Effective Trial Advocacy CLE

123 Pages·2013·8.61 MB·English

Effective Trial Advocacy CLE

Moderator:
David L. Marks, Esq.
Law Offices of David L. Marks

Speakers:
Hon. Leslie M. Alden (Ret.)

Fairfax County Circuit Court

Hon. Lisa A. Mayne
Fairfax County General District Court

Christie A. Leary, Esq.
Law Offices of Christie A. Leary, P.C.

Edward L. Weiner, Esq.
Weiner, Spivey & Miller, PLC

Kathleen O’Brien, Esq.
Fite, O’Brien & Anderson, Ltd.
FAIRFAX BAR ASSOCIATION
CLE SEMINAR

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the individual authors and do not necessarily
represent the views of any of the authors’
organizations or of the Fairfax Bar Association. The
materials are for general instructional purposes only
and are not offered for use in lieu of legal research
and analysis by an appropriately qualified attorney.

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SPEAKERS’ BIOGRAPHIES

Hon. Leslie M. Alden (Ret.)

Judge Alden is a 1978 graduate in business administration from George Mason University and a 1983
graduate from its School of Law. Before beginning her tenure as judge on the Circuit Court in Fairfax in
1996, she served as a judge on the General District Court from 1995-1996, and before that she practiced
all aspects of commercial trial work in state and federal courts in the Northern Virginia area for twelve
years. In addition, Judge Alden served as an Assistant City Attorney and City Prosecutor for the City of
Fairfax for nearly ten years and was a shareholder in the firm of Verner, Liipfert, Bernhard, McPherson
& Hand. Formerly, Judge Alden has served on the boards of directors of the Virginia Women Attorneys
Association and Legal Services of Northern Virginia. She continues to be active with the Fairfax and
other Bar Associations as well as with various judicial groups. For several years, Judge Alden has
worked with the International Association of Women Judges, and served as its President from 2008-
2010. The IAWJ has 4500 members in 100 nations and promotes judicial education, equal access to
justice, and the rule of law, in legal systems around the world. She has been a full time faculty member
at the George Mason University School of Law since 2012, and acts as a neutral evaluator at Juridical
Solutions, PLC, working in alternative dispute resolution.

Hon. Lisa A. Mayne

Judge Mayne has been a judge in the Fairfax County General District Court since 2006 and served as a
substitute judge for two years prior to that. Before joining the bench, Judge Mayne was a partner in the
firm of Kelly, Mayne & Daughtrey in Fairfax, having practiced with the firm and its predecessors for
twenty years, principally in the areas of insurance subrogation and defense, creditor’s rights and
collections. As an attorney, Judge Mayne served on several committees of the Fairfax Bar Association,
including the Public Relations and Community Outreach Committees and as Chair of its General District
Court Committee. Judge Mayne is a past President of the George Mason American Inn of Court, a past
lecturer at the Mandatory Judicial Conference for District Court Judges and the Regional Conference for
Substitute Judges, and was recently appointed by the Virginia Supreme Court to serve as a member of
the Judicial Education Committee of the Judicial Conference for District Courts. She is a graduate of
Pitzer College in Claremont, California and the George Mason University School of Law.

Christie A. Leary, Esq.

Christie Leary, a native of Northern Virginia, has litigated cases heard in the state courts of every
jurisdiction in Northern Virginia, the District of Columbia, the United States Fourth Circuit Court of
Appeals, the United States Ninth Circuit Court of Appeals and the United States Supreme
Court. Named by Super Lawyers as a Rising Star and by Richmond Magazine as a Top Young Attorney
in Virginia, Christie has tried bench and jury trials in criminal and civil matters ranging from traffic
offenses to serious criminal offenses and cases involving complex personal injury issues and medical
malpractice. Along with her former partners Peter Greenspun and Jonathan Shapiro at Greenspun,
Shapiro, Davis & Leary, P.C., Christie was a member of the defense team appointed to represent John
Allen Muhammad, the “Beltway Sniper.”

