SPI Trainer of Trainers 2021

TCDLA and CDLP presents

TRAINER OF TRAINERS July 7, 2021

in South Padre Island The Pearl Resort

COURSE DIRECTORS: Adam Kobs Monique Sparks

Seminars sponsored by CDLP are funded by the Texas Court of Criminal Appeals.

Texas Criminal Defense Lawyers Association

Trainer of Trainers Table of Contents

-Speaker

Topic July 7, 2021

Michael Gross Heather Barbieri Don Flanary

Coaches: How to Coach and How to Learn Fans: Storytelling and Connecting with the Audience Jumbotron: Technology/Zooming/Power Points

Clay Steadman

Lunch Presentation: Concession Stand: Paper Trails

Monique Sparks

Score: Feedback & How to Do Better

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

TRAINER OF TRAINERS SEMINAR INFORMATION Date Location Course Director Total CLE Hours 6.0 Ethics: 1.0

July 7, 2021 310 Padre Boulevard, South Padre Island, TX 78597 Adam Kobs and Monique Sparks 5.0 Ethics: 0

Wednesday, July 7, 2021 Time

CLE

Daily CLE Hours: 5.0 Topic

Ethics: 0

Speaker

8:15 am

Registration and Breakfast

8:30 am

Opening Remarks: Getting Game Day Ready! How to Coach the Team

Adam Kobs, Alyse Ferguson, Rick Wardroup

1.0

Coaches: How to Coach and How to Learn What are the minimum skills needed for a speaker, how to be an excellent speaker, Critics, How adults learn and retain information, difference on speaking live verses Zoom. Ensuring your presentation is timed and don’t go over or way too short in allotted time. Travel, staying for the seminar to talk with attendees and time

Michael Gross

1.0

Fans: Storytelling and Connecting with the Audience How to connect with audience, interactive, to get your story across not just a war story, how to gauge the audience, what to do if you lost the audience

Heather Barbieri

8:45 am

9:45 am

10:45 am

Break 1.0

11:00 am

Jumbotron: Technology/Zooming/Power Points How to present using zoom, sharing a screen, Do’s and Don’ts of power points, video clips and sound - packing, doing the power point early to send to TCDLA to test, how to excel with the best presentation, new technology for presentations. Make sure you don’t have too many slides you can get through - practice

12:00 pm

Lunch Line 1.0

12:15 pm

Lunch Presentation: Concession Stand: Paper Trails How to write an effective paper – formatting, styles punctation, verify accuracy, second pair of eyes – use your coach from CDLP, turning in on time 30 days from event, power point is not a paper, include motions when able to with materials, the importance of a paper to attendees, how to do a Voice article, how to turn a paper into a Voice article

Don Flanary

Clay Steadman

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

TRAINER OF TRAINERS SEMINAR INFORMATION Date July 7, 2021 Location 310 Padre Boulevard, South Padre Island, TX 78597 Course Director Adam Kobs and Monique Sparks Total CLE Hours 5.0 Ethics: 0 6.0 1.01.0 Score: Feedback & How to Do Better Ethics: Review years’ worth of evaluations. See what the big complaints are and go through how to do better. What and how speakers should improve when they receive 1:15 pm their evaluations. Also, not taking mean comments to heart. Each speaker will be given a CDLP mentor – they should be practicing, sharing their power point and paper for edits.

2:15 pm

Game Day Topics and Cities, Mental Health, Forensics, Capital – Sign Sheet turn in

2:30 pm

Adjourn

Monique Sparks

Adam Kobs

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Trainer of Trainers July 7, 2021 310 Padre Boulevard South Padre Island, TX

Topic: Coaches: How to Coach and How to Learn

Speaker:

Michael Gross 1524 N Alamo St. San Antonio, TX 78215-1205 (210) 354-1919 phone (210) 354-1920 fax lawofcmg@gmail.com www.txmilitarylaw.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

SKILLS NEEDED TO BE A GOOD SPEAKER

Michael C. Gross Gross & Esparza, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 (210) 354-1919 lawofcmg@gmail.com www.txmilitarylaw.com

Trainer of Trainers South Padre Island, Texas July 7, 2021

GROSS & ESPARZA, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 lawofcmg@gmail.com www.txmilitarylaw.com (210) 354-1919 MICHAEL C. GROSS CURRICULUM VITAE EDUCATION B.A., Trinity University, San Antonio, Texas, 1984 J.D., St. Mary’s University, San Antonio, Texas, 1987 PROFESSIONAL ACTIVITIES AND RECOGNITIONS Judge Advocate, U.S. Marine Corps, 1988-1992 Associate, Zimmermann & Lavine, P.C., Houston, Texas, 1992 - 1996 Law Office of Michael C. Gross, P.C., San Antonio, Texas, 1996 - 2012 Gross & Esparza, P.L.L.C., San Antonio, Texas, 2012 - Present Board Certified, Criminal Trial Advocacy, National Board of Trial Advocacy, 1997 Board Certified, Criminal Law, Texas Board of Legal Specialization, 1995 Board Certified, Criminal Appellate Law, Texas Board of Legal Specialization, 2011 President, Texas Criminal Defense Lawyers Association, 2021-2022 President, San Antonio Criminal Defense Lawyers Association, 2010-2011 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2008 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2009 Named in Best Lawyers in America, 2005 - 2021 Named Best Lawyers 2015 San Antonio Non-White-Collar Lawyer of the Year - 2015, 2017 Named in Texas Super Lawyers in Texas Monthly Magazine, 2004 - 2021 Named Top 50 Texas Super Lawyers in Central and West Texas Region, 2010 - 2012, 2014 Named in Best Lawyers in San Antonio by Scene in San Antonio Magazine, 2004 - 2021 Named Top 10 Criminal Defense Attorneys in San Antonio by Scene Magazine - 2013 AV rated by Martindale Hubble COURT ADMISSIONS Supreme Court of the United States, 1991 Supreme Court of the State of Texas, 1987 United States Court of Appeals for the Armed Forces, 1990 United States Court of Appeals for the Fifth Circuit, 1990 United States Court of Appeals for the Tenth Circuit, 1998 United States District Court for the Northern District of Texas, 1990 United States District Court for the Southern District of Texas, 1991 United States District Court for the Eastern District of Texas, 1991 United States District Court for the Western District of Texas, 1992

TABLE OF CONTENTS I.

Skills needed to be an excellent speaker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Know your subject matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Articulate your voice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 C. Maximize your body language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 D. Do not memorize or read your presentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 E. Focus on serving the audience - make it interactive . . . . . . . . . . . . . . . . . . . . . . . . 1 F. Embrace audio and visuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

Speaking live versus Zoom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Thoughts on speaking live . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Thoughts on speaking on Zoom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III.

