Magnafyi2014

MagnaFYIConferenCe edition

deCember 2014

ConferenCe PiCturesfeaturing Pete rose

interviews with riChard fabian

senior vP & general Counsel direCtor of litigation the riverstone grouP

& the ChoPPed ComPetitors

CHOPPED MOCK TRIAL CHALLENGE

November 12th & 13th, 2014

GOLDEN NuGGET, ATLANTIC CITy, NJ

Jury Consultants • Online Jury Research • Demonstrative Evidence Court Reporting • Hot Seat Trial Technician

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contentsDecember 2014

pg 3 Editor’s Note Peter Hecht, Executive VP of Sales Magna Legal Services

pg 7 You Can’t Make this Stuff Up Interview with Richard Fabian, Senior VP & General Counsel, Director of Litigation, The Riverstone Group

pg 11 The Jury Whisperer Interview with Mark Calzaretta, Magna Legal Services Executive VP, Litigation Consulting

pg 15 Interview with Kelly Waters Coughlin Duffy LLP Morristown, NJ

pg 19 Interview with Daniel Shapiro Cole, Scott & Kissane, P.A. Tampa, FL

pg 20 Putting the Clue in CLE with a Dash of Reality TV by Jeff Kass, Freelance Journalist

pg 25 Interview with Ted Schaer Zarwin Baum DeVito Kaplan Schaer Toddy, P.C. Philadelphia, PA; Marlton, NJ

pg 29 Interview with Stuart Miller Wilson Elser Moskowitz Edelman & Dicker New York City and White Plains, New York

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Friends of Magna LS,

It is hard to believe we are closing out an-other year. It seems like 2007 was yesterday, when we first formed Magna Legal Services out of a friend’s conference room with only a box of office supplies. This February we will be celebrating eight fantastic years of being in business. From the first day, Magna was an independent, self-funded firm, that is now considered one of the most reliable and es-tablished litigation consulting companies in the world. Reaching these heights would not have been possible without our team of em-ployees. Today we have over 100 employees from coast to coast, providing the very best in litigation support and consulting services.

Their hard work has resulted in a 98% client satisfaction rate. On top of that, we have been selected by the readers of The National Law Journal, New York Law Journal and The Legal Intelligencer as “The Best Of” in the following categories:

Edito

r’sNote

I believe 2015 will be the most successful year in our company’s history and it will happen because we have the most talented and passionate employees in the industry. To quote Jack Welch, former CEO of GE and whom I believe to be one of the brightest minds in business: “There are only three measurements that tell you nearly everything you need to know about your organization’s overall performance: employee engagement, customer satisfaction, and cash flow. It goes without saying that no company, small or large, can win over the long run without energized employees who believe in the mission and understand how to achieve it.” If what he says is correct, Magna is well on its way to the top spot with such an engaged and committed team.

I would like to raise a glass of gratitude and toast the employees of Magna LS. Our unstoppable business develop-ment team constantly finds new ways to support our clients. Our litigation consultants’ exceptional creativity and drive are essential to our clients’ success. Magna’s support teams, including scheduling, production, client services, finance, video services and operations, always align our clients’ goals with their own, striving for perfection. How-ever, no toast would be complete without a thank you to our clients. From the first ones back in 2007, who jumped into the deep end of the pool with us, to all our new friends, we would not be the company we are today without you. Thank you, thank you and thank you! Cheers to 2015!

Peter HechtExecutive Vice PresidentSales & Business DevelopmentMagna Legal Services

Jury Consultants • Online Jury Research • Demonstrative Evidence Court Reporting/Depositions • Hot Seat Technician • Trial Consultants

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A SpeciAl ThAnkS To our SponSorS

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These days, Richard Fabian is too busy resolving real-world insurance disputes to read many legal thrillers or mystery novels. Yet if the whodunit case he dreamed up

for Magna’s second annual mock trial Chopped competition in Atlantic City is any indication, the man certainly knows how to weave a good crime tale.

