Nonfiction

Trial Magazine Review Civil Jury Trials by Tyler Draa et al
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Trial Magazine Reviews Civil Jury Trials, The Book

Copyright American Association for Justice. Reprinted with permission of Trial (May 11, 2016), formerly Association of Trial Lawyers of America (ATLA®)

From A to Z: A Comprehensive Guide to Trials

Representing a client before a jury is complex and challenging. Enter Tyler Draa, Doris Cheng, Maureen Harrington, and Judge Franklin Bondonno (visit www.civiljurytrials.com). Their book, Mastering the Mechanics of Civil Jury Trials: A Strategic Guide Outlining the Anatomy of a Trial, breaks down the jury trial into its basic components and lays out their intent to preserve the (almost) lost art of the civil jury trial. This book reflects decades of collective wisdom and experience of its four authors, all of whom are veteran litigators—and one a sitting judge.

With fewer cases finding their way into a courtroom than 20 years ago (due to external forces such as mandatory arbitration), fewer attorneys are conducting jury trials—and even fewer experienced attorneys are willing to mentor newer attorneys in jury practice. Along with their intent to preserve all Americans’ Seventh Amendment right to trial by jury, the authors attempt to bridge that mentor gap.

The book provides general guidance and tips, from what to do the minute you walk into the courtroom to thanking the jurors after finishing your closing.

The authors cover the major elements of a trial, including pretrial management, motions practice, evidence, direct and cross-examination, and jury instructions. The book also addresses other areas of trial practice, such as getting to know the judge and the courtroom and post-verdict etiquette.

Case studies and real-life illustrations demonstrate how to apply the recommended techniques. Throughout the book, the authors emphasize the importance of thinking on your feet and being prepared for all possible outcomes. They offer advice on being prepared to depart from your planned examination to follow up on a witness’s new information, including paying attention to word use or physical tells such as voice inflection that may open a new direction for questioning.

The authors delve into strategies that could make or break a case, tailored to the lawyer’s experience level. In the chapter on motions in limine, they examine cases that were abandoned or settled because of pretrial evidentiary rulings.

The book also contains helpful checklists—such as the most frequently made evidentiary objections, tasks to be completed before resting your case, and prohibited closing arguments.

The authors are located in California and many of the book’s specifics focus on California laws and civil procedure rules. However, the book includes comprehensive state-by-state appendices listing statutory rulings on the most important aspects of trial, including peremptory challenges, evidentiary hearings, jury instruction, and impeaching experts with learned treatises. The appendices make this book suitable for a nationwide audience.

Whether you are a novice, an experienced trial attorney, or somewhere in between, Mastering the Mechanics of Civil Jury Trials is an essential read.

 

Vanessa Cotto recently became a Midwest regional manager in the AAJ membership department and previously was an attorney with Hogan Frick in Orlando. She can be reached at vanessa.cotto@justice.org
Demetrius-Minor-Navigates Fractured Political Lanscape, Preservation and Purpose
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Demetrius Minor Navigates A Fractured Political Landscape

JZ Bingham: JZB | Demetrius Minor: DM

 

JZB: A year ago, Preservation and Purpose, your millennial manifesto, was published, putting your transformation from young democrat to millennial republican on full display for readers, and backing it up with numerous reasons. Between the main points you discuss in your book, namely: faith, family and politics, which of the three are the most important criteria for how you view the candidates in the 2016 presidential election?

DM: When it comes to any election, I try my very best to approach it foremost as a Christian. Even though I am adamantly conservative, my main priority is my relationship with Christ. Therefore, I want to vote for someone whose platform is the closest aligned with Scripture. While it’s obvious that America is not a theocracy, I do think it’s important that leaders with a moral conscience, and those willing to embrace biblical concepts and promote religious liberty are elected to office. If a candidate lacks morality in one area of their life, I believe it’ll trickle into other areas as well, and that plays a big factor for me at the ballot box.

JZB: You’ve met numerous candidates at conventions, many of whom have since dropped out of the race. Tell us how you navigated from one to the other during that time, and what points drew you in or repelled you?

DM: I originally started out supporting Mrs. Carly Fiorina. I was very impressed by not only her ability to contrast herself with Hillary Clinton but also her bold, courageous, confident appeal that was intertwined with wit, knowledge and clarity. I felt that her experience in business and also advising foreign leaders would serve her well as President. After she dropped out of the race, I navigated toward Sen. Marco Rubio. I felt like he was one of the few conservatives who knew how to connect with my generation and make politics personal and relatable. I also felt he had the greatest chance of defeating Hillary. Since he’s left the race, I’ve grown to appreciate Gov. John Kasich more because of his humility and willingness to promote unity. My biggest issue is I believe that if Donald Trump, who has enabled bigotry and divisiveness this entire election cycle, is the Republican nominee for President, the conservative movement will be in disarray and Hillary will easily win.

JZB: In that answer, I don’t hear any aspect of either candidate’s religious views. Many say, based on Christian values, Ted Cruz is the most passionate student of Biblical principles, to the point where he was the Evangelical favorite. Why no mention of him?

DM: While Cruz is known to have an appeal to evangelicals, it’s been an ironic fate; the evangelical vote has mostly gone to Trump in the primaries, especially in the South. And while I admire Sen. Cruz’s willingness to acknowledge his faith, sometime his “preachy” style of talking can be a major turnoff to voters, especially to those who are not conservative.

JZB: Going into 2016, the path to the presidency has been narrowed among the candidates, yet the rancor has increased. So much so, you made a major announcement about a month ago, stating you will no longer vote Republican. What was the turning point that resulted in this proclamation?