Be courteous to the course directors and attendees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Time your presentation – do not go over your time or stop too soon . . . . . . . . . . . 2 B. Travel early – do not worry your course director . . . . . . . . . . . . . . . . . . . . . . . . . . 2 C. Stay at seminar to speak to attendees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

your presentation. This help you to look them in the eye and better connect with them while you are giving your presentation.

Skills needed to be an excellent speaker A.

Know your subject matter D.

I was told years ago that you, as the speaker, need to be white hot for your audience to be luke warm. In order for you to be white hot, you must master the subject matter of your presentation and convey this mastery to your audience. What I mean by mastery is knowing how sausage is made in the courtroom or on appeal or whatever is your subject matter so you may help your audience understand why/how the subject matter is important to their practice and how they may use your information on Monday morning. This also helps your audience to better prepare for any unforseen pitfalls given that you have already experienced those pitfalls and you have now prepared them to learn from your experiences.

B.

You should use a PowerPoint for every one of your presentations. Each slide of your presentation should have as few words as possible for each point in your paper. This makes you better understand your subject matter and keeps you from memorizing or reading your presentation. When I am asked to present on the same topic I presented on earlier in the year or the year prior, each time I give the talk, my presentation is different even though I am using the same PowerPoint slides. As you are talking about a given slide, you should be thinking about how you apply the subject matter in your law practice and relay this to your audience to help them utilize the subject matter in their law practice.

Articulate your voice E.

Practice modulating your voice during your practice sessions. Change the volume of your voice or the cadence of your speech to keep the attention of your audience. A monotone voice will cause your audience to lose interest and become bored with your presentation.

C.

Do not memorize or read your presentation

Maximize language

your

Focus on serving the a u d i e n c e - ma k e i t interactive

Remember that you are providing your audience with valuable information that helps them in their law practice. Ask the audience if they have experienced any pitfalls or benefits related to the subject matter of your presentation. When a member of the audience interacts with you, be sure to repeat what the member says so everyone in the room knows what was asked and why you answered as you did and invite other members of the audience to share additional pitfalls or benefits they have encountered related to the subject matter of your presentation. Talk with your audience, not just to your audience.

body

Do not use the podium during your speech if you can help it. Very large audiences such as Rusty Duncan may require you to stay tied to the podium. It has been my experience, however, that the best way to connect with your audience is to stay away from the podium and walk up to your audience and even into the audience itself. Use your body movements and body language to invite the audience into 1

F.

Practice your presentation using your PowerPoint slides. Know how many slides you have for your presentation and how ling you will need to spend on each slide so that you do not end too early or go over on your time slot. Know which slide is your halfway point and look at whatever you are using for your timer to pace your presentation accordingly. TCDLA and your course directors will be taken to task by the attendees if the course does not run on schedule. If speakers do not keep to the time schedule, this causes the follow on speakers to not speak at their allotted time which causes attendees to complain about the CLE course. Do not make a course director cut you off, and do not leave a course director hanging without the next speaker by ending your talk thirty minutes early. This makes the CLE course look horrible and reflects on TCDLA, the course directors, and the speakers.

Embrace audio and visuals

The more interesting you make your presentation for your audience, the better your audience relates to your presentation. Audio clips and visuals are extremely important to help you better connect with your audience and keep them interested in your presentation.

II.

Speaking live versus Zoom A.

Thoughts on speaking live

Dress the part. One of the best ways to relax during a presentation is to know that your attire is appropriate for the audience. If you are speaking at South Padre Island or on a cruise ship or other similar venue and have been told that shorts and casual shirt are expected, then dress in that manner. In all other settings, however, dress as if you were in court. The sharper you look, the better the audience will relate to you and think you are worth listening to and following. If you look disheveled and improperly dressed, this will detract from your presence and effectiveness.

B.

B.

Course directors have enough to worry about during the CLE course without having a speaker show up five minutes before their presentation is scheduled to begin. Granted, delays happen, so keep the TCDLA staff or course director apprised of your ETA.

Thoughts on speaking on Zoom

Again, dress the part. Do not dress down merely because you are speaking on Zoom unless you have been told the dress is casual. Additionally, be cognizant of your background and minimize anything that will disrupt your presentation such as telephones, animals, and people walking or talking behind you.

III.

C.

Stay at seminar to speak to attendees

Attendees enjoy a CLE course more if they have a chance to speak to you after your presentation. If your schedule allows, plan on remaining at the seminar after your talk until the end of the day to allow for this interaction with the attendees. Remember, you are representing TCDLA, and we want attendees to keep coming to TCDLA seminars. The best way to make this happen is by interacting with the attendees.

Be courteous to the course directors and attendees A.

Travel early – do not worry your course director

Time your presentation – do not go over your time or stop too soon 2

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Skills Needed To Be A Good Speaker Michael C. Gross San Antonio, Texas

Know your subject matter

Ford

1

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Lagrone

MMA – 39.14

TCCP Art. 38.36 testimony in murder cases: 1. All facts surrounding the killing; 2. Previous relationship between D & comp; 3. All facts show D’s mind at the time of offense.

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Voice

Pace

Maximize your body language

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The proper mindset for cross “[D]efense counsel has no comparable obligation to ascertain or present the truth . . . If [defense counsel] can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth . . . more often than not, defense counsel will cross‐examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.” United States v. Wade, 388 U.S. 218 (1967) (White, J., dissenting in part and concurring in part).

Talk to your brothers and sisters

4

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Giving valuable information

Embrace audios and visuals

Speaking live

5

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Speaking on Zoom

Timing is everything

Be early

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Stay and talk with attendees

Enjoy your experience

7

Criminal Defense Lawyers Project

Trainer of Trainers July 7, 2021 310 Padre Boulevard South Padre Island, TX

Topic: Fans: Storytelling and Connecting with the Audience

Speaker:

Heather Barbieri 7000 Preston Rd. Ste 700 Plano, TX 75024-2573 (972) 424-1902 phone (972) 208-2100 fax hbarbieri@barbierilawfirm.com www.barbierilawfirm.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

It was a dark and stormy night…

In the courtroom

Fact Sheet

Fact Examples

It’s a Theme (Party!)

Finding The Characters

Protagonist

Antagonist

The Flawed Protagonist

Hero: The Jury.

Empower Them!

Point of View

Now You’re Hooked

• It was a bright cold day in April, and the clocks were striking thirteen – George Orwell, 1984

The Power of the Hook - Examples

Scene Setting

Unpacking The Scene

Story Building: But… So,

The Pixar Story Formula

Story Sequence

Questions?

