding a variety of topics essential to courtroom success. While morning sessions revolved around group faculty presentations and demonstrations, in the afternoon attendees were divided into teams of 5-10 attorneys where they prepared 10-15-minute presentations for their peers and received targeted feedback from experts in the field. Attendees were expected to prepare two fact patterns in advance—one civil and one criminal—and represented both the prosecution and the defense in scenarios designed to mimic real world situations.
Day One
On the morning of day one, attendees were privileged to hear from Trial Academy co-founders Tucker Stanclift and Sherry Levin Wallach. Having organized the first Trial Academy over 14 years ago, both attorney Stanclift and former NYSBA President Wallach introduced attendees to the principal theme of Trial Academy—using the facts, the law, and emotion to develop a theme and tell a story to the jury. Following these fabulous introductory remarks and greetings, attorneys Peter Moschetti, Jr. and Richard “Rick” Collins presented on opening statements in the civil and criminal context, while attorney Marc Gann of Collins, Gann, McCloskey & Barry led the faculty demonstration on jury selection.
Following a catered lunch in Syracuse University’s Dineen Hall, attendees were separated into their working groups to present on that morning’s lecture topic. There were five groups with an average of eight attendees per group. In these groups, attendees participated in a mock voir dire process with real jurors and received constructive feedback on their performances. After each attendee finished his or her presentation, they viewed a video-recorded copy of their performance in a separate room with an experienced faculty member. Such one-on-one instruction allowed attendees to focus on their respective strengths and weaknesses and ask questions in a comfortable and casual environment.
Following the afternoon session, all participants gathered at Sheraton Syracuse University Hotel & Conference Center for a Welcome Cocktail Reception & Founders Award Presentation. At the reception, attendees and critique faculty mingled over light refreshments and snacks. Importantly, attorneys of all ages and geographic locations welcomed each other to Syracuse University and engaged in collaborative and productive dialogue about the day’s activities and each other’s presentations. Following the reception, attendees and faculty continued their discussions and enjoyed the amenities of Syracuse University and its campus.
Day Two
The second day of Trial Academy was just as memorable as the first. Following a complimentary continental break-fast prepared by university staff, attendees gathered in the Melanie Gray Ceremonial Courtroom for a detailed lecture on trial ethics from New York Supreme Court Justices Kimberly O’Connor and Deborah Karalunas. In their lecture, Justices O’Conner and Karalunas touched on a variety of important topics for trial attorneys in New York state, including the new unified rules for New York Supreme and county courts, civility in the courts and the legal profession in gen-eral, and tips and reminders when representing clients in the civil or criminal context. In addition to these topics, Justices O’Conner and Karalunas emphasized the importance of an attorney’s technological competency in the virtual world. Jus-tices O’Connor and Karalunas’ decades of legal experience helped younger practitioners understand and appreciate the nuisances of appearing in New York’s state and federal courts and the important role that attorneys play in the New York’s justice system.
Following the presentation, former President Wallach, Tim Fennell of Amdursky, Pelky, Fennell, and Wallen, and retired Nassau County Court Judge Jerald Carter lectured on direct examination techniques. Emphasizing the importance of preparation and communication between attorneys and their witnesses, Wallach, Fennell, and Judge Carter stressed the importance of using exhibits to aid a witness in telling his or her story to the jury, the use of open-ended and non-leading questions to clearly articulate the witnesses’ theme to jurors, and the availability of re-direct examination to clear up confusion raised on cross examination. These experts also advised attendees that both prosecutors and defense attorneys should be familiar with pattern jury instructions prior to direct examination, as they provide attorneys with an outline of facts necessary to prove (or disprove) a particular count or charge at issue in a complaint or charging instrument.
After this phenomenal direct examination lecture, Hofstra School of Law trial techniques lecturer and former Nassau County prosecutor Julie D’Agostino presented an opening statement for attendees and expert faculty alike. Using her substantial experience prosecuting cases in the Nassau County District Attorney’s Office, Ms. D’Agostino stepped into the fictional shoes of a prosecutor in the “State of Lonestar” and represented the state in its criminal prosecution of accused murderer Richard Grouper. Ms. D’Agostino began her opening statement by summarizing the key evidence against defendant Grouper, the witnesses that would testify against him at trial, and a summary of their expected testimony. Ms. D’Agostino’s presentation served as a model for attendees’ afternoon presentations, where they each represented the state or a criminal defendant in their own open-ing statements. Attendees were privileged to have City of New York Criminal Court Judge Guy Mitchell critique their presentations and offer constructive feedback. Following his critique, and after a brief dinner break, attendees were in-vited to participate in the New York State Bar Association’s Criminal Justice Section Executive Committee meeting, which was held at the Sheraton Syracuse University Hotel & Conference Center.
Day Three
On March 13, attendees once again convened in Dineen Hall for a complimentary continental breakfast prepared by university staff. Following this light breakfast and coffee, attendees dove into that morning’s activities. Notably, Oneida County Supreme Court Justice Erin Gall and former NYSBA President Vincent Doyle led that morning’s faculty presentation, which addressed cross-examination techniques. Utilizing audio-visual media and cinematic clips from film and motion picture, Justice Gall and President Doyle cautioned attendees to approach cross examination with flexibility and grace, explaining to attendees that this phase of trial is critically important and can easily go south if an attorney is not fully familiar with the intimate facts of his or her case and prepared to respond to unexpected testimony. Citing the Latin maxim primum non nocere (“First, do no harm”), President Doyle proposed four simple “rules” to ensure successful cross examination: (1) stop when you are winning, (2) stop if you do not know how to proceed, (3) stop when you have made your point, and (4) stop before you get hurt. While these rules may seem unconventional, they are illustrative of the risks that cross examination can bring to prosecuting or defending a case.
