Burning Time: Jodi Arias Trial Cross-Examination

I've  been following the Jodi Arias capital murder trial with some interest for the past few weeks, particularly the defense strategy of exploring in lurid and uncorroborated detail the sordid sexual history between Arias and the man she killed, her former lover Travis Alexander. I may write about this at some point, but that's not why I'm writing today.

I'm watching a live-feed stream of the cross-examination, and I've come to the conclusion that Jodi Arias may once have been a trial team witness for an ethically challenged law school mock trial team. The prosecutor is impeaching her with prior inconsistent statements right now, but for every statement so far, he's had to refresh her recollection. She took about 5 minutes to read to herself a few pages of a journal entry she wrote and about which she testified on direct examination. Then, she claimed not to remember her direct examination testimony, so the prosecutor provided a transcript, which, as I write this, she has now been reading silently to herself for over 5 minutes. In the middle of all this was a sidebar conference to discuss how much of the transcript she would read silently to herself to refresh her recollection about "pop rocks and tootsie pops."

Reminds me of a few trial competitions I've been to, although of course there are no actual time limits in the Arias trial so she can burn all the time she wants.

If, by any chance, you know someone who likes to coach their trial teams to burn their opponents' time as a strategy, they could do no better than to watch Ms. Arias in maddeningly slow real time, pretending to forget, and reading to herself excruciatingly slowly. As I say, watching her, I would swear she'd been coached by one of the great mock trial masters of the art. If her life is spared in this trial, perhaps she could serve as a competition consultant to teams that use this particular strategy.

We're now at about 15 minutes to get an answer to ONE QUESTION. I greatly admire the patience of the prosecutor at this point. Most mock trial competition attorneys would have melted down completely at this point.

An Article Worth Sharing on Mock Trial Competitions

In September, Chicago Lawyer magazine published an excellent article on mock trial competitions. A friend just sent the article to me this week. I looked it up online and decided to post a link to it. The article is entitled, "The Toughness and the Joy that Permeates Mock Trial Competition." Judge Dave Erickson, whom many of you know both from his stellar mock trial coaching career and his words of wisdom at EATS every year, is quoted extensively in the article.

In Vino Veritas: A Dispatch from the City by the Bay

In Vino Veritas: A Dispatch from the City by the Bay

If you declined your invitation to attend the inaugural Professor Bernie Segal Criminal Mock Trial Competition (In Vino Veritas) in San Francisco, you missed out. It has been an amazing experience so far. As I write this, I am sitting in a courtroom listening to the second of two superb opening statements in this morning's trial.

My students want to come back every year. Some of them are willing to defer graduation so they can compete here again. A couple may just deliberately miss their flight tomorrow.

So why is this such a good competition? The answer is simple: Wes Porter and his amazing colleagues, students and competition staff. Wes, as many of you know, is the director of the litigation center at Golden Gate University School of Law. He started this competition in honor of the late Bernie Segal, a trial and teaching legend who was a long time faculty member at GGU.

Here are a few features of this competition that I think are noteworthy:

1) The Case File. I will confess that the problem created uncertainty and frustration as we were preparing for the competition, but in execution, it worked well, and I am now a fan of the approach. It was a criminal trial, and Wes wrote the problem with two government witnesses and three defense witnesses. The defense could only call two of the witnesses at trial, and they did not have to disclose which two until after the prosecution had rested.

The different defense witness combinations essentially created three separate cases. This kept the prosecutors honest because they could not game the file for advantage, not knowing in advance what might happen on the defense case.

Also, Wes, a former prosecutor, wrote realistic characters. All were flawed and vulnerable on cross, and none knew enough about the events (a bank robbery) to carry the case on their own. There were no deposition transcripts--just inadmissible sworn or unsworn statements of dubious independent value. No experts, and no cops. Maddening to prep for, but fun to watch in execution.

2) The Scoring. Wes included two scoring innovations in this file that I thought were very helpful. The first was that each competitor had to receive a different score. Thus, no ballots with tie scores based on performance. The second was mandatory 1 point reductions for every instance of an advocate promising something on opening that was not delivered during the trial, and every instance of facts not in evidence on closing. This prevented prosecutors from trying to preemptively argue the defense case for fear they might be wrong. And it kept people from lying about the trial on close. I loved the scoring, frankly, and would love to see other competitions adopt similar ballots.