DM: I’ve been utterly saddened and disgusted with the candidacy of Donald Trump. I’ve seen many so-called conservative leaders and activists embrace his candidacy, which ultimately led me to cease my membership with the GOP. I’ve worked too hard to try to bring new members to the GOP, only to see the party embrace an individual who wants to ban a certain demographic of people from the U.S., promotes violence at his rallies, not to mention his constant wavering of policy positions over time. Mr. Trump has alienated many groups of voters and I refuse to belong to a party that went from Abraham Lincoln to a demagogue. I want to make something very clear—I’m very much still a conservative, I’m just claiming the label of an Independent.

JZB: If Trump has alienated voters, how do you explain the massive turnouts at his events, the surge in Republican voter turnout (for him), and the defection of record numbers of Democrats to the GOP? Also, perhaps the problem with the GOP is that it’s not listening to its constituents—this is the resounding cry from many in the comment areas of news posts, which could be more informative than polls at this point. Some have also argued that those who snub their noses at the people’s candidate for the GOP nomination are the ones who are aiding and abetting the Democrats—especially with a third-party threat. This hasn’t worked before, why should it work now?

DM: Trump has been very effective in gravitating audiences toward his populist message. He has the benefit of being a known celebrity and his brash talk is appealing to the fears, worries—and to be quite blunt—inner prejudices of many. One way to view the turnout in favor of him is that many Democrats believe he’s beatable in a general election. I’m convinced that many of the Democrats who are crossing over to vote for him in the primary, will cross back over to the Democrat side to vote for Hillary Clinton in the general election. It’s worth noting that Trump underperforms in closed primaries. Since many conservatives will either not vote or possibly vote for Hillary if Trump is the GOP nominee, I believe the GOP should embrace a third-party option, simply because the nomination of Trump also puts the GOP’s hold on the Senate and the House of Representatives in jeopardy. Their only hope, as of right now, is to nominate a conservative on a third-party ticket that will help them hold on to the Senate and House, which would be a small moral victory of sorts if Hillary were to win the presidency.

JZB: Many agree there exists a big divide, not just among the partisan faithful but also within each faction itself. At what time do people rally for one candidate, and will a fractured political system only serve to “throw the baby out with the bath water,” and lead to another period of instability?

DM: I think, right now, you’re not only seeing many conservatives refusing to vote for Trump but also calling for a potential, viable third party to arise that they feel will stay true to the Constitution and conservatism. On the other side, you’re also witnessing an anti-establishment wave that’s resulting in Sen. Bernie Sanders giving Hillary a challenge that many didn’t expect to see. Truth be told, both parties are fractured. The GOP is just more visible because they feel like their party has been hijacked by Trump, who up to this point, cannot be contained or controlled.

JZB: You’ve just reiterated the vocalized opinions of many others who disfavor Trump: the candidate’s inability to be “controlled.” Based on the negative outcry against the Establishment in government across the board, doesn’t it beg the question, “Why would you want a candidate the Party can control?” The people want control, it would seem. The more it’s revealed they don’t have control, the greater the schism may become.

DM: It’s not just the fact that Trump’s behavior and antics can’t be contained; it’s also the fear of the unknown. Many simply do not know what Trump will do or propose once he’s in office, believing that he’s very naïve or ill-informed when it comes to policy-oriented issues.

JZB: Do you think the political system in this country is broken and if so, how can it be fixed? If it can’t be fixed, are we seeing the demise of our republic?

DM: Our political system is very broken. This is due to the fact that we’ve been electing career politicians who are more concerned about their political standing than the well being of their constituents. Politics is simply a reflection of culture. The future of politics can be hopeful, but it’s contingent upon if we’re able to change the cultural paradigm, which has turned into a moral decay.

JZB: This seems to go against the very statement you said earlier about having a candidate that is “out of control.” What candidate aside from Carly Fiorina, who is no longer in the race, is an alternative outsider? If that outsider is Trump and he wins the majority of the delegates, why should that decisive victory—the voice of the people as it were—be ignored? If it is ignored, wouldn’t that make your approach part of the problem—a select group of people who want to control the narrative?

DM: Look, I’m not some elite political-party insider who is trying to salvage power by cutting some back-door deal. As of right now, Trump is not likely to accumulate the 1,237 delegates needed to secure the GOP nomination before the convention in July. But if for some reason he avoids a contested or brokered convention, the fact is that the party will experience a major shift and break apart; it’s hard to imagine anything positive coming from this. If Trump wins the nomination, Hillary will probably be the next President. If he doesn’t win the nomination, his supporters could revolt and the division will still favor Hillary. The party now has the option of embracing Ted Cruz or John Kasich, and I can’t predict what the outcome will be, but the GOP is skating on thin ice right now.

JZB: And this leads to the question on the minds of many these days: If socialism wins, does the country win?

DM: No, the country wouldn’t win. As Margaret Thatcher once said, the problem with socialism is that eventually you’ll run out of other people’s money to spend.

JZB: This begs another question, one that Dinesh D’Souza has been asking: to paraphrase, “What would the world do without America?” since the majority of the world is indeed socialist-leaning? What would the global landscape look like for a freedom-loving people that embraces free markets? Do you believe we’re seeing the foundation being laid for a one-world government? i.e., the destruction of regional economies and the ushering in of the NWO?

DM: It’s very possible. I still believe that America is the greatest country in the world, but as a man who believes in the prophecy of Scripture, it’s inevitable that we’ll soon reach a world that depends on one currency and the constant spread of globalism. Even so, I still happen to believe that small government and free markets benefit everyone, while socialism destroys societies.

JZB: Thank you, Demetrius Minor, and best of luck in the second year of publication for your heartfelt and thoughtful book, Preservation and Purpose.