“It’s safe to say the case was pretty much a creature of my imagination,” Fabian said, who conceived the wrongful death lawsuit filed by a millionaire’s bereaved son against his stepmother while holding down a day job as General Counsel, Director of Litigation and Senior Vice President at The RiverStone Group in Manchester, New Hampshire.

“I did a lot of thinking to come up with something that was entertaining and had an interesting storyline,” Fabian said. “But the main goal was to make it ambiguous and balanced so that either side could win.”

Fabian did have an accomplice, so to speak. Magna executive vice president sales Pete Hecht came up with the mock trial idea – which doubles as a CLE. From there, the two men worked on the nuts and bolts, including twists in the trial proceedings and educational components such as Q&A sessions with the audience and shadow jury.

On its face, the case Fabian conceived for the Chopped event was simple enough: After Colonel Reginald P. Mustard is found dead from a blow to the head in the library of his summer home, the Colonel’s son, Atherton D. Mustard, sues his stepmother, Cynthia A. Mustard-Russell, to keep her from collecting her share of the inheritance – a cool $150 million.

Cynthia admits to killing the Colonel with a candlestick, but claims she did it in self-defense during a violent domestic dispute. Fabian’s plot quickly thickens when the evidence reveals that both Atherton and Cynthia have checkered and incriminating

Richard Fabian: Insurance executive by day, crime writer by night - With a little help from his friend, Magna Executive Vice President of Sales, Peter Hecht

You can’t make this stuff up

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pasts. Atherton has a gambling addiction and was implicated – but never convicted – in an insurance fraud scheme. He had an unrequited crush on his stepmother that could have inspired the spiteful lawsuit. Cynthia, though a documented and heroic victim of domestic violence, was also previously married to a man whose unusual death while scuba diving left the widow $5 million.

Fabian introduced other tantalizing details whose significance remains unclear: After killing the Colonel, for instance, Cynthia is found by police with a possibly broken pinkie finger, an injury she’d suffered at least twice before during the Colonel’s alleged domestic attacks.

“I tried multiple ideas to see where they led me,” said Fabian. “With this one, after I wrote the basic fact pattern, I wrote the autopsy report and police report and witness statements. In writing those, you have the opportunity to be ambiguous about certain plot points and introduce details and uncertainties that make for great cross examinations during competition.”

While Fabian acknowledged that the characters are borrowed directly—and humorously—from the board game Clue, he said the decision to use them came organically.

“It started when I was writing the police report,” Fabian recalled. “I wanted the couple in the case to be wealthy, so I figured I’d have her kill him in their library. I wanted the cause of death to be blunt force trauma, so I figured, ‘Why not a candlestick?’ Things took off from there.”

Indeed, the mock trial even included mock documents with knowing, and humorous, details: Ofc. Hecht is one of the first to arrive at the scene, and an autopsy from the Rockport Medical Examiner touts the tagline “Cutting to the truth.”

In addition to the more obvious odes to Clue, Fabian included a tribute many people may have missed. Both of Cynthia’s previous husbands, George and Charles Parker, share the names of the Parker Brothers, whose company launched Clue in North America.

“That was a wink,” Fabian said. “Though I’m not sure how many people caught it.”

With all the details – and ambiguities – of

the case laid down, the mock trial judges then focused on how the lawyer contestants handled the facts, considering their style, clarity, demeanor and adaptability in the face of tough courtroom circumstances.

“The judges were really supposed to evaluate the effectiveness of the lawyers’ presentation in the face of the unreal circumstances introduced by several twists in the case,” Fabian confirmed. Fabian added, “No one is claiming that these things would really happen in court, but we wanted to test the ability of these litigators think on their feet in unreal situations, when they’re faced with interruptions and changes in the evidence.”

The four CHOPPED contestants, Fabian acknowledged, took substantial risks by arguing a tough case before a crowd of current and potential insurance company clients. Fabian and Hecht frequently pointed out the contestants’ bravery.