In addition to cautioning attendees on risk, President Doyle and Justice Gall emphasized the importance of control throughout the course of cross examination. Explaining that cross examination itself is an opportunity to elicit a “performance” for jurors, President Doyle suggested that effective control over a witness could be established by limiting the boundaries of possible answers, dictating the tone and pace of the questioning, breaking questions down into their basic components, and preventing hostile witnesses from giving non-responsive answers. While controlling a witness throughout cross examination is an important goal, President Doyle did emphasize the importance of maintaining an attorney’s own style when engaging in cross examination and utilizing your personality and skill set to solicit the testimony most favorable to your case. As jurors have an acute ability to sense authenticity in a courtroom, trying to imitate other attorneys and their personalities may come off as unauthentic and specious. As such, it is important to utilize your own style and stay within your comfort zone through the course of cross examination.
Following President Doyle and Justice Gall’s presentation, attorney Peter Gerstenzang of Gerstenzang, Sills, Cohn & Gerstenzang in Albany continued the discussion of cross examination from a criminal perspective. As one of the leading attorneys in New York state in DWI law, Gerstenzang provided practical approaches to cross examination in the criminal context. In that regard, he introduced attendees to the concept of “looping” during cross examination—that is, establishing facts through cross examination that are subsequently included in future questions, effectively emphasizing such facts to jurors so that they may retain and use them when reaching a verdict. Along these lines, Gerstenzang emphasized that it is important to avoid asking compound questions during cross examination that can confuse jurors and allow hostile witnesses to deflect attention away from harmful facts or evidence.
Following that morning’s faculty lectures, attendees once again returned to their working groups for afternoon presentations, where they received constructive feedback from Justice O’Conner and Albany Law School Visiting Assistant Professor of Law Michael Wetmore. Utilizing the principles and skills emphasized by President Wallach, Fennell, and Judge Carter on the morning of day two, attendees engaged in direct examination of witnesses regarding a civil motor vehicle accident that resulted in the death of a 17-year-old female high school student. Following the presentations, attendees returned to Sheraton Syracuse University Hotel for refreshments and debriefing.
Days Four and Five
On the last full day of Trial Academy, morning lectures began with attorney Laurie Vahey of Vahey Law Offices in Rochester presenting on evidence, foundations, and objections. Noting that there are many different forms of evidence that may be used at trial, Vahey emphasized several nuances between federal and state rules of evidence. Notably, in New York State, the standard governing the admissibility of scientific expertise depends on which court an attorney or party is appearing. While federal courts in New York follow the standard articulated by Justice Blackmun in Daubert v. Merrell Down Pharmaceuticals, Inc., attorneys appearing in state courts will need to familiarize themselves with the Frye standard in order to ensure that expert testimony reaches the trier of fact. However, regardless of forum, all evidence must meet the minimum foundational requirements of accuracy, authenticity, and relevance to be admissible.
Following Vahey’s lecture, criminal and family law attorney Dave Chitekel continued the morning’s instruction with his lecture on evidence in the criminal context. While criminal practitioners must be familiar with both Brady material and Giglio materials in order to zealously advocate for their clients, numerous suppression motions may also permit a defendant to exclude certain confessions or admissions or even tangible property seized in an improper search by law enforcement. Chitekel also advised that criminal defense attorneys may be able to utilize procedural motions to sever counts in an indictment or move for a speedy trial to ensure the optimum outcome for a defendant.
After faculty lectures on evidence, Catherine Christian of Liston Abramson gave attendees the final lecture of Trial Academy 2023. Focusing her presentation on closing argument, Christian, too, emphasized differences between federal and state courts. While in state court a defendant has the opportunity to present his or her closing statement first, in federal court a prosecutor has both the first and last word in summation. Also, much like in opening statements, Christian recommended that prosecutors and defense attorneys review pattern jury instructions to ensure that they hit on all elements of a charge or count in their closing statement. Finally, just like during opening statement, preparation, organization, and delivery are key to communicating your theme to jurors and obtaining a verdict favorable for your client.
In the final afternoon session of the five-day seminar, attendees engaged in their own cross examination demonstrations utilizing the techniques introduced the previous day by President Doyle and Justice Gall. Attendees were privileged to have additional justices of the Supreme Court in attendance to offer their feedback on the examinations. After completion of the afternoon session, attendees returned to Sheraton Syracuse University Hotel to prepare for the final morning session on March 15, which began at 9:00 a.m. with a faculty demonstration of closing argument led by Asha Smith of the Legal Aid Society of Westchester County. Following Smith’s presentation, attendees presented closing argument to experts and their peers alike.
In summation, Trial Academy 2023 was a fantastic opportunity for New York attorneys to improve their trial advocacy skills while developing relationships with lawyers from across New York State (and even the entire country). Attendees were so satisfied with the instruction and curriculum provided by critique faculty that many requested that Trial Academy co-founder Tucker Stanclift organize a “Trial Academy II” to further explore the concepts and themes introduced throughout the seminar. Having completed Trial Academy, the undersigned attorney can highly recommend the course to attorneys throughout New York State. Attendees were all immensely grateful for the preparation and dedication of faculty presenters and look forward to future high-quality CLE programming from the New York State Bar Association.
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