Visit www.demetriusminor.com  Find Preservation and Purpose wherever books are sold, in print and ebook formats. Convenient Links to Popular Sites: AMAZON | BARNES & NOBLE
LOOK INSIDE THE BOOK ON ISSUU.COM

Author Portrait: Ashah Photography

JAG The Reporter Reviews Civil Jury Trials by Tyler Draa et al
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JAG The Reporter: Book Review, by Thomas G. Becker

W

hen my son was a defendant in personal injury litigation about 16 years ago, his lawyer—actually, the insurance company’s lawyer—prepared him for the process as follows: “Look, we’re going to do a Kabuki dance for a few months, and then we’re going to settle for sixty-K.” The lawyer’s prediction was spot on. About ten years ago, my wife was the plaintiff in a personal injury case with similar predictions from her attorney (although for a much smaller amount); he was also on target. A few years before that, we were visiting my wife’s family and I saw one of my law school classmates in a television ad promising that, if you would only hire him for your personal injury case, he would force the insurance company to cut a fat check and—I swear this is an exact quote—“You won’t have to go to court, I guarantee it!” Really? You can guarantee a good settlement without the possibility of going to court? Maybe my old buddy meant to say, “I won’t go to court, I guarantee it.”

This is a book about preparing for and conducting civil jury trials. It is not about “civil litigation.”

CIVIL LITIGATION IN AMERICA, OR THE LACK THEREOF

The reality of civil litigation in America is that the Seventh Amendment right to trial by jury in civil cases has suffered an erosion of landslide proportions. Attorneys calling themselves “trial lawyers” are in visual media everywhere you look. They are in television ads, on billboards(1), and even on the sides of the Zamboni machine at pro hockey games(2). However, few of them are trying cases to juries, largely by their own choice(3). The costs of litigation, time involved, uncertainty of either winning a contingent fee (for plaintiffs’ attorneys) or avoiding a big verdict (for defense attorneys), and the proliferation of ADR options— Alternative Dispute Resolution or, as some are calling it, Appropriate Dispute Resolution—combine to remove the incentive for lawyers to go to a jury trial in civil cases. Unless, of course, a jury trial is the only way your client, plaintiff or defendant, can get a shot at achieving that elusive and highly subjective notion of “justice”(4).

For those cases, there are a dwindling number of lawyers still out there that specialize in civil jury trials. It’s our good fortune that three of them, with the help of a judicial veteran of the civil bench, have collaborated on Mastering the Mechanics of Civil Jury Trials: A Strategic Guide Outlining the Anatomy of a Trial, an entertaining guide for newer lawyers who have a yen to join this evermore-exclusive club.

BRIDGING THE MENTORING GAP

This compact volume (only 177 pages without appendixes, organized into 25 short chapters) is the principal work of Tyler Draa, a retired U.S. Naval Reserve judge advocate and prominent civil defense lawyer in San Jose, California. With contributions from Doris Cheng (San Francisco plaintiff’s attorney and a regular visitor to the JAG School for advocacy teacher training programs), Maureen Harrington (one of Draa’s law partners), and The Honorable Franklin E. Bondanno of the Superior Court of California, County of Santa Clara. Draa et al. have produced a user-friendly guide that should be required reading for any attorney contemplating dipping a toe into the civil jury trial waters. As a bonus, it’s also chock full of solid advice for any trial lawyer, even if his or her practice is limited to criminal cases whether by courts-martial or in federal or state courtrooms.

There are two things about Mastering the Mechanics of Civil Jury Trials that immediately jumped out at me as different from most of the litigation treatises out there. First, this is a book about preparing for and conducting civil jury trials. It is not about “civil litigation.” There isn’t a single word about discovery or pretrial motion practice, except in the context of the trial. As the authors make clear in the book’s introduction, Draa and his colleagues intend this book to bridge the mentoring gap that has resulted from the drastic reduction in civil jury trials. Fewer trials mean fewer experienced trial lawyers to help new lawyers learn the ropes, a gap that continues to widen with each generation. The second thing about the book that stood out to me is made clear by the book’s subtitle: A Strategic Guide Outlining the Anatomy of a Trial. This is a metaphorical 30,000-foot view of the civil trial. There isn’t a lot of detailed “how to” tactics. Draa and company have chosen instead to send bigger and more important messages to the budding trial lawyer.

This strategic approach emphasizes a global understanding of the civil trial process. It is in stark contrast to other trial “manuals,” such as one on criminal trials I reviewed in an earlier edition of The Reporter(5). Such opera magna, while very thorough and detailed on everything that may come up in trials, can be unwieldy. For those ambitious manuals, I have recommended practitioners first skim the contents, familiarizing themselves with the topics and organization, and then return for more detailed reading as needed or when time permits. For Mastering the Mechanics of Civil Jury Trials, I recommend the opposite—sit down and read it straight through, which may be done in just a few sittings. This is such an easy read, with so many valuable insights, you won’t want to set it aside for very long until you’ve finished.

Foremost among those insights is the authors’ emphasis on civility and ethical treatment of everyone involved in the trial. There are sharp condemnations of such venerable shyster tactics as the “speaking objection” (i.e., the objection is just an excuse to argue to the jury, or worse, give a witness clues about the preferred answer) and using rebuttal to sandbag opposing counsel with new evidence. One chapter is entitled “Opposing Counsel: Colleague First, Adversary Second.” This should go without saying, but it needs to be said and I’m glad the authors say it. A cornerstone of any trial (civil, criminal, military, or civilian) is civility among opposing counsel. If you don’t have it, the trial becomes a cacophony of tit-for-tat reprisals over trivial slights and the clients’ interests get drowned out by the noise. This emphasis on civility often separates real trial lawyers, like Draa, Cheng, and Harrington (and, no doubt, Judge Bondanno in his life before the bench) from many of the swaggering TV “litigators” that equate effectiveness with red-meat rhetoric that demeans their opponents and, as a result, the entire process.