“These people were put in situations that no amount of advance work would prepare them for, in front of prospective clients,” Fabian said. “We tried to make the case that these are people you should consider hiring, because they have enough confidence to perform in that kind of situation.”

After debuting the CHOPPED event in 2013 and pulling off a successful repeat performance this year, Fabian and Hecht are already developing a case for 2015. The story will change, and Fabian and Hecht will continue to fine tune the balance between education and entertainment. From 2013 to 2014, for example, Fabian said they increased the role of the judge by having him interrupt and protect a witness.

“We want it to be both a learning experience and a theatrical experience,” Fabian said. “It’s a challenge to embrace the entertainment value of the event and keep the educational piece strong as well, but the competition will continue to evolve.”

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QHow does your background

in psychology play into the work you do for Magna on jury research and juror persuasion?

My psychology background first led me to trial consulting: assisting attorneys with graphics and evidence presentation. Trial consulting segued into jury consulting and things such as mock trials, shadow juries and jury selection.

It was a natural progression for me. As a jury consultant, psychology helps me figure out which themes will resonate with juries, what evidence to present, which aspects of the case to focus on and which to avoid. A lot of that can be determined through pre-trial jury research via focus groups and mock trials. We wind up testing theories with jurors the same way you would test a product with a focus group, to see how people respond.

Q. Has juror behavior changed over the years?

The way people perceive things change based on our social

temperament and how the culture is feeling about issues. For example, right now domestic violence is all over the news because of the NFL cases, and racial issues are in the news because of what happened in Ferguson, Missouri and elsewhere [with police shootings of unarmed black males]. So that news coverage will affect the way jurors approach issues.

Generally speaking, we as humans have been evolving for so many thousands of years that there’s a component of the way we are wired that hasn’t changed at all. As we learn more about that through psychology, we learn how to trigger certain reactions among jurors—how to make them react more or less emotionally, for example, or how to make them feel more or less comfortable about certain evidence.

Q. How do you take an attorney with little trial experience and teach them to be an effective trial attorney?

The first thing I tell them is: Tell a story! Most attorneys aren’t driven by stories, they are driven by facts. Often the last thing they’re thinking about is how to tell a compelling story based on those issues and facts. Jurors don’t respond to issues and facts, they respond to compelling narratives. So I ask the attorneys I work with, “If you had to tell me the story of your case in two pages or less and convince me [as a juror] that I should find for you, how would you do it?” Lawyers often say their cases are so complicated that they couldn’t explain them in an hour and a half, but you should be able to explain your case in a compelling way in a matter of minutes, and it should be as concise and well-sequenced as possible.

Mark Calzaretta, Magna Legal ServicesExecutive VP, Litigation Consulting

The Jury

Whispererplay guitar and study psychology: Know your audience with Mark Calzaretta, Magna cofounder and director of litigation consulting

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Q. You recently finished a seven-month trial where you ran a shadow jury the entire time. What was that like?

That was one of the toughest trials I’ve ever done, for a lot of reasons. Just in general, a trial that long is hard—it’s tough to be on a team working that intensely for that long. It was a complicated case so in the end there wasn’t a clear-cut winner or loser, but the shadow jury was instrumental for us in managing such a long trial and understanding how the trial team needed to adapt throughout.

Q. You’ve been described as the trial presentation guru for the state of New Jersey. Why is that?

Back in the late 1990s when I started doing trial consulting work at a court reporting company, I introduced a lot of electronics and graphics into the courtroom. At that point, electronic trial presentation was in its infancy—today you have software programs like Sanction and TrialDirector, but back then such programs were fairly new and few other people were doing it. I was one of the first in the state that I know of.

Q. You oversee a team of 25 litigation consultants. What do you look for when hiring someone new?

I look at whether their background and credentials fit with what we do, but first and foremost I look at whether they’re a good fit for the group. It’s a challenging job, you spend a lot of time on the road with your colleagues and you’re together in very stressful situations. So the better the group can get along, the better it can cope in challenging circumstances. The team that gets along and appreciates each other is the team that delivers results.