Fact Examples

Making Your Hook Count

Criminal Defense Lawyers Project

Trainer of Trainers July 7, 2021 310 Padre Boulevard South Padre Island, TX

Topic: Jumbotron: Technology/Zooming/Power Points

Speaker:

Don Flanary

214 E Ashby Pl. San Antonio, TX 78212-5836 (210) 738-8383 phone (210) 728-3438 fax donflanary@hotmail.com www.flanarylawfirm.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Trainer of Trainers July 7, 2021 310 Padre Boulevard South Padre Island, TX

Topic: Lunch Presentation: Concession Stand: Paper Trails

Speaker:

Clay Steadman 612 Earl Garrett St. Kerrville, TX 78028-4535 (830) 257-5005 phone (830) 896-1563 fax CSteadman612@hotmail.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

The Resistance is Fueled by Fear

OPENING STATEMENTS Prepared by: Clay Steadman Law Offices of Jesko & Steadman 612 Earl Garrett Kerrville, Texas 78028

1|Page

Phone:

(830) 257-5005

Fax:

(830) 896-1563

Email:

jesksted@ktc.com

Introduction An opening statement can be intimidating and daunting, but it is your first opportunity to begin to explain to the jury your client’s version of the events, as alleged by the State. It is your first and only opportunity, at the beginning of the trial, to give your client’s opinion on the basic elements of the State’s case (ie: who, what, how, when, and why). The opening statement is a special time because this is where you begin to tell his story to the jury. This is the jury’s first introduction to your client on a personal level, and what you expect them to discover over the course of the trial.

The jury does not know what happened yet, but they will, and the purpose of your opening statement is to have them realize that they will want to listen to our version of the alleged events and ultimately discover what happened.

During Your Initial Preparation Ask Yourself:

1. What is your objective or goal in preparing an opening?

2. What should be your objective or goal in preparing an opening, and eventually what do you anticipate will be the theme of your closing statement?

These are two especially important questions you must ask your during your trial preparations, but these two questions may have two very distinctive and different answers. While your opening statement may remain relatively unchanged during your trial preparation, the answer to these two questions may change somewhat for 2|Page

your closing statement, based upon the testimony of the witnesses and the evidence which is admitted during trial.

However, it is important that during your opening statement you remain consistent, as this will allow a smooth transition during the progress of the case, which can connect the theme and tenor of your opening and closing statements. This is accomplished by utilizing a common theme or strategy throughout the case, that the jury can recognize, follow, and accept.

Problem: While you can develop a strategy that allows the jury to recognize and follow your theme, and the defense you intend to present, you do not know if it will be accepted.

Solution: 1. Start by telling a story about your client and the case facts that the jury can understand.

2. Tell this story regardless of the circumstances, based upon what you perceive to be the strengths of your defense.

3. Recognize and confront the weaknesses of the State’s case.

4. Recognize and explain the weaknesses you believe exist in your defense.

Common Problems We Face Impossible Facts If you find yourself in trial with what seem to be nothing but bad or impossible facts, confront them head on.

I personally never attempt to gloss over these types of situations, because that will undoubtedly come back to haunt you during the trial.

Possibly one of the most difficult issues to confront in a criminal case, is your client’s confession, or the existence of confirmed DNA or other undisputed physical evidence. You will have to address these issues, in some way during your opening, because the State will almost certainly make this the focus of their case. Unfortunately, the ostrich defense will not work, as there will nowhere to hide.

You are not the Best Storyteller This is a fact that is probably true for most of us that are trial attorneys.

Fact is some attorneys have this gift without practice or hard work, but the rest of us, must perfect this art over time.

You cannot become a better storyteller, unless you practice.

Do not let the fact that you feel that you cannot tell a story very well, keep you from trying.

We all can tell a story. Some of us old enough to remember, used to have to give oral book reports in middle school, 3|Page

or do a presentation in class (this is of course before the extensive use of computer presentations). Telling a story and connecting the theory being argued, is a matter of confidence and experience. Once you have given a couple of opening and closing statements, your confidence will increase, because you can see the connection you can make with the jury if you prepare.

The Need to Simplify Your Message Never talk down to a jury. Do not try to over complicate the message by using “big” words, or multifarious statements.

See I just did it by using the word multifarious. Have you ever heard anyone who is normal, other than an attorney, use the word multifarious?

Multifarious means: Having many different parts, elements, forms, etc.; numerous and varied; greatly diverse or manifold.

It is an adjective used to describe a set of circumstances. An example would be a multifarious question (ie: a compound question). But if I am trying to describe a set of circumstances to the jury, why not just simply state what I mean, “this situation has a lot of different moving parts”. Jurors make the sole determination of credibility in the courtroom regarding evidence and testimony, but make no mistake, they are measuring you, as you defend your client. If you talk down to a jury, or try to show them how smart you are, you risk alienating the jury at the outset of the trial.

Keep your message personal, and to the point. This will in turn allow you convey

a simple message to the jury. After all the simplest message we want to convey to every jury is “Not Guilty”. If it is a punishment case, that message is we want a probated sentence or a minimum prison sentence.

Keep your message simple by focusing on the theme itself.

Examples: Arguing the Burden of Proof.

Not the jury’s job to continue to investigate this case.

Avoid rushing to judgment.

Personalize your client.

Alleged victim is not reliable/credible.

Law Enforcement’s investigation was not conducted properly. This can also be tied into “rush to judgment” argument, where you make the point to the jury that they should not make the same mistake law enforcement has made.

These are just a few examples of how you keep the message simple by focusing on the theme itself. These examples can be first raised, in a very general sense, during voir dire, and incorporated given specific facts throughout your opening. As such, when preparing your case for trial, and developing the theme for your opening statement, you will need to incorporate part of this theme into your voir dire, in a very general sense, without referencing any specific facts of the case. You cannot discuss specific case facts of the case during voir dire, but you can ask questions regarding a prospective juror’s ability to make 4|Page

decisions or stand in judgment of another, and how they would conduct themselves in that regard.

Voir Dire Examples: Who here believes it is their job to further investigate or solve this crime?

Can you vote your conscience, not that of your neighbors? (ie: I have used the argument “one juror, one vote”).

Cautionary tale of jumping to conclusions.

If you will have to attack law enforcement’s investigation in your case, you need to see if any prospective jurors are more willing to believe law enforcement personnel, over the testimony of a lay witness (ie: explore their connection to law enforcement, their biases, and how they feel about law enforcement’s opinions on certain matters).

Basics of the Opening Statement

Establish an argument for those undisputed facts that strengthen your theory of defense.