Christie’s practice focuses on criminal and traffic law, personal injury, medical malpractice and civil
litigation. An active member of the Fairfax Bar Association (FBA), Christie currently serves as a
member of the FBA Board of Directors and the Board of Directors of the Fairfax Law Foundation
(FLF). Christie currently serves as the Chair of the FLF Run for Justice 5k race committee. In
recognition of her efforts with the bar, Christie received the 2010 and 2011 FBA President’s Award.
Christie graduated with a Bachelor of Arts degree in History and Government from the College of
William and Mary; and received her Juris Doctor degree from George Mason University School of
Law. While in law school, Christie was a member of the board of editors for the Journal of International
Legal Studies and authored "The Political Offense Exception", which was published in Volume 5 of the
journal. While in law school, Christie taught legal research, writing, and analysis to first-year law
students. Christie previously served as an adjunct professor for the law school’s appellate writing class.

David L. Marks, Esq.
.
David Lyndon Marks was born in Fairfax Hospital, grew up in Annandale and currently resides in
Fairfax, Virginia. Mr. Marks attended Annandale High School before graduating from Mary
Washington College in Fredericksburg, Virginia in 1994, with a Bachelor of Arts degree in Political
Science. He then received his juris doctor in 1997 from the T.C. Williams School of Law of the
University of Richmond in Richmond, Virginia.

Following graduation from law school, Mr. Marks was first employed by the law firm of Brandt,
Jennings, Roberts, Davis & Snee, PLLC in Falls Church, Virginia, specializing in Insurance Defense
and Plaintiff's Civil Litigation. To better serve his clients and to practice the type of law that helps those
have been injured, Mr. Marks founded his own firm in 2004 concentrating solely on Plaintiff's Personal
Injury Law and Medical Malpractice.

Mr. Marks has been a member of the Virginia Bar since 1998, the District of Columbia Bar since 1999
and the Maryland Bar since 2004. He is admitted to practice in all Virginia State trial and appellate
Courts, the U.S. District Court for the Eastern District of Virginia, the U.S. Court of Appeals for the
Fourth Circuit, the Superior Court and Court of Appeals for the District of Columbia and the U.S.
District Court of Maryland.

Mr. Marks is very active in the Fairfax Bar Association, having served on the Board of the Young
Lawyers Section of the Fairfax Bar Association since 2002 and served as President of the Young
Lawyers Section and ex officio member of the Fairfax Bar Association Board of Directors for 2004 and
2005. Mr. Marks was been a member of the Pro Bono Advisory Committee of the Fairfax Bar
Association from 2000 to 2007 and served as Co-Chairperson of the Committee from 2003 to 2006. Mr.
Marks was honored to have received in 2005 the Fairfax Bar Association President's Award for
Outstanding Services. Mr. Marks has been elected a member of the Fairfax Bar Association Board of
Directors since 2007 and is currently serving as Treasurer.
Mr. Marks is a member of the Virginia State Bar, the Virginia Trial Lawyers Association, the
Association of Trial Lawyers of America, the Maryland State Bar Association and the District of
Columbia Bar Association. He has been requested as a speaker at Continuing Legal Education Seminars,
including the Personal Injury Seminar sponsored by the Fairfax Bar Association.
Mr. Marks was profiled in Virginia Lawyers Weekly as an "Up and Coming Lawyer." For the past two
years, Mr. Marks has been honored to be selected as a “Super Lawyer Rising Star.” Super Lawyers is a
rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree
of peer recognition and professional achievement. The Rising Stars represents only 2.5% of the
attorneys in the Commonwealth.
Mr. Marks enjoys spending time with his wife and trying to keep up with his three active children. He
also enjoys coaching his kids’ soccer teams.

Kathleen O’Brien, Esq.

Kathleen O'Brien has been a trial attorney for over twenty-five years, and has always concentrated her
practice in the field of Family Law. After four years of practice associated with one of Northern
Virginia's most prestigious larger law firms, she joined Ms. Fite as a partner in 1986.

Ms. O'Brien was born in Boston, Massachusetts and has been a long-time resident of Virginia. She
graduated from Suffolk University in 1976 and obtained her law degree at the Catholic University of
America in 1981. She was admitted to the Virginia Bar in 1981, and to the District of Columbia, U.S.
Court of Appeals, Fourth Circuit, and the U.S. District Court, Eastern District of Virginia, in 1982.