Q. Is there a particular case you most enjoyed working on?

Early on in my career I worked on a product liability case against a leading car manufacturer, and our client, the plaintiff, was a police officer. Everyone was telling us that we were going to lose the case, but the attorney I worked for gave me a box of materials that I looked through and discovered that we could hammer the defendant in the case. The box was full of videos made by the car company’s experts that were supposed to show that there was no difference between a car with the defective product [at the center of the lawsuit] and one without it. But the videos showed just the opposite. We wound up getting an $18 million jury reward.

Q. What is the most difficult case you have ever participated in?

The most difficult cases for me, both personally and professionally, always involve children. When terrible things happen to children, chances are the trial is not going to be enjoyable. You’re not going

to want to strike up a conversation at the dinner table about a tragedy involving a child. I cope with it by telling myself that part of what we’re doing—regardless of which side we’re working for—is helping bring the case to a close so that people can move on.

Q. What do you do for fun when you’re not inside the courtroom?

I love to fish, especially offshore: shark fishing, tournament fishing. I live very close to the Atlantic Ocean, so when I’m not working or spending time with my wife and two kids I find a good amount of time to fish.

I also play guitar at least a few times a week. I used to be in a rock band called Tabloid Nation that was signed to the Blackbird/Atlantic record label and played all over the place. We actually played with KISS once, probably around the year 2000—they did a festival and we played on one of the stages.

In those days I had green hair, I had purple hair. Now I don’t have any hair—maybe because of all the times I dyed it! Anyway, I did the music thing for a while until I had my first kid, then I transitioned out of music and into legal work full time, but I still play guitar.

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QMagna is proud of its mock trial competition for

offering a more engaging alternative to standard CLE classes. Would you agree, and what part of the competition did you enjoy most?

This was much more engaging than your typical CLE—people weren’t lectured to, they were taught by example. One colleague told me that he brought all this work with him to do at the

conference but he didn’t get any done because he was so engaged in the CHOPPED event!

This was also one of the best personal growth experiences I’ve had. When you’re at trial and your client’s not there observing, you check in with them at the end of the day and they want to know how it went. Here, the emphasis was on how we performed as trial attorneys, and our clients got to see that.

Q. You represented both the plaintiff and the defendant in this case—which side was harder to argue, and why?

It was interesting because I was given the benefit of opening for the defense, and that’s my typical practice. I lost in the end when I closed for the plaintiff. Certainly the plaintiff had much more evidence to work with, but I walked on stage for the closing and had a bit of a brain freeze thinking about how I had to go to work [in the real world] later that evening. Sometimes you don’t really find out what you’re doing until you walk on stage!

Q. Which of your skills as an attorney did you find most useful in arguing your side of this case?

I think just listening—we were being thrown changes in the testimony and in one segment the judge kept interrupting us, so the ability to listen and stay in your zone and focused was really important. I also didn’t take the interruptions too seriously, and at trial it can be important not to take yourself too seriously as well, because you have to show your human side.

Q. If you had it to do again, how would you change the way you argued this case?

I probably would have used some more demonstrative evidence—perhaps I would have brandished a candlestick when I was arguing for the plaintiff, or used some more domestic violence statistics when I was arguing for the defense. Certainly you always want to be more prepared, but overall I was comfortable with my performance.

Q. Based on the evidence provided in this case, it seemed possible that either the plaintiff could have sued his father’s

wife out of spite or that the wife could have murdered her husband to get access to his money, or both. Where do you think a real jury might have come down on what happened, and which version of events do you personally find more believable?

While I lost among the industry judges when I closed for the plaintiff, supposedly the shadow jury came down on my side. But I think probably the plaintiff would have won in the real world, because there were so many points to develop against the defendant. I tried to hit on the fact that the defendant’s first blow knocked the victim over and the second one killed him—so why didn’t she just leave the room after she hit him the first time?