Energize the Jury

Deflect facts that are obviously a weakness, in arguing your defensive theory.

You must energize your base and get some if not all of those jurors on your side, so they will listen to you, and recognize what you are attempting to explain during your opening.

Humanize your client. The jury may not like your client, but they need to understand him, before they can understand why we are arguing he did not commit this act, or what the justification is for his actions and behavior. This will energize your jury, because they may be able to relate on a personal level as to what your client was going through or experiencing at the time, he is alleged to have committed the crime for which he or she is on trial.

Remind the Jury Explain to the jury about why we are here and the circumstances surrounding this case.

There is a difference between offering an explanation and giving an excuse. I have found that when I open, I never want to offer an excuse for the circumstances surrounding the case, or my client’s actions, but offer the jury an explanation. An explanation is always a stronger argument because it allows for the fact that the State’s position and law enforcement’s actions or investigation is wrong or mistaken.

During your opening you should, if possible, distinguish and separate the case facts into categories, and consider the following issues: 5|Page

Explain the strength of those undisputed facts.

Argue, how a perceived weakness, or bad fact, is in fact not reliable, nor does its establishment alone constitute guilt beyond a reasonable doubt.

Note: In your opening without having heard any evidence, you may find yourself in a situation with several bad facts and I have found that relying on a burden of proof argument can be a useful method in explaining your position on such issues.

Repeat and Re-Rinse During your opening incorporate a common theme of reminding the jurors of defensive theory’s issues and facts, and what to look for as the case progresses. Again, simplify your message. As you start to explain these facts during opening, keep in mind the following: Why some facts are relevant and require close attention.

Why some facts are not important and do not merit consideration.

Get out ahead of these situations during your opening, such that the jury is aware of your argument.

Warn the Jury Warn the jury of the mechanics of the proceeding.

(The State gives its opening statement

first, and has the last word during closing statements)

The purpose of this, is to caution the jury that the State has the burden of proof, and what the consequences would be in this case, and our system of justice, if a jury chose to ignore this burden. It is acceptable to warn and caution the jury of what the consequences are, when they do not apply and follow the law, and the instructions they are given by the court.

In your opening explain to the jury why the State can go first and last, because they alone have the burden of proof, which is theirs alone to carry.

I will usually state my position in opening that the jury should decide the case based on the credible facts they hear, and not emotion. I sometimes explain to the jury that in our system of criminal justice it is easy to get caught up in the emotions surrounding the circumstances of the case, but that based on the credible facts they will hear, they will know and seek the truth in rendering a just decision.

Lay the Foundation and Connection for Your Defensive Theory/Theme During your opening lay the foundation for a strong connection between your opening and closing. You can establish this connection early by using and establishing a consistent defensive theme in your opening and utilizing that

6|Page

theme throughout your case and closing argument.

Establishing common statements or assertions.

Example: When discussing the “truth”, or what the truth is, during your opening, you may want to predicate your statement, by explaining to the jury that you believe at the conclusion of this case, the evidence will establish, that the truth is: (and use a bullet point list of facts that you are confident will be established that support your theory of defense). Thus, avoiding an objection from the State that your opening is argumentative because it assumes facts not in evidence and is conclusory. Truth be told I do not always remember to preface certain statements in my opening in this manner, and I do not particularly like to do qualify my opening in this manner. If I draw an objection I will generally apologize to the court and rephrase my statement with a simple qualification that I expect the evidence to show or demonstrate that ….., and I will usually offer an explanation tying in the burden of proof again and this is why you cannot jump to conclusions.

That type of response will sometimes put the State back on their heels as they have just put a spotlight on their burden and how they must build a case against my client.

Relevant Case Law Regarding Opening Statements Article 36.01 ((a) (5)), of the Texas Code of Criminal Procedure, provides that the defense may give an opening statement, and similarly Article 36.01 (b), provides that the defense’s opening statement may be made immediately after the State’s opening statement.

See Love v. State, 69 S.W.3d 678 (Tex. App. – Texarkana 2002, pet. ref’d).

A defendant is not entitled to make an opening statement, prior to the introduction of the State’s evidence, unless the State (prosecution), has in fact made an opening statement. See Boston v. State, 871 S.W. 2d 752 (Tex. Cr. App. 1994).

In a situation when the State does not make an opening statement, the defendant is still entitled to make an opening statement upon the conclusion of the State’s evidence or case. See Moore v. State, 868 S.W.2d 787 (Tex. Cr. App. 1993).

When a defendant makes a timely request to exercise his statutory right to make an opening statement before the jury, it is error for the trial court to deny the defendant’s request. See Espinosa v. State, 29 S.W.3d 257 (Tex. App. – Houston [14th Dist.] 2000, pet. ref’d).

You need to keep these cases handy, if you are in a jurisdiction, where the court, may otherwise attempt to influence or limit your right to an opening statement. I personally, have never seen a case where the State has 7|Page

not made an opening statement, but I know these circumstances do exist.

[Practice Tip] If you waive your opening statement at the commencement of the trial, always reserve your right to make an opening statement upon the conclusion of the State’s case.

Example: If I have what amounts to a punishment case, strategically, I will sometimes waive my opening statement at the commencement of the trial but reserve my right to give an opening statement at the conclusion of the State’s case.

This is a trial strategy, as I do not want to unnecessarily “open the door” regarding any potential extraneous offenses, prior to the introduction of the State’s evidence.

[Practice Tip] Always have a theory and goal for your opening statement, and make sure that you implement that theory at the beginning of the case, or at the very least the conclusion of the State’s case.

It is rare where I will waive and reserve my opening statement, because part of conveying my client’s story to the jury, is to stand up and reject the State’s allegations. When a bully punches you in the nose, you do not run to the teacher, you pick yourself up, dust yourself off, and whoop their ass.

Limitations on Opening Statements: You need to review Article 36.01 (a) of the Texas Code of Criminal Procedure in preparing your opening statement, as this code provision expressly limits what

you can state during opening. I have this code provision available at trial just in case I draw an objection in opening my opening statement. Upon an objection being made, I generally approach the bench, and argue to the court why my statements are not objectionable. Specifically, Article 36.01 ((a) (5)), provides that “The nature of the defenses relied upon and the facts expected to be proved in support shall be stated by defendant’s counsel.”

Note: This can give you a lot of discretion in what to assert in an opening statement, because of how broad we can interpret the language to be applied to the nature of the defenses and facts expected to be proved. If you keep your opening statement in context in asserting those issues, it should not draw an objection.

I do not believe you will draw many objections in opening statement, unless you go into an area of evidence previously ruled upon and excluded by the court, or if you allow your opening statement to become too argumentative and conclusory.