3) The Teams. If you've followed this blog at all, you know of the many efforts being made to improve the ethics, professionalism and civility at competitions. Wes reached out to a network of like-minded coaches, who brought teams that play by the rules. I didn't hear of any cheating allegations. I know most of the coaches at this tournament, and it was great to know in every single round we had that cheating, ethics or professionalism would not be issues to deal with. There are many advocacy styles that fit solidly within the rules. My teams, for instance, competed against two East Coast teams that were considerably more aggressive than the teams we usually encounter in the Midwest (competing against them was, for us staid Midwesterners, much like participating in post-Thanksgiving dinner political conversations with the family of my Philly-born-and-bred wife). But that is style, not substance. We saw nothing of the behavior that has made the reform movement necessary.

As a sidenote, to my good friend A.J. Bellido de Luna of Maryland: we will face each other again at a competition in the future. Next time, we will not get steamrolled!

4) The Social Events. Last night's reception was one of the best professional receptions I've ever attended. Tomorrow, the final round will be held in Sonoma. All teams will be bused there and given the opportunity to tour California wine country.

5) San Francisco. Of this, nothing more need be said. What a wonderful city and setting for a competition such as this one.

When the invitation comes next year, jump on it. You'll be glad you did.


Christopher W. Behan
Associate Professor of Law
Southern Illinois University School of Law

(618) 453-8722

“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 1/3^rd 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

Saluki v. Kangaroo Cage Match a Success

A few hours ago we finished the experimental competition between mock trial teams from the SIU and UMKC schools of law.  As you may recall from my earlier post, this competition featured jury trials from voir dire to verdict, with jurors drawn from the local community, presided over by state court trial judges.  Afterwards, the teams shared a meal and spent some time together socially.

The competition exceeded my expectations.  I thought I'd follow up my earlier post with some comments and feedback about the competition.  I'm aware of the possibility that I might be suffering from a huge case of confirmation bias, so I welcome debate, comments and questions on this topic.  Please use the comment feature of the blog to do this so others can read them.  If you are receiving the blog via email, click the hyperlink at the bottom of your email.  This will take you directly to the blog entry itself, where you can easily add comments.

• 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)

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)

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.

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.  

Michaelle Tobin, a teaching fellow at UMKC who helped coach these teams, has promised a blog post about the competition next week.  Stay tuned!  In the meantime, I'd like to do another of these in the spring.  If you're within about a 6-8 hour driving radius of Carbondale and are interested, give me a call.  We can work out a dual meet at either your place or ours.  And I'd love to hear about other people trying this format or variations of this. Maybe we could start a league!

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.  

In Praise of Civility: Are We Turning the Corner at Trial Competitions?