Ms. O'Brien was the first woman President of the Virginia State Bar (1994-1995) and she is a Fellow of
the Virginia Law Foundation. She has held many positions throughout the State Bar from Chair of the
Ethics Committee to delegate to the American Bar Association. Ms. O'Brien is also a member of the
McLean, Fairfax, and American Bar Associations, and is a member of the Family Law sections of the
American Bar Association, Virginia State Bar and the Fairfax Bar. She serves as a Commissioner in
Chancery in the Fairfax County Circuit Court and is active in the local, Fairfax Bar Association. Most
recently she served as President of the Fairfax Bar Foundation for 2003-2004.

Ms. O'Brien has extensive experience in the courtroom and has represented clients in both state trial and
appellate courts and federal district and appellate courts. She has also been trained in Collaborative Law,
another alternative available to parties who wish to settle divorce matters in a private respectful manner.
By creating an atmosphere of open communication and cooperation, the Collaborative Law process
allows both parties to preserve their dignity while they work toward a settlement that works for everyone
involved. Along with Ms. Fite and Mr. Anderson, Ms. O'Brien has embraced this new alternative. She
is a member of the International Academy of Collaborative Professionals, and she is currently a co-chair
of the Collaborative Professionals of Northern Virginia.
Edward L. Weiner, Esq.

Edward L. Weiner is founder of Weiner Spivey & Miller, PLC. He has been an active member of the
Fairfax Bar Association since 1980 and serves as its current President. He has been a member of the
Board of Directors of the Fairfax Law Foundation since January 2002 and as a past President. He
currently serves on the Virginia State Bar Council of Local Bar Leaders. He was honored in 2012 by
being appointed to serve on the Virginia Supreme Court Professionalism Faculty.

Ed has over 33 years of proven successful performance representing plaintiffs who have been seriously
injured. His achievements include numerous multi-million dollar verdicts and cases before the Virginia
Supreme Court; winning precedent-setting appellate cases; and achieving a reputation as an effective
trial attorney. He is a recipient of the FBA President’s Award for Outstanding Service in 2008 and
2013.He has been consistently named one of Washington's "Best Lawyers" for Personal Injury by the
Washingtonian and Northern Virginia Magazine, is AV-rated by Martindale-Hubble, and has been listed
in SuperLawyers Magazine since 2006.

A graduate of the State University of New York at Binghamton, Ed received his J.D. from the
University of Richmond and his LL.M in International Law from Georgetown University Law Center.

Ed is a member of the Board of Directors of the George Mason University Center for the Performing
Arts, a 5-year platinum level fundraiser for the American Cancer Society and host of an annual Law Day
celebration which benefits the Fairfax Law Foundation’s Pro Bono programs. His brainchild, Jazz 4
Justice©, is an annual concert that has raised more than $150,000 for the Fairfax Law Foundation since
2000. Recently, other universities and local bar associations have begun to foster this unique partnership
between education, music, and law. George Mason University presented Ed with the Directors Award in
2011 for his contributions to the university’s music program. Ed was honored in 2009 to receive a
Leader of Law Award and the James Keith Award for Public Service. He and his wife, Maura, have two
daughters, Maurissa and Brianna.
TRIAL ADVOCACY CLE
FAIRFAX BAR CONVENTION
MONTREAL, CANADA

I. Introduction

II. “JUDICIAL REVIEW”
A. Judge Tran and Judge Azcarate’s Top Ten Most Common
Mistakes Made By Practitioners In Court.
(1) Lack of Civility (including being rude to the court and law clerks,
opposing counsel, parties and witnesses)

(2) Inability to appreciate the value of Candor (or sometimes plain Common
Sense)

(3) Lack of Focus/Simplicity

(4) Excessive Number of Proposed Witnesses/Exhibits (see Mistake 3) or
Disorganized and ineffective use of Exhibits - e.g., labeling Exhibit #1 to
cover 40 separate documents.

(5) Unfamiliarity with the Rules of Evidence or Procedure

(6) Lack of Flexibility in Argument (not responding to Court's Questions)

(7) Reliance on too many cases (especially Circuit Court opinions - even from
the same judge plus the dreaded string cites (see Rule 3) - here's the test: can
you recite the rudimentary facts in all cases you've cited?)

(8) Time Management - not building pretrial motions, voir dire, selection, jury
instructions, opening and closing into time estimates. A bench trial with 3
witnesses may take 3 hours. A jury trial with 3 witnesses may take a day.

