What I Heard at ACTL’s Trial Advocacy Program in SF: Better Crosses, Stronger Voices, Real Concern
I’ve been writing about the American College of Trial Lawyers’ Trial Advocacy Program since it launched in 2022—back when there was no hesitation in calling it the Diversity Trial Advocacy Program.
It was inspiring and informative to take in a portion of the weekend-long program in-person for the first time this past Friday with its 7th iteration held at the San Francisco offices of Morrison & Foerster.
For anyone who doesn’t know, the College is an invitation-only group for trial lawyers with at least 15 years of trial practice capped at 1% of the total lawyer population per state or province. (ACTL’s “America” extends to Canada.)
Making the trip across the Bay was inspiring because Fellows from the College flew into San Francisco on their own dime from far-flung locales including Toronto, Columbus, Ohio and New York to volunteer their time to the cause of helping train up the next generation of courtroom advocates. In this instance, it was a group of about 50 lawyers, the majority practicing in public interest and government roles.
Sitting in on the proceedings was informative because in a crowd like that one, you can’t help but pick up some useful nuggets about trial practice. Ciresi Conlin name partner Jan Conlin from Minneapolis talked about avoiding letting your voice fall off at the end of questions during cross-examination to try to maintain control of a witness. She said improv comedy classes helped her with that technique. White-collar defense lawyer Dave Thomas of Taft Stettinius & Hollister in Columbus told participants to think of the lawyer’s role in direct examination as that of a conductor in an orchestra controlling the timing and rhythm of how testimony comes in during an examination. Jeff Fisher of Farella Braun + Martel echoed a theme repeated in the morning, encouraging lawyers to be themselves during cross-examination. He talked about colleagues noting his “disappointed dad” face after he impeached a witness for a second time on the same issues during a trial last fall. “I’m a dad and I have a good disappointed dad face,” said Fisher before moving on to a demonstration on direct and cross-examination.
This program started out with a pretty simple premise. Our society is diverse. The courtrooms where cases are tried are diverse. The people trying cases in those courtrooms should reflect that diversity. Even if the word “diversity” has been dropped from the program’s title, it’s clear that that founding spirit remains. But as someone who has been writing about the College’s efforts on this front for some time, there was an undercurrent of concern as well.
Retired Latham & Watkins partner Tom Heiden, the driving force behind the program, said during the opening of Friday’s proceedings that the Fellows gathered to teach and coach over the weekend had committed themselves to a “rules-based, laws-based, principle-based system.” Heiden, who stressed that he wasn’t speaking for Latham or the College, said that he sees a system today “under immense stress and immense strain.” He pointed to remarks last week by former Fourth Circuit Chief Judge Michael Luttig, who said that the separation of powers has been collapsed by “brute force.”
“In thinking about that, it may be that the trial courts and the advocates in those trial courts at this moment in time are our last best hope to sustain that 250-year experiment in democracy,” Heiden said. “You are out there in those courts,” he said.
The College has already announced plans for an 8th edition of the program to be held at Latham’s Chicago office in August.