I think the trial competition world may--just may--have started to solve the problem posed by incivility and lack of professionalism at trial competitions.
In the past year, the Advocacy Teaching Blog has hosted several discussions about civility and professionalism. There seems to be a consensus among the contributors to this blog that the absence of civility and professionalism is a problem; we've all seen or been victimized by bad behavior at trial competitions. Such behavior includes disrespect to opposing counsel and witnesses, making up material facts, bending the spirit (and sometimes even the language) of competition rules in order to gain a real or perceived advantage over opponents, unrealistic witness behavior, and so on.
I'm in my third year of coaching trial teams, and I've often felt incredibly disheartened at trial competitions by some of the behavior I've seen. It certainly falls short of the high standards used by the Army JAG Corps when I was a young JAG attorney, as well as the general civility and good will I've observed among most members of the trial bar in civilian jurisdictions. (I am aware that many have identified a general downward trend in civility in the practicing bar, but my own experiences have been mostly positive.) In fact, I have a colleague who quit coaching trial teams over 25 years ago because of how disillusioned he was by the complicity of law professors and lawyers in teaching young advocates to win at the cost of integrity, civility and professionalism.
Along with identifying the problem, we've also seen some excellent discussions about proposed solutions. For example, Eddie Ohlbaum drafted a set of model rules for trial competitions, one of the primary features of which is doing away with the "reasonable inference" rule at trial competitions and replacing it with a "no inference" rule; the theory is that a no inference rule provides a bright line for identifying and policing fact creation. Others have suggested that since bad behavior also occurs in practice, we need to teach our students to deal with it effectively at trial through methods such as impeachment by omission and closing argument. One friend of mine has prepared what he jokingly refers to as a knife-fighter's guide to surviving dirty tricks at trial competitions. Some coaches have a zero tolerance policy for bad behavior by their own students, suspending or removing malefactors from competition teams. We've also seen suggestions to start naming and shaming offenders publicly.
Whatever the approach, though, the underlying problem is the same: bad behavior occurs, and current competition rules and practices either incentivize or at least tolerate bad behavior. Malefactors sometimes move on in competitions. Teams that follow the rules sometimes suffer for it because others take unfair advantage, or judges and/or competition directors don't know or won't enforce competition rules.
I've taken students to two competitions in the past six months that have adopted different, yet effective, approaches in dealing with the civility issue. The ABA Labor and Employment Law Competition, a national competition with regional qualifying competitions, includes civility points as part of the scoring. In addition, at least at the regional I attended, the competition organizers strongly emphasized civility in the coach's meeting and gave specific examples of behavior that would not be tolerated. The positive incentive of civility points, coupled with the emphasis by the competition directors, seemed to make a difference. This particular regional was a much better experience for us than the year before.
This weekend, I took one of my teams to the Santa Monica Regional of the AAJ STAC competition. The competition directors here used another innovative approach that seemed to work remarkably well. They actually gave a prize--a $50 pre-paid Visa card--to the student advocate judged to be "most civil" in the first two qualifying rounds (they also gave similar prizes for best advocate and best witness). In addition, they emphasized the importance of civility in the coaches meeting, made it clear they would not tolerate certain types of behavior (including, by the way, teams whining about their opponents creating "material facts" that were not actually material and were, in fact, reasonable inferences from the record), and promised to vigorously punish all actual violations of the material fact rule.
From what I observed, the students had a lot of fun trying to win the civility award. Students (and I observed this not only between my own students and their opponents, but also overheard similar things in the hallways during breaks) opened doors for each other, complimented each other's performances during breaks, apologized for misunderstandings that might have occurred to that point in the trial, shared easels and exhibits, and behaved much more like professionals than cutthroat competitors. In the hallways and at the reception, I heard them joking in a positive way about qualifying for the award.
This has caused me to reflect that positive incentives, in the form of professionalism or civility points, or even awards, are perhaps the best way to encourage appropriate behavior at competitions. If civility and professionalism points are a big enough portion of the available points in a round, advocates would run quite a risk in behaving unprofessionally. Awards for civility also incentivize good behavior. And by the way, the "most civil" advocate award is not the equivalent of "miss congeniality" in a beauty pageant; as our competition director pointed out this weekend, they've had the pleasure of awarding both "best advocate" and "most civil" to the same person some years.
I'd like some feedback from experienced competition coaches and directors. Is it naive to believe that positive incentives can lift us out of the mud? Do we need sticks to go along with the carrots?

Sent from my iPad

A Debate and Solution on Tweaking the Model Competition Rules

This post is a collection of e-mail conversations between Eddie Ohlbaum, a law professor at Temple University and principal author of a new model code for mock trial competitions, and Gerald R. Powell, a law professor at Baylor University School of Law. Jerry's comments are in plain text, and Eddie's responses are in italics. They have given me permission to reproduce their e-mail exchange in this blog post.

Their debate is a valuable one. Please add to it by commenting on this post using the blog's comment function.