Still, it’s hard to say how a real jury would have ruled on the case, since that depends on where it was being tried. If you’re in the inner city and the case is an argument over a multi-million dollar inheritance, jurors will have a hard time relating to that.

Q. Which is better preparation for mock trial, playing Clue or three years of law school? And why?

It was funny, because in the fact pattern there were a lot of clues that referenced Clue, and I was still oblivious that it was tied to the game! I didn’t make the connection. But again, I think the ability to listen was what really helped me in this event—I’m also a municipal court judge in New Jersey, so I’m in the courtroom a lot, and that’s taught me to listen and react to what I’m hearing, which is key.

Interview with Kelly Waters, Magna CHOPPED for CHOP 2014 CompetitorCoughlin Duffy LLP

Morristown, NJ

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QMagna is proud of its mock trial c o m p e t i t i o n

for offering a more engaging alternative to standard CLE classes. Would you agree, and if so what part of the competition did you enjoy most?

I thought that the audience was fully engaged, and that was great. I even mentioned to my partners how nice it was that everyone stuck around for the whole competition

instead of heading for the exits. Typically at these CLE events, after lunch on the second day, people have gotten their credits and they move on. At this event, everyone who was there in the morning was back in the afternoon.

Q. In your opening statement you represented the defendant, a woman who killed her husband—perhaps during a physical altercation—and is now working to get access to part of his fortune even though his son has filed a lawsuit to prevent that from happening. What was the hardest part of arguing her case? What was easiest part?

She had a difficult case because apparently she was behind him when she delivered the fatal blow with the candlestick, and yet she was claiming self-defense. If she was behind him and felt threatened, why didn’t she just leave the library? She’d already removed herself from the situation once earlier in the evening, and she knew her husband was intoxicated.

Still, the hardest thing to me was not the facts or arguments in the case. It was performing in front of all the insurance carriers that attended the conference, since all of them are potential clients. This wasn’t just a competition; it was a job interview.


As a trial lawyer, I think juries for the most part understand what lawyers are doing, and I think you have to be respectful of their time and intellect. When juries see that you’re respectful in court, they’re going to like you, and perhaps decide the case in your favor. So I’m very cognizant of not repeating questions or doing things that would be deemed offensive to the court, jury or opposing counsel.


This will sound like sour grapes but it really isn’t: During the competition I did things I wouldn’t normally do at trial. If I did it again, I’d approach it more formally and do less catering to the crowd. I mean, at one point, I actually brought out a box of tissues [to pretend to cry at the sadness of a witness’ story]. I would never do that at an actual trial. There was a definite tension

introduced by the desire to bring levity to the proceedings—that’s something you just wouldn’t do at a normal trial. Still, if people are entertained, they will listen to you!

Q. Based on the evidence provided in this case, it seemed possible that either the plaintiff could have sued his father’s wife out of spite or that the wife could have murdered her husband to get access to his money, or both. Where do you think a real jury might have come down on what happened, and which version of events do you personally find more believable?

The plaintiff certainly had more evidence to work with, but again, the exercise to me wasn’t about winning or losing the case, it was about presenting your case well with the facts at hand and winning the competition. Based on the evidence, it seemed pretty obvious that the defendant killed her husband unjustifiably.


People forget that Clue was actually a hard board game to play—I think a lot of people owned it growing up, but not a lot of people played it! Obviously law school is better preparation, but law school doesn’t teach you much about some of the things that make a good trial lawyer, like having a sense of the situation and being able to respond and react on the spot. I also think that as lawyers we often overvalue our role in the case. Most of the time, the case will be decided on the facts themselves.

Interview with Daniel Shapiro, Magna CHOPPED for CHOP 2014 CompetitorCole, Scott & Kissane, P.A.

Tampa, FL

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Thursday, November 13.

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From the moment 72-year-old Colonel Reginald P. Mustard was found dead and bloodied in the library of his well-appointed Massachusetts summer home, the questions

began swirling.

