May the Record Reflect

78. Refreshing Recollection and Impeachment, with John Farrell

In this episode, veteran trial lawyer John Farrell distinguishes between refreshing recollection and impeachment, two essential but sometimes conflated courtroom skills. Learn how to help your own witness recall facts on direct examination through refreshing recollection and how to effectively challenge an opposing witness on cross with a structured, high-impact impeachment technique. Packed with practical language and strategy (and a few demos along the way), this conversation offers clear guidance on when and how to deploy these important skills that every trial lawyer needs to master. Topics 3:13    Difference between refreshing recollection and impeachment 4:54    What’s wrong with “I don’t know” during examination 6:19    Using documents to refresh recollection 7:24    What’s wrong with “would” during refreshing recollection 8:41   Refreshing recollection demo 10:13 A crucial step to remember 13:21 The point of impeachment 14:37 Step 1 of impeaching by prior inconsistent statement 15:35 Demo 17:52 Why you should sound disappointed 18:50 Demo 19:20 Steps 2–6 23:21 Demo 27:21 Why impeachment better be worth the effort 30:05 Your tone through impeachment 33:16 Impeachment by omission 40:49 Consequences of a bad impeachment 41:56 Again, make impeachment worth your while 44:16 Signoff questions Quote “The reason [impeachment] is so important is that if you decide to impeach and you don’t do it correctly or successfully, the witness has just been told they can lie all the time on the stand. You’ve lost control. If you do it really well the first time, and the next time they go off message, they say something else different, and [the witness goes], “Well, no, that’s not right. It was Fact C.” And [you] go, “I don’t think so. Let's go to your depo transcript.” [The witness will] go, “Okay, fine, fine, it was C,” because they don’t want to go through that again. So I think it’s an important tool.” John Farrell Resources John Farrell (bio [https://beckerlawyers.com/professionals/john-farrell/]) Refreshing Recollection and Impeachment (article [https://info.nita.org/l/921043/2026-05-18/dtbj6c/921043/1779140844mnWNiAnP/Refreshing_Recollection_2026__Farrell_.pdf]) Eight Steps for Handling Deposition Exhibits (podcast [https://www.nita.org/s/product/67-eight-steps-for-handling-deposition-exhibits-with-john-farrell/01tUm000009rxKvIAI]) Deposition articles (1 [https://www.nita.org/s/product/taking-a-good-deposition-setting-out-the-ground-rules-and-taking-charge-of-the-room/01tUm000004E2NpIAK], 2 [https://www.nita.org/s/product/taking-a-good-deposition-part-ii-asking-the-right-kind-of-questions-and-asking-them-in-the-right-way/01tUm0000065VFqIAM], 3 [https://www.nita.org/s/product/taking-a-good-deposition-part-iii-conversations-exhibits-whether-to-hold-your-fire-at-deposition-and-dealing-with-obstreperous-counsel/01tUm00000ABBIXIA5])