1. (Jerry) It seems to me that there are really two different abuses that we have seen. One type – inventing facts not in the problem – was largely exterminated by the model code at TOC, and that's a great thing. The other – using the competition rules as an offensive weapon – still occurred. I don't think you will ever legislate away that type of misconduct because you will always have some kind of competition rules and, as Eddie says, there is always a closed universe of facts. Nonetheless, we should try to tighten up the code and give innocent victims a remedy against rules gamers if we can. How about a rule that permits the witness to invent non-material facts in response to a cross question that inquires about a fact outside the record? Eddie, I can feel you cringe all the way across the country, but would that be so bad? We don't want witnesses to invent fingerprints not in the problem, but what's the harm in inventing the name of the teacher? The object is to deter the rules gamer from planning the game, and so we might never even have a remonstration on the invented non-material fact issue.

(Eddie) Thanks, Guys. I've included Susan Poehls on this list because she is in the process of deciding whether to use the MRMT at the NCTC next week. Jerry's "fact-finding" comports with mine. No facts were invented. But a few crossers stepped over the line. It's important to note that this was no simply "gaming the system" or finding a "weakness" in the MRMT. These gamers violated the rules.

Here's my reservation about the "Powell" exception. As I understand this suggestion, a team will be able to respond on cross with "non material facts in response to a cross question that inquires about a fact outside the record." I fear there is no way to adequately define "non-material facts." I'd be satisfied/delighted to adopt an exception for "personal or professional background facts" but, there, too, the line can be easily crossed. If I cross examine on the lack of fingerprint training (and there is nothing in the file one way or the other), is the witness free to make up having a level of experience which would qualify him to offer an opinion? Do we want to invite a contest on what constitutes a material fact? Remember, the rules currently permit cross examination on the lack of evidence and procedure -- see MRMT 2.3. Gerry (and I) were champions of this type of robust cross. If we allow teams to answer beyond the record, how do we control that? Am I then (as the impeaching team) permitted to impeach by omission? If so, must the witness answer, "your right, in my complete answer to your questions about my experience, I never mentioned anything about. . . ." Big problem, yes?

Here's what should happen under the current rules:

Rule 2.0 bars fact invention and provides that the file is a "closed universe." Rule 2.0(d) states, "A team may not invent 'anything' about a witness's background which is not specifically stated in the file." Comment 4[b] particularizes this concern in the context of "background info." Rule 2.2 requires a "good faith basis for asking questions." There is no good faith basis for asking a witness about the kind of background information which was at issue at St Johns (PhD thesis, courses, names of profs, etc.). The file says nothing about it. AND IT IS NOT THE KIND OF "CROSS-EXAMINATION ON THE ABSENCE OF EVIDENCE" PROVIDED IN MRMT 2.3'--WHICH IS THE CROSS-EXAM RULE FOR GOING OUTSIDE OF THE FILE. I will re-draft rules 2.0, 2.2 and 2.3 to specifically address this issue. Those rules need tweaking, not scrapping.

THE COACH AND ADVOCATES WHO DID THIS VIOLATED THE RULES. The question then becomes, protest and penalty. What we need is a straightforward and succinct explanation of how this works. I'm happy to draft one for approval. As well as the stones to enforce it.

2. (Jerry) Eddie, I see your point – the rules do address this very situation. But, the answer in the model rules is a remonstration trying to get the cross-examiner to admit that he did not have a good faith basis for the cross. So, if remonstration fails (and it will with a team willing to do this cross), then the judges must decide whether there was "good faith." The burden of proof is on the complaining party (the victim of the rogue cross) to show the cross examiner did not have good faith.

The cross-examination exception that I am suggesting permits the witness to answer a beyond-the-file question with a non-material fact answer. Then, if there is a remonstration, the judges must decide not whether the cross-examiner was in good faith, but whether the fact was material. And the burden of proof is still on the complaining party, but now the complainer is the cross-examiner (the rogue himself) to show that the fact was material.

To me, that is a standard more easily understood by the trial lawyers who are judging. Also, it places the burden of proof on the real wrongdoer. As trial lawyers we deal with materiality every day. On the other hand, if the issue is good faith of the cross-examiner then I fear the judges will be loath to conclude someone was in bad faith, especially when they are not themselves very familiar with the case file.

Most importantly, though, the exception sends a message to the schools that would try this kind of cross: if you do it, the ploy won't likely work because the witness does not have to say "I don't know." That deters the misconduct. If you incorporate clear examples of non-material facts (the ones at issue here seem very appropriate ones), then the team calling the witness can point to the code examples in defense of the answer given.