It was clear that the Colonel’s second wife, then 36-year-old Cynthia Mustard-Russell, had killed the man - she’d admitted as much. But why? When she dealt the Colonel that fatal blow with a leaden candlestick, was she a serially battered woman fighting to defend her life, or a conniving gold digger eager for a piece of her husband’s ample estate?

The Colonel’s son, 49-year-old Atherton Mustard, later sued to prevent his stepmother, Cynthia, from claiming her half of the $300 million estate. But was he a loyal heir protecting has father’s fortune or a jilted lover, embittered because Cynthia had married his father instead of him?

A sensational murder, a seamy subplot and two protagonists both sympathetic and deeply flawed. It was lawyerly red meat – spiced up with a nod to the character of Col. Mustard from the mystery board game Clue, and borrowing from the Food Network TV reality competition among chefs called Chopped.

It was also Magna’s second annual CHOPPED CLE and mock trial competition at the Golden Nugget Hotel and Casino in Atlantic City on Nov. 13, 2014. Magna made $5,000 in donations on behalf of the four competing attorneys and their firms to benefit The Children’s Hospital of Philadelphia.

Many of the 35 “judges” - in-house counsel and claims executives

- presiding over the Colonel’s mock wrongful death case could already see where the evidence might lead. Most of the judges interviewed agreed that Atherton, the plaintiff in a wrongful death lawsuit against his stepmother, held the better cards.

“One cross-examination, for example, revealed that the defendant [Cynthia] had been able to recite the statute governing justifiable homicide word for word when she was arrested,” said Daniel Santaniello, a CHOPPED judge and CEO and managing partner of the Florida law firm Luks, Santaniello, Petrillo & Jones. “To me that was a big giveaway. During the round I judged, [contestant] Kelly Waters also got the defendant to admit she was behind the decedent when she struck him dead, which meant she’d had the ability to retreat, but had hit him instead.”

Despite such damning evidence against the defendant, the CHOPPED competition was more a battle of lawyerly skill than a fight over the facts themselves, and the judges deliberated accordingly.

“On my panel we looked at two things,” Santaniello said, “Which contestant had better control of the witness, and which won the witness by eliciting admissions that swayed the case in their favor?”

The same lawyer didn’t always prevail in both categories, Santaniello said. “For instance, I thought Stuart Miller [the first of four competitors to be CHOPPED] did a good job of controlling the witness, but we pushed Waters through to the next round because she elicited that confession from the defendant about hitting the victim from behind, and thus won the witness from my point of view.”

Who killed Colonel Mustard at the 2014 Magna CHOPPED competition?

by Jeff Kass

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Who killed Colonel Mustard at the 2014 Magna CHOPPED competition?

Twists - including new testimony introduced mid-trial and frequent interruptions from the presiding judge – were attempts to throw competitors off balance.

The two finalists, Waters and Ted Schaer, were not told whose side they would be on for closing arguments until the moment they walked on stage. That meant they both ended up arguing for each side at different points in the competition – unusual, to say the least. While an attorney might try to anticipate the other side’s arguments before trial, they would hardly prepare to fully argue the other side.

So the ability of CHOPPED contestants to think on their feet also proved critical for the judges.

For Santaniello, “You want to understand where the other side is coming from so you can identify the weaknesses in your case and be able to effectively deal with them. But I generally won’t argue the other side [as I prepare for trial], because you need to be passionate about your side.” “When I’m getting ready I don’t prepare as if I am the other side, but I do put everything through the filter of what the other side will say in response,” said CHOPPED judge Dana Fox, a partner at the Los Angeles law firm of Lewis, Brisbois, Bisgaard and Smith. “What’s the other side’s reaction going to be to this? That’s what I’m always asking.”

For other judges, the contestants who were not excessively opinionated and instead hewed strictly to the facts seemed more worthy of advancement to the next round.

“I like it when lawyers stick to the concrete evidence, the indisputable facts, rather than injecting opinion or editorial into their arguments,” said judge Pamela Pettus, Director of Claims and Insurance Litigation at the BFC Financial Corporation. “Ted Schaer stuck to the facts.”

