Monday, April 1, 2013
The Dogfight: NIU Huskies Square Off Against SIU Salukis in Dual-Meet Jury Trial Competition
On March 23, the Northern Illinois University College of Law hosted the Southern Illinois University School of Law in the inaugural dual-meet jury trial competition between the two schools. The competition followed a format similar to the one used between SIU and UMKC last fall (blog posts about that competition are available here, here, and here): a jury trial from voir dire to verdict, with the jury decision, rather than score sheets, determining the winner.
This is a jointly-written blog post by Dave Taylor, NIU’s Trial Advocacy Director, and me. Dave’s segment is first, followed by mine.
When Chris approached me about a dual meet competition, I was a bit skeptical at first. I had long viewed trial competitions as a capstone of simulation training for trial ad students. I was a little concerned whether this would be a comparable experience. Anyone who knows Chris is familiar with his friendly and persuasive enthusiasm, and that it is difficult to not at least give a try to something he suggests. Couple that with my growing disenchantment with the increasingly win at all cost attitudes that pervade some competitions, and I was quickly on board. The end result was a very positive experience.
The two team format allowed us to incorporate aspects of trial practice that usually are left out of competitions: crafting jury instructions, jury selection, a live jury, and post trial comments from them. The bench were able to be much more engaged in the trials, especially the pre-trial stages. We also used actual physical exhibits that required chains of custody. This proved quite informative to me. While the students did fine jobs with the mechanics of introducing the exhibits, the use of real exhibits showed there is room for improvement in using them to present a persuasive story to the jury. If nothing else, I have come away from the experience with something new to emphasize in my trial ad courses.
It was also very interesting to see how well the students did. Chris and I agreed to have the trials be the products of the students own work. The preparation time allowed was significantly shorter than other competitions. The theories of the case were their own. My interactions with the students were mainly about mechanics and evidence. Nevertheless, I didn’t observe any diminution in the quality of the performances of any of the teams. Because they were presenting their own cases, they were very invested in refining their theories and how they would be presented. There was not time for rote memorization of scripts. The trials seemed very real and very well presented. I was proud of all the students involved.
Most striking however, was the interaction between our students. They ate together, socialized, and seemed to enjoy meeting each other. It was 180 degrees from what we often experience at competitions. A highlight came when before one of the trials Chris was in a different courtroom. One of his students approached me with a question about introducing an exhibit. I was quite happy to answer the question, and even more pleased a student from an opposing team felt comfortable enough to ask. While each team worked hard to try and obtain a favorable verdict, they worked just as hard to learn and come away with new friends.
Kudos to Chris on suggesting the format. It has many positives.
David Taylor, Distinguished Teaching Professor
Professor of Law & Director of Skills Training
Northern Illinois University College of Law
DeKalb, IL 60115
Case File, Pretrial Order and Jury Instructions
This competition used a criminal case file, People v. Shifflet, with charges of attempted murder and armed robbery. Charlie Rose gave us permission to use and modify the case file, which is contained in the teacher’s manual of his Fundamental Trial Advocacy book and is itself a modification of a case file that was once used at the U.S. Army JAG School for advocacy training. Dave Taylor, NIU’s director of trial advocacy programs, wrote a bill of indictment for the case file using Illinois criminal law statutes. Dave also provided real evidence for the case, including chain of custody documents and evidence bags—the evidence included a broken beer bottle, a knife, a wallet, and bloodstained clothing. Dave and I agreed on a pretrial order, and we jointly played the role of the court for pretrial matters prior to the day of competition.
Prior to trial, the students had to negotiate and agree upon the substantive jury instructions to be used at trial. They used Illinois pattern jury instructions for this and conducted their negotiations via email. Students were also permitted to argue motions before trial, provided that they gave notice to the other side two days before the trial.
One interesting aspect of the pretrial order is that it forbade either coach from scripting the trial in any way for the contestants. Both of us were available to our teams as consultants. We answered questions and critiqued them on advocacy and presentation skills, but we left the case analysis, theory development, and themes up to the students. The students had the case file for less than three weeks, one of which was spring break.