(From Eddie) Hi Gerry:

Thanks for continuing to advance the ball with yet another well thought-out and balanced approach. I think we're close. The "abuses" of the Code -- from my reports -- were as you summarized. I don't know the primary offender(s). It was not widespread, which makes the reaction somewhat surprising. My suspicion is that the 3+ hour coaches meeting and the "let's try something new which sounds radical but really isn't" was too much for many to handle. You are also right that the "no inference rule" had a positive impact -- no complaints of anyone making up facts as has been true of TofC and other competitions in the past. The problem, as you articulated it, was the gamesmanship (gamepersonship) on cross

Let me specifically comment on your observations and proposal -- the spirit of which is spot on -- and offer what I hope will be a friendly tweak.

Your suggestion: "How about a rule that permits the witness to invent non-material facts in response to a cross question that inquires about a fact outside the record? Eddie I can feel you cringe all the way across the country, but would that be so bad?" First, I am not cringing. I have been taking anti-cringing meds, which have helped. I am, however, "crechtzing" (the ch is a gutter "h") which means kvetching with emphasis. Here's why: Without the bad actors and the strayers (for whom, after all, these blessed rules exist) among us -- some of whom are coaches who have won major championships -- your rule makes sense and would be rarely invoked since there would be very little gamesmanship. But substiting the phrase, "non-material facts" (even if limited to cross) draws the same battle lines but with a different name. Instead of arguing about whether an inference is reasonable, the fight will now be about whether a fact is non-material. I am especially concerned about new MRMT 2.3 (for which you and I and others passionately championed) which permits crossing on the absence of evidence, the failure to perform tests or exams or conduct an investigation or search which would have been reasonable for the witness of the institution to which the witness belongs to conduct . . ." Given past over-reaching (see MRMT 2.0, Comment 3 for examples of hall of fame cheating), I'm concerned that we open ourselves us to a return to the past. One persons "that's a non material fact to which you opened up the door by asking it on cross" is another's "that is a material fact which goes to the merits of the exam." Some may read this change as permitting witness's to make up information which would provide the witness with special competency qualifications which the file did not provide. Eg. Q: "You're an internist?" A: "Yes." Q: But you have no special training in "child sex abuse." A: "Yes I do." (Is that material--if the file calls for the witness to provide an expert opinion on CSA. Of course it is and all would agree. But what if the crosser asked, "you took no courses in child sex absue, did you?" Is the answer, "Yes, I did, and the names of two were, 'CSA I and CSA II.'" Are those answers material. Of course they are if the issue is whether the Doc is qualified to offer the opinion. Do we want to invite that debate?

My friendly tweak is directed to this type of silly background info and will both bar these types of questions and provide relief to beat back the gamers who can't help but ask them. New paragraph to MRMT 2.3: "An advocate may not cross examine a witness on non-material personal or professional background information which is not contained in the fact pattern. Non-material information is information which does not impact on the witness's competency to express an opinion or generally credibility. This type of question includes, but is not limited, to information about the names of spouses and children and the names of schools, professors, employment sites and supervisors. Where a witness is cross-examined about this type of non-material background information, the witness is permitted invent a non-material answer. See Comment _____.

3. (Jerry) Eddie,

This makes my head hurt. Is there a Yiddish word for that?

Your tweak places a new restriction on the cross-examiner ("An advocate may not cross examine.…") in addition to providing the witness a way to answer without violating the rules. I fear the law of unintended consequences to the innocent cross examiner. How about rearranging the sentence, and cutting the restriction on the cross-examiner?

If a witness is cross-examined about non-material background information not contained in the case file, the witness is permitted to invent a non-material answer, even though it is not contained in the case file. Non-material background information is information about a witness which does not affect the witness's credibility or competency to express an opinion. This includes, but is not limited to, information about the names of spouses and children or the names of schools, professors, employment sites and supervisors.

Since the cross examination abuse is relatively rare, and the model rules do seem to chill the abuse of invented facts on direct, I will support your model rules whether you decide to adopt some version of a cross examination exception or not. I think it is worth more "trial."

