Statements…

Kaitlyn’s Mock Trial Tip of the Day

Time to talk about delivering statements. Two of the three lawyers on each side will have to deliver a statement, which is basically a five or nine minute speech that tells the whole story of your case. An opening statement is given at the beginning of the trial, and sets forth all the evidence you hope to prove by the end of the trial. A closing statement is delivered after all witnesses have been called and you need to convince the jury that your side is right. It’s a lot more argumentative.

To begin crafting either an opening or a closing, you must first have established a case theory with your team members. Without an idea of the evidence you wish to bring out, it’s going to be really difficult to write a speech about that lack of evidence. So set up your case plan beforehand. You also want to collaborate a lot with your team members, especially the other lawyer giving a statement. The opening and closing should be closely related, especially when it comes to key phrases. You want the jury to remember your catch phrase from the opening when it comes up in the closing. It makes your case seem more cohesive and comprehensive, no matter how terrible the information might have been in the middle. You should thus try to draft your statement with your co-counsel, so similarities in phrasing and organization occur.

The next step is simply to outline every piece of evidence that you feel is relevant and beneficial to your case. Not all of this information will be used in your statement, but it’s nice to have a  list to pick and choose from. When you have a list together, you should start writing a first draft.

When you’re writing a draft, there are important things to remember about each statement that should influence your tone, wording, and content.

Opening

Content: Only use information that will come from your witnesses. Never use information you expect to come from cross examination. The opening, more so than the closing, tells a story. Make sure you explain why you are all in court today, so that the jury knows basics of the trial. An opening is only 5 minutes long, max, so choose carefully the information you wish to include.

Wording: Always use phrases such as “The evidence/We will show…” or “You’ll hear from…”, and other non-argumentative statements. You need to tell the jury what they should expect to hear, but you can’t draw any conclusions about that evidence in opening statements. Instead, set forth your plan for the trial, explaining how you plan to let the story unfold.

Tone/Delivery: The opening should be very evenly and coolly delivered. You should sound professional, knowledgeable, but fairly unbiased. A little bit of righteous anger is permitted, but the important thing is to impress the jury with your crafting of the story, rather than the delivery. The main emotion, if any, that you should use to govern your speech patterns is of mild sympathy, for the jury that was dragged to court, for both parties, and for whatever victim is involved.

Closing

Content: A closing covers all of the evidence that actually came up in trial. The basic story has been told, at this point, at least four times, by the two openings and two lead witnesses from each side. Therefore, the story is much less important. You want to make sure that you bring up the most important positive points from your side, and the negtaive aspects of your opponent’s side (like unexplained alibis, lying witnesses, anything that made them look bad during the questioning phase. You can also twist your opponent’s theme at this point. A closing can be up to 9 minutes long, so you can fit more content in than an opening.

Wording: Closings are usually makrked by a heavy amount of “I submit…” or “The evidence has shown…”. You want to enforce the idea that your side proved very conclusively that your side of the story is correct, no matter what opposing counsel claims. It’s important to choose all wording very carefully in a closing for the most full impact; a sentence like “Joey Davis was *poisoned* by the HappyLand Toy Company” has a lot more impact than “Joey Davis died from eating HappyLand’s product”. Choose sentence structures for impact, and make sure everything you say in closing is easily understandable, even colloquial. You want the jury on your side, and talking like a person rather than a lawyer is the way to do that.

Tone/Delivery: A closing is intended to be very emotionally laced, very persuasive. As a defense closer, you want to portray your client as an innocent (wo)man being persecuted by the proseuction/plaintiff for a crime (s)he would never commit, and as prosecution or plaintiff, you want the jury to understand the pain and devastation the defendant caused your client. You have to be passionate in a closing, but still clear. You don’t want to be overwhelmed, you want to show the jury that you care.

After you’ve written your first draft, it’s time to deliver and revise. You should always be prepared to handle constructive criticism. It’s often hard to notice spots that aren’t working for the statement, or are difficult to understand when you are the author of the statement. It’s thus incredibly important that you practice in front of your team after each revision, so they can offer tips and suggestions that could improve the statement as a whole. Keep in mind that differences may arise, and you are allowed to keep things the way they were. Don’t feel compelled to take every suggestion, but use your objective judgement when it comes to making suggested changes. You have to be comfortable with your statement, more so than anyone else (except, perhaps, the jury).

