Mock Trial: The Basics

1. Mock Trial: The Basics Prof. Robert T. Sherwin February 4, 2011

2. Mock Trial: Defined • Mock: Feigned; not real; sham. • Trial: The examination before a judicial tribunal of the facts put in issue in a cause, often including issues of law as well as those of fact. • In short: A simulated trial! • It is NOT a simulated oral argument (that’s moot court).

3. How we prove and determine facts • In the American justice system, juries (or judges) are asked to determine facts based upon evidence. • Evidence generally comes in two forms: • Witness testimony • Physical evidence (documents, videos, objects)

4. Witness testimony • Witnesses are “called to the stand” to give testimony under oath. • Their testimony comes in the form of answers to questions (an “examination”) by the attorneys. • The party who calls the witness to testify conducts the “direct examination” of the witness. • The side against whom the witness testifies conducts the “cross examination.”

5. Physical evidence • Witnesses may be asked to testify about documents, videos, or other physical objects. • These pieces of physical evidence can be “admitted into evidence” as “exhibits” and be considered by the jury to the same extent it considers witness testimony.

6. Trial – in sum • The purpose of the trial is to allow each side to introduce evidence that the fact finder can use to answer questions of fact.

7. How does a mock trial go? • Housekeeping/motions in limine • Opening statements • Plaintiff/Prosecution puts on evidence (two witnesses) • Defendant moves for directed verdict/acquittal • Defendant puts on evidence (two witnesses) • Closing arguments

8. Division of duties • You compete as a team of two. • One teammate delivers the opening statement; the other delivers the closing argument. • Each teammate conducts a direct examination of one of your witnesses and a cross examination of one of the other team’s witnesses.

9. Division of duties (cont.) • Other matters (housekeeping, dispositive motions) may be divided as you see fit, but try to equal each teammate’s “face time” as much as possible. • You must prepare both sides (Plaintiff AND Defendant) of the case; you will switch throughout the competition.

10. Formalities • Plaintiff/Prosecution sits at table closest to jury box (or left if no jury box). • Stand up when the judge enters or calls the court to order (and any time you speak). • Judge will ask attorneys to make their announcements (Plaintiff/Prosecution goes first).

11. Housekeeping • Opportunity to address preferences of the judge in how trial will proceed. • Permission to roam about courtroom during opening/closing? • Arm’s length from podium during witness questioning? • Constructive approach/witness swearing? • Reading of jury instructions? • Addressing judge as both judge and jury? • Plaintiff should present motions first.

12. Opening statement • Your opportunity to introduce yourself and present your theory of the case. • Tell the jury what you expect the evidence will show. • This is an opening “statement,” not an opening “argument” – you are not supposed to be argumentative or combative. • Opening statements are NOT evidence!

13. Opening statement (cont.) • Should last no more than five minutes • “May it please the Court? Counsel [acknowledge opposing counsel]. Ladies and gentlemen of the jury [turn to the jury].” • Introduce yourself, your co-counsel, and the party you represent. • Begin telling your client’s story as framed by your “theme.”

14. Theme • You should always have a theme to describe your case – a “hook” the jury can latch on to and conceptualize the evidence through. • Examples: • “If the glove don’t fit…” • CSI • Desperate Executives

15. Opening statement (cont.) • Explain the dilemma in the case – what the plaintiff is claiming or why the plaintiff is wrong. • Explain the burden of proof and the elements of the claim (particularly if you’re the plaintiff). • Introduce your witnesses and explain how you expect them to testify. • Explain how you expect the other side’s witnesses to testify.

16. Opening statement tips (cont.) • Couch everything in terms of “we expect the evidence will show” or “the evidence will likely show” or “you’ll learn that…” • Remember – you haven’t held the trial yet, so you can’t say things as a matter of fact that are in dispute! • Objections? • Ending: Ask the jury to carefully weigh the evidence and find for your client.

17. Direct examination • After each side has opened, the parties put on their “case in chief.” You do this through calling witnesses. • Decide which of your two witnesses you want to call first. • When the judge asks you to call your first (or next) witness, stand and say “Your Honor, the Plaintiff calls Witness McWitnessy to the stand.”

18. Direct examination (cont.) • Make sure witnesses have carefully read their deposition/statements. Give them a list of the questions you’re going to ask and the answers you’d like them to give (even though they can’t take that to the stand with them). • Plan out your questions according to subject areas. Within each subject area, move chronologically so your questions make sense.

19. Direct examination (cont.) • What do you need from the witness? • Be sure to ask whatever questions necessary to get the witness to testify about the essential elements of your claim. If the witness doesn’t say it, it’s not in evidence and you haven’t proven your case! • Ask open-ended questions. Any question that suggests its answer is leading, and therefore objectionable.

20. Direct examination (cont.) • Use the witness to explain physical evidence. • To give the witness an exhibit, first ask the judge, “Your Honor, may I approach the witness?” • Before you approach the witness, give a copy of the exhibit to opposing counsel, and ask the judge if he/she would like a copy as well.