State’s Perspective: The courts have held that, “an opening statement in a criminal case is an outline of the facts that the prosecution in good faith expects to prove. Parra v.

State, 935 S.W.2d 862 (Tex. App. – Texarkana 1996, pet. ref’d).

[Practice Tip] If the State starts to make a conclusory argument during its opening, or references testimony or facts, which have been previously excluded or may 8|Page

be ruled inadmissible by the trial court (ie: subject to a motion in limine), you need to: (1) object and approach the bench, and (2) request that the trial court give an instruction to the jury to disregard the State’s previous statement, and (3) request an immediate mistrial. You will almost certainly loose this objection, but you need to make sure it is made to preserve this issue for appellate review.

The defense is not entitled to include in any opening statement matters which are not legal defenses to the charged offense. See Boston v. State, 871 S.W. 2d 752 (Tex. Cr. App. 1994).

Be advised that Article 36 of the Texas Code of Criminal Procedure, does not apply to punishment proceedings. See Generally Penry v. State, 903 S.W. 2d 715 (Tex. Cr. App. 1995); See Love v.

State, 69 S.W.3d 678 (Tex. App. – Texarkana 2002, pet. ref’d). As such, there is no provision in the Texas Code of Criminal Procedure which requires the trial court to allow that opening statements be made at the beginning of the punishment phase of the trial. See Love v. State, 69 S.W.3d 678 (Tex. App. – Texarkana 2002, pet. ref’d).

[Practice Tip] If you are not allowed to make an opening statement at the commencement of the punishment proceedings, and it is your desire to make such a statement, I would immediately, (1) object, and (2) if possible, have a written objection and motion, requesting that you be allowed to make an opening statement, ready to be filed. The objection and motion

should articulate the necessity of your request, and what you expect the sum and substance of your opening statement to reference. You should further argue that the trial court, by not allowing you to make such an opening statement on your client’s behalf, the trial court is prejudicing your client’s right to a fair and impartial trial, regarding the punishment phase, and this is a violation of his right to due process and due course of law. These objections will not require the trial court to reverse its position, because Article 37.07 of the Texas Code of Criminal Procedure, which pertains to the punishment phase of trial, does not require a court to allow opening statements to be made, however, it should be enough to preserve this issue for appellate review. I have never had a trial court deny me the right to make an opening statement at the commencement of the punishment phase of a trial.

[Additional Case Law Concerns] The defendant does not have the right to make an opening statement in a case where he will not present any witnesses or evidence and is merely arguing that he is relying on his plea of “not guilty”.

Donnell v. State, 191 S.W. 3d 864 (Tex. App. – Waco 2006, no pet.); See Norton v. State, 564 2d 714 (Tex. Cr. App. 1978).

In a case where the defendant makes an opening statement immediately after the State’s opening statement, the State may reasonably rely on this defensive opening statement as to what evidence the defense intends to present and rebut this anticipated defensive 9|Page

evidence during its case-in-chief as opposed to waiting until rebuttal. See Generally Bass v. State, 270 S.W.3d 557 (Tex. Cr. App. 2008). In Bass, the trial court ruled that the defendant had opened the door to the presentation of an extraneous offense during defendant’s opening statement. Bass v.

State, 270 S.W.3d 557 (Tex. Cr. App. 2008).

Note: There is the danger in getting too aggressive in an opening statement because you can “open the door” regarding other issues, such as extraneous offenses, which may otherwise be inadmissible. It has been my experience during an opening statement, that I can relate my theory of the case, to the jury without delving into certain facts, which may allow the State to reference certain facts, which may be otherwise inadmissible.

Factors to Consider

Support

Wasting Time

In telling your client’s story, find a way to pick up some momentum and support for your client. Seize on any opportunity or fact that will make the jury want to support your client.

If you are wasting time, you are not just wasting your time, you are wasting the jury’s time. Jurors do not want to listen to you, just to hear you talk. You need to be considerate of their time, as they have a family and a job to get back too.

Your time is never more valuable than the jury’s time.

Do not explain to the jury what an opening statement is or its purpose. If you must explain yourself, you generally have lost the jury already, and they do not want to listen to your client’s story.

Don’t’ try waste time explaining that nothing I or the State says, is evidence, as the trial court will notify the jury of that fact. You do not want to point this issue out, because it also may diminish your standing in the eyes of the jury.

Remember, you represent a living, breathing, human being. Your client’s story is one that must be told, and you establishing a good relationship with the jury is critical in telling that story.

Goals Comprehension Simplify your story, such that the jury comprehends and understands what you are trying to explain.

Credibility Establish up front the importance of credibility and illustrate to the jury how you are going to help them identify and establish that your client’s story is credible.

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Impact The telling of your client’s story in opening statement, needs to have impact. Your opening statement needs to leave a lasting impression, so much so it will cause the jury to refer to it, during the course of the trial.

Using Analogies Why: They work for two simple reasons: (1) A good story requires the attention of the audience, because they do not want to miss any information. Simply put, the audience, which in this case is the jury, wants to find out what happened.

(2) An analogy can challenge the jury to test your defensive theory against the circumstances and evidence as the case progresses. The jury then can test your version of events, as reference in your client’s story against the analogy you present.

Analogies Can Bridge Communication Gaps/Lapses: A well-timed analogy during your opening statement can assist you in solving any communication problems that may come up during the case, regarding your arguments or contentions, concerning a complicated

piece of evidence or testimony.

Specifically, by using an analogy in your opening statement you can sometimes make a rather complicated issue, seem much easier for the jury to understand as the case progresses. A good example of this is how we deal with and explain circumstantial evidence during trial. Circumstantial evidence can be a complicated issue to explain to a jury.

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Effective Use of Opening and Closing Statements in Trial At the beginning of this paper, I suggested that there were two especially important, but different questions you needed to ask yourself in preparing your opening statement.

1. What is your objective or goal in preparing an opening, and eventually what will be your closing statement?

2. What should be your objective or goal in preparing an opening, and eventually what will be your closing statement?

The only way you can start to answer these questions, is to know your case and the State’s case, better than the State knows their case.

This requires: (1) great attention to detail, and (2) conducting a thorough investigation of the facts.

Some trial strategies and themes are easier to develop, based upon case facts and the witnesses involved. Your objective and goal, when we start out in preparing your case, is to tell a story the jury can follow, and for the jury to recognize the importance, or in some cases the unimportance, of the issues and facts, which make up the case.