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May I Approach the Witness?

Kaitlyn’s Mock Trial Tip of the Day (KMTTotD)

Today, I have decided that I am going to detail a few of the key phrases that pop up in competition (or practice). A few of them, you’ve probably heard of, others might be entirely obscure. All of them are likely to be useful at some point or another.

The Classic: “Your Honor…”

Things happen in court. Witnesses lie, lawyers object, grizzly bears attack (maybe not that last one as much…). When situations arise in the court that cannot be handled by questioning the witness, you always address the jusge. And the judge is always addressed as “Your Honor”. And always while you are standing. Only lawyers are allowed to address the judge, but they do have to address the judge very frequently: on every objection, for every piece of evidence, before starting every part of the trial, and more. Every once in a while, you will see lawyers who ignore the traditional formalities; if you want to look professional, you should ignore their example. In real life, judges demand that respect. In Mock Trial, the lawyers judging you know that a real judge will demand that respect, and thus often dock points.

The Argument: “Objection!”

Objections are interesting and very useful things. Common usage on television shows and other popular media give off a slightly false version of what an objection is. In Mock Trial, every objection must be founded on a specific part of the Rules of Evidence, or a part of the American Mock Trial Association’s rules. So, usually, “Objection!” is followed very quickly with “Hearsay!” or “Improper Opinion!” or “Expert qualifications were not established” or any of many other key phrases that occur in the official AMTA Rules of Evidence. We’ll work with those Rules of Evidence so much later that your heads wll spin with numbers. We don’t need to start that process just quite yet.

The Leader: “…correct?” or “…right?”

These are the key endings to make a statement into a leading question. For example, “You ate fifteen steaks” + “…correct?” = “You ate fifteen steaks, correct?”, which is, of course, a debilitating attack on the skinny witness who claims to a vegetarian. These endings allow you to tell the witness exactly the answer you expect, but still making it seem as if they have a choice. Once you settle into your cross examination, you can drop these endings for clarity, smoothness, and power reasons, but your first few cross examination questions should always have one of these taglines.

 

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Dedicated to the witnesses…

Heh…I’m so good at this updating thing now…

Kaitlyn’s Mock Trial Tip of the Day (KMTTotD)

I’ve done a lot of talking about lawyers, so let’s devote a day to witnesses. I tend to focus on lawyers, since that’s what I do more frequently, but witnesses make the team, so I don’t want to leave them uncovered. As a witness, your responsibilities are to know your affadavit as if it was your own life story, to have a set of direct examination answers memorized, and to be able to effectively handle cross examination settings. Since we also have small teams, a witness will probably actually hold two, or even three roles within the case. Same responsibilities apply, just two or three times over.

Knowing your affadavit is basically accomplished by reading and rereading. When you’re reading through, you’ll probably notice points that make your character look bad, either as a liar, or a professional, or even just a person. It’s often helpful to take notes on where these spots are; not only can you prepare for them more effectively when you know what to defend yourself on, but you can also help the attorney who is writing a cross exam for you by offering suggestions. It’s kind of counter intuitive to provide the opposing side with what you feel are the weaknesses in your affadavit, but since we all succeed as a team, it’s actually in your best interest to outline your flaws during practice. You can also get more practice defending yourself against those flaws.

Memorizing a set of direct exam answers is probably the least of your troubles. Chances are, you will practice the questions so much that you can’t help but memorize them. Make sure you work with the direct examining lawyer to craft a set of questions and answers that seem both comfortable and natural. In direct examination, you want to sound like you’re telling a story, and that’s your moment to shine as a witness. In the past, we’ve seen excellent results with people who adopt memorable personas, such as accents, speech patterns, and additional information. If you think your witness might be more interesting and credible to the jury if s/he grew up in Russia, then moved to the US, go for it. The only caveat is, you can’t create information relevant to the case, even indirectly. For example, if you saw a shadowy figure running through to the accused’s house, you cannot create the fact that you have eagle-like vision and thus could see quite clearly that it was the defendant. If it’s in your affadavit, it’s fair game.