In another chapter, “Establish Your Courtroom Footing,” the authors emphasize the importance of getting to know, and treating with courtesy and respect, all court administration personnel. I learned this in 1975 as a first-year law student and part-time clerk at a firm in Topeka, Kansas. I’m amazed at how many attorneys I’ve seen abuse the folks that run their courtroom tech support, control access to the judge or, for a lawyer running up the courthouse steps, may or may not delay a few seconds past five o’clock before locking the clerk’s office door. Civility is the trial lawyer’s safety net—if you’re a jerk, you’re working without one so you’d better be good. And no one is that good. In Mastering the Mechanics of Civil Jury Trials, Draa et al. stress the importance of ethics and civility at every opportunity.

CIVIL LITIGATION AND THE AIR FORCE ATTORNEY

ISBN 9781939454423While Mastering the Mechanics of Civil Jury Trials is, of course, directed at civil trial practitioners, Air Force attorneys should not dismiss it as inapplicable to our practice. Some Air Force attorneys, both military and civilian, do get to represent the United States in civil trials from time to time. Even if your practice is limited to courts-martial, this book has solid advice about presenting cases to juries, whether they’re called that or answer instead to “Members of the Court.” A few pet peeves of mine, in any trial, are overuse of PowerPoint and other complicated demonstrative aids, redirect and recross examinations as yo-yo contests that don’t add anything to an attorney’s case, and objecting or cross-examining just because you can without regard to your theory of the case. Draa and company address these, plus a lot more, giving the newly minted trial lawyer the lessons learned from decades of courtroom mistakes they’ve seen and made themselves.

The one weakness of Mastering the Mechanics of Civil Jury Trials, to which the authors freely admit, is its California emphasis. All the authors practice or preside in California so the rules and case law they cite are Golden-State centric. The authors, however, are assembling appendixes (partially completed when I read this advance review copy) listing federal and state authorities on peremptory challenge of judges—I didn’t know you could do that!—use of animations and other simulations as demonstrative evidence, and other common issues in civil trials. While it’s likely the majority of purchasers of Mastering the Mechanics of Civil Jury Trials will be California lawyers, the completed appendices will broaden the book’s appeal.

[Editor’s Note: The appendices encompass all fifty states and are presented in all final editions, including a heavily linked eBook to the source of each statutory authority, as well as all cases cited throughout the book. Visit www.civiljurytrials.com for more information.]

In this book, however, the specific legal issues that might come up during a trial sit second chair to common sense and sound trial fundamentals. These values aren’t limited to any single jurisdiction. Last time I checked, anyway.


Mr. Thomas G. Becker, Col (Ret), USAF (B.A., Washburn University; J.D., Washburn University School of Law; LL.M. George Washington University School of Law) is the Academic Director for The Judge Advocate General’s School, Maxwell Air Force Base, Alabama.


FOOTNOTES:

(1) At a recent lecture I gave to allied nations’ officers attending an International Officers School course, one of them asked me, “Who is this [name of personal injury lawyer prominent in Alabama and the Florida panhandle]? My God, his picture is everywhere!”
(2) I’m not making this up. I have a photo taken by my daughter at a Washington Capitals game.
(3) See, e.g., Joe Forward, The Disappearing Jury Trial: Implications for the Justice System and Lawyers, Inside Track (Wisc. State Bar, Madison, Wisc.), Mar. 19, 2014.
(4) As it says on a small plaque I have on my desk, “Too often we want justice—just for us.”
(5) Tom Becker, How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense, 38 The Reporter 61 (2d ed. 2011) (book review).

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.

 

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.
Lincoln Law School, The-Gavel-Reviews Civil Jury Trials by Tyler Draa et al
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Lincoln Law School, The Gavel: Book Review

Book Review: Mastering the Mechanics of Civil Jury Trials

By Clifton Wester, 3L

This strategic guide offers a primer for law students or budding attorneys. The guide is a mentor-in-a-briefcase for attorneys representing either plaintiff or defendant. The sequential layout is logical and includes sage wisdom and common-sense strategy. Mastering the Mechanics of Civil Jury Trials (Balcony 7 Media and Publishing, October 2015) is also a fascinating read. It provides a real-life glimpse inside the mechanics of courtroom procedure and sheds light on the nuances and strategies of the civil justice system.

“Every young lawyer should carry this practice manual in his or her briefcase as it is a step-by-step guide on how to try a case-from pre-trial briefs, to the use of challenges, to the opening statement and development of a theme. The manual includes everything from a guide to introducing evidence to closing argument. This book should be a Bible for every trial lawyer-to-be. Most importantly, it is a common-sense guide on what to do and when. It is the food you eat to undertake the trial journey. Unfortunately, we are not teaching these lessons in law school today.” —Joseph W. Cotchett (Cotchett, Pitre & McCarthy in San Francisco, CA).

Tyler Draa, recently retired partner of Silicon Valley litigation firm Greenfield Draa & Harrington LLP, is a front man of sorts for the dynamic team whose experience sets forth the anatomy of a trial. The Honorable Franklin E. Bondonno, of the Superior Court of California, County of Santa Clara, provides judicial commentary. Co-authors Maureen Harrington (partner at Greenfield Draa & Harrington) and Doris Cheng (Walkup, Melodia, Kelly & Schoenberger in San Francisco), are among the highest ranked women lawyers in California.

