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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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