Schaer ultimately beat out his three fellow CHOPPED contestants and won the competition for the second consecutive year. For some judges, his result had as much to do with his overall style and demeanor as it did with the quality of his arguments.

“In many trials, I’m not even sure that the attorney’s arguments are the deciding factor,” said judge Jessica Rogin, Senior Vice President of Environmental and Casualty Claims at Liberty International Underwriters in New York. “I think many juries make up their minds during the opening statements based on whether they find the attorney personable, so you have to

know your jury and tailor your presentation to them.”

Schaer did this, some judges said, with a signature mix of charm and professionalism.

“If chocolate was on one side and vanilla was on the other side, Ted would be in the middle, and that’s often a hard blend for litigators to achieve,” Pettus said. “Some are bland and some are aggressive. Ted vacillates between the two.”

Schaer also displayed that most critical of lawyerly attributes during the competition according to Fox: the ability to spin a good yarn. He added, “It’s what makes a good trial attorney: to be a good storyteller, have a well-defined theme, have a strong command of the facts and be able to walk that fine line between confidence and arrogance.”

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Q Magna is proud of its mock trial

competition for offering a more engaging alternative to standard CLE classes. Would you agree, and what part of the competition did you enjoy most?

I think it’s probably the most creative CLE in the business right now. The typical CLE is eight presenters holding forth on relevant but boring topics. The mock trial is dynamic and theatrical. It’s a fresh format that

allows clients practical insight into what their counsel is like in action. Many of our clients deal with us through computer and phone - rarely do they get to see us in the heat of battle in a simulated courtroom setting. It’s also interesting from a lawyer’s perspective, since lawyers rarely get to see their fellow counsel trying cases.

Q. You represented both the plaintiff and the defendant in this case—which side was harder to argue, and why?

I think the defendant’s position was the most difficult in the case because the physical evidence suggested that self-defense wasn’t a cogent argument for her. The defendant claimed that she acted in self-defense, but part of the evidence was a medical examiner’s report stating that after the first blow the victim was incapacitated. That makes it unlikely that the defendant felt the threat of death or serious bodily injury when she struck the second blow, which killed the victim.

The way the facts were drawn up created almost a reverse burden of proof: We had an admission that the defendant had killed the man, so the burden shifted to her to prove that it was self-defense.


Being able to think quickly on my feet and to pivot when facts changed. In a CHOPPED event, just like in real life, things don’t go according to plan, and what sets the good attorneys apart from the not so good is the ability to handle the change up, and to prevent new facts from affecting them negatively. This ain’t [the CBS series] The Good Wife: No one writes the script, and things don’t always turn out perfectly.


I won, so I guess I did something right! I think I certainly had an advantage being familiar with the format of the exercise [after competing in and winning the 2013 event], and it allowed me to anticipate where I’d need to pivot. When you go into this thing

blindly, it can be very difficult when curveballs are thrown at you. The second time around you can anticipate it a little bit more. Despite the victory, this was still more nerve-wracking than a regular trial in some respects: You’re in a theater with 200 clients and peers, so the ability to stay calm and know what’s expected certainly helps.

Q. Based on the evidence provided in this case, it seemed possible that either the plaintiff could have sued his father’s wife out of spite or that the wife could have murdered her husband to get access to his money, or both. Where do you think a real jury might have come down on what happened, and which version of events do you personally find more believable?

I think the jury probably would have rendered a verdict in favor of the plaintiff. The burden was on the defendant to establish that she acted in self-defense, and the coroner’s report contradicted that, which was tough for the defendant to overcome. When I was arguing for the plaintiff and thinking about where the curveball was going to come, I thought they might change that facts on me by taking away the coroner’s finding. I thought a lot about how I’d react if they did that, how I’d pivot away from that piece of evidence. It could have happened: The competition was meant to stress and challenge the trial lawyers, after all.


