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20 Litig. News 1 (1994-1995)

handle is hein.journals/lignws20 and id is 1 raw text is: OC'l'OI l 1994 VOLUNE' 20, NUMIWJII I LITIGATION A PUIILICATION OF TI I SECTION OF LITIGATION AMI'RICAN 3AR ASSOCIATION New Orleans Annual Meeting Coverage IPages 4 & 5 Special Itsert: .Join Section (onmil'es Cicero Mects L.A. Law in Now Orlems Section s Advocacy at the Crossroads programs at ABA Anmal Meeting explored litigation trends in the '90s by Ernest E. Svenson Associate Editor A ccording to a technical advisor for television's LA. 1mt, trial lawyers would do well to ma:e their closing arguLtientts tore like those ott the glitzy TV stow. That view-cxpressedl by Los Angeles alltney Charles It. Rosetberg-was Otte of ttany frest ideas expressed at the Sectioni of Liligation's programs on Advocacy al the Ctossrods at lte AlBA Annual Meeting in New Orleans. According to Itntediate Past Section Chair Robert N. Sayler. tle programs' thtente rellcled tle acl Ihat changes to rules and allitudes, new trends. ithe shrinking world comnunily, atd Ite expansioi of individual knowledge have placed all of ts ot tie crossroads. Various Section programns-altended by more titan 2,500 Section metmbers- rellected tltese cltanges in differing ways. Because television is quickly shaping the public's perception of lawyers, a nuttl- bcr of programs keyed in on that phenom- enon. Rosenberg's ideas, for example, were aired at a progratn called Advocacy atnd Persuasion in tile 21st Century: Front Cicero to LA. /4in and Beyond. liosenberg advised lawyers it) hitnk ill their role as that ofa storyteller and to think about ways to excite tle attentiot ofjurors attdjudges. Rosllebeig, wlo is Co-CIhtih of the Section's Training the Advocate Commitle, said lie did not believe iltat the attention span of the American public has been reduced by television. In his by Brad lIhte Associate Editor T rial lawyers should be able Itt strike back-wiltin lintits-wlten tleir clients are sttflering adverse piretrial ptblieity. accinditg ti the ABA I lottse of Delegates. Delegates atl te A1BA Annual Meetitg it New Orleans voled Io antetd AlBA Model Rule of professional Responsibility 3.6 (Trial Publicity) to allow lawyers to tike public statetnents of a type that a reasonable lawyer would believe is required ti protect a client front tie substatiial untlite prejudicial effect of recettt puhlichy nol itiliated by the lawyer or the lawyer's client, But that lerntission is couched its titte of several eav.'iptions ito a broad proltibi- lion oit public remarks that was preserved largely intact front lte fojrmner rule. Paragraph (a) ofatitenided Model Rule 3.6 reads: A lawyer wlo is participatitg or has piarticipated in tlte investigation or lit- igation ofa naller shall tot ttake att Uhlrajutdicial sltletcitttlhat a rteasonale' person would expect to be dissetinated by tealns of public cotituniealion if lite lawyer ktows or reasonably slmtLd ktow that it will have a substantial likelihood of tmaterially prejudicing an adjudicative pri- ceeditg itt lite Illatlet; The cltanges to Model Rule 3,6, which in its previous form was adopted in 36 jurisdictions, were proposed in reaction to Gentile m; State Iar of Netmda, I I I S. C(. 2727 (1991). It Gentile, the U.S. Stupretne Court found a Nevada bar rule-virtually identical to the former Model Rule 3.6- to lie unconstilutiontally vague as inter- preted atd applied by Ite Nevada Supretne Court. Prior to tie I louse of Delegates' vote, lte Coutcil of tte Section of Liigation voted to support the proposed Uttend- ttents. But the amendments were opposed by Ile Section's First Amtendmet and Media Litigalion Comtaintee otn grounds iltat even as ;intended, Model Rule 3.6 would unduly cotmprotmise free speeclt. 'rthere is ni doubt Iltat Ile tew rule is ('le /'howiIl-it l page (I llblir-itos) view, people hiave always been easily dis- Iracled, and it is only because television has whetted ite public appetite for well- crafted stories thali jurors are assetliug their right not I, be bored. In fact, Rosenberg said, he has been approached by mnny judges who have told hint that they wish lawyers would make their closing argumnens more like the ones onI LA. hat. I Ic said that ilte secret to a successful closing argtnnt is to nake it shorl, sweet, and to the enlo- lional point, Jurors-and judges, too-need to be able to understantd the enoicdional conlict if they are tI be intlerested ill a lawsuil, Rosenberg said. Too many lawyers make the mistake, he believes, of telling the jury alt lte outset Ihat the case will not resemble LA. Lo. Jurors take ithat to ttean that the case will be boring because it will have no emotional conflict. Instead, Rosenberg said, a lawyer should ctnpha- size that the case will be mo'e emotional that LA. /.int' because the cotllicls are real rather than inaginary. Of course, even if today's trial lawyers do ntot thiuk like TV slorytellers, Iltey tray nonetheless lind thettselves per- forming in frout ofa cattera. 'lin (h'tiase turn to page 4-LA. Itut) New .ludicial Manu-d on Scientific Evidence Stirs Controversy hy Ralph A. lbylor, Jr. Associate l.ditor E ven before publicatlon, I new book to [ell judges assess tle admissibi lily of scientilie evidence is generating un- expected criticisn front tlte plaitiiffs' bar. The R'ference Maual oit ScientiJic Et'iih'wee was compiled Iy the inluential Federal Judicial Center in Washington, DC, it provide noncottroversial guidance to judges und lawyers it the wake of Dauber t Aerrl-e Dolt, htaroacett'al (1993), where the Supreme Court discard- ed lte venerable I-rye test for adtnissibili- ty ttat judges had relied ott for decades. Ilit fact. the Federal Judicial Cetter plnts (t'h'taot tiott to liag(t 6 Alond) Pretrial Publicity: New Model Rule Says OK to Fight Fire with Fire lnt general prohibition on prejudicial public statements is retained N E WS

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