21. Direct examination (cont.) • Once you finish your direct examination, look to the judge and say “Your honor, I pass the witness.” • Don’t say “I have no further questions,” which may lead a mean judge to say that you’ve waived your right to do a re-direct examination after cross.

22. Cross examination • Your opportunity to “question” the other side’s witnesses • Goals: • Tell “the rest of the story” • “Impeach” a witness/make him look bad • Collect ammo for closing argument • Make yourself look good • Hardest part about trial work (and mock trial). Also most fun.

23. Why so hard? • Three reasons: • Witness is adverse • What we think we know about cross is wrong • Can’t rehearse it • Control over the witness is vital. Without it, the examination goes badly. • With control, you look good, and when the witness tries to deny you of it, he looks bad.

24. How to get control? • Leading questions? • No! SHORT, SIMPLE, STATEMENTS

25. Problems with questions • Jury wants to hear the witness’s answers. • You lose the ability to tell a story.

26. The benefit of short statements • The length of the statement dictates the length of the response. • Focusing on short statements prevents asking compound questions that allow the witness to say “No” when at least part of the answer begs a “Yes.” • Allows you to communicate with the jury, not the witness.

27. So how do I do it? • Decide the points you need to make through the examination. • Only ask questions to transition from point to point. • Mr. Smith, I’d like to ask you some questions about _____. Is that OK? • Eliminate prefixes. • Eliminate suffixes. • Design short statements to move in a logical progression toward each point you need to make.

28. What if it doesn’t work? • If witness stares at you, say, “Correct” or “Isn’t that right?” while nodding. On the next statement, nod. • If witness argues with you or says something other than “Yes,” listen to his answer. And then…

29. What NOT to do • The “Deal” • Cut off witness and thank him/her for answer • “Just answer yes or no” • Ask the court for help (except as a last resort)

30. What TO do • Ask, repeat, repeat. • Or ask, repeat, reverse. • Full, formal name. • Shorten the question. • “I’m sorry, you must have misunderstood my question. I wasn’t asking about…” • “That didn’t answer my question, did it?” • “Then your answer is yes?”

31. Cross examination tips • There’s no need to be mean to the witness • Avoid the “one question too many” – it might be OK to save the conclusion for jury argument. • Try to end with a powerful point. • “Pass the witness” when you’re done.

32. Re-direct examination • The person who calls the witness always has “the last word.” So, after cross, you can ask additional direct examination questions of your witness. • Fix any damaging testimony that came out on cross by letting the witness explain. • Limited to scope of direct/cross.

33. Re-direct examination • When you’re done, say “Your Honor, I have no further questions. May this witness be excused?” • No re-cross examination allowed in our mock trial competitions.

34. Closing the “case in chief” • After the Plaintiff has called its two witnesses, rise and tell the judge “Your Honor, at this time the Plaintiff rests its case in chief.” • Defendant should do the same after it calls its two witnesses in its case in chief.

35. Motion for Directed Verdict (Halftime!) • After the Plaintiff rests its case in chief, the Defendant should ask the judge to excuse the jury. • Defendant then moves for a Directed Verdict, arguing that the Plaintiff did not put on sufficient evidence to prove a prima facie case. • Argue the elements of the cause(s) of action and why they weren’t met. • It will be denied. That’s OK!

36. Closing argument • Opportunity to be theatrical (and argumentative!). • Use the same theme that your partner introduced in opening. • Talk about what the witnesses said. If a witness didn’t say it or it didn’t appear in an admitted exhibit, you can’t talk about it! • Point out inconsistencies in opposing witness’s statements.

37. Closing argument (cont.) • Explain the elements of the claim and how the evidence did/did not establish those elements. • If there are jury instructions, explain them and how the jury should answer. • Explain the burden of proof and make it work for you. • Ask the jury to hold for your client. • Plaintiff can reserve time for rebuttal.

38. Objections • For 1L mock trial, we’ve eliminated nearly all evidentiary objections. • The objections you may make: • Ambiguous • Argumentative • Asked and answered • Assumes facts not in evidence • Compound • Leading • Narrative

39. Objections (cont.) • The objections you may make (cont.): • Non-responsive (as to witness testimony) • Relevance • You may not object to any evidentiary issues other than relevance. In particular, no hearsay objections! • Only the attorney handling that witness may object. • Keep a list of available objections at counsel table.

40. Objections (cont.) • When the other side asks a question that is objectionable, rise and say “Objection, Your Honor,” and then state the grounds of your objection. • The counsel objected to should then say, “May I respond your Honor?” (unless you know you’re wrong, in which case just say, “I’d be happy to rephrase, your Honor.”)

41. Closing thoughts • Keep counsel table neat and clean. Consider putting everything in a binder with tabs. • Other than announcements and objections, speak from podium (unless permission to roam in opening/closing). • Stand up straight – look like a lawyer! • Don’t talk or overly whisper to co-counsel.

42. Mock Trial: The Basics Prof. Robert T. Sherwin February 4, 2011