As an attorney, Mr. Draa’s practice focus is primarily professional liability. He principally defends health care providers, but also lawyers, insurance companies and personnel, as well as other professionals in lawsuits and administrative proceedings. Throughout his legal career, he has tried over 70 cases and is also an appellate lawyer with more than a dozen published decisions. Currently, he teaches trial practice courses through Continuing Legal Education (CLE) programs and has participated as an instructor for the National Institute of Trial Advocacy (NITA) Masters of Trial program. He currently volunteers to assist as adjunct faculty for the University of San Francisco Law School’s Intensive Trial Advocacy Program.

The staff of the Gavel had the opportunity to meet and interview Mr. Draa at the offices of Greenfield Draa & Harrington shortly before the release of Mastering the Mechanics of Civil Jury Trials. He shared with us that his motivation for writing the book was his son. His son and a young partner were preparing to try their first case, and they asked Mr. Draa to give them some pointers. He replied, “It will take days,” they said fine. He decided to write the do’s and don’ts from his prospective. Once he began to put together a quick study guide, he realized that he could be on to something. So he assembled a 3-day course in his garage for the two of them. His quick study guide became larger. It was then that he thought “this could be a book,” and today his first book is the product of that project, initiated by his desire to help his son defeat his first opponent.

Tyler Draa feels that his target audience is the young, fresh J.D. graduate, preparing to litigate his or her first trial. Due to the almost instant notoriety of his quick study guide, he thought what a joy it would be to see a first time litigator standing at the counselor’s table with a copy of his work in his or her possession. He also sees this book as one that an attorney would give to his client to read in order to help explain the process.

Tyler Draa pulled his team together by asking Judge Bondonno if he would critique the draft. His Honor contributed by providing many comments. He felt that his way of doing civil trials was only one perspective; a defense attorney’s style is procedurally and philosophically quite different. So he reached out to Doris Cheng in San Francisco. Ms. Cheng liked it and he asked her to contribute and she was very amenable. Tyler Draa realized that he needed to include the commercial approach, so he enlisted the help of Maureen Harrington. What he compiled was a plaintiff ’s view, a defense view, and a commercial view with judicial oversight to keep them all honest.

We finally asked Mr. Draa if he was open to conducting a seminar at Lincoln Law School sometime in the future and he stated that he would be happy to. Stay tuned!


Personal: Mr. Draa lives in Santa Clara County with his wife of 31 years. They have three children. He holds an AV Preeminent rating by Martindale Hubbell (a peer-ranking measure of elite status) and is annually recognized as a California Super Lawyer. He is a member of the American Board of Trial Attorneys (ABOTA). Mr. Draa received his B.A. with honors from Claremont McKenna College and studied law at Lewis and Clark Northwestern School of Law, as well as Hastings College of Law. He earned his Juris Doctor degree from the former institution in 1981. Upon graduation, he was appointed as law clerk to the Honorable William Ingram, United States District Court for the Northern District of California.

Visit www.civiljurytrials.com for more information on the book and the attorney authors.
Valley Lawyer Reviews Civil Jury Trials by Tyler Draa et al
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Valley Lawyer Reviews Civil Jury Trials

A Mechanical Guide for a Smooth Running Trial

By David Gurnick

In his 1875 book, History of Trial by Jury (James Cockroft & Co.), Scottish lawyer William Forsyth explains that in Europe, a system of “procédure secrète” prevailed. This system of inquisitions, in which judges decided law and fact, was “an engine of grievous injustice.”

Jury trials in civil cases are very important. Alexander Hamilton said the civil jury is a valuable safeguard to liberty (Federalist #83). James Madison said that in civil cases, jury trials are “essential to secure the liberty of the people.” (Madison Papers 12:196–209).

But jury trials are also complicated. In a sense, they have a lot of moving parts, ranging from personalities of judges, to panel members who would rather be elsewhere, to the process of voir dire, presenting evidence, arguments, verdicts and numerous other procedures. So it is apt that the authors of Mastering the Mechanics of Civil Jury Trials, (Balcony 7, October 2015) continue the metaphor of a jury trial as a complex engine.

This new book, by attorney Tyler Draa with co-authors Doris Cheng, Maureen Harrington and Judge Franklin Bondonno, reads like a user-friendly mechanics guide. Mastering the Mechanics breaks the complexity of the jury trial into basic components. In plain English, with understandable summaries, straightforward instructions, occasional numbered step-by-step directions and real-life examples, the authors describe “how-to” and “what-to-do” from pre-trial, through every step of trial, and post-trial motions and appeals.

The book has chapters on inquiring about and making a peremptory challenge of the judge, and dealing with and relating to opposing counsel (“colleague first, adversary second”). Good guidance is provided for motions in limine and other pretrial filings, conducting voir dire, logistics of trial and evidence presentation, including course of action for direct and cross-examination, and making objections. Settlement, argument and guidance for jury deliberations, verdict and post trial proceedings are also addressed.

Throughout, the book is filled with practical tips that have value to new trial lawyers and are good reminders to the experienced professional: present your own personality and courtroom demeanor (“do not pretend to be someone else”); embrace harmful evidence, transform it into an advantage (“be the first source that reveals it to the jury”). There are fundamental tips for presenting evidence, and even style before the jury (“never be more indignant than the least indignant juror, lest you appear unnecessarily harsh”).

Many chapters include a “Judicial Comment,” providing the judge’s perspective on the subject. For example,

“Trial attorneys often put far less effort into voir dire of alternate jurors . . . And yet, in many cases, an alternate juror serves. You need to be as careful choosing alternate jurors as you are choosing the initial panel members.”

These are valuable tips that could be unknown to newer lawyers, and easily overlooked, even by those with deep experience.

