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Scholars Get Their Day in Court in Professor John Kelly's Trial Practice Class

By Ann Kim, Staff Writer Portland Press Herald

PORTLAND - In vivid detail, the prosecutor described how the victim was robbed in a dark alley. The victim tasted fear, saw the gleam of a knife and felt the attacker reach into his pocket to snatch his wallet.

The assailant had been mere inches from William Jones during the frightening encounter. Jones identified Frank Smith as the robber three times -- first in a photo array, then in a police lineup and again in the courtroom.

Each time, Sophia LeHarte said, he had to relive that moment when he thought his life could end -- over a wallet and a watch.

"Very good, very good," said John Kelly, the instructor of the trial practice class at the University of Maine School of Law.

Kelly complimented LeHarte, a 23-year-old third-year law student, for emphasizing the proximity of the two men and the acuity of the victim's senses. He also reminded her that she should have said "beyond a reasonable doubt," rather than "clear and convincing evidence" when speaking about the burden of proof -- a slip-up that would have drawn an objection in a real courtroom.

The law students in Kelly's seven-week course are getting a taste of what it takes to be a trial lawyer. They have covered topics such as jury selection, strategy and preparation, and direct and cross-examination of witnesses.

On Thursday, nine students presented closing arguments for hypothetical cases. The course will end next week with a jury trial for a products-liability case.

Kelly said he has noticed how much the students have progressed over the weeks. They've grown confident, improved their use of themes in their cases, become more strategic and used creativity to humanize their clients and help the jury identify with them, said Kelly, of the Portland firm Kelly, Remmel & Zimmerman.

When Kelly got his first job in 1967, he did so without the benefit of such a class. As part of the attorney general's criminal division, he tagged along with some of the division's other members at a handful of trials before handling his own trial.

"We learned fast and by fire," he said.

Kelly's course at the law school included guest speakers such as Robert Crowley, a colleague of Kelly's and a former Superior Court justice. Crowley's session on common mistakes by trial lawyers ranged from keeping the audience in mind to doing simple things to distinguish themselves.

A lawyer can impress a judge as someone who's paying attention by efficiently conveying basic information at an arraignment about the defendant, the lawyer, the plea and the bail, Crowley said.

"For some lawyers, it can require the judge to ask 14 different questions," Crowley said.

On Thursday, LeHarte appeared self-assured behind the lectern, but later admitted to being nervous. Making eye contact is difficult during public speaking, she said, so she moves her head around to create the appearance of eye contact.

"I needed this because I have really big issues with public speaking," she said.

Patrick Lever, LeHarte's adversary in Thursday's exercise, delivered his own effective closing argument -- one that Kelly said would have raised doubt about whether authorities had the right guy.

Lever noted that the victim admitted to drinking "about two beers." The light was behind the attacker, putting his face in shadow. The victim's description was so vague that it would fit many men, including his client -- who had no history of violence, he said.

The victim picked his client's mug shot and then asked for a lineup because he was unsure, said Lever, who questioned whether he recognized Frank Smith in the lineup or was merely picking the man in the photo.

For Lever, the class wasn't about getting over fears of public speaking, though he would like to become more comfortable with it.

"It's something you need to know how to do," he said of the trial practice. "You don't want to go out into the world without doing this."

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