Egyptian Dogs and Kangaroos: SIU and UMKC Trial Competition Experiment

Dear Colleagues,

Rafe Foreman and I are conducting an experimental trial competition between our two schools this weekend.  He's bringing two teams of student advocates from the University of Missouri at Kansas City School of Law to compete against my students from the Southern Illinois University School of Law.  Editor's note: The SIU mascot, the Saluki, is an Egyptian hunting dog.  The UMKC mascot is a kangaroo.

We'll meet at the Williamson County Courthouse in Marion, Illinois, just a few miles from the university.  The students are going to try a civil tort case from voir dire to verdict using a jury of ordinary people from our community.  The trials will be presided over by actual state court trial judges from here in Illinois.  The winner is the team that gets the verdict and/or the highest damages award.  Each four-person team will try the case twice--once in the morning and once in the afternoon.  When the trials are over, the two teams will meet for dinner to discuss the trials and get to know each other socially.

While recognizing that no mock trial can ever duplicate the realism of an actual jury trial, we've tried to strike a balance between reality and the artificial hothouse world of mock trial competitions.  For instance, we modified a case file that we've both used before with our students.  We created a joint pretrial order that is binding on the students and judges and includes time limits, professionalism and behavioral expectations, and evidentiary stipulations.  We've supplied prefatory and final jury instructions on the issue of liability.  We provide a basic framework for voir dire modeled on Illinois trial practice, with a couple of changes: there are no peremptory challenges, and since we have volunteer jurors, if a juror is stricken for cause, that juror will still sit for trial but will be told just before deliberations that he or she was selected as an alternate and can deliberate but not vote.

We gave the students the case file exactly two weeks before trial.  We figured this would duplicate the pressures of preparing while still trying to carry on a practice much more realistically than the two months' lead time that occurs with most trial competitions.  There isn't time for the students to put on a dog-and-pony show with over-rehearsed speeches and advocacy parlor tricks such as what we often see at trial competitions.  They have time to conduct case analysis and get ready for the trial.  To add some pressure, with three days left until the competition, we required each team to contact its opponent and negotiate stipulated jury instructions on damages and a verdict form.  And by the way, we provided stipulated out-of-pocket economic damages in the pretrial order, but no witnesses or stipulations on non-economic damages.  The students have had to research and prepare for how to argue damages on their own.

Students can talk to their coaches during trial breaks, just as they could with a senior partner or supervisory attorney during a real trial.  If they invoke the rule on witnesses, the witnesses will actually have to leave the courtroom.  

From a teaching perspective, this has been an enlightening and gratifying experience.  We're preparing our students to try an actual jury case under time pressure.  We don't have to coach them to watch out for certain types of dirty tricks, competition stunts, or pitfalls that exist primarily in the mock competition world.  For instance, in several years of trying cases in the Army and observing trials in multiple state court jurisdictions, I never once saw witness or attorney behavior as egregious as the first team I coached against in a trial competition.  Jim Gailey tells me that he teaches his students the rules of knife-fighting in a mock trial so they'll be prepared to survive what virtually no one actually gets away with in a real courtroom.  It's wonderful to not feel I have to spend my time preparing for that.

I don't like the artificial nature of mock trial competitions.  The absence of a real jury, in my view, encourages advocacy tactics and gamesmanship that would never work in the real world and would in fact, be counterproductive.  Students learn to do what looks and sounds great to other lawyers, but sometimes don't consider the impact of their choices on lay people.  This is not necessarily so, by the way--I think some of the top teams I've seen would be amazing with a jury--but the artificial tactics are common enough to be a problem--especially with teams that are ethically and behaviorally challenged.

I've always wondered what it would be like in these competitions if we had lay juries and tried a case to verdict.

We're about to find out!  

I'll write more about the competition next week.