Tyler Draa and his co-authors are very experienced trial and appellate lawyers. Draa, for example, tried over 70 cases and has more than a dozen published appellate decisions. Judge Bondonno was a trial lawyer for 32 years before being appointed to the Superior Court, where he has presided over trials for eight years. A how-to guide by practitioners of this caliber, with this much experience, would be valuable in any field. Mastering the Mechanics does not disappoint.

In 1875, Forsyth could not find the specific origin of the jury trial. But in Tyler Draa’s manual, we know how to master the process now to achieve the best possible outcome. Through this mastery we can tell how the trial is conducted, how we can conduct the trial, and where it is going. Mastering the Mechanics will help any lawyer make the trial engine zoom, to our clients’ advantage.

David Gurnick is with the Lewitt Hackman firm in Encino, California. David can be reached at gurnick@lewitthackman.com. In the interest of full disclosure David notes that Tyler Draa is David’s cousin by marriage.
Visit www.civiljurytrials.com for more information on the book and the attorney authors.
Families dealing with terminal brain cancer, Mindy Elwell in Defy & Conquer
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Families Dealing With Terminal Brain Cancer: My Story

One of the most heartbreaking aspects of being stricken with terminal brain cancer is telling your family, especially your children. It’s been over three years since that terrible day when I was diagnosed with Anaplastic Astrocytoma (Grade 3). My husband, Rich, learned about it in a phone call from me, just as he was about to board a plane to China for an important business trip. When he returned, he took the lead in telling our three children, Richie, Angela and Domenic, who were 13, 10 and 7 at the time.

Revealing difficult news like this to children is a delicate matter. But families dealing with terminal brain cancer need a plan of action, for discovery after the initial diagnosis as well as for how to cope with it throughout the terrible journey lying ahead.

In our case, we decided the healthy spouse would be the messenger. The conversations were tailor-made to each child’s understanding and were given one-on-one, to allow each child their privacy as they made sense of what my diagnosis meant, and how it would soon turn our lives upside down.

In my upcoming book, Defy & Conquer, I share this often-ignored aspect of living with cancer. Because of our early and open conversations about my condition, I was able to get first-hand accounts from my husband and three kids, in their own words, in short essays we included in the book. Seeing first-hand how kids feel about learning their Mom has cancer and being able to read about their fears and emotions may allow other adults in my situation the same comfort in knowing it’s best to be honest and open, and go about living every day you have left without carrying this burden all alone.

I’d like to share with you some excerpts from my book and follow up with an update as to how we’re all dealing with my condition today, over three years later. The following excerpts are from “Telling the Children,” a chapter from Defy & Conquer, in their own words. They may seem a bit optimistic. That’s because at the time they were written, in Fall 2014, we thought we were winning this fight.


From my husband:

When I heard the diagnosis, I was shocked and fell to the ground in tears. When the doctor spoke to me, he said, “We are going to beat this. Don’t worry about it.” But inside, I was terrified about what I had heard.

The first thing that I was going to change was my schedule. I started working from home instead of at my office, about 15 minutes away. I went and talked to my employees about Mindy’s diagnosis. I asked them to step it up as much as they could to help me out. I told them, “If you can’t work some longer hours, then let’s lock up the doors and we’ll walk away,” because I was willing to walk away to take care of Mindy. They did step up and helped me out, and we kept things going.

When I had to break the news to the kids, I spoke to each child at their level, according to their age. I told our oldest, Richie, everything. I told Angela, our middle child, what I thought she could handle but with less detail than our oldest. Domenic, at only seven years old, was told very little. We did not speak as a group. I talked to the kids individually.

I often felt overwhelmed and sad. I sometimes lost my faith. In trying to cope with all this, I drank more alcohol than was healthy. I just wanted to squash my emotions. In the morning, I would go to the gym with Mindy to find some balance in a normal routine and keep her spirits and our physical strength up as much as possible. I prayed a lot…

…Looking back at what we’ve been through over the past two years, I realize there’s nothing I would do differently if we had to go through this again. I think we handled it well. The biggest piece of advice I have for others is: Be your own advocate. Ask questions. Do research and trust your instincts. Seek counseling if needed. There’s no shame in that. —Rich Elwell

From my oldest son:

In my life there have been many difficult obstacles that I have had to overcome but the greatest of all obstacles was my mother’s diagnosis. Two years ago I was told my mother was sick. I was told my mother has brain cancer. At the time I didn’t even know what to think. I had no idea what cancer was like. All I knew was that it was a very serious sickness.

Before I knew what was even going on, both my mom and dad were going from doctor to doctor, professional to professional, to seek help while I tried to continue living a normal life as a high school student.

I learned about the diagnosis on a weekend and, on the following Monday, when I returned to school, I didn’t know what to tell my friends or my teachers. What was I supposed to tell them? Should I just say to them, straight up, that I may not be acting normally because my mom was diagnosed with cancer? I don’t want anyone to feel sorry for me. I just want to be treated as a normal student. And, because of that, I didn’t tell anyone. Even though I hadn’t told anyone about what was going on in my life, I knew people would find out soon enough. One day, I couldn’t turn in a homework assignment for my English class. I just told my teacher that I had family issues and I couldn’t get it done in time. My teacher just thought I was being lazy and I just didn’t do my homework because of that. I didn’t try to reason with my teacher because I just didn’t want to argue with anyone. But, after class, two people who knew that my mom was sick explained to my teacher that I really had a serious problem within my family and because of it I couldn’t complete that assignment. And, because of this, many more people found out that my mom was sick…

…I’m not uncomfortable talking about this. I admit I only prayed a few times because I never noticed a change due to it. Right now, I just appreciate my mom and dad. I know they are always here for me even though they are in their own battles. I try not to worry and be prepared to help a lot.

