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Wednesday, September 26, 2012

“Scrimmage” – I hardly think so! IT’S TRIAL BABY!

"Real" Trial competition: For two years now I have had the privilege of meeting with the outstanding faculty and attendees at the Stetson School of Law, EATS program. During one of the lunches there, Chris Behan and I were talking about creating a Voir dire competition. Many others were there and contributed to this conversation but Chris and I agreed to "make it happen." Yes it was very difficult to get off the ground. Football, trial teams and classes were just some of the busy fall filled conflicts that attempted to intervene at every opportunity to halt our efforts. We switched who would host at least three times. The point is that nothing worth having comes easy. Then there was the sign up for the teams. First there was overwhelming interest and by three days before the competition, attrition set in due largely to fear in my opinion. But we fielded two teams of four and off they went to Carbondale. I personally do not subscribe nor shop at the store, "Excuses R Us." Therefore I do not accept discount or gift cards for that store from others. We found eight students who were willing to have a real trial experience and they did! We are thrilled. Here is our take on the wonderful weekend in Southern Illinois.

1)      We all wanted a "real" trial competition. So Chris and I decided whoever gets the verdict wins. NO points, no score sheet, no judges, just a jury and a verdict. REAL!

a.      My comments: I loved that there was no score sheet and no set of criteria to "coach" the team toward. Instead, there were real people and real connections and relationships. For the first time as a trainer of a competition I felt as though I were "really" training something worthwhile and significant not false and pretend. This seemed real to me. We focused on Voir dire and what issued the jury would struggle with and how to identify those in ourselves instead of whether the judge will like this or that. It was so refreshing and realistic that I am a bit grumpy today, going back to my mock trial teams and being ever aware of the score sheet. Last year I did not coach my teams towards any score sheet, and I think I am done with doing so. I am more interested in real advocacy and if the judge's cannot appreciate nor understand it, then so be it. Perhaps we won't win the championship but we will win at trial. How can it be productive to teach students that there is so much difference in mock trial and real trial? I have said a million times, now in a real trial we wouldn't do this or you would do that. I am done with those distinctions. It is either advocacy or not. If judges are too old fashioned and set in their ways that they cannot see that persuasion is an art, and then they will not appreciate our art. But we are going to be artists!

2)      We also wanted the "real" components of the trial. Pretrial conference, pleadings, jury instructions, witness lists, exhibit lists and negotiations with opposing counsel. Therefore the teams were required to conference call each other, exchange exhibits, witness lists and hammer out the jury charge ALL IN ADVANCE of the competition. This was significant and effective. We only gave the teams 14 days to prepare, from seeing the problem for the first time to trial. I recommend that we cut that down to 10 days. On our end the extra four days were spent whining and complaining that it was not enough time. Once inside ten days they finally got to work. So as you can see, I am trying to eliminate the whining.

a.      My comments: My teams would come to me and say, "they want this or that in the jury instructions." My answer was always, "work it out, that's what you have to do in real life." In fact I am embarrassed about how little I did to coach or help these teams. I instead used my time to focus them on problem solving and working together and with their opponent. Compromise was finally reached about midnight as I understand it. I was happy for them, which was the first major victory of this competition. They figured something out, together, by themselves! Wow. I wrote it down!

Coaching: First let me say that Michaelle and I were so busy that we did not have more than two "appearances" with the teams. The one that I focused on was the Voir dire. I had them conduct a Voir dire while I watched and critiqued them. I did nothing to help them with their witnesses, opening or closing. If a student came to me I assisted them, but I did not have nor organize any practices for them. It was their responsibility and they were in charge. I acted like a senior partner, who was available as a resource but not directly involved in the case. I felt like this was success or victory number 2. Sure, I could have coached them up and presented them for victory, but that was not the goal. Instead, I was preparing them to be real trial lawyers who have to figure things out on the fly and on their own. I was a resource, for example, they asked questions about the jury charge, the procedure, and the rules of evidence. I eagerly answered questions, but did not have an agenda nor teach them. I do all of those things in class, they were all in my Trial Ad 2 course. So I did not find it necessary to repeat these classroom instructions and drills in this competition. I am proud to say that it felt very nice to have them being forced to work things out. Sure, I will suffer some criticism, "he didn't help us, he didn't coach us, and we could have won if he would have…."  YAK. I do not shop at Excuses R Us.

What they learned- All learned something. All participated and all were taught the value of preparation. Sadly, some were confronted with the realization that you cannot "fake your way" through trial. Some were also bluntly reminded that they are not "all that." Good lessons. But the real learning occurs more slowly, like the making of a fine wine. I have had sips of this sweet and powerful elixir all week. One student told me, "I see what you mean; you win the case in Voir dire." Why I asked the student? His response was that it was in Voir dire that we focus the jury on what is to come and prepare them and explore their feelings on the issues that will be presented. He learned about bias, as he would have struck some of the jurors for cause because of their bias. He learned how powerful bias is and how it works to affect our judgment and impartiality.