There were five witnesses available for the trial. Each side provided two witnesses, and the competition provided a neutral fifth witness that could be called by either side. Judges from the Illinois 23d Judicial Circuit presided over the trials. Jurors were drawn from the NIU undergraduate community. The judges, all of whom were experienced criminal court judges, presided over the trials just as they would have in their own courtrooms, using their own voir dire scripts, ruling on motions, holding sidebars and even modifying or adding to the jury instructions that the students provided to them.
The trials began with bench conferences to discuss pretrial matters and courtroom management. The students also raised evidentiary motions at the bench conferences. These were run by the judges, as they are in real life. This is a stark contrast to what I’ve seen lately at trial competitions, where “pretrial matters” have turned into a competition within the competition. Teams compete to earn a real or perceived psychological advantage by jumping up to speak first, ostentatiously providing exhibit notebooks and notices of appearance, and offering to give “statements of the case” that are really nothing more than a disguised closing argument delivered at the beginning of trial. Such behavior, while common and apparently coached in trial competitions, would be dismissed in real courtrooms (at least in my experience, sitting judges take control of their own courtrooms to an extent I don’t often see at trial competitions).
Following the bench conferences, the students conducted voir dire. Prior to trial, the witnesses had filled out juror questionnaires, which were made available to the students the day before trial. Jury sizes ranged from five to seven—not bad for the Sweet Sixteen weekend of March Madness and a beautiful Spring morning and afternoon.
The students argued challenges for cause. As with the UMKC trials in the fall, none of the students had sufficiently developed the facts with jurors to make challenges for cause. This is difficult to do with a short voir dire (ours was 15 minutes), but is an area in which I, at least, need to train the students better.
The trials themselves lasted about three hours each. I found the quality of advocacy to be at least the equivalent of, and in many cases superior to, what we usually face in competitions. The students seemed more natural, less rehearsed, more interactive and less scripted than at a traditional competition.
Our pretrial order required the contestants to shake hands before and after the trial, work together collegially, and mingle with each other at social activities arranged by the host school. NIU provided breakfast, lunch and dinner the day of the competition, with all competitors eating together alongside judges, jurors and competition personnel. Directing everyone to mingle together and act collegially was most likely unnecessary: the students had already interacted via e-mail, some of them had even worked together in summer jobs, and everyone behaved in a friendly and professional manner.
One thing I particularly liked about the interactions in this trial is that Dave and I felt free to compliment students and answer some of their questions during breaks without having to worry about either of us complaining about the other one to a competition committee. Furthermore, I talked to his students, and he talked to mine—usually to give a compliment on a particularly well-executed witness examination.
In retrospect, Dave and I could have either chosen a more balanced case file or tweaked the one we used a bit more. In all four trials (two in the morning, two in the afternoon), the defense got an acquittal. Both schools went 2-2 on the day.
Thoughts and Impressions
I like this competition format quite a bit. I feel that working with a like-minded colleague at another school is infinitely preferable to the contention and divisiveness that seems endemic to many competitions. As one of my fellow coaches lamented at the TYLA regionals this year: “I feel like I’m teaching the kids to try a competition case instead of a real case.”
With the dual-team jury trial competition format, we can focus on all phases of trial in a more realistic setting. Voir dire and the presence of actual jurors makes a tremendous difference in the trial experience; one doesn’t see the gamesmanship or histrionics that occur at traditional trial competitions.
I want to schedule at least four dual-meet competitions for the 2013-2014 school year. If you're interested in trying out the format and competing against one of my teams, email me or give me a call. For reference, we're about a 2-hour drive from St. Louis, 3 hours from Nashville or Memphis, 4 hours from Indianapolis or Louisville, 5 hours from Chicago, and 6 hours from Kansas City. We'll go to your place or host you here in Carbondale.