I feel like we are closer now because we spend a lot of our free time together. Plus, I’m older and I’ve matured since she was diagnosed. —Richie, 17

From my daughter:

I remember feeling really sad when I heard the news of my mom’s brain cancer. I understood the seriousness of the situation and I couldn’t stand the thought of a world without my mom. I still can’t, and I don’t want to lose her.

That first night that I found out about it, I thought about what might happen if my mom wasn’t there anymore. It was very hard to sleep.

I don’t have any friends who have dealt with cancer in their families but I was scared by the stories on television. It always exaggerates some of the effects but it is still very serious. I talked to some of my close friends about it. I tried praying but I’m not really that religious. But I wanted to try anything I could, so I did.

When I was really upset about stuff going on I never did anything physically to lash out or anything. But I remember crying and being sad about it. I talked to my dad about it the most. He explained it to me and reassured me we would all get through this.

After going through all of it, I think it helped me be more caring for others because I had to help my mom with certain things. Right now, I’m not uncomfortable talking about it. It feels good talking about this.

One thing I learned about my parents, since all this happened, is how hard they work for us. They always do what’s best for us and make sure we’re okay and getting everything we need. If I had to give advice to someone else my age going through something like this, I would tell them to stay strong throughout this process. It will get scary and sad at times but you just have to have faith.

Now that things are better, and we’re getting through this, I feel that my parents are a lot more open and honest with me about everything. —Angela, 14

From my youngest son:

When I first found out, I felt sad and scared that she would die, and I was really afraid. I didn’t really know what it all meant because I didn’t understand what was going on and I was confused. That first night, I was really worried and scared.

I didn’t talk to my friends about it. Nobody I know had parents with cancer. I didn’t want to talk about it anyway because I will probably have cried. I did talk to God about it and I was hoping that she would be okay and I worried a lot. I did talk to one friend about it the most.

When I was angry, I hit some pillows and sometimes I felt really stressed. It was weird having a bunch of other adults in my house cooking for us and washing our clothes.

At first, I was scared and sad but, as she got better, I felt excited that she was getting better and stronger. I was proud of her for fighting it so well.

I’m not really uncomfortable talking about it. A lot of people know about it already. It feels alright to write things down and I’m comfortable about it.

My dad went out of his way to help Mom and that makes me feel happy. We didn’t have to help her like this before because we didn’t have to.

If I had to tell another kid going through this something, I would tell them to help as much as you can, pause your video games and come home straight from school to help at the house.

Now that we’re getting through this, I see my parents act the same now to each other as they did before. It doesn’t really surprise me because I knew how they felt about each other before. —Dominic, 11


Now fast forward to April 2015. Amidst the continued chaos of my disease, here is how I view my family coping with my condition today:

About my husband:

The sweetness and tenderness of Rich continues to amaze me. We’ve been told that cancer destroys most marriages. But despite the stress of daily life with a handicapped person, Rich manages to be patient and sweet (not every minute) and we have learned from our mistakes. We also communicate better than we used to. I’ve accepted my situation and decided that complaining about it does no good; in fact, it can drain the life out of family and friends.

Some days I just want to say, “I can’t believe I have to die and soon!! It’s crazy!!” Some days I just want to cry and keep crying. I’ve been robbed. My life has been taken away from me. There are a couple of people who I want to cry with and let it all out, but sometimes they push me away, saying things that discourage the tears and the sharing.

Thank goodness for my LiveStrong counselor Beth. She cried with me and told me I could call her anytime. Letting it out is so helpful and healthy. Rich has been amazing in strength, love and support. I think this is uncommon and it has kept us together and strong.

About my oldest son:

Richie is very excited about his upcoming graduation May 20th. His grandparents are coming out for the occasion. He received his cap and gown in the mail the other day. We cannot believe how much time has gone by. Our firstborn will be leaving the house in just a few months to go off to college. He drives, and he’s been very helpful to me, running errands and driving his siblings around.

About my daughter:

We’re very proud of Angela. She’s an all-around kid. Her grades are good and she’s an above average softball player. Also, she has good judgment in her choice of friends. We’ve noticed that she has a tendency toward moodiness at times. We have to be careful to separate the occasional moodiness from more serious issues. We make sure we’re always available for the quick chats as well as the longer, heavier conversations.

Angela is getting ready for her first formal dance. The whole family went together to pick out her dress; such a special time for a mother and daughter. She looks absolutely stunning in the dress we picked. We have a full day of pampering coming up to get her ready. Aside from beauty and grace, she’s very intelligent and compassionate. Angela has a good head on her shoulders and we trust her.

About my youngest son:

Domenic seems to be very attached to me lately. He’s not too busy to stop and hug. He is very busy, constantly moving, jumping and coming up with new tricks, both on the trampoline and in the house, like martial arts moves.

Dom is very intelligent and kind. He tries to help people and is always available for me. He’s starting to like spending time with girls. He hasn’t been very organized at school lately; it seems like his mind is elsewhere. He gets frustrated with things that he can’t figure out and he loses his temper. But Dom is also the type of kid who other adults describe as having good manners, and that he’s a pleasure to have at their home. Hearing compliments like that makes me proud. Seeing him through the eyes of another adult is an eye-opener. He’s got a keen sense of humor and a unique fashion sense. Lately, Dom has been impatient and short-tempered, which makes me wonder if he’s overwhelmed with worry about my health. He’s super affectionate, which can brighten any mood.

Dom is really excited about his upcoming 12th birthday. We have a party planned at the indoor trampoline place. I’m thrilled to be here and thankful to be a part of his special day. I cannot even imagine how sad it would be for any kid to have a birthday with a parent having just passed.


I’m home when the kids get home from school. All of the kids are into skateboarding, or longboarding, as they call it. It’s a great outlet for them. The five of us have dinner together at the table. During this time, we have lots of laughs and catch up on the day. No one leaves the table until everyone is done. If and when the kids want to talk about Mom’s situation, we are always open to discussion.