Note: Think about this fact, twelve randomly selected people, have several days or weeks to get to know your client, and the facts and circumstances surrounding his case, and make a decision which can 12 | P a g e

affect the rest of his life. Not only is that a situation which normally would scare and worry any defendant, it is responsibility which should weigh heavily on our minds, as well.

Example: We have a small window of opportunity during trial, to cram in all the necessary information, which would not fit through a fifty-foot window of knowledge. This is sometimes a distraction, and can hinder our ability to make a point, but it is what makes this a human process, and allows us to further develop that personal connection between our client and the jury.

Checklist for Creating an Effective Opening Know and investigate your case.

Develop a theme and strategy that is consistent between your opening and closing statements.

Tell a story the jury can recognize and follow.

In your opening it is imperative you are honest with the jury and can establish your client’s vulnerability in this process.

This is a human process, and not a cookie cutter approach to jurisprudence.

Tell a story, given the circumstances of the case, the jury can and will accept.

Basic Concepts of Developing an Opening

Breathing Life Into Your Client’s Story

All Stories ---------

You must ----------

Have a beginning and ending. The story will start in the opening statement and will conclude in the closing statement. There must be a connection throughout the trial process that ties together the opening statement, the evidence, and the closing statement.

Believe

There is always a setting for our story, which involves a location, and time and place. During your opening you need to paint this picture for the jury and illustrate how the setting may influence their interpretation of the facts and ultimate outcome.

There are characters. This is a human process, and there will always be a cast of characters. During your opening it is your job to define and explain the role the various characters play, their importance to the facts surrounding the case, and whether they can be trusted.

An event has taken place. Recognize that if you are in trial, something has occurred, which has placed your client in this set of circumstances. Whether it is a case of mistaken identity, false accusation, misunderstanding, or some other situation, something has occurred.

When you are making your opening statement, the transition and connection between the how and the why, as it concerns your client and his involvement, is critical to the beginning of their story, and a story the jury can follow and accept.

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You must believe in what you are arguing during opening. If you do not believe in your opening and the story being told about your client, the jury certainly will not believe and accept your client’s story.

Stress Reliability You must infuse the jury with confidence in you and your client’s story, by creating a personal connection between the jury and your client. The jury needs to have a sense of reliability about your client, and that factor has everything to do with being able to relate and connect with your client and his life experiences on a personal level.

Have the Jury Identify With Your Client In your opening the jury needs to be able to identify with your client.

Remember, you are telling your client’s story, and as such, the story must be told so that a jury can interpret and consider the evidence from your client’s perspective. Perception is everything in a trial, and if the jury can identify with your client and his situation, they will likely perceive the circumstances surrounding the case from his point of view. This makes it that much easier for the jury to follow and recognize the story and accept the defendant’s version of events.

12 Quick Tips for a Better Opening 1. Be sincere, and respectful to the trial court and jury.

2. Make eye contact with the jury.

3. Find a way to connect with the jury allowing them to identify with your client as you tell his/her story.

4. Always refer to your client by his first name, or his last name, such as, Mr. Smith.

This allows you to personalize your client with the jury. The State will almost always refer to your client as the perpetrator, defendant, or the accused, so it is imperative that you refer to him by name.

5. Realize the importance of being honest, and make sure the jury understands that your client is here today facing these false allegations head on, and offering his explanation, not an excuse, of his involvement, if any, and the circumstances of the case.

6. Focus on Who, What, Where, When, How and Why when developing your opening statement, and weave this argument throughout your defensive strategy. This focus will allow you to make a consistent statement that the jury will Recognize, Follow and Accept.

7. It is okay to use notes or an outline, especially in a complicated case. However, you should never just read from your notes or outline because you lose eye contact with the jury, and you do not want to do anything which may diminish your standing with the jury. A credible and reliable person makes and maintains eye contact, and good body posture.

8. Focus on what you expect to be revealed during the trial of the case, reminding the jurors to look for the strengths of your defensive strategy.

9. Leave a clear path and logical connection from your opening statement to your closing statement, so the jury will follow your argument.

10. The State will go first, so do not react to the State’s story, explain, and tell your client’s story. Be respectful to the State, to the extent possible. Do not roll your eyes or get flamboyant with your body language. Jurors are not going to appreciate or like what they consider a sign of disrespect to the tribunal/court.

11. In a punishment case, it is often necessary to accept responsibility for the committed act, during your opening statement. This can often be a difficult set of circumstances, because there is usually a clear victim, and someone that has suffered at the hands of your client. Honesty is of paramount importance at this juncture, as the jury must understand your client’s set of circumstances and what has led him or her to this point, in their life.

12. Admit your fears and your client’s fears regarding this process. The jury should appreciate your candid nature and your client will hopefully come across as a genuine individual. The premise of this argument and the story to be told, is that the jury is here today to seek and find the truth.

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7/7/2021

How to Write an Effective Paper SPI 2021

• • • • • •

Clay Steadman Law Offices of Jesko & Steadman 612 Earl Garrett Kerrville, Texas 78028 Ph.: (830) 257‐5005 Email: csteadman612@hotmail.com

The Past and Looking Forward to the Future

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Remember Law School • You were constantly writing whether it was in a notebook, on a computer, or in a Blue Book • Your writing was intended to engage and persuade

This is your

Target Audience

Because Your Audience is a Criminal Defense Attorney An Effective Paper is Critical in Your Preparation and Presentation

An Effective Paper Allows You More Freedom in Your Presentation

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Writing Has Always Been Our Most Universal Form of Communication

What Does Good Writing Look Like?

• Good Writing is a result of Good Thinking • Improve your thought process you will improve your writing • Good Writing necessarily improves your thinking • Re‐write and edit multiple times • Being perfect is not your goal • Being thorough and accurate is the goal

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• You Will Get Feedback on Your Paper and Presentation • There is always someone determined to criticize your work • Don’t give them a reason

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How Do You Think?

