How to Win at Trial: What Can Be Learned From Recent Verdicts

Synopsis

This presentation features five of the most recognized white collar defense attorneys in the country, moderated by Judge John Gleeson from the Eastern District of New York. The panel includes Barry Berke on managing the government's star witness. Susan Brune describes how E-mail is changing trial preparation. Paul Shechtman outlines the merits of the bench trial in white collar cases. Reid Weingarten reveals his strategy for moving quickly to trial, and Theodore Wells Jr. discusses how he prepares opening and closing statements; delivering clarity to the jury in spite of the burden of having to, "deal with a doggone witness."



Outline

I. Winning At Trial 
    A. Witnesses and Testimony 
        1. Introduction 
        2. The Protagonist Confronts the Antagonist 
        3. Impeaching the Witness and the Government 
        4. Control of the Government’s Star Witness 
    B. Preparing for Trial 
        1. It’s All There in the Emails 
        2. Email Has Changed How We Prepare for Trial 
        3. Witnesses Have Their Emails Memorized 
    C. Bench Trials Versus a Jury 
        1. Why Did You Opt for a Bench Trial? 
        2. Juries and White Collar Cases 
    D. The Right to a Speedy Trial 
        1. Prosecutors Don’t Think We’re Going to Trial 
        2. Life in a Post-Stevens World 
        3. A Word of Caution About Speedy Trials 
    E. Preparing For Trial in the Era of Guidelines  
        1. Riding Your Two Best Horses
        2. The Jury Decides, Then Fits the Facts to the Framework         
        3. Opening Statements and Summation 
        4. The View From the Bench 
        5. Life After Booker 
    F. Jury Consultants 
        1. In the Collective, Jurors Understand Everything



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The years following the Civil War were tumultuous ones for New York City, offering many opportunities to the dishonest. Unsavory politicians and errant members of the bench and bar were among those who took advantage of those troubled times. In December 1869, a letter was circulated among some of the city’s lawyers addressing those improprieties. It called for the creation of a new bar association to “sustain the profession in its proper position in the community, and thereby enable it ... to promote the interests of the public ....” More than 200 lawyers responded by signing a declaration of organization and in 1870 The Association of the Bar of the City of New York was born. The young organization quickly made its presence felt. Among its first activities was a campaign to defeat corrupt politicians and judges at the polls and to establish standards of conduct for those in the legal profession.

The association continues to work at political, legal and social reform, and maintaining high ethical standards for the legal profession. The association also continues to implement innovative means by which the disadvantaged may be helped. Much of this work is accomplished through the Association's more than 160 committees, each charged to consider a specific area of law or the profession.

The association has grown to more than 23,000 members. To serve them, the association strives to move ahead in many areas. The library is the largest member-funded law library in the country, and provides members with a “gateway” to online services, including free use of LexisNexis and WestLaw, while continuing to provide more traditional library services. The Small Law Firm Center, Career Management Program and other benefits are constantly evolving to serve members’ needs. More than 150 continuing legal education programs are presented annually.

The public good remains one of the association’s highest priorities. The Legal Referral Service, jointly sponsored by the association and the New York County Lawyers’ Association, provides an array of services directly aimed at serving the needs of the public. The City Bar Justice Center identifies the most pressing legal concerns of New York’s neediest and uses novel approaches to address them, often involving community participation.

 





Speakers / Authors:

Photo of Barry H. Berke

Bary H. Berke
Kramer Levin Naftalis & Frankel LLP

Barry H. Berke is a partner in the firm of Kramer Levin Naftalis & Frankel LLP and co-chair of the firm's White Collar Defense and SEC Regulatory practice. Mr. Berke has represented individuals and corporations in many sensitive and high-profile investigations and proceedings, and has tried dozens of cases before juries and judges. He has handled major matters involving all aspects of white collar crime, including allegations of securities, accounting and bank fraud, RICO and FCPA violations, tax offenses, bribery, bid-rigging, and embezzlement. Mr. Berke also has represented prominent corporations and individuals in class action and other complex litigation.

