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December 2015

FLORIDA-BAR-JOURNAL-REVIEWS Civil Jury Trials by Tyler Draa et al
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Florida Bar Journal Reviews Civil Jury Trials

Florida Bar Journal Review, Mastering the Mechanics of Civil Jury Trials, December 2015
Reviewed by Barbara Ballard Woodcock

One of the first things learned in law school is that over the past several decades, the number of civil cases going to jury trials have sharply decreased. A natural result of the decline in cases going to jury trials are less attorneys experienced in jury practice and even less experienced attorneys willing and able to mentor inexperienced attorneys in jury practice.

Enter, Tyler G. Draa, Doris Cheng, Maureen Harrington, and Judge Franklin E. Bondonno. Their manual, Mastering the Mechanics of Civil Jury Trials: A Strategic Guide Outlining The Anatomy Of A Trial, provides a succinct, easy-to-navigate guide of a jury trial. It begins with basic tenets, such as get to know the judge and courtroom and ends with insights into post-verdict etiquette. The manual delves into all the pieces of a complete jury trial including motions in limine, jury selection techniques, admissibility of evidence, opening statements, direct examination, cross examination, jury instructions, and closing arguments.

The book is easy to understand and provides general practical guidance and tips. It does not contain the draconian language or feel of a traditional hornbook. Beware, the authors are based in California and many of the specifics contained within the manual are based on California rules of law and procedure. However, the manual does include appendices listing other state codes and rules for reference and guidance. (Appendices were not included in review copy so not part of review).

The manual includes case studies and real-life illustrations of the recommended techniques in action. Another unique highlight of Mastering the Mechanics is the practical considerations and guidance from both the plaintiff and defense attorney perspective. It also contains unique insight and advice from the bench—the dos and don’ts of a civil jury trial lawyer. Very beneficial, as many lawyers never get feedback from the judges whom they practice before.

Some of the best highlights:

1) quick reference reminders of forbidden argument at closing;

2) quick reference list of most frequently made evidentiary objections;

3) quick reference checklist and reminders of tasks to be completed before resting case.

Whether you are a new attorney just entering jury trial practice, an experienced jury trial attorney, or in between, Mastering the Mechanics is an essential read that will either get you started on your way to jury trial practice or provide a much needed refresher and new outlook on jury trial practice.

Published by Balcony 7 Media and Publishing, the softcover book is 275 pages, including appendices. [Visit www.civiljurytrials.com for more information.]

Barbara Ballard Woodcock of Marco Island is a member of The Florida Bar.

 

Rare Earths novel Rare Mettle by Ann Bridges
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Whoever Thought Rare Earths Could Be Sexy and Fun?

by Ann Bridges

 

Whoever thought rare earth could be sexy and fun? I did!

But then I’m a big fan of international suspense novels as a way to learn about complex issues.

Inspired by China’s 2010 embargo of rare earth, I decided to write Rare Mettle to explore the broad set of questions surrounding this usually obscure industry, especially the impact on Silicon Valley’s businesses. For fun, I added a sexy undercover agent and high-tech innovators to the fast-paced thriller, and developed plausible scenarios and provocative outcomes, perfect for the upcoming election year.

My research began after speaking with a journalist who covered the 2010 real-world event, moved into a crash course in geology, and then (groan!) a refresher course in the Periodic Table of Elements (chemistry was NOT my strong suit in school).

Talking to local high-tech investors, I discovered an almost cavalier attitude to the issue, as if pre-negotiated trade agreements would magically protect the world’s supply chain, even in the face of political disputes.

Digging further into Congressional testimony and investor newsletters, I found repeated documentation of China’s stated goal to dominate this commodity, in the same way the Middle Eastern countries dominated last century’s energy industry.

Rattled, then concerned, I asked myself–what’s a high-tech-business-woman-turned-novelist to do?

Answer–depict the worst-case scenario to capture the hearts and minds of the world, much the same way Michael Crichton did with Jurassic Park to highlight the ethics and dangers of careless disregard for genetics research.

Hopefully, I manage to communicate rare earth’s relevance in easy-to-understand language, so that anyone can grasp the implications of today’s geopolitical economics and the supply chain for our next generation of technology, energy, and military weaponry.

As China pursues technology transfers and global leadership unabated, we would be foolish to trust blindly the pat responses from Washington D.C. politicians, military bureaucrats, and established industry channels. After all, they’ve known about this issue for decades and have kept it quiet.