After dinner, the kids do the dishes and help with whatever needs to be done. This allows Rich and I to sit quietly and finish our conversation; this time of day is precious. We are still figuring out the best way to handle my cancer. There can be lots of tension at times. It’s a lot of touch and go, and ups and downs.

Each of our kids have stepped it up and have learned how to do most of the household chores. They have learned about compassion and how to empathize with others. There’s a long list of life lessons that they have under their belts now.

When I look at pictures from when the kids were small, I so desperately want to turn back the clock; it’s so painful. I want to be here for everything!

I’m hoping I can keep an eye on them from heaven.

The reality of cancer is: it’s the longest, hardest journey of your life; and the only winners are those who stick together, as the Elwells have in my case, with an eternal bond that cancer will never break, in this world or in the next.


[Editor’s Note: Mindy Elwell’s battle with brain cancer ended peacefully on November 16, 2016, at her home in Buckeye, Arizona, surrounded by her loved ones. Balcony 7 is proud to have played a part in preserving Mindy’s wish to share her story with others facing the same life-threatening disease. Her legacy of Defy & Conquer lives strong. Rest in peace, dear Mindy.]

Mindy Elwell, Defy & Conquer, Terminal Brain Cancer-2
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My Fight Against Terminal Brain Cancer

When a doctor looks you in the eye and tells you a malignant tumor is growing in your brain, your world instantly changes.

That’s exactly what happened to me. And my world today is almost unrecognizable from that day in early 2012. They predicted I would probably not make it past eighteen months. But I’ve made it past October 2013 and, although there was a point earlier this year when I thought things couldn’t get any worse, the reality of terminal brain cancer is reminding me the battle isn’t over.After a lifetime’s worth of radiation treatments, and oral chemotherapy to go along with it, the tumor remained resistant. Through sheer determination, and a little bit of luck, I found a surgeon to remove it using intra-operative brain mapping. Along the way, I also adopted the Ketogenic Diet to starve the cancer cells and boost my immunotherapy. Both strategies seemed to be working, until my old symptoms started to make a comeback earlier this year.

Problems with balance and loss of strength could be due to inflammation and the effects of radiation, ash residue in my brain. My recent MRI showed no additional growth but the doctor said the tumor area looked “suspicious.” Honestly, I think the tumor specialists don’t always know what they’re seeing. They certainly don’t always agree about what they do see. I understand they are just human beings, but not having solid answers is frustrating to the patient. It only adds to the emotion and the confusion of the continuous roller coaster ride that I, and my family, have been on for the past three years.

You could say I’m on the “watch and wait plan.” For now, we’ll continue with chemotherapy and infusions; most of them have terrible side effects and some new therapies are almost too impractical to even bother with. If the MRI shows there’s more tumor growth, I hope the results are clearer. Maybe I’ll find out in May, after my next scheduled scan.

In my upcoming book, Defy and Conquer, I talk about the journey of brain cancer and discuss the traditional and adjuvant therapies I’ve used, including the Ketogenic Diet, which really does make me feel physically better, in spite of the fact that it was difficult to get used to, at first. I think many other patients, as well as caregivers and family members, may learn something from my journey because I discuss the important aspects with honesty; from the first symptoms to the initial diagnosis, and the long road through treatments and recoveries.

Due to the constant changes in my condition, there were additional sections I needed to add to my book, and so the publication date was moved to August 25, 2015, from May. Although I feel like I’m racing against time, I know this was for the best. My book will be as current and true to my condition as possible. Now with the tumor area acting up again, what started out as a plan to defy and conquer brain cancer has now become my state of mind for the future, whatever that may be.

I’m trying hard to not focus on negativity by focusing on what I can do rather than what I can’t, and what I miss. With too much weight lost, and now looking more like Skeletor at far below my normal 135 pounds, it’s difficult to have the energy to exercise and be as active as I used to be. Perpetual imbalance and a lack of full mobility make the gym an impossible destination these days. I also can’t drive, work, or be alone. The strain on my family and friends continues.

Faith plays a large role in my life, especially these days. When all that I and my family once considered normal seems to be slipping away, our faith continues to be strong, and we trust in the Lord to guide us through tough decisions and questions that constantly come up. The most important things I really care about right now are spending time with my loved ones, at any time and at any place, and adhering to the Ketogenic Diet, which I continue to believe keeps all the other parts of my body healthier, in general.

Lastly, of course, I can’t wait until my book comes out. It almost feels as if I’m living for that day. I want very much to reach out to others who are fighting a brain tumor so I can share my journey with them and show my own support. I’ve started connecting with others already through the LiveStrong Foundation and connected with a great counselor who helps me focus on calming my fears and setting some goals. With cancer, it’s hard to be stoic. With all the energy spent on fighting the physical battle against it every single day, there’s not much strength to boost the spiritual side. And that’s so important to me. My counselor at LiveStrong helps me do just that.

One of the lines in my book is very fitting for how I feel inside my heart:

Over the past two years, the greatest lesson I’ve learned is this: spiritual empowerment over cancer marks the moment we begin diminishing its power.

At the time I wrote that, I really thought I was beating my disease. Today, I realize I still am, but in a different way. I’m taking control over the one part of me that cancer will never beat: my soul.


[Editor’s Note: Mindy Elwell’s battle with terminal brain cancer ended peacefully on November 16, 2016, at her home in Buckeye, Arizona, surrounded by her loved ones. Balcony 7 is proud to have been a part of Mindy’s desire to share her story with others facing this life-threatening disease. Her legacy of Defy & Conquer lives strong. Rest in peace, dear Mindy.]