Cross examination is where you will probably have the most challenge. The difficulty lies with the fact that you have no idea what the opposing attorney is going to ask. You know what you think your weak points are, but what if you missed one? Suddenly, it’s slammed in your face by the opposing attorney. Here’s where knowing your affadavit is integral. As long as you know what your affadavit says, even word for word for certain parts, you can hold your own. There are always questions to fight against and questions to concede; in practice, you’ll learn how to recognize when resisting the attorney’s conclusions is beneficial to the case. And if you get slammed into the “yes or no answers only” spot, just wait for your lawyer to bail you out, either with an objection or with a redirect examination.

Redirect examinations are often difficult to fit in timewise, but can make the case. For example, let’s set the scene as a murder trial, where you are the defendent, and the victim is a former classmate of yours. In cross examination, you were *told* that you threatened the victim on multiple occasions, and you had to answer yes. It seemed devastating until your lawyer stepped up, and with a slow smile asked you, “How old were you when you threatened Ms. Wilcox?”

“I was three years old.”

“And what did you threaten to do to her?”

“I threatened to tell her mother that she was cheating at monopoly.”

“Did you ever threaten her with violence?”

“No, I didn’t”

“Or with death?”

“No, I did not.”

“Any threat beyond telling her mother?”

“I think I also said I’d tell her father once.”

“Beyond that?”

“No, no other threats.”

“Did you ever hold animosity against Ms. Wilcox?”

“Of course not. She was my best friend in school.”

“Did you ever threaten her after the times when you were three years old?”

“No, I did not”

“No further questions”

Without that redirect, it certainly seemed as if you had some sort of motive to murder Ms. Wilcox, given how frequently you threatened her. But your lawyer stepped in to save the day, revealing a simple, childish threat that means nothing in reality. If you get trapped in the “yes-or-no only”, don’t panic. Your lawyer can help you escape with your reputation intact. Less frequently used, you can also petition the judge to be allowed to explain your answer, but you should only resort to that if you know your lawyer either isn’t paying attention or cannot help you out. The format is something like this…

Cross: You threatened Ms. Wilcox, didn’t you?

You: Yes, but…

Cross: Yes or no answers only, please. You threatened her on multiple occasions, correct?

You:  I was only…

Cross: There is no need to answer anything but yes or no. I’ll ask again, you threatened her on multiple occasions, didn’t you?

You: Yes

Cross: And these threats were sometimes as frequent as twice a day?

You: Your honor, may I be permitted to explain my answer?

Cross: Your honor, this is a simple yes or no question. I simply want to know if she at any point threatened Ms. Wilcox twice a day.

Judge: I think the witness has a right to defend themself. Go ahead, witness.

You: Thank you your honor. I only threatened Ms. Wilcox when I was three years old, during our weekly monopoly game, where she always cheated. I would threaten to tell her mother. One time, she continued cheating, so I also threatened to tell her father. That was two threats to tell her parents in one day.

Cross: … So you did threaten her twice in one day?

You:  I threatened to tell both her mother and her father that she was cheating at Monopoly in one day, yes.

The problem with this strategy is that the judge doesn’t like to be addressed by the witness, and so is less inclined to grant the request. It should be a last resort, to be used only if your lawyer refuses to object to the heavily prejudiced cross questions. The judge sometimes will, however, step in of his own accord and tell the cross examining lawyer to back down and let you answer.

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And…I’m back!

Well, look at this. I am actually updating relatively on time. Such a novel idea for me. Anyways, it is time for the second edition of…

Kaitlyn’s Mock Trial Tip of the Day (KMTTotD)

So, today I will share my wise and insightful insights about the process of preparing an examination of a witness, both cross and direct. I’m going to assume that you’re writing a first draft, which is a lot different from writing an eighteenth draft of questions. Basically, I’m going to start with the basics.

So, you’re here. You have a witness to direct examine, and you have a witness to cross examine. Case theory is a little hazy at this point, but you know what side you’re on. Here, it’s important to read through the two witnesses’ affadavits, approximately 300 times. Okay, a little closer to three, but 297 more certainly wouldn’t hurt. Each time you go through, mark what pieces of evidence you think work for your case and which you think work against you.  Both will be important, for each witness as well.

