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Peter Toll Hoffman

Trial Advocacy (scroll down for depositions)

Here's the news: if you're planning on doing litigation when you graduate and you don't take this class, you're screwing up. I don't care if your future firm has a litigation training program or not, this class will teach you practical trial skills like direct exam, cross exam, impeachment, examining experts, voir dire, opening statement, closing statement, how to develop a case theory, and so on. In other words it teaches you how to be a trial lawyer, and that's something you just can't get enough practice at.

Here's how the class is set up. It's once a week, on Tuesdays in my case, from 6pm-9pm. For the first hour of class, Hoffman lectures on the skill that's being practiced the following week. Then there's a 5 minute break, and you reconvene in your "small group." A small group is 8 or 9 students with whom you'll practice your trial skills over the semester. Tip: if you're taking the class with a friend and would like to be in their small group, let Hoffman know by email after the first class day, he will probably accomodate you.

The small group will be the people you will see the most of the whole semester, in fact, you only see the other people in class during the first lecture hour. Adjunct professors play an important role in the Trial Ad program. There are three adjuncts assigned to each small group, and these are the folks who will tutor and evaluate you during the semester. My small group adjuncts are Mr. Fields Alexander, a partner at Beck, Redden & Secrest, Ms. Deanna Smith, a partner at Ebanks, Smith & Carlson LLP, and Hon. "Cactus" Jack Cagle, presiding judge of Harris County Court At Law 1. The adjuncts are all seasoned trial lawyers with endless personal anecdotes to share. Their critiques are extremely valuable. Along with the practical side of the class there are also the networking benefits of meeting judges and lawyers with established practices before you graduate. Who knows, a 2L taking this class might be able to find themselves a summer clerkship.

During the two hours of skills practice, each member of the small group takes their turn at doing a cross-exam (or voir dire, or whatever). You're usually "on" for about 7 minutes. Your performance is videotaped for later review. Two adjuncts stay in the room and watch your performance, then evaluate you when you're done, then you take your video cassette off to the video room (an office in the Blakely Advocacy Institute) and the third adjunct watches it with you and critiques you further. You will be amazed at the things you see yourself do on the video that you had simple no idea you were doing.

Mid way through the semester, you will have an ungraded bench trial. Ours was on a Saturday, and lasted from 9am-noon. Deanna Smith, one of our adjuncts, had one of her associates serve as judge. You are assigned a trial partner for the bench trial and will trade off with your partner: one will play a witness while the other plays lawyer and asks them questions. The bench trial is really quite fun, and ungraded hence relatively low stress. You'll also have been given the fact pattern about a month beforehand and will have used the fact pattern during your two hour skills practices for a number of weeks beforehand, so you'll have all the names and documents down cold by the time the bench trial rolls around.

Hoffman himself is a nice, friendly guy. There's no real getting called on as such during the one hour lecture, though sometimes he'll go around the room and have each person attempt a particular technique, e.g. dropping your voice toward the end of a question for effect. Low stress. For each lecture there is an accompanying 2-3 page PDF document called a "building block" that's an outline of what Hoffman will lecture about, so cut and paste it into a Word doc and just add your own notes as he goes.

Bottom line is this: you absolutely, positively, have to go through this stuff before you go out into the real world of litigation. Hippard isn't enough. I'm not on mock trial so I can't say if that's a substitute for this class, but I doubt it.

Litigators need to take this class.

Update: The Jury Trial

Get ready to spend the preceding 2 weeks thinking about little else other than the jury trial; it's a fascinating process, you find yourself thinking and talking about very little else. And therein lies the first lesson: find something else to talk about/think about, before you drive yourself and everyone around you crazy. My wife did me the biggest favor by asking me if I realized that I'd been talking about almost nothing else for over a week. I hadn't realized, and once I made a conscious effort not to go on and on about it, I felt much more relaxed.

My trial had only 6 jurors, though other mock trials had the full count of 12; it's probably a function of which courtroom you're assigned and how many juror chairs it has. Each lawyer has to do: 5 minutes of voir dire, at least one cross-exam and one direct-exam, and either opening statements (10 minute time limit) or closing argument (15 minutes, including rebuttal time if you're the plaintiff).

You get to sit in the room while the jurors deliberate once both sides have put on their case, which can be quite interesting subject to the type of jury you get. As plaintiffs in the Dixon v. Providential Life fact pattern (this fact pattern has been used many times) my partner and I lost in a unanimous verdict - the jurors had a "secret ballot" where at the start of deliberations they each wrote down how they thought the case should be decided; they decided inside of 4 minutes for the defendants. Our panel (they were all undergrad students) wasn't very forthcoming with feedback after the trial and were pretty keen to go home. I sat in on an 11 person jury deliberation in another trial and they were very lively, discussing all kinds of aspects of the case. Like Forrest Gump says, you never know what you're gonna get.