Another student explained that the trial was in hand. But it was lost because "we fell apart." He told me that their theme evaporated before his very eyes. He was shocked that all they prepared seemed to leave when they finished opening. The pressure of the court, the jury and the situation caused them to abandon their game plan and to merely try things off the cuff. These things did not work and were in his words a "disaster." He learned a valuable lesson that will never be forgotten. He also learned a lot about team work. His insights were outstanding as to working with a co-counsel and being on the "same page." 

Other students were overwhelmed by the realization that four teams had the same facts, the same witnesses and the same everything else and yet there were so many different themes, presentations, styles and results. I could not think of a better way to explain that advocacy matters than this lesson. HOW you present your case and yourself make all the difference. They learned this and experienced it for themselves. This lesson may have been the most valuable, but time will tell.

What I learned- I knew for a long time that we need to get students real experiences. That is what experiential learning is all about. But the extent and the power of this setting is a power factor that I had not considered. This raised the intensity of the learning to the power of ten. Sure I have members who are disappointed, not in the experience but in their personal performance. Sure I have team members who are blaming me, the jury, the judge and whatever else is available. The truth is however, that in class this week I had something more real and more personal to discuss than ever before. No longer was it my trial experience that I was talking about, it was THEIRS. YOU cannot imagine how that translates into opportunities for learning and retention of the learning like never before. I am excited and anxious to do this again.

I also learned – I need to use my trial team members as "consultants" for these teams. Chris did this and my teams were quite envious of this fact. Genius idea. Watch one, do one, teach one is the theme there. I frankly, did not have the time to invest in coaching these teams four hours per day. But my other teams, my alternates, my shadow teams certainly did but I failed to include them. I will make a note for next time and not overlook this outstanding resource. I also learned that the beautiful certificates that Chris did, framed and personalized were a very appreciated and added motivation. The teams who earned these can be proud and those who did not want another chance. This makes me smile.

For the future – I believe for the future I will assign people to assist the trial team. Paralegal, associates and senior partners. I also believe that I will give them more guidance on the trial notebook and the theme work. The teams that carried their theme through the entire trial and had the jury repeating their theme to them at the end of the trial were winners. No surprise to anyone there. The teams who failed in this simple task did not win the verdict, but they were winners in the game of learning. These teams will not ever take the framing, focus and theming of a case for granted again.

I agree with all of the comments that Chris made on his blog. What I want to add in closing is to add my support for these things and not restate them. I must however, report that Michaelle tells me that the courtesy, the professionalism, and the food were the best ever! I understand that the food for the dinner was catered in and they ate it at the law school. The dinner together is a very important part of this and I am so grateful and appreciative for Chris's efforts during this entire thing. I am also very thankful for Michaelle, without whom this would not have occurred.

 Why I think this format is so helpful for students:  My story – I tried a case in Texas in a county of 350 residents. They summoned 130 for the jury venire Panel. That was 1/3rd of the county. This county, King County, has no grocery story, no bank, no hotel and no place to stay. It is the headquarters of the 6666 Ranch and everyone in the county either works for the ranch, government or school. You have to drive 90 miles one way to get to a hotel. During the two week trial, the lawyers, the jurors, the judge and court staff were fed down the street at the school gymnasium. The defense team sat together, the plaintiffs together and the jury and judge at a separate place. It was buffet style; we took turns going through the line each day. The REAL trial happened in that gym. The four seniors of Guthrie high school and their mothers cooked the lunch for us each day. They served it with a smile and treated us as if this was the biggest thing to ever happen in the county, and it was!  I frankly hated the defense counsel in the case. I did not speak to them, ever. But something changed us all in that gymnasium. We began to see a side of each other that we had never seen before. We witnessed the humanity of it all. After the verdict the jurors, judges and defense lawyers all remained together at the courthouse. There were no winners or losers but just a group of people who suffered through this trial together, who ate, prayed and communicated with one another. I was shocked; the verdict was the largest in county history. I would have thought the defense teams would be mad and leave. They stayed and talked with the jury afterwards and said our goodbyes. The case was appealed and finally resolved by settlement. But never again did I have a negative thought for those defense attorneys, the court or the jury. Instead I had a greater appreciation of their role, our community and the struggle for justice. It is not us and them, it is Just US.

Michaelle's comments:   There is not much to add as I agree with Rafe.  This was an amazing experience for the students, but also for me as well.   Being able to listen to the jurors' feedback after the trials was so much more beneficial than my experience of chasing after them as they rush to leave the courthouse after trial.  That the students have this experience now will no doubt help them in their future trial careers.  Thank you so very much to Chris Behan and all the students at SIU for an enlightening and enjoyable weekend!

--Rafe Foreman and Michaelle Tobin
University of Missouri at Kansas City School of Law

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