Whose Trial Is It Anyway?

Sorry for the delay.

Kaitlyn’s Mock Trial Tip of the Day

It’s time to discuss the less obvious aspects of Mock Trial. Everything I’ve covered so far has been pretty easily exemplified, and you can practice objections, questioning, et cetera over and over and over again in practice. But mock trial isn’t just practice, memorization, and coolness. There’s a huge potential for things to go wrong in trial, and a good mock trial team can handle those occurences as well as they can the parts they’ve practiced for what feels like eternity.

Because a mock trial team must prepare both a prosecution/plaintiff and a defense side, you practice together. It just happens; it’s convenient, you both benefit, and there’s no pressure. You win either way. However, the problem with practicing against your opposite side is it becomes predictable. You hear every set of questions before trial, you know exactly what witnesses they will call, you even have your objections scripted. Which is all fine and dandy, until you get to competition and suddenly, they’re asking your witness about his “experiments” in college with artificial intelligence and snails, and he suddenly seems like a crazed snail enthusiast, instead of the slick, biomechanical engineer you wanted him to appear to be.

There’s a couple ways to deal with what I will now call the “comfortable factor”. The first happens in competition: listen to everything said in the courtroom. Even if it isn’t your witness, even if you know what the answer is going to be, even if you are the one talking. This is especially helpful in cross examination: don’t be afraid to break from the script to pursue something in the witness’s answer, or in the direct examination. For example…

You: You didn’t see the red light, did you?

Witness: No, I was too far away.

You: *Pause* You were too far away?

Witness: Yes

You: But you claim you could see the crime scene perfectly?

Witness: Well, it was closer than the red light.

You: You were traveling on Wood Street at the time, right?

Witness: Yes

You: Heading towards the intersection of 5th and Wood?

Witness: Yes

You: And past the intersection of 4th and Wood?

Witness: Yes…

You: So the red light was at 5th and Wood?

Witness: Yes…

You: And the crime scene was at 6th and Wood?

Witness: Yes…

You: So you were actually a block further away from the crime scene than you were the traffic light?

Witness: I guess so

Compare that set of questions to the blind script follower set of questions…

You: You didn’t see the red light, did you?

Witness: No, I was too far away.

You: *Pause* But you claim to have seen the crime scene, right?

Witness: Well, it was closer than the light.

You: *Pause* Moving on…

As should be apparent, listening to the witness’s answer formed an opportunity for you to mildly impeach the witness. Also, cross portions of the trial almost always have extra time, just because the answers are so short, so time isn’t really a problem. Unless you get a rambling witness, but we’ll talk about that later. Listening is often difficult when you are asking questions, because you know what answers you will probably receive, and if you don’t receive them, that you should impeach the witness. But witnesses justify things, and you can take those justifications and turn them on their tail, as long as you’re paying attention.

As a witness, you also have to be prepared to improvise at times, but mostly in cross examination, and if you know your testimony, you already know what parts are cross worthy. Lawyers will make bad word choices or imporoper sentence structures, so if you don’t completely agree or disagree with the question, you should explain why you think the question is inappropriate for your witness.

Lawyer: You were arrested for driving under the influence in 2001, correct?

You: As I already explained in direct, yes , I was arrested, but my record was wiped for good behavior.

Lawyer: Yet as a recovering alcoholic, you still thought it was appropriate to share a glass of wine with your boss?

You: I’m not an alcoholic. I had too much to drink at a party, once. That doesn’t mean I have a problem with alcohol. And I thought it was appropriate to celebrate my bonus check with my boss with a glass of wine, yes.

Lawyer: Uh…okay, but you did have a glass of wine with your boss?

You: Yes, she offered me a celebratory toast and drink after she gave me a bonus.

Interestingly enough, even the best lawyers can make really bad questions like the one seen above. So if you call them on it, it startles them, and you look good as a witness. Strong, confident, polite, and likeable: that’s your goal as a witness.

Okay, so beyond listening in the courtroom, what can you do to help prepare for the little surprises in competition? Well, you’ve asked the right person. The problem with practicing with the same team all the time is repetition, right? So mix things up. Lawyers, ask new questions of your witnesses on the spot, direct or cross examination. It doesn’t even matter if they are relevant questions, or well formed, or anything. Just ask them, and see how your witnesses do. Likewise, if your witness is on the stand, but your opposing counsel is questioning, object to everything. Put all the pressure on your teammates, don’t be afraid to fight hard. Then when you go up against the toughest teams, with the most confrontational lawyers you have ever met, your team members know exactly how they should react. Witnesses, give your lawyers opportunities to impeach you. Lie outright, avoid questions, be sly and weaselly in practice (of course, make sure you can be professional for the trial). If you keep your team members on their toes, there will be no surprises when you get to trial that your team can’t handle.

Now, obviously, you should practice your actual strategies, not only the improvisation practice, so make sure you cover both. Personally, my team is going to have at least a monthly “lying bastard” practice, where the goal is to push all of your team members to their limits. (Surprise, guys! They’re so much fun, by the way). Make sure that you end the meeting or practice with a frank discussion of everyone’s strengths and weaknesses, so that people can improve upon their techniques. Otherwise, the meeting is no help whatsoever, because you can’t recognize where you need more work. Also, make sure you have a judge who is either unbiased or on both teams, so with an equal bias. Although, judges can also be partial to one team, so it might be beneficial to have a judge try to ruffle the feathers of your attorneys. It’s a tough thing to work with annoyance and anger, but trust me, it’s well worth it in the end. Because that’s what happens in trial, and people aren’t going to apologize later and tell you what you did well. Well, probably not.