(9) Making Statements such as: "In my ______ years of practice, I've never
seen a ruling like that _________"; and "With all due respect, ___________"

(10) Personal Vouching for the Case - "I believe . . . ; I've come to know [the
client] and I must say . . . ."; "I don't know why [fill in the blank] . . . "In my
Opinion (fill in the blank) etc. - becoming overly emotional on behalf of
client - whether through anger or tears. (See Rule #1) . . .

PLUS BONUS ROUND:
(11) Filing Discovery in Court File (Certificates of Service, Notice of
Depositions, etc.)
B. JUDGE MAYNE’S TIPS for TRIAL ADVOCACY CLE
(1). Although there is a right of de novo appeal from the General District Court to the Circuit
Court, isn’t your client better served if you only have to try the case once? Be prepared.
(2). Review the entire court file, civil or criminal

(3). Read the statute each time

(4). Va Code §13.1 – 754 was amended in 2004 removing personal liability for officers or
directors transacting business in the interim between the time a corp. is terminated and the time it
was reinstated. I still see lawyers that permit personal judgments to be entered against their
clients in these circumstances

(5). Read the governing documents, i.e., the lease or contract, and think about/anticipate
objections.

(6). If there is a provision in the contract specifying that all amendments must be in writing
signed by the parties and your case is based on an oral amendment of the contract, be prepared for
an objection to testimony about that oral amendment on the basis of the Parole Evidence Rule.

(7). Judges are not legal encyclopedias. In anticipation of the above objection, bring the cases
that permit the above testimony.

(8). Master the art of direct examination. I have seen more cases lost on a bad direct than
won on a good cross.
 It should be a conversation, with your client doing most of the talking.
 Leading questions can sanitize the evidence – more powerful if they tell their story than if
they merely answer “yes” or “no”.

(9). Personal Injury Cases
 Maybe “hearts & flowers” witnesses don’t exist/are not appropriate for every case, but
why is it that in the last 2 – 3 years, I have only seen one such witness and that one witness
significantly increased the value of that case.
 The General Assembly amended Va. Code §16.1-88.2, effective this past July 1st, to
clarify that medical bills may be introduced into evidence in the same manner as medical records
– after notice to the opposing party at least 10 days before trial and if accompanied by an
affidavit of the custodian of the records attesting that the records are true and accurate copies.
 It should be noted that 16.1-88.2 distinguishes between reports of a treating or
examining health care provider and records/bills of a hospital/other medical facility. Reports
require 3 specific affirmations and must be signed by the doctor, not an employee custodian.
Records can be verified by an employee custodian who attests to the accuracy of the copies.
Often it is the records of a plaintiff’s treating physician, not reports that are introduced into
evidence. Recently I have noticed that some attorneys include in the treating physician’s affidavit
a statement that the physician is a custodian of the records which are true and accurate. This
allows the attorney to argue that the records come in under either scenario.
 Do not hand up a pile of records and expect me to read them all and figure it out. Closing
argument should address the specific portions of the records that support your case.
 If there is something wacky in the Chiro’s report, better that you bring it to the attention
of the Judge than your opponent.
 If at first you don’t succeed, try, try again. Sometimes there is a problem with the
affidavit and so the reports/records don’t come into evidence for that reason. At that point, many
attorneys fold up shop, take their nonsuit and go home. But there is also 8.01-413.01 which
provides that the authenticity of the bills and the reasonableness of the charges shall be rebuttable
presumed upon identification by the plaintiff of the bill and the plaintiff’s testimony (1)
identifying the health care provider (2) explaining the circumstances surrounding his receipt of
the bill (3) describing the services rendered and (4) stating that the services were rendered in
connection with the event at issue. This statute plus Sumner v Smith, 220 Va. 222, may be
enough to prevail without the records. “While failure to adduce direct medical evidence,
generally relied upon to establish causal connection between injury and accident, may
significantly increase the plaintiff’s risk of nonpersuasion, such evidence is not a prerequisite to
recovery.” But remember you must provide the bills to the other side at least 21 days before
trial.

(10). Time Management - Trials that will take longer than 2 hours must be specially docketed.
On a regular trial docket, remember to account for any time you expect to spend cross examining
the other side’s witnesses. In a two hour trial, you get 1 hour to do two things - put on your
evidence and cross examine the other side.