77. Stay Thirsty, My Friends: The Argument for Lifelong Legal Learning, with Veronica Finkelstein and Marisa Rauscher

Wilmington Law Associate Professor of Law Veronica Finkelstein and law student Dr. Marisa Rauscher discuss what it takes to become an exceptional litigator, from growing your essential hard and soft skills to unconventional ways of developing them, and transforming your personal values into a professional brand. They also explore why maintaining a beginner’s mind — curiosity that never quits — is critical at every stage of a rewarding legal career and recommend their favorite law-related social content that helps them do just that. Topics 5:24  Why to teach, and why to learn, law 7:60  Lacking skills out of law school 10:01 Various toolkits for trial lawyers  13:39 What new lawyers should focus on 15:37 Importance of writing and motion practice skills 18:28 Going to trial: present and future 27:35 Professional branding and marketing yourself as a lawyer 33:40 Informal CLE through social media 36:17 Younger lawyers have an advantage 45:35 Signoff question Quotes “Being an attorney means having a holistic set of skills. A lot of those skills are variations on each other, so the same skill that will serve you well at that Rule 16 conference, when you meet the judge and opposing counsel for the very first time, is an analog of a skill that you would want to have at trial.” Veronica Finkelstein “Great minds and well-intentioned people have tried to establish rules to play by, that serve all in a just fashion, and I want to be in that game, I really do. I want to know the law, I want to use the law for good, and I also want to cultivate the soft and hard skills of lawyering so that my advocacy rests on a strong foundation of excellence. That’s the goal. Know more, do more.” Marisa Rauscher Resources Veronica Finkelstein (LinkedIn [https://www.linkedin.com/in/veronica-j-finkelstein-6004418/]) Marisa Rauscher (LinkedIn [https://www.linkedin.com/in/lawdoc/]) Veronica in studio71 (podcast [https://www.nita.org/s/product/70-getting-down-to-business-deposing-the-30b6-witness-with-veronica-finkelstein/01tUm00000C4eO9IAJ], podcast [https://www.nita.org/s/product/51-depositions-asked-and-answered-with-veronica-finkelstein/01tUm0000028AsHIAU], webcast [https://www.nita.org/s/product/lights-camera-action-improving-your-direct-examinations-using-cinematic-techniques/01t8a0000060jzxAAA]) Additional Advocacy Skills (program calendar [https://www.nita.org/s/category/programs/program-type/additional-advocacy-skills/0ZG4W000000PaprWAC?c__results_layout_state=%7B%7D]) Law-related podcasts, vlogs, and YouTubes (PDF [https://info.nita.org/l/921043/2026-04-09/dt7hp2/921043/17757821504qi9wYQy/Stay_Thirsty_social_recs.pdf])

76. Storytelling for Defense Lawyers, with David Mann

Finding the right storytelling angle can be challenge for any trial lawyer, but for those advocating on the right-hand side of the v, it’s often even more so. In representing clients jurors may not automatically find sympathetic, defense counsel must express empathy for harms the plaintiff has suffered without admitting to their liability and present technical data that is critical to their client’s defense but wearisome for fact finders to follow. Good narrative technique can help, and in this episode, legal storytelling specialist David Mann shares the insights he’s gain in over a decade of working with trial lawyers to develop winning case stories.  Topics 4:01  Changing defense landscape 7:20  Plaintiff’s automatic emotional hook 9:54  Humanizing the defense client 12:13  Importance of storytelling 17:34 Observing versus opining 20:31  Going granular 24:38  Being engaging and persuasive 28:12  Check your blind spots 30:26 Persuasive presence and turning facts into a story 35:03  Signoff question Quote “[Defense lawyers] need to be good storytellers, and they are just beginning to see how important that is and how they are now losing where they used to win. They’re also seeing the nuclear verdict problem. So juries are awarding tens of millions and even hundreds of millions of dollars in cases that just a few years ago that would have been unheard of. And now it’s getting to be more and more regular. So that that’s how high the stakes are for the defense.” David Mann Resources David Mann (bio [https://www.asimplemessage.com/]) Turning Facts into a Story (May [https://www.nita.org/s/product/turning-facts-into-a-story/01tUm00000CUWZpIAP], November [https://www.nita.org/s/product/01tUm00000DSlirIAD]) Persuasive Presence (October [https://www.nita.org/s/product/persuasive-presence/01tUm00000CysbJIAR]) Building Trial Skills: New Orleans (program [https://www.nita.org/s/product/building-trial-skills-new-orleans/01tUm000009sZ0PIAU]) The Secrets of Persuasive Legal Storytelling (podcast episode [https://www.nita.org/s/product/33-the-secrets-of-persuasive-legal-storytelling/01t8a000007hOHeAAM]) Engaging the Jury in the First Two Minutes (free webcast [https://www.nita.org/s/product/engaging-the-jury-in-the-first-two-minutes/01t4W00000CP0xZQAT]) NYT 10-Minute Challenge (gift article [https://www.nytimes.com/interactive/2026/03/01/upshot/ten-minute-challenge-klimt.html?unlocked_article_code=1.UFA.guoW.TaplN4lIdHk-&smid=url-share])

