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Bar News - May 18, 2012

Lessons in Advocacy From the Battle of the Lawyers

This is an expanded version of the article, including more judges’ comments, published in the May 18 issue of Bar News. Thanks to Adam Hescock, of NH Public Defender, for his contributions to this article.

Four veteran NH lawyers took to the stage on April 17 for the “Battle of the Lawyers,” a benefit event organized by the NHBA New Lawyers Committee.

Ralph Holmes, Joseph McDowell, Donald Feith and Donna Brown each recreated their closing arguments from actual cases, and their efforts were critiqued by a panel of “celebrity judges” recruited by the event’s sponsors. Through sponsorships and ticket sales, more than $4,000 was raised for the NHBA Pro Bono Referral Program. The event was launched last year as a service project by a team from the NHBA Leadership Academy.

The attorneys’ performances fascinated the audience, which also benefitted from the insights provided by the emcee, Hon. Carol Ann Conboy, and the four “celebrity” judges – Hon. Paul Moore, of the Circuit Court; Wilbur Glahn, of the McLane law firm, Barbara Keshen, NHCLU staff attorney, George R. Moore, of Devine Millimet.

Attorney Ralph Holmes, who presented a medical malpractice case involving a difficult delivery that resulted in the death of a premature newborn, was the winner in a close contest determined by applause.

Judge Conboy, before introducing the attorneys, noted that “the knees always knock,” even for experienced attorneys as they take to their feet to make a courtroom argument, especially the closing. At the close of the event, she observed that the four attorneys presenting arguments displayed their personalities in argument, and each was effective within their own style.

Holmes had the most props - setting up three empty chairs, a baby’s red dress, a computer projector, two thick medical textbooks, and an easel with a handwritten timeline. The timeline formed the cornerstone of his fact-filled, technical argument that the baby’s death was due not to a mistake in judgment, but due to a failure to act on clear warning signs in the condition of both the baby and the mother.

The judges lauded the clarity of his presentation and his understated but nevertheless affecting appeals to the jury to consider the enormity of the family’s loss – as evidenced by the red dress for the daughter, Lilly, that did not survive.

Keshen said Holmes’ emotional appeal was solid, genuine and “not cheesy.” As he related the story, Moore said of Holmes, “I felt like I was in partnership with you.”

Next up was Joseph McDowell, a Bedford trial attorney who presented his closing argument on behalf of a Hispanic family which sued the manufacturer Hyundai, alleging that its installation of a poorly designed passenger-seat airbag caused the death of a five-year-old boy. The judges lauded several aspects of McDowell’s argument, including his observation that no employee of the automaker testified during the trial.

Said Keshen: “He talked not just about what was there, but what was not there. What you don’t hear at trial is as important as what you do hear.”

Glahn observed that cases are successful when attorneys can identify themes early. Glahn says: “He did not prepare this argument the day before, not at the start of the trial. He started thinking about the closing argument he would make at the very start of the case.”

Donald Feith, First Assistant US Attorney for the District of NH, started his closing argument as the prosecutor in a robbery case by addressing the obstacle he faced: “How do you identify a man in a mask?” And then, standing before the audience, without resorting to notes, he led them through a day’s worth of events, accumulating evidence to link the masked man who robbed a bank with the defendant – all presented to the audience through the point of view of the investigator.

Feith didn’t say, “The defendant was the guy in the mask robbing the bank.” Instead, he asked, “How do you identify a man in mask?” Feith then went on connecting the dots with evidence without directly telling the jury what to think. He asked (paraphrasing), “How do we know that the defendant paid off his drug debt with the stolen money? We got a recording from the prison, and you heard the recording. What did you hear? Counting money. You know what it sounds like to count money, isn’t that what you heard on the recording, the drug dealer counting a large sum of money? Where do you think that money came from?”

Feith allowed the audience (the jury) to assume the point of view of the investigator, give them all the evidence, and ask them to reach his conclusions and deliver his verdict. This style is often much more effective than trying to argue at the jury and cram all the evidence down their throats and tell them what they have to think or what the evidence has to mean to them.

The judges praised Feith for his command of the facts of the case, and how he confidently walked the jury along the path of the evidence.

Last up was Donna Brown, a NH Public Defender, who presents the challenging defense of a man, charged with sexual assault of a woman he knew. She presents an alternative theory of the events that led to the sexual assault charge against the defendant, questioning the motivations of the woman in the case. Brown’s restrained performance impresses the judges.

Commented Moore: Most juries want to know why people do what they do. She supplied the ‘why.” Added Keshen, a former colleague and co-counsel on many cases with Brown added: “She has an ability to do an effective cross examination with out belittling or disrespecting them, but still getting here point across.” Also, as a defense attorney who will not get the final word, she has to anticipate the prosecution’s arguments and address them before they are made.

The event, held at the Capitol Center for the Arts in Concord, was organized by NLC members including Ned Sackman (NLC vice chair), Kristen Blanchette, Elizabeth Lahey, Quinn Kelley, Jason Dennis, Christine Smith, and Jon Strasburger, NLC chair.

Special thanks to sponsors Bossie & Wilson; Devine Millimet; McLane; Upton & Hatfield; Avacore Reporting; Brennan Caron Lenehan & Iacopino; Bernstein Shur; Sawyer Nelson PA; Normandin, Cheney & O'Neill, PLLC; Matthew J. Lahey; Christopher Aslin and New Hampshire Bar Foundation.

View pictures from Battle of the Lawyers.

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