Your direct examination witness is on your side. S/He believes in your cause, and thinks the same way you do. As such, there’s no need to fight the witness you direct. In fact, you don’t even really want to talk at all. You want your witness to do the talking. That’s why it’s called a direct examination: your role is to direct the witness’s testimony towards relevant topics. You can’t just hope that the witness will reveal every piece of important information without any prompting, so you need to craft your questions to get that information out.

For example, let’s say in the case of Elmo v. Bert, Elmo has accused Bert of kidnapping his former boyfriend, Ernie, and holding him hostage in the bathtub. Bert (and Ernie for that matter) deny that Ernie was ever a partner of Elmo’s and furthermore accuse Elmo of stalkerish behavior (Sorry if I ruined Sesame Street for you). You are the defense attorney representing Mr. Bert, who you will also be directing, and you will be performing the cross examination of Mr. Elmo.

Starting with Bert, you want to establish that Elmo is kind of crazy and should not be trusted, but it’s also important that you let Bert do the talking to show that. Bert knows Elmo is kind of crazy, from repeated interactions, and thus is very willing to talk about it. So, your questions might go a little like as follows:

You: Hello Bert. Why are you here tonight?

Bert: I’m here to show that I am not a kidnapper, that Ernie and I are lovingly engaged, and that all accusations otherwise are completely false.

You: When did you and Ernie become betrothed?

Bert: Five years ago, a year after I met Ernie. I knew right when I met him that he was the man for me, with his cheery smile and that adorable rubber duck. After we dated for about six months, I proposed, and Ernie said yes! I felt like the luckiest man alive. Unfortunately, marriage laws in Sesame Street are still very conservative and don’t have any puppet clauses, so we had to put the wedding aside until people become more understanding.

You: Did you ever talk about past romantic lives with Ernie?

Bert: Yes, of course. We put honesty first in our relationship and he told me all about his exes.

You: Did Ernie ever mention Mr. Elmo as a former romantic partner?

Bert: Ernie had never dated any guys before me. I was the one he came out of the closet for. So, no, Elmo was never mentioned as a former romantic partner. Ernie did mention, however, that Elmo did seem to have a sort of obsession for Ernie.

That’s enough of that. If you look at those questions though, you can (hopefully) see that as the lawyer, you only want to indicate to the witness what you want him/her to talk about, and then just let them talk. The witness is the star of direct, and you should always let them be that star.

So now we have the cross examination. The cross exam is of a opposing witness; you know they don’t agree with you, so you don’t want to give them the chance to do so. This is where you get to point out the flaws in their testimony, the spots where they might be lying, where they seem questionable. All questions should be answerable by “yes” or “no”, but the answer should be included in the question: these are called “leading questions” because you are leading the witness to the answer you expect to hear. These are the classic lawyer questions, like “You killed her, didn’t you?” or “There were fourteen nuclear bombs in your living room, weren’t there?”. Let’s go back to our sordid Sesame Street affair for some better examples.

You: You liked Ernie, didn’t you?

Elmo: Yes, from the moment I saw him.

You: But when you met, Ernie didn’t seem to feel the same way, right?

Elmo: Yes, but that changed after about a month.

You: In fact, when you met, Ernie punched you in the face, right?

Elmo: Yes, he did.

You: And while he punched you, he shouted that you were harassing him, correct?

Elmo: That’s what he said.

You: You said things changed after a month, right?

Elmo:  Yes, in April, we started dating.

You: That same April, your sister was sick in the hospital, right?

Elmo: …yes…

You: And, in your words today, you spent “night and day by your sister’s side”, right?

Elmo: Well, I was there a lot, but I didn’t, like, sleep there or anything. I spent the nights with Ernie.

You: You work for Sesame Street, correct?

Elmo:  All of us do.

You: I’m sorry, but I didn’t ask if “all of you” work for Sesame Street. I am only asking about you, Mr. Elmo. You *do* work for Sesame Street, right?

Elmo: Yes, I do.

You: In fact, you work the night shift cleaning the streets with Oscar the Grouch, right?

Elmo: …Yes I do.

Man, things are looking grim for Elmo. A cross examination is very swift, very to the point, and hopefully, very, very damaging, as you can see above. The sum of the examination should be that Elmo looks to be a very uncredible witness, leaving  the prosecution without a leg to stand on.