I had to ask–why? Hopefully, you will, too.


RARE METTLE EXCERPT:

The TV was already pre-set to CNN, which kept its relevance by leaking upcoming stories to the right people in D.C., including the exact time they would first air. Apparently, Hank achieved a coveted spot on its distribution list. Hurrah for ass kissing.

“New threats from China put the State Department on high alert this morning,” reported the bland, brunette anchor. “China pledged to block all future shipments of rare earth elements to the United States if we sell our newest military technology to Taiwan.”

Paul jerked forward. His brain raced from the familiar kick of adrenalin.

“These refined metals are used in the manufacture of laser-guided missiles and our newest weapons,” the reporter continued, “among other high-technology products contributing to the booming sales of mobile devices. China’s Northern Province of Inner Mongolia mines and processes over 93% of the earth’s supply of these minerals. We’ll keep you posted as the story develops.”

Hank flicked off the TV. “Our leaders learned about the possible embargo two hours ago, and are discussing an appropriate response,” he stated in official monotone, but the telltale twitch of his nostrils clued Paul into how seriously Hank took this threat. “We need to touch base with all our field personnel for insights into potential solutions or risks.”

That explained Hank’s focus on Kay. Her last email disclosed advanced military technology using those obscure minerals, hiding under a cloak of tiny Chinese game companies. Kay’s cover as an interpreter for an American venture capitalist in Beijing worked wonders getting her behind closed doors.

Her most recent missive was surprisingly cryptic. But in the last two weeks…nothing. Had whatever she stumbled onto provoked this diplomatic muscle-flex from the Chinese Communist Party? And put her in greater danger, too?

 


Read the original article and reader comments by clicking here: investorintel.com
CMC Magazine reviews Civil Jury Trials by Tyler Draa et al
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CMC Magazine Reviews Civil Jury Trials

Featured in Claremont McKenna College Magazine (Winter 2016)

What to Expect in the Courtroom

Where do I stand? How should I address the bench? Tyler Draa ’78 offers valuable help to young lawyers in his new book on trial procedure.
By Tom Johnson

Tyler G. Draa (’78), had one simple purpose in mind when writing Mastering the Mechanics of Civil Jury Trials: A Strategic Guide Outlining the Anatomy of a Trial—it was to “pay it forward.” The book, published this year by Balcony 7 Media and Publishing, is a fitting capper to a 30-plus year career as a civil trial lawyer, most recently as a partner with the firm, Greenfield Draa & Harrington LLP in Santa Clara County, CA.

Despite its rather unwieldy title (there’s even a second subheading: “Bridging the Mentor Gap”), the book has created quite a stir in the legal community and is being used by many as a “how-to” guide—and surrogate mentor—for young lawyers inexperienced in preparing and participating in jury trials.

“Trial lawyers primarily learn their craft through apprenticeships and opportunities to try cases,” Draa says. “The gifted mentor knows when to push the apprentice off the pier, when to jump in, and when to let the aspiring lawyer swim back to shore on his or her own.”

The idea for the book came about from another CMC graduate, Draa’s own son Justin ’04. In 2009, Justin was asked by the law firm that employed him to defend a jury trial. The principals of Justin’s firm were friends and colleagues of his father and were familiar with his jury trial record—primarily in civil litigation defense. “They invited me to lay out the mechanics of trying the case and to otherwise help Justin and a second lawyer prepare for trial,” Draa says. “I jumped at the opportunity, sketching out a three-day lecture/presentation. Time flew by as I didactically described the process.

I filled in the procedural and strategic gaps that none of us are taught in law school.” Word soon spread about Draa’s preparations, and he presented his “course” as a courtesy to other lawyers. “I discreetly gave the course to some newly appointed jurists,” he says. “I assembled a panel comprised of plaintiff lawyers, a commercial law specialist and active judges to give annual presentations to the Santa Clara County Bar Association members. (We consistently attract a full capacity crowd.) The syllabus began to look like a book and several publishers expressed interest.”

Fewer Chances To Try Cases Today

According to Draa, a young lawyer’s first few trials are, at best, daunting; at worst, terrifying. Mentors help young trial lawyers ease into a comfort level learning procedural minutiae, courtroom etiquette, how to “read” the room, and how to think on their feet—all while encouraging them to remain true to their personalities.

Practically speaking, in Draa’s view, young lawyers learn how to try a case after they graduate from law school. It takes from five to 10 trials to become proficient and comfortable with the process.