(Eddie) Thanks, Jerry. Great job. I am totally on board. Your proposed language is better than the language I suggested for the reasons you put forward. This addresses the problem . . . while still preserving the "non inference rule" which most--but not all--thought chilled the propensity of some folks to invent facts under the guise of "reasonable inference." I will amend MRMT 23. accordingly.

 

A Response to Eddie Ohlbaum on Mock Trial Competition Rules

This is from S. Michael Streib of Duquesne, in response to Eddie Ohlbaum's recent post (available here):

Eddie:

I wanted to respond to you last week, but had to leave for Buffalo, which was fantastic, as usual.

I am not going to start this by laying compliments at your feet – others have already done so, and you deserve them. I am going to be the dissenter here.

I do not like the “no inference” rule and think that it and its counterpart (anything not expressly set forth in the witnesses’ statements must evoke a “no” answer on cross examination) are involving us in the same non-productive gamesmanship as we had with people who stretched inferences too far. I believe we should strive for something akin to the real world, not an artificial “no inference” world, but before I go there, let me take issue with your facts.

Starting with last year’s TOC, I spoke with Mike Gianantonio who both drafted the problem and ran the competition. In short, he was the perfect person to receive and properly rule on any factual disputes. He confirmed what I observed, that not a single complaint about making up facts in the final rounds was lodged. I do not know where you got your information, but the tournament director ( and me and Amelia Michele Joiner) know of no cheating/made up facts that should/would cast aspersions on any of those finalists.

Turning to AAJ, we were fortunate enough to win that competition last year and, thus, have first-hand knowledge of those final rounds (through Michele – I am banned from Vegas by judicial order issued from Her Honor, Judge Streib). I assure you that we did not make up any facts, did not experience any egregious behavior by any of the other finalists, and again, did not see a single complaint lodged in the final rounds (nor did we even hear of a single allegation). In fact, every team that we were involved with in both the semi-final and final rounds complimented each other on how clean and fair the rounds were.

Eddie, I don’t know what is going on with the factual disparity between what you seem to have been told and what I observed/have been told, and don’t really know what else I can say about it, but I do know we are headed in the wrong direction here. These anonymous complaints about unnamed teams is unfairly and inappropriately casting in a very bad light the excellent teams who competed in those two competitions last year. (I have no information regarding last year’s NTC, and thus, no comment.) This, to me, is horrible, and from an ethical perspective, as you know, in Pennsylvania at least, the failure to report observed unethical behavior is itself an ethical violation. So, what does that say about us as coaches and role models?

In my opinion, if someone needs to be taken to the woodshed, it should be done – and it should have been done when it happened. Unethical behavior is unethical behavior whether it involves necessary inferences, reasonable inferences, no inferences, or real life. It can’t be policed by rules, and must be policed by the participants themselves and the competition organizers. We need to take the lead and stand up publicly in opposition to those who try to succeed by cheating, and I think all we are doing here is hiding behind a rule. That is an abdication of our responsibility. (In my judgment, what occurred at TOC this year on cross examination was just as much “gaming the system” as is making unnecessary or unreasonable inferences. I also think it is unreal and worse than making up facts – who in the real world has not had a witness come up with something new in the middle of trial? This is a teaching experience and to suggest that witnesses will give you a favorable answer to anything they did not expressly mention in their deposition/statement is a very bad lesson. Witness, Irving Younger’s 4th Commandment: “Never ask a question you do not know the answer to. Cross is not a fishing expedition in which you uncover new facts or new surprises at the trial.” I, myself, have not been able to improve on Irving Younger’s observations, and I don’t think these rules do either.)

Let me end where I started, and on a positive note. Buffalo was great. Thirty schools from all over the country, inferences were allowed, there was camaraderie and I heard not a single complaint/rumor of inappropriate behavior (and we didn’t experience any up through the quarter finals when Georgia beat us fair and square). I attribute this to the quality of the coaching and the tournament director. This is how it should be – how it can be – and how it will be when we all do our jobs. Creating rules that take us farther from reality and trying to use them to insulate us from unethical behavior is not what we need. We need to fix the problems by standing up to them when they occur and we need knowledgeable tournament directors/protest committees that take fair and appropriate actions when someone steps over the line. I am not against model rules, but I am against deviations from reality and anonymity.