I think I’m the only person in this country who never played the game of Clue growing up! I was a Monopoly player. In fact, my moniker during the competition should have been “Clueless,” because I didn’t recognize any of the characters from the game. I actually ran back to my room at 10:30 p.m. the night before the competition and started looking up Clue on Wikipedia—I spent an hour and a half on the Internet reading about it!

In all seriousness, the competition tested our basic and fundamental trial skills: the ability to understand the law, to present the facts in a clear and convincing manner, and to persuade the jury that you’re right. Those are essentials for a trial lawyer.

Interview with Ted Schaer, Magna CHOPPED for CHOP 2014 CompetitorZarwin Baum DeVito Kaplan Schaer Toddy, P.C.

Philadelphia, PA; Marlton, NJ

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Q Magna is proud of its mock trial competition for

offering a more engaging alternative to standard CLE classes. Would you agree, and what part of the competition did you enjoy most?

Simulating a real trial environment – the pitfalls, the hazards – is not easy. But Magna did that. This wasn’t theory, it was practice. In fact, I felt as much, if not more, pressure than I would have in a normal courtroom

because we were in front of our competition, current clients and prospective clients. In other words, I was in front of my industry standing in my underwear!

Q. In your opening statement you represented the plaintiff, the son of a murdered man who was suing to prevent his stepmother – his father’s second wife - from getting access to his father’s fortune. What was the hardest part of arguing your case? What was easiest part?

I had to deal with the sympathy factor associated with a victim of domestic violence, as the defendant was. She became empowered as a survivor of domestic violence, but I didn’t want that to drive this case, so in my opening I acknowledged that she was a strong person who was able to overcome obstacles, but I also argued that somewhere along the way her judgment got clouded.

The easiest part for me was the fact that my client wasn’t suing for the money - this was a son who loved his father, and whose father left him plenty of money. For him, this was about saving his father’s name and reputation. If his father had cut him out of the will, that would have been a much tougher obstacle to overcome.


The ability to adapt to the courtroom environment, and to the witness’ and the judge’s personalities. You need to adjust the way you conduct yourself as a lawyer depending on the feedback you’re getting from the court or from jurors.


I tried my case like it was an Atlantic City jury pool. If you had told me this was Omaha, I would have done it very differently. There’s one twist I might introduce to the competition itself next year: I think it would have been fun if the shadow jury had weighed in after each round along with the industry judges, then we could have seen whether the industry judges chopped the right person. When I try a case, I don’t try it for the juror who works in the law and the insurance industry - I try it for the real juror.

Q. Based on the evidence provided in this case, it seemed possible that either the plaintiff could have sued his father’s

wife out of spite or that the wife could have murdered her husband to get access to his money, or both. Where do you think a real jury might have come down on what happened, and which version of events do you personally find more believable? I think the defendant had nothing - a real jury would have found in favor of the plaintiff. I say that because according to the fact pattern in the case, the defendant’s two criminal trials prior to this lawsuit both ended in hung juries. In a criminal trial you have to prove guilt beyond a reasonable doubt, while in a civil case a preponderance of the evidence has to point toward guilt. Had the preponderance of the evidence been the standard of proof in the defendant’s criminal trials as it was in this civil lawsuit, she would have been convicted.

I also believed the plaintiff’s version. Representing him, I felt I was suing to prevent an unjust enrichment. I thought I was actually doing defense work by suing in this case.

Q. Which is better preparation for mock trial, playing the whodunit board game Clue or three years of law school?

The fact pattern in this case was definitely straight out of Clue, but one never addressed the big issue—before the murder, how was the fire in the fireplace lit? There is no way that the defendant took the time to light a fire if she was in a dispute with her husband before she killed him, which only leads me to believe that he was sitting and relaxing in front of the fire when she came from behind and knocked him on the head.

Interview with Stuart Miller, Magna CHOPPED for CHOP 2014 CompetitorWilson Elser Moskowitz Edelman & DickerNew York City and White Plains, New York

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