And therein lies the problem.

“Very few cases now go to trial by jury,” Draa says.

When Draa was starting out in the heart of the Silicon Valley, he says that hundreds of cases proceeded to jury verdicts each year. Today, the situation is dramatically different. Santa Clara County, for instance, has almost two trillion residents, yet Draa says that, two years ago, only 50 civil trials proceeded to verdicts in the Santa Clara County Superior Court.

“Last year,” he adds, “that number contracted to 24 verdicts. Our court only hosted two verdicts during the first quarter of this year. The plummeting number of verdicts is emblematic of experiences in jurisdictions throughout the United States. With no trials, there are no opportunities to try cases. Mentors are aging and retiring. The apprentice system is disappearing. It’s all about the atrophy of opportunity.”

Step By Step

In Mastering the Mechanics of Civil Jury Trials, Draa and three contributors (Doris Cheng, Maureen Harrington and the Hon. Franklin E. Bondonno) break down the trial process into a series of achievable tasks.

“We have tried to substitute the mentor’s whispered counsel with text,” he says. “We cover competing schools of thought; presenting cases for the plaintiff can require approaches far different than those applicable to defendants. (Although, I am always struck by the vast majority of topics on which we all agree.)”

As to the question of what is the most important aspect of the book for young, untried trial attorneys, Draa outlines four major points:

  • Trials need not be daunting. Always break down the process until you have a task you can handle.
  • Know that trials are never tidy. At best, one can plan and prepare for about 70% of what transpires. When such setbacks as an opponents’ surprise move, a judge’s order, or witness’s develop new strategies, he or she should rip out the corresponding section of the trial notebook, use it to line a bird cage, and get creative. Take measured chances. Every new development presents an opportunity; the trial lawyer has to remain flexible enough to recognize that opportunity.
  • Opposing lawyers have a lot in common. Always strive to remain colleagues first, and adversaries second. “Most endorsements printed in the book were authored by colleagues against whom I tried cases,” Draa says. “I am very proud of that.”
  • Paraphrasing Oscar Wilde: Always be your­ self; everybody else is taken. Developing and retaining credibility with the Judge and Jurors is key to victory. Juries sense and mistrust disingenuous personae. They also abhor hubris.
  • Heretofore, ergo, whereas… and other clogged language

“Effective writing may be a casualty of the digital age,” Draa says. “Students read and write less. They receive and process information through video sound bites. Effective legal writing suffers.” Most lawyers, he says, clog their written information with legalese. Words such as heretofore, hereinafter, ergo, said, whereas, aforementioned—to name but a few—should be stricken from the young lawyer’s vocabulary.”

“The best editing technique is to have a lay person proof one’s briefs,” Draa suggests. “I encourage my wife, Linda, to read my important briefs. She is a ruthless editor; she catches a lot of my ‘legal speak’.”

At CMC Draa majored in Political Science and, by his own admission,was not a standout student. “Through some sort of osmosis, I learned how to reason and write at CMC,” Draa says.”I was encouraged to read and emulate writing styles. Reading such authors as William James and Winston Churchill—and having professors help identify writing devices and style separating great writing from pedestrian communication—was invaluable.”

Among Draa’s own mentors at CMC, Emeritus Professor Ward Elliott stood out as brilliant, engaging and funny. “He is also a stunningly precise writer,” Draa says. “He ruthlessly critiqued my term papers­, which was enormously helpful. I sent Professor Elliot a copy of the book; it took four decades, but I think I have finally written something he likes.”

Draa tells the story that while he was transforming his lecture syllabus into this book, he had an ongoing image of a trial call in which he was just an observer. “I imagined a young lawyer responding with ‘ready’ when the case was called,” he said.”And, on further observation, I imagined our book, selectively dog-eared; slightly sticking out of the lawyer’s trial bag. That would be the indicia of success.”

Now, cut to November 2015 when Draa gave the firm’s annual presentation to the County Bar Association.

“I was navigating through the court’s security line to be a judge pro tem for the day,” he recalls. “I recognized one of the course attendees who was through security. He spotted me, announcing he was responding to trial call. He had the book in hand, raised it for all present to see, and said he had just read it, cover to cover. With a smile on his face, he exclaimed, ‘I’m ready!'”

Now that’s a winning endorsement!

Tom Johnson, writes and blogs for various publications, including People Magazine. Visit www.civiljurytrials.com for more information on the book and the attorney authors.