When you’re writing your first draft of your examinations, don’t worry about fine tuning. Your cross examination especially will be constantly morphing to adapt to new points found and stronger emphasis placed on some points. The first cross exam will start with probably around ten different points that each have two or three questions, but by the time of competition, will more likely have been whittled to three points, with ten questions for each point. Don’t strive for those three detailed points on your first draft. You want to cover all your bases, so any points that you think might be damaging, stick them in. They’ll be refined later.

As for direct, just focus on telling a story. Think about what will make the story interesting in the testimony, and what is simply important to cover for a factual representation of your witness. Remember, no lying is allowed. And, since this is your first draft, chances are your witness doesn’t really know what they’re doing yet, so you should probably draft answers for them. It’s important to know, word for word, how a witness’s answer will be phrased, so you don’t cut them off too early, or stand waiting for information that isn’t forthcoming. Direct exams go through a lot less revision than cross, but they still are revised, sort of as a group effort, so don’t worry about having a perfect first draft.

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Summertime

Here we are, entering the month of July. Soon, we will have access to the AMTA official case for 2011-2012, which could cover any criminal case. I have my fingers crossed for a good one. In the mean time, there are a couple good trial lawyer resources you might want to take a look at, if you’re bored and want to read about some good, lawyerly techniques…

http://criminaldefense.homestead.com/: A good website filled with examples of good criminal proceedings. It’s a little state specific, but that’s very forgivable.

http://www.trialtheater.com/wordpress/: A not-so-regularly updated blog with a lot of information on how to effectively present either side of any type of case. Good resource for understanding how things can go down in trial.

Also, provided I have the time, I’ll try to keep up a series of tips that I’ve learned from Mock Trial. Starting today (the excitement!). Who knows how long this will last, since I am working full-time, but I’ll see what I can do.

Kaitlyn’s Mock Trial Tip of the Day

So, as mock trial starts to rear its head around the corner, I’ll offer some insight as to how to begin to understand the new case materials. Basically, the story of the trial is told by the witnesses. In AMTA cases, there are a lot of witnesses, so I would suggest focusing on the two main witnesses: the accused and the accuser, otherwise known as plaintiff and defendant, or, in criminal cases, the defendant and the close friend/relative of the supposed victim.

Of course, these two people are on opposing sides of the case, so the stories they give you will be slightly different, in key ways that allay or place suspicion, as appropriate to their side of the case. Reading the two stories back-to-back makes those little changes very obvious: did Ms. Teaberry Olson start buying horsemeat to replace beef, as claimed by the prosecution lead witness, or simply need to cut back on beef buying to cope with the anti-hamburger economy?

One thing I’ve always noticed when reading a case for the first time is that I always agree with the witness whose testimony I’m reading. At least for the first run through. I also have mental checklists for both sides, which I automatically add to as I see what could be important points in a case. I’m very much a cheerleader for both sides as I read through the case the first time, although I nearly always end up sympathizing more with the plaintiff/prosecution. I’m not really sure that it’s the best way to read through a case, but it certainly is helpful when working with the other side. Mutual preparation for both defense and plaintiff/prosecution is key to success in Mock Trial.

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General Interest Meeting, pt. 2

Recruitment for next year’s team is getting into full swing. This Thursday, March 17, from 6-8pm we are having a general interest meeting in Wilder 110. Kaitlyn has kindly written up an overview of how mock trial works, as well as some humorous example opening/closing/exam excerpts themed around President Krislov’s purported dislike of grey squirrels. If all goes according to plan, we will (while munching on free pizza) go over that information with the meeting attendees and set up dates for those interested to “try out.” Try out is in quotes since we will most likely not be cutting anyone interested in joining the team; we just want to figure out who is interested in and suited for different lawyer and witness roles.

Below is a link to the poster for the meeting:

Mock Trial Poster

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Surprise!

So, it appears that, even though we were not initially qualified to make the next round of mock trial competition, Oberlin Mock Trial has now been invited to attend the Opening Round Championship (basically, semi-finals) in Waukegan, IL. It’s still up in the air whether we will actually be attending the competition, since we only have a week and a half to be back on track, but hopefully, we can go and be successful. Wish us all luck!

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