- Voir Dire. Although one of my favorite parts of a trial is voir dire, I've shied away from teaching it in my trial classes, largely because of perceived resource deficiencies and a lack of time. Based on my experience in this competition, I'm going to change that. I taught my trial teams a a crash course in voir dire on Tuesday. They practiced it on Wednesday before some live panels of law students. They refined their voir dire questions on their own in preparation for trial. Both the SIU and UMKC students conducted effective voir dire. The jury panels opened up and talked to the attorneys, creating connections for both sides. It was interesting to watch different jurors respond to the questions and the attorneys and gratifying to see the attorneys pick up on nods, smiles and body language cues. To be sure, there were differing skill levels for voir dire; some of the students did it better than others. But overall, the voir dire seemed to pave the way for both sides to discuss important themes, concepts and issues with the jurors in a real give and take. (As an aside, I actually had jury duty this summer and watched voir dire for several panels of juries. All of these students, from both schools, did a better job on voir dire than what I saw in this summer's trials, which was, by the way consistent with my past experience. Most attorneys don't do voir dire well.) We did a couple of things in the interests of time and preserving the feelings of our volunteer jurors. The attorneys were not allowed any peremptory challenges. They were allowed to make challenges for cause, but if granted, the juror would be allowed to sit for trial and only told before deliberations they had been selected as alternates. As it happened, the judges did not grant any challenges for cause, on the grounds that the attorneys did not sufficiently develop the bias or inadequacy of the jurors to sit. From what I saw, both from my own students and Rafe's, this was a fair comment from the judges. Our attorneys hit all the right themes and got the jurors talking, but they did not obtain enough evidence on the record of any bias or infirmity of the jurors. To improve voir dire next time, I would do a few things differently. First, I would increase the size of the panels (we used 6-person juries). Second, I would permit a peremptory for each side, because in at least two of the trials I saw, both sides correctly instinctively identified jurors that would be dangerous for their case but could not get them stricken for cause and had no peremptory to fall back on. Third, I would permit actual challenges for cause and dismissals. I think that volunteer jurors would understand this if advised of it in the beginning. Fourth, I would allow more time for voir dire. We gave 20 minutes per side. I think a half-hour, or even an hour, would be better.
- Time Limitations. When I originally decided to use this competition format, my idea was that we would use a larger case file with more than two witnesses per side. I figured we would have voir dire and opening statements in the morning, take a lunch break, and then try the rest of the case in the afternoon. Instead, Rafe and I decided to try a morning trial and an afternoon trial. This necessitated using a smaller case file, as well as imposing an overall time limit for the trial, including a hard time limit for jury deliberations. While this permitted us to involve more students, there was a cost to the realism element of the trial. Next time, I'd like to try a full-day trial.
- Professionalism and Ethics. As I expected, no problems here. First, Rafe and I both drilled into our students that they would behave professionally. This included the No-Jackass rule (I've written about it before here) for witnesses and attorneys. Second, as I suspected, the jury was a moderating influence. One of the UMKC students told me after the trial, "There were several times I could have objected, and if I was trying to get points, I would have. But then I thought about how it would sound in front of a jury, and I bit my tongue." This was a successful strategy for him and perhaps a contributing factor to his successful verdict in the case. By the time trial started, these attorneys had a relationship with the jury, and I don't think they wanted to jeopardize it. We did not have a competition committee. There were no protests. This does not mean the students were always happy with their opponents, especially those playing witnesses. But they had to figure out a way to work through these issues without whining or jeopardizing themselves in front of the jury. From what I could see, they all managed to do this.
- The Verdicts. We tried a civil case, including comparative fault and damages. The students had to negotiate and stipulate to the damages instructions and the verdict forms. The case was tried four times today, with each school presenting two plaintiff's cases and two defense cases. Here are the results:
Trial 1. Verdict for the defense. 0% fault for defendant. (UMKC won)This type of verdict spread would drive a competition director at a large regional competition insane. But it was perfect for what Rafe and I were trying to accomplish. It was fascinating to see the facts and themes that led to the differing verdicts. The students were able to talk to jurors and find out what worked and what did not. We learned that in one trial (one of the defense verdicts), one juror was able to sway all the others to vote against the plaintiff, even though they had all wanted to vote for the plaintiff. We also learned that the attorneys' instincts about the jurors that ought to be stricken was absolutely correct, and they were able to take away a powerful lesson about voir dire and developing challenges for cause.
Trial 2. Split liability. Defendant 70% at fault for defendant, plaintiff 30% at fault. $750K in damages. (SIU won)
Trial 3. Verdict for defense. 0% fault for defendant. (SIU won)
Trial 4. Split liability. Defendant 20% at fault, plaintiff 80% at fault. $50K in damages (SIU won)
I want to emphasize something that I think is very important here. I don't think our format would work for a large tournament. Furthermore, if the object is to judge advocacy skills in isolation of their actual persuasive effects with a real jury (as seems to be the case in most competition score sheets), this format would not work. I am not faulting the large competitions here. What Rafe and I did was different. It has different goals. I happen to like what we did better than the typical trial competition, but it is not the same thing as a typical trial competition.
- Timeframe for Competition Prep. After Rafe and I agreed on the case file, we gave the students exactly two weeks with it to prepare for trial. I think this ought to be the standard even for larger competitions. Why? Because two weeks puts a greater emphasis on case analysis and actual trial skills, and much less emphasis on the scripts and theater-like preparation involved in current trial competitions. There is enough time to prepare a case, but there is not enough time to write and rehearse a performance. Now, does this mean that all the students walked up to the podium and woodenly read to the jury from their legal pads? Absolutely not. The quality of advocacy was superb. All advocates from both schools did their openings, closings and witness examinations without notes. I train my students to work that way whenever possible, and it seems to me that Rafe does as well. They worked like dogs for two weeks to get ready, primarily on their own. I served as a judge for one round of trials and worked with them on voir dire, but otherwise, they were left to their own devices. And they did well. One of the UMKC students gave a particularly good opening statement. I knew him from a study abroad program in Ireland I taught a couple of years ago, and we talked after the trial about his opening. He wrote it the morning of trial after thinking about what he wanted to change about his old opening on the drive from Kansas City to Carbondale. Haven't we all had the experience of doing some of our very best work under time pressure, without a team of coaches to edit or write it for us?
- The Dinner Afterward. All I can say is this: if you like homemade barbecue and soul food, come to Carbondale. I'll take you to Mo Wallace BBQ. Then you'll know what a wonderful meal we all shared together afterward, complete with a short awards ceremony and comments from the coaches. We had ribs, catfish sliders, fried chicken, pulled pork, potato salad, cole slaw, baked beans, collard greens and cherry cake. Plus, we all left as friends and colleagues, having shared both a competition and a meal together. You can't find a better ending to a trial competition.