Shapiro Sher’s Banking & Financial Services Report for Spring 2014 features the article, “Three’s A Crowd: Intercreditor Agreements That Work.” Click here for the full report.
Shapiro Sher partner Matthew A.S. Esworthy has just been appointed Special Advisor to the American Bar Association Criminal Justice Section Council.
Mr. Esworthy also serves as co-chair of the ABA Section of Litigation’s Cybercrime Subcommittee of the Criminal Committee, co-chair of the ABA Criminal Justice Section Cyber Crime Committee, and as a member of the ABA Criminal Justice Section’s E-Discovery Task Force.
The Bar Bulletin, the Maryland State Bar Association’s monthly newspaper, reports on the fourth edition of Paul Mark Sandler’s Appellate Practice for the Maryland Lawyer: State and Federal.
Shapiro Sher partners Matthew Esworthy and Eric Harlan write for the Chesapeake Human Resources Association about small businesses and cyber threats. Click here for the full article.
Over the weekend, Sarah Lyall of the New York Times posted an interesting story on the Oscar Pistorius murder trial in Pretoria. It seems the famous South African runner with prosthetic legs has been something of a basket case while testifying in his own defense. “He retched. He cried, then sobbed, then grew hysterical,” writes Lyall. “It got so bad that at times the judge Thokozile Matilda Masipa, had to adjourn the court while Mr. Pistorius regained his equilibrium.”
What effect might this outpouring have on the outcome of the trial? It’s impossible to read the mind of the decision maker – in this case, the judge, as South Africa doesn’t have a jury system like ours – but I am generally wary of expressing emotions so ardently in court. And not because the emotional content of argument is unimportant. On the contrary, because emotion is so crucial, it must be handled with care.
I never forget this Cicero quote: “Mankind makes far more determinations through hatred, or love, or desire, or anger, or grief, or joy, or hope, or fear, or error, or some other affection of mind, than from regard to truth, or any settled maxim, or principle of right, or judicial form, or adherence to the laws.”
Rhetoricians consistently agree that emotion plays an essential role in persuasion, and psychologists teach that people usually make decisions by emotion and then validate them by logic.
Even judges who must make logical decisions, are no automatons who merely plug facts into a legal framework. Indeed, the presumed dichotomy between reason and emotions is in some respects misleading. Emotion, in fact, provides motive and meaning for even our most “rational” decisions.
That’s why I encourage lawyers to consider the emotional content of their overall cases. At every stage of the trial, emotion plays a role. But if emotion is overdone – if quiet tears become sobs, if frustration blows into a tantrum – listeners may find it difficult to relate.
In the Pistorius case, according to Lyall’s story, observers of the trial are wondering whether the defendant is being sincere or acting. And if his anguish on the stand is sincere, what is its source?
Ideally, when a defendant takes the stand, the emotional content of his claims will support the logic of the overall argument. In this case, his torment seems to be eclipsing the argument altogether and causing people to question his sincerity.
To some extent, judges and juries will question the sincerity of all witnesses. That’s part of the job. Still, defense lawyers should strive to present testimony that compels the audience to set aside its skepticism, at least for awhile.
Shapiro Sher attorney Joseph A. Pulver has been accepted as a 2015 Fellow of the Maryland State Bar Association Leadership Academy.
More than 120 years ago, the coroner’s inquest into “Wild West” lawman Wyatt Earp ended with no criminal charges filed. Earp walked away scot free in the infamous O.K. Corral gunfight that only lasted 30 seconds, but is remembered as the day “when blood flowed like water,” according to the next day’s newspaper. While that gunfight and the incidents leading up to it have fascinated history buffs for more than a century, there was never a criminal or civil trial instituted against Wyatt Earp.
The gunfight and aftermath leading to no prosecution has long intrigued trial lawyers: How did Wyatt Earp walk away without indictment? Did the prosecution really play the cards at their disposal, or was Mr. Earp’s defense that good? What if here had been a civil trial such as a wrongful death case instituted by family members of those mortally wounded, like Tom McLaury?
At the eighth annual Litigation Institute for Trial Training program, or LITT — also known as a boot camp for young lawyers – we explored the nuances of an imaginary wrongful-death trial. Our special guest was Wyatt Earp himself, or rather, a descendant of the original Wyatt Earp, who was named after his famous ancestor. Our case was based on the testimony presented at the original investigation of the gunfight at the O.K. Corral. The material we used was created by attorney Jeff Willis of Phoenix, who helped assist in getting the original Wyatt Earp’s descendant to portray his namesake on the witness stand.
I created the LITT program eight years ago, in conjunction with the ABA Section of Litigation, to teach the basics of courtroom advocacy to young lawyers, and more importantly, to inspire them to seek further learning and study of trial, as well as arbitration advocacy. Currently, the LITT program is co-chaired by Dallas attorney Michael Lynn and me, and it was Michael who suggested we use the Wyatt Earp trial as our historical case of the day. We had presented a similar program in Dallas the year before and that event had been presented, to wide approval, before a packed house of 500 young lawyers and law students.
At the LITT program in Phoenix last month, Mr. Earp was joined by some of the leading trial lawyers in the country, many of who gave demonstrations of each facet of a trial, from opening statement, to direct and cross examination, to closing argument.
I won’t tell you whether or not the legal proceedings surrounding the original Wyatt Earp would have ended any differently had he appeared before the “jury” of this year’s LITT program rather than the justice of the peace who presided over the coroner’s inquest, but I can tell you the original Wyatt Earp would have been proud of his descendant’s convincing performance.
Shapiro Sher partner Matthew Esworthy spoke at The Pennsylvania State University School of Law’s graduation ceremony in Carlisle and University Park, PA. He spoke on behalf of the Law School Alumni Society, of which he is President and a member of the Board of Directors.
Renée Lane-Kunz, the Firm’s Chief Operating Officer and co-chair of its Employment Law Group,has been named President of the Association of Legal Administrators, Maryland Chapter.
Ms. Lane-Kunz’s term as President of the Maryland ALA will continue until April 2015. To read her President’s Message on the ALA site, click here.
Since 2008, Ms. Lane-Kunz has served Shapiro Sher as its chief administrator while practicing employment and business law. In her legal practice, she offers ongoing employment counsel to small and mid-sized companies as well as schools and institutions. She works with clients in diverse industries, including hospitality, manufacturing, education, technology, and government contracting. In addition to employment law, she advises companies on licensing, copyright and trademark registration, and general corporate matters. Super Lawyers® recently identified Ms. Lane-Kunz as a “Rising Star” in Maryland.
The Maryland ALA was chartered in 1972 and serves approximately 100 members from over 40 law firms throughout the state. The Chapter provides educational opportunities to help its members become better informed on a broad array of legal management issues. The Chapter has been awarded a Platinum designation by the National Association of Legal Administrators in recognition of its having met the highest level of achievement in chapter management, communications, education, and Business Partner relations.
Shapiro Sher Guinot & Sandler (www.shapirosher.com) is based in Baltimore, Maryland, with an additional office in Washington, DC. Founded in 1972, the Firm is nationally known for its practices in business law, banking and finance, litigation, bankruptcy, and creditors’ rights. For the past three years, Shapiro Sher Guinot & Sandler has been named the Top Mid-sized Law Firm in Maryland for Business and Transactions by Super Lawyers®, a division of Thomson Reuters.
The Baltimore Sun quotes Shapiro Sher’s Larry Gibson in an article titled, “Maya Angelou’s dealth brings forth memories, tributes from Maryland friends.”