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CREATIVE THINKING

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AN EFFECTIVE PAPER REQUIRES BOTH SIDES OF YOUR BRAIN

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Narrative Writing

Should be familiar because it is generally how we argue to the jury

Format Single Versus Double Columns

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Font

• Personal Choice

• 12 Point Font is preferred • Garamond, Calibri, Times New Roman, Serif, and Courier are the most frequently used • Your Font selection should be something the reader has seen before

NO

• You want your reader comfortable and not wondering why you chose that particular Font

Proper Legal Citations are Absolutely Critical for an Effective Paper

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• Don’t Repeat Yourself • You will Lose Your Audience

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Keep it Simple

Less is More & You Will Keep the Reader Engaged

That Introductory Paragraph

JUST DIVE IN

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Introductory Paragraph

Proofread and Edit Numerous Times Get a Fresh Set of Eyes to Help

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VOICE ARTICLE

TURNING THAT PAPER INTO A

ARTICLE MUST BE: CONCISE, LOGICAL & EASY TO READ

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Criminal Defense Lawyers Project

Trainer of Trainers July 7, 2021 310 Padre Boulevard South Padre Island, TX

Topic: Score: Feedback & How to Do Better

Speaker:

Monique Sparks

1923 Blodgett St. Houston, TX 77004-5111 (713) 520-7000 phone (713) 520-7013 fax monique@thesparkslawfirm.com www.thesparkslawfirm.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

TOP 10 SPEAKING COMPLAINTS BY: Monique Sparks The Sparks Law Firm 1923 Blodgett Houston, Texas 77004 Office: 713-520-7000 Monique@thesparkslawfirm.com www.thesparkslawfirm.com

Top 10 Speaking Complaints

1) WRITTEN MATERIALS After reviewing hundreds of seminars evaluations, the most complained about issue was that the speaker did not provide a written paper. The requirement of a written paper creates two particular challenges. First, as the speaker you are busy. You have pretrial motions to write, law to read and cases to try. It is hard to carve out time to stop and write a paper that is not tied to a client or case.

Second, the issue that is created for the attendant is similar. The attendant is busy as well. They agree the seminar topic is good and think it will be a great idea to attend but have a million other things on their mind. Just like you, the attendee is thinking about deadlines, pretrial motions, trials, their case load etc. The attendee wants to hear a great presentation, but also wants the ease of having your paper to refer to in case they may need the information you provide.

In fact, research shows that within one hour, if nothing is done with new information, most people will have forgotten about 50% of what they learned. After 24 hours, this will be 70%, and if a week passes without that information being used, up to 90% of it could be lost. Whether reading or listening the brain processes information the same way. However, for more complex topics, the individual must put more effort into the process, which favors reading. A paper allows you to quickly go back and read what you did not understand, whereas live speech does not provide the same opportunity. For live streaming events or scenarios in which the listener has less control of the audio, a person must take notes to review the information.

Taking good notes, however, can be difficult to do as the presentation moves along.

This is why a written companion is critical.

The enemy of the speaker is procrastination. Here are a few tips in the battle against procrastination.

• Forgive yourself for procrastinating in the past. Studies show that selfforgiveness can help you to feel more positive about yourself and reduce the likelihood of procrastination in the future.

• Commit to the task. Focus on doing, not avoiding. Write down the tasks that you need to complete and specify a time for doing them. This will help you to proactively tackle your work.

Curve of Forgetting, University of Waterloo, https://uwaterloo.ca/campus-wellness/curveforgetting (last accessed Jun. 10, 2021).1

• Promise yourself a reward. If you complete a difficult task on time, reward yourself with a treat, such as a slice of cake or a coffee from your favorite coffee shop. And make sure you notice how good it feels to finish things!

• Ask someone to check up on you. Peer pressure works! This is the principle behind self-help groups. If you do not have anyone to ask, there are many online tools that can help you to self-monitor.

• Act as you go. Tackle tasks as soon as they arise, rather than letting them build up over another day.

• Rephrase your internal dialogue. The phrases "need to" and "have to," for example, imply that you have no choice in what you do. This can make you feel disempowered and might even result in self-sabotage . However, saying, "I choose to," implies that you own a project, and can make you feel more in control of your workload.

• Minimize distractions. Turn off your email and social media and avoid sitting anywhere near a television while you work!

• Aim to "eat an elephant beetle" first thing, every day! Get those tasks that you find least pleasant out of the way early. This will give you the rest of the day to concentrate on work that you find more enjoyable.

As a speaker there are some things that we can do to make sure we get our papers complete. The first thing as a speaker we can do is add the paper deadline to our hearing/ trial list to make it priority. If writing does not come easy, break down the paper into parts. Once a week write one page of your paper to make the final paper less overwhelming. If you are concerned about edits, have a colleague or friend read for input and clarity. Even if you do not make the deadline, turn the paper in anyway. If you must submit with an apology and little humble pie, so be it. Most will understand.

2) TALKING TOO FAST Talking too fast made second on the list of speaking ten commandments. This is one of things I struggle with most. I get excited, flustered, or feel as if my audience is bored and before I know it, I am speaking 100 miles per hour. Psychology today tells us the four common reasons why people talk fast are as follows:

Curve of Forgetting, University of Waterloo, https://uwaterloo.ca/campus-wellness/curveforgetting (last accessed Jun. 10, 2021).1

1. Some people talk fast because they are thinking “a mile a minute” and are trying to keep up with their own thoughts. This is particularly true with many extroverts, who tend to “think as they speak” rather than “think before they speak.”

2. Some individuals speak quickly out of nervousness and anxiety—they increase their rate in order to get their communication “over with,” but at the expense of clarity and diction, resulting in mumbling or jumbled speech. This phenomenon may apply to introverts as well as extroverts.

3. Certain people naturally speak fast because they were socially conditioned to do so from a young age. For example, a child with rambunctious and highly vocal siblings may feel constant pressure to “speak quickly and speak right away” in order to get a word in and receive attention.

4. For those who speak English as a second or third language, if the rate of their native tongue is inherently faster than English, they may inadvertently speak English at the rate of their birth language, resulting in fast English articulation.

Although it seems like an insurmountable task, speaking quickly can be overcome.

The following tips or suggestions can assist in slowing down your speech.

• Monitor your own speaking rate. When you notice yourself speaking “a mile a minute,” simply pause or slow down. Say to yourself or to the listener: “I’m speaking too fast. Let me slow down.”

• Ask for reminders. If you know speaking fast is a habit of yours, it is perfectly okay to let people around you know so and give them permission to tell you when you are speaking too quickly. Say something to the effect of: “I am a fast talker. Feel free to let me know, and I’ll slow down.”

• Use bottled water as a prop. A simple “trick” to help get around speaking too fast is to have a bottled water next to you as you speak and drink from it regularly to create natural pauses. This works in social conversations, professional meetings, as well as public speaking situations.

• Build pauses into formal communication. If you are delivering a stand-up presentation or speaking at a group meeting, create cues on presentation slides or in meeting notes to remind yourself to pause. One easy way to do so is simply to stop between key points and ask the listeners if they have any questions.

Curve of Forgetting, University of Waterloo, https://uwaterloo.ca/campus-wellness/curveforgetting (last accessed Jun. 10, 2021).1

3) READING FROM THE SLIDES Number three on the list, is something we have all either done or witnessed.

There are many reasons that people read straight from slides. Whatever the reason, let us all pledge not to do it. Instead for reading from your slide or bullet points use fewer words or more graphic stories to get your point across. Show instead of telling.