Mr. Berke is a fellow of the American College of Trial Lawyers. He was selected in 2010 as one of the “Top 10 Lawyers in New York” by Super Lawyers, and was chosen as one of the “Top 100” by Super Lawyers from 2008-2011. The National Law Journal profiled Mr. Berke as part of a special report on five winning trial attorneys for 2011. He was named to Law360's 2011 MVP list, one of only four named nationally in the area of white collar. He has been recognized by Best Lawyers in America from 2007 to 2012, Chambers USA (2008-2011), Legal 500 U.S. (2009-2011) and Lawdragon 3000 (2011) as one of the leading white-collar criminal defense lawyers and commercial litigators in the United States. Legal 500 in 2011 cited Mr. Berke as “one of the most high-profile and sought after white-collar attorneys in New York.” Benchmark Litigation (2009-2012) has consistently named him a litigation star, citing him “for his white collar and securities achievements” and as “the go-to guy for white collar trial work.” Chambers USA in 2010 designated Mr. Berke as a leading trial lawyer and described him as "a savvy trial lawyer with a terrific track record" and “a tenacious advocate and formidable adversary." In 2007 he was profiled in The American Lawyer's "Young Litigators Fab Fifty" as one of the 50 leading litigation attorneys in the United States under the age of 45.

Mr. Berke is co-author of the textbook The Practice of Federal Criminal Law: Prosecution and Defense, published in January 2006 by Thomson/West as part of its American Casebook Series. Mr. Berke has taught courses on criminal law and professional responsibility at New York University School of Law, and lectures frequently on criminal justice issues in a variety of forums. Additionally, he is chairman of the board of directors of the Coalition for the Homeless and a member of the board of directors of the Federal Defenders of New York, Inc. Mr. Berke is also a member of the firm’s governing executive committee.

Prior to joining Kramer Levin, Mr. Berke was a trial lawyer with the Federal Defenders' Office for the Southern District of New York for four years. During that time, he defended individuals accused of a wide range of federal offenses, serving as lead counsel in numerous jury trials and achieving favorable verdicts in a large majority of those cases.

Mr. Berke is admitted to practice in New York and before the U.S. District Court, Eastern and Southern Districts of New York, and the Second Circuit U.S. Court of Appeals. He received his J.D., cum laude, from Harvard Law School in 1989, and his B.A., summa cum laude, Phi Beta Kappa, from Duke University in 1986.

Photo of Susan Brune

Susan Brune
Brune & Richard LLP

Susan Brune, a partner with Brune & Richard LLP, concentrates on white collar defense and commercial litigation. She is a seasoned trial lawyer, known for meticulous preparation and forceful advocacy. Chambers USA describes her as "fearless and truly excellent," offering "vast expertise." She is also known as a thoughtful strategist, experienced at warding off indictment and regulatory charges.

Ms. Brune's criminal and civil representations have included allegations of securities fraud, accounting fraud, insider trading, health care and other government contract fraud, tax-related fraud, antitrust violations, Foreign Corrupt Practices Act violations, customs violations and bank fraud. She practices in federal and state court, and before the SEC, FINRA, and other enforcement agencies.

Ms. Brune has been consistently recognized for excellence in the practice of law. Super Lawyers identifies her as one of the "Top 100 Lawyers in New York." The New York State Association of Criminal Defense Lawyers conferred on her the 2010 Honorable S. Thurgood Marshall Award for Outstanding Practitioner.

Before founding Brune & Richard, Ms. Brune served as an Assistant United States Attorney in the Southern District of New York from 1990-1997. She also clerked for the Honorable Whitman Knapp in the United States District Court for the Southern District of New York.

Ms. Brune graduated with an M.A. from Columbia University in 1985 and received her J.D., with honors, from Harvard Law School in1988.

Photo of Judge John Gleeson

Judge John Gleeson
U.S. District Judge Eastern District of NY

Judge Gleeson was appointed as a United States District Judge on September 28,1994, and sits in the Eastern District courthouse on Cadman Plaza in Brooklyn Heights.

After law school, Judge Gleeson served as a law clerk for the Hon. Boyce F. Martin, Jr., United States Circuit Judge in the Sixth Circuit, in Louisville, Kentucky. From 1981 to 1985, he was a litigation associate at Cravath, Swaine & Moore in New York City. Judge Gleeson was an Assistant United States Attorney in the Eastern District of New York from 1985 to 1994. He served as Chief of Appeals, Chief of Special Prosecutions, Chief of Organized Crime, and Chief of the Criminal Division, the position he occupied when he was appointed to the bench.