Oh, and be ready for jurors to sleep, or at least doze during trial, regardless of who is talking or what they're saying. This isn't unusual. While watching a real trial once with a damage model >$1million I noticed a sleeping juror in the front row...naively I thought this was a big deal and went to ask the bailiff if he was going to wake the guy up. No, said the bailiff, we only ever wake them up if the judge tells us to, and that's rare. That sleeping juror voted to award the plaintiff in that case around $650,000. Scary, huh? Anyhow...your panel of undergrads will probably have gotten up earlier than they care to, so if a few nod off, don't be shocked. Friends tell me this happened in their trials too.

One thing you'll pick up on as the class progresses is that your adjuncts, Prof. Hoffman, guest speakers, and the Mauet trial skills case book all have different opinions on how you should do things. Trial law is, after all, an art, and not all artists paint the same. Here are some observations of mine from the jury trial, essentially a combination of feedback from the judge and my own impressions:

* Use a demonstrative exhibit such as a timeline in opening, even if you think you don't really need one. Jurors are inevitably very visual and I think we got dinged because defense used demonstratives and we didn't. Even if it's just a summary sheet that hits the high points of your case, it will help. As a side benefit, if you have a demonstrative to speak to, you don't need notes to remind you of what you have to cover.

* Arrange for an easel ahead of time, don't count on there being one at the courthouse. If you need to buy one cheaply, you can get wooden ones for as little as $10 from an art supply store (there's a big art supply store on Montrose a few blocks down from Niko Niko's Greek restaurant that sells the cheapos).

* Practice your closing and opening well in advance of trial. Run it by your non-lawyer friends or significant other and get feedback.

* If you think something is objectionable, GET UP AND OBJECT. One of the principles the book teaches is not to object too much because it irritates jurors. Okay, fine. But damaging hearsay evidence can hurt your case much more than a few misplaced objections. Our strategy was to object less for the aforementioned reason, but during feedback the judge told us she wouldn't have let in testimony the other side relied on a lot for their case.

* Try not to worry too much! Our trial was November 20th, so whatever happens, when November 21st rolls around you've just completed another 3 credits and you have one less exam to take than everyone else. It's also fun once you're in the middle of it. The moment you start asking the voir dire questions, the nerves drop away and you get rolling.

Depositions Class

When I took it, as I understand has always been the case, depositions was a two credit "intersession class". Intersession is a euphamism for "during your Christmas vacation", but take heart, it only takes one evening and three full days. Ours ran Thursday evening from 6pm-8.30pm, then Friday, Saturday and Sunday from (give or take) 8.30am - 5.30pm.

As with trial ad, Hoffman supervises and handles the lecture portions but the practical exercises are presided over by adjuncts. I was very pleased with the adjuncts who sat in on our depositon exercises, and I can't remember them all, but they were practicing attorneys with significant deposition experience. A few whose names I can recall (click the links if you want to read about the person) were Laura Gibson, Mike Myers and Rana Siam. Hoffman actually co-lectured with a colorful character named Lou Natali, a professor at Temple Law School.

All of the exercises are based on a case file that you are expected to have read and familiarized yourself with before starting class on the first evening. There isn't too much reading, and many of the documents are short letters or emails so you can work through them quickly. The recommended casebook is co-authored by Hoffman and is quite readable (though a tad overpriced, but nothing new there). The casefile we used was Cranbrooke v. Intellex, essentially a breach of contract case involving a video game licensing agreement.

The exercises we did were conducted in small groups. You'll be assigned to a small group that will have 3-4 students total, then your small group (representing plaintiff or defendant) will be paired up with another small group representing the opposite party. Two adjuncts will preside over the exercise, evaluating you as you go, then will give you feedback right after you've finished. One side (e.g. plaintiff) will take a witness' deposition while the other side (defendant) "defends" their witness - i.e. makes objections to your questions, and generally looks out for their witness' best interests.

The witnesses themselves are played by paid actors. Some had a tendency to overdo their part a little and other were more inclined to play it straight, but regardless, they were effective enough that you didn't feel that the whole exercise was totally pretend.

Exercises we did were: witness preparation (how to get your witness ready to have their deposition taken), trying to gain an admission from an adverse witness, use of documents during a deposition, refreshing a witness' recollection and asking a witness to recall a conversation they'd had. For each discrete skill there was some level of lecture beforehand, either by Hoffman, Natali or both.

This is a fun class, and if you plan to litigate depositions are a virtually inevitable part of discovery, so why not get a head start. It certainly wasn't wasted on my classmates or I that we were knocking out 2 credits before the semester had even started. This class and the casebook will set you thinking about things that you probably wouldn't come up with on your own, e.g. before the deposition gets started, asking your witness if they have any written notes in their pocket and if so, turn them over (because if they whip them out during the deposition, uh-oh...the other other side gets to read them.