75. Prep for Success: Controlling Your Witness through Thorough Preparation, with Tom Innes and Mary DeFusco

According to Philadelphia trial lawyers Tom Innes and Mary DeFusco, preparing your witness for testimony is a bit like training a guide dog: the real work happens long before the leash comes off. In this episode, Tom and Mary talk about how to create control in ever-important prep sessions prior to testimony—and they share hands-on, practical tips that will help your witness give their testimony while staying cool and collected, on track, and under control.   Topics 4:04  Why preparation is the first step 5:38  Deposing Dr. King on The Pitt 8:11  Your witness’s role   10:30  Organization of testimony, explained 11:50  Under pressure 13:50  Cross prep 15:33  Practice pointers 19:13  Ethical considerations 23:02  Signoff questions Quotes “Practice having the witness speak to the jury both on direct and cross. Speak to the jury—even if all you can do is set up some empty chairs as a jury box.” Tom Innes “It’s a really bad look in front of a jury when the witness answers every question promptly on direct but then very slowly on cross.” Mary DeFusco Resources Tom Innes (bio [https://www.linkedin.com/in/thomas-j-innes-25252315/]) Mary DeFusco (bio [https://www1.villanova.edu/university/law/faculty-scholarship/faculty-directory/adjunct-faculty.html]) Judge L. Felipe Restrepo (bio [https://www.ussc.gov/about/who-we-are/commisioners/judge-luis-felipe-restrepo]) Building Trial Skills: Philadelphia (program [https://www.nita.org/s/product/building-trial-skills-philadelphia/01tUm000009P35ZIAS]) Cross-Examination Math (podcast episode [https://www.nita.org/s/product/62-crossexamination-math-less-is-more-more-is-less-with-tom-innes/01tUm000008BD29IAG])

74. Handling Experts at Trial: Can't Live With Them, Can't Live Without Them, with Gene Tanaka

From forensics to financials and the medical to the technical, trial lawyers rely on expert witnesses to help fact finders understand complicated concepts and issues in their case. But dealing with experts is an expert technique in itself, so in this episode NITA Program Director Gene Tanaka breaks down the battle-tested process that has brought him success. First, he lays out the standards for expert testimony and traps to avoid, then shares steps for direct examinations, issues in cross, and persuasive techniques.  Topics 04:20  Why experts are important 05:54  Breadth of expert opinions 07:24  Expert traps 11:44  Standards for expert testimony   15:28  Five steps for direct examination: Introduction and teaser 17:48  Qualifications 20:10  Red flags in an expert’s background 21:28  Opinion 25:24  Basis for opinion 27:39  Difference of experts’ opinions 28:50  Conclusion 30:19  Persuasive techniques 34:10  Conducting cross 42:06  Signoff questions Quote “One of the things that we [attorneys] often do is we rely too much on credentials. We look at an expert and we think, ‘Well, this person has this certification and this level of education, and therefore they must be better than the other person who doesn’t have that.’ But you know, a lot that is just lost on everybody – the trier of fact. They can’t tell the difference between one credential or the other. But what they can tell the difference is whether someone is likeable and whether they’re understandable.” Gene Tanaka Resources Gene Tanaka (LinkedIn [https://www.linkedin.com/in/gene-tanaka-1a980378]) Expert Testimony slides (PPT [https://info.nita.org/l/921043/2025-11-20/dsv4mx/921043/1763679724labMsAnj/NITA_Expert_Testimony_presentation.pdf]) Modern Trial Advocacy: Analysis and Practice (book [https://www.nita.org/s/product/modern-trial-advocacy-analysis-and-practice-sixth-edition/01t4W00000DALuKQAX]) Federal Rules of Evidence with Objections: As Amended to December 1, 2023 (book [https://www.nita.org/s/product/federal-rules-of-evidence-with-objections-as-amended-to-december-1-2023/01t8a000008kDHTAA2]) Expert Testimony: A Guide for Expert Witnesses and the Lawyers Who Examine Them (book [https://www.nita.org/s/product/expert-testimony-a-guide-for-expert-witnesses-and-the-lawyers-who-examine-them-fourth-edition/01t4W00000DALuCQAX]) Effective Expert Testimony (book [https://www.nita.org/s/product/effective-expert-testimony-third-edition/01t4W00000DALkeQAH])