In 1992, Judge Gleeson was awarded the Attorney General’s Distinguished Service Award for his work as lead prosecutor in the case United States v. John Gotti, et al. Judge Gleeson is an author of the treatise "Federal Criminal Practice: A Second Circuit Handbook," LexisNexis (11th Edition 2011) (with Gordon Mehler and David C. James), and of the following articles: “The Sentencing Commission and Prosecutorial Discretion: The Role of Courts in Policing Sentence Bargains,” 36 Hofstra Law Review 639 (2008); “Supervising Federal Capital Punishment: Why The Attorney General Should Defer When U.S. Attorneys Recommend Against The Death Penalty,” 89 Virginia Law Review 1697 (2003); “Supervising Criminal Investigations: The Proper Scope of the Supervisory Power of Federal Judges,” 5 Journal of Law and Social Policy 423 (1997); “Sentence Bargaining Under the Guidelines,” 8 Federal Sentencing Reporter 6 (1996); and “The Federalization of Organized Crime: The Advantages of Federal Prosecution,” 46 Hastings Law Journal 1095 (1995) (with John C. Jeffries, Jr.).

Judge Gleeson is an Adjunct Professor of Law at New York University School of Law, where he teaches courses in Complex Federal Investigations and Sentencing. He has also taught at Brooklyn Law School. In the spring of 1994, Judge Gleeson served as the John A. Ewald, Jr., Distinguished Visiting Professor of Law at the University of Virginia School of Law. From 1999 to 2008, Judge Gleeson was a member of the Defender Services Committee of the Judicial Conference of the United States, and he served as Chair of the Committee from 2005 to 2008.

Judge John Gleeson received his undergraduate degree from Georgetown University and received his law degree in 1980 from the University of Virginia School of Law.

Photo of Paul Shechtman

Paul Shechtman
Zuckerman Spaeder LLP

Paul Shechtman, a partner at Zuckerman Spaeder LLP in New York City, has more than 30 years of experience drawn from government service and private practice. Among New York’s most respected and sought-after litigators, he has been recognized in numerous industry rankings for his appellate and white collar work. He represents individuals, corporations, and municipal agencies in matters relating to antitrust law, health care fraud, insider trading, and other complex criminal cases. Mr. Shechtman frequently argues before federal and state appellate courts. He represented New York Governor George E. Pataki in the successful appeal of Silver v. Pataki, in which the state legislature had challenged the governor’s authority in the budgeting process.

Before entering private practice, Mr. Shechtman served in numerous positions in government. As the Director of Criminal Justice under Governor Pataki, he negotiated criminal justice legislation on behalf of the Governor and supervised all of the state’s criminal justice agencies. He spent six years as counsel to the district attorney of New York County and he served two terms as an assistant U.S. attorney in the Southern District of New York, first as chief of appeals and subsequently as chief of the criminal division. He also spent two years as a law professor at the University of Pennsylvania.

Mr. Shechtman serves on a number of professional committees, including the Federal Judicial Conference Advisory Committee on Rules of Evidence, New York State Permanent Sentencing Review Commission and the New York State Bar Association Task Force on Government Ethics. He was previously appointed by Governor Pataki to serve as the chair for New York State Ethics Commission, the New York State Commission on Lobbying, and the Governor’s Judicial Screening Committee for the Court of Claims.

Mr. Shechtman has taught criminal procedure and evidence at Columbia Law School for more than 20 years. After law school, Mr. Shechtman served as law clerk to the Honorable Louis H. Pollak, U.S. District Judge for the Eastern District of Pennsylvania, and to the Honorable Warren E. Burger, Chief Justice of the U.S. Supreme Court.

He graduated from Swarthmore College in 1971, earning a B.A. in economics with high honors. He then attended Oxford University as a Rhodes Scholar, receiving a B.Phil. in economics prior to attending Harvard Law School and earning his J.D. in 1979.