While you are telling, have a conversation with your audience. Look at them in their eyes and connect. After a year of social distance, people appreciate good oldfashioned face to face communication. I think we can all agree we are zoomed out and want human interaction.

4) POWER POINT PRESENTATION The fourth complaint is the quality of the power point presentations. There are a variety of complaints with power point presentations from them being too wordy, too small or just too basic. The list goes on and on. One of the reasons most power points are not that extravagant, is because most of us do not consider ourselves tech savvy. Here a few tips that all of us can implement to assist with our power point presentations.

• Present one idea per slides: slides are free, do not worry about the number of slides you have, less content per slide will increase your effectiveness • Instead of bullets use graphs or visual aids: A picture is worth a thousand words, a picture helps the audience understand the concept much faster • Use Pictures as your background • Use whitespace to improve readability • Eliminate unnecessary text

5) WAR STORY As lawyers, we learn through stories. As defense lawyers, we are often fighting uphill battles. When we finally get an opportunity to speak to our colleagues of course we want to tell them about our wins!! Our wins are what carry us to the Curve of Forgetting, University of Waterloo, https://uwaterloo.ca/campus-wellness/curveforgetting (last accessed Jun. 10, 2021).1

next fight. However, sometimes we get so caught up in our wins it can come across to the audience as self-serving and sometimes obnoxious. Instead of telling war stories, maybe a better option would be to give fact patterns. This method brings the attendee into the story and makes your presentation less of a spectator’s sport.

6) NO APPLLICATION Application is a huge part of learning. Just hearing something but not being able to apply it makes it more likely that your listeners will not walk away with any retained information. As stated above, if you provide legal rules or principles- you also want to give the audience an opportunity to apply what they have learned.

Providing examples, and fact patterns gives the attendee an opportunity to be active listeners.

7) NO DISCUSSION We are lawyers and of course we like to talk, discuss, and analyze. When we give a presentation to other lawyers there is a high likelihood that your audience will have questions. As speakers we must make time for questions or ask audience questions that will be thought provoking. This will assist both the audience and the speakers. Questions and discussion create an opportunity for everyone to learn.

8) NO BREAK DOWN/ NOT MAKE PLAIN Depending on the topic, the level of complexity changes. As lawyers something we are always tasked with is making something very complicated, less so. We have to do with the jurors and we need to do it as speakers. Your opportunity to speak is not an opportunity to show how smart you are, but more of an opportunity to raise the intelligence of your army- the defense bar. In short, make it plain. Use everyday examples that everyone will get. Not scholarly examples that will exclude people in the room.

Curve of Forgetting, University of Waterloo, https://uwaterloo.ca/campus-wellness/curveforgetting (last accessed Jun. 10, 2021).1

9) DRY Seminars can be informative, but also can be long and boring. How can we change that? We can ensure that whatever we speak on, we speak with enthusiasm and passion. No one would give a monotone opening or closing. The benchmark should be the same with speaking engagements. Make the topic interesting add some personality to your topic. Keep the attendee’s attention.

10) ADMIT YOUR MISTAKES Finally, admit your past mistakes. I remember as a young lawyer thinking that some of my colleagues were Law Gods. They won every case, every motion and got every case dismissed with a letter of apology from the state. After 15 years, I realize that is not the case. I need to be able to go my colleagues and say I messed up, but this is not what I learned. Unfortunately, I learn more from my mistakes and learn more from my colleagues that share their mistakes. We are a part of the same tribe; be vulnerable, it will encourage someone else to keep trying!!

Curve of Forgetting, University of Waterloo, https://uwaterloo.ca/campus-wellness/curveforgetting (last accessed Jun. 10, 2021).1

T OP 10 SPEAKING COMPLAINTS MONIQUE C. SPARKS THE SPARKS LAW FIRM TCDLA ORIENTATION - SOUTH PADRE ISLAND, TX JULY 10, 2021

1 . WRITTEN MATERIALS

Critical companion to oral presentation

Supports comprehension of complex material

Helps prepare speaker or presenter on topic

Important touch point after conferences

Requires time set aside to prepare

STEPS TO AVOID PROCRASTINATION

START FRESH. FORGIVE YOURSELF

COMMIT TO THE TASK

REWARD SYSTEM

ACCOUNTABILITY

ACT AS YOU GO

REFRAME INTERNAL DIALOGUE

MINIMIZE DISTRACTIONS

BEGIN WITH THE HARD TASK

2. TALKING TOO FAST There are several reasons why we speak too fast while presenting.

This can impact the way the listener comprehends the material.

WE OFTEN THINK AS WE SPEAK

ENGLISH AS A SECOND LANGUAGE

NATURALLY FAST RATE OF SPEECH

NERVOUS ENERGY OR ANXIETY

Monitor Your Rate

Ask for Reminders

Use Bottled Water

Build in Pauses

3. READING FROM YOUR SLIDES ES

4. QUALITY OF PRESENTATION ON

Photos As P B Background

Inspire & Be Original Plan & Outline

Share Stories Use Whitespace

5. WAR STORIES

6. LACK OF APPLICATION Use fact patterns to help audience apply what was learned!

7. NO DISCUSSION

Engage with audience

Create time for questions

Use discussion as opportunity for learning

8. UNPACKING MATERIAL NOT ABOUT YOU IMPROVE DEFENSE BAR USE COMMON EXAMPLES

9. DRY PRESENTATION

ENTHUSIASM

NO MONOTONE

INTERESTING TOPIC

GRABS ATTENTION

10. ADMIT YOUR MISTAKES

QUEESTIONS? MONIQUE SPARKS THE SPARKS LAW FIRM 1923 Blodgett Street, Houston, Texas 77004

Office Phone: 713-520-7000 monique@thesparkslawfirm.com www.thesparkslawfirm.com

TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA

OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases.

From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education.

TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas.

TCDLA continues to foster these relationships and develop additional affiliations.

As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

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TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers.

New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments.

With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form).

Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported.

The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission.

Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements.

Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county.

As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process.

Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate.

The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study.

Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases.

While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases.

The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions.

To learn more about this research please visit the study website at http://texaswcl.tamu.edu.

WWW.TIDC.TEXAS.GOV

MARCH 2014

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Texas Criminal Defense Lawyers Educational Institute Make a Difference Support an Attorney The Texas Criminal Defense Lawyers Education Institute (TCDLEI) is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staff. Your generous tax-deductible contribution to the Texas Criminal Defense Lawyers Educational Institute can be applied in several ways to fund a variety of legal and educational services for our membership.

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