Photo of Reid H. Weingarten

Reid H. Weingarten
Steptoe & Johnson LLP

Reid H. Weingarten is a partner in the Washington office of Steptoe & Johnson LLP and is part of the firm's White-Collar Criminal Defense group. Mr. Weingarten represents clients in complex criminal matters in both state and federal courts at the pre-trial, trial, and post-trial stages, including cases involving public corruption, the RICO Act, bank fraud, bribery, government fraud, antitrust, healthcare, tax and securities fraud.

In 2012 Chambers USA gave him a top-tier ranking nationwide in the category Litigation: Trial Lawyers, as well as the rare distinction of a “star” ranking in the Washington category Litigation: White-Collar Crime & Government Investigations. Chambers also presented him with its sole Award for Excellence in white-collar litigation. In 2011, The National Law Journal named him one of the "Most Influential Lawyers in White-Collar Defense" and selected him for its annual feature on "Winning." Who’s Who Legal has named him “International Business Crime Defense Lawyer of the Year” for six consecutive years.

Prior to joining the firm, Mr. Weingarten served as a trial attorney for the Public Integrity Section of the U.S. Department of Justice and as a deputy district attorney for Dauphin County, Pennsylvania. Mr. Weingarten has served, by special appointment, as Special Counsel to the Senate Foreign Relations Committee, Subcommittee on Near Eastern and South Asian Affairs, to head the "October Surprise" investigation in 1992. He was Associate Independent Counsel in the Iran-Contra affair in 1988 as lead counsel in the prosecution of Major General Richard V. Secord.

Mr. Weingarten was inducted in the fall of 1995 as a fellow of the American College of Trial Lawyers. He served as a council member of the American Bar Association Criminal Justice Section and served for two terms as chairman of the White-Collar Crime Committee. He has taught courses on Public Corruption and Professional Responsibility as an Adjunct Professor of Law at Georgetown University Law Center and for the last six years has been named by Who's Who Legal as Global Business Crime Defense Lawyer of the Year (2007-2012).

Mr. Weingarten graduated with a B.S. from Cornell University in 1971. He attended the Hague Academy of International Law, graduating in 1974. He received his J.D. from the Penn State Dickinson School of Law in 1975. 

Photo of Theodore V. Wells Jr.

Thedore V. Wells Jr.
Paul, Weiss, Rifkind, Wharton & Garrison LLP

Theodore V. Wells, Jr. is a partner and co-chair of the litigation department at Paul, Weiss, Rifkind, Wharton & Garrison LLP. He. has extensive litigation experience in white-collar criminal defense, complex civil and corporate litigation, SEC regulatory work, FCPA investigations, environmental matters and class action litigation.

In 2010 The National Law Journal named Mr. Wells one of "The Decade's Most Influential Lawyers" and over the years has repeatedly selected him as one of the 100 most influential lawyers in America. He was Lawyer of the Year in 2006.

Mr. Wells also has been recognized as one of the outstanding jury trial lawyers in the United States by numerous publications including Chambers USA 2012 edition, which recognizes him as “the best trial lawyer in the country.” Chambers has named him a Star Performer for nationwide trial litigation since 2010, for New York general commercial litigation since 2009 and for New York white-collar crime and government investigations since 2009.

In 2010, Mr.Wells successfully defended Citigroup in a three-week jury trial where the plaintiff, the London-based private equity firm Terra Firma, claimed it was defrauded in connection with its purchase of the music company EMI, and claimed over $7 billion in damages.

In 2008, he successfully defended Citigroup in a five-month jury trial where the plaintiff alleged that Citigroup aided and abetted in the massive fraud at Parmalat, the Italian dairy and food corporation. The jury totally rejected the $2 billion claim for damages against Citigroup and also awarded Citigroup $364 million on Citigroup's counterclaim.He clerked for the Hon. John J. Gibbons, U.S. Court of Appeals, 3rd Circuit.

Mr. Wells earned a B.A. from College of the Holy Cross in 1972 and received both an M.B.A. from Harvard Business School and a J.D. from Harvard Law School in 1976.

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Details

Course Code : 773104

Release Date: 11/30/2012 12:00:00 AM
Recorded Date: 6/14/2012
Length: 1hr 20min
Format Type: Video

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