Learners as Leaders: Some Thoughts on Building a Competitive Mock Trial Program

Some readers of this blog might find themselves in a position or situation similar to mine: building a competition trial advocacy program from the ground up. Two years ago, my dean gave me the responsibility of directing our school's mock trial competition teams. I was excited by the opportunity, but remarkably ignorant of the scope of the task ahead of me. Although I had substantial trial experience and had taught trial advocacy for many years, I had never even attended a mock trial competition.

So I am learning how to coach a trial team the hard way, in the unforgiving crucible of a trial competition. It is a painful thing to watch a team lose a round, not because they are untalented, but because of something I overlooked as a coach or did not know enough to prepare them to face at competition. For example, in all my years as a prosecutor and defense attorney, including many cross-examinations of hostile witnesses, I never once faced a witness who had perfect recall on direct examination but total amnesia on cross-examination; but in competition, I learned the hard way that some teams coach their witnesses to act this way. I carry a notebook with me and pay careful attention to what successful, ethical teams are doing. I have learned quite a bit from facing well-prepared teams that do everything right and win while still taking the high road ethically. That's how I want my teams to be, and I learn so much about coaching just by watching these teams perform. I also pay attention to the unscrupulous tactics used by some teams so I can prepare my students to fairly and honorably meet the challenge. I won't name those schools here, but there are a few of them in our region, and I now know enough to give my teams a scouting report that at least lets them know they are about to encounter opponents who will make a mockery of all we've tried to teach our students about professionalism, ethics, collegiality and fair dealing.

On top of my inexperience as a coach our school does not have a strong mock trial tradition. Our appellate moot court teams have traditionally been competitive both on a regional and national level. Students write briefs and make appellate arguments their first year of law school and can try out for the moot court team the fall of their second year (as part of an extremely rigorous advanced appellate advocacy course). The moot court program is well-funded and well-organized; some of our faculty members have coached teams in the same competitions for several years running.

Our trial teams, in contrast, received fewer resources and have faced structural and curricular barriers that prevented them from reaching their potential. There is no first-year trial advocacy experience to compare with the first-year appellate briefs and arguments. Furthermore, the mandatory prerequisites for participating on trial team ensured that for the most part, only students in their final semester of law school would be eligible to compete; students had to take, in lockstep order, evidence (a 2L class), then trial advocacy (a 3L class). Thus, even though my predecessors had talented students on their teams, their lack of experience often proved to be their undoing at competitions, particularly when facing experienced opponents from schools with strong mock trial traditions. Basically, every year the program had to start over from scratch—not a recipe for sustained excellence and success.

With the assistance of a pair of associate deans and the support of my colleagues on the faculty, we've been able to remove the structural and curricular impediments to trial team success. We hold a closing argument competition that is open to first-year students, and students are now able to participate on our mock trial teams beginning in their second year of law school. This coming fall, our trial team will have returning members for the first time in many years. I think this will make a great difference in building the future success of our team.

We held our third annual closing argument competition this past week. The competition serves two primary purposes: (1) to increase enthusiasm for and interest in our trial advocacy program; and (2) to identify talented students to join the trial team.

Here's why I'm excited: The quality of the closing arguments was the best yet, even though the majority of the competitors were first-year students with no trial advocacy training or experience. Case analysis, use of theory and theme, organization, evidentiary inferences, use of jury instructions, eye contact, voice, pacing, use of notes—across the board, competitors demonstrated strong skills in these areas.

I believe their high performance was the direct result of coaching and mentoring by current members of the trial team. We started offering our trial team members as mentors in last spring's competition, and there was a noticeable difference in the performance of students who used mentors last year compared to those who did not. In fact, most of the members of our current team were mentored last year. This year, nearly every competitor requested mentoring and coaching from the current trial team.

I believe this bodes well for the future. We're building a foundation based not just on classroom instruction, but on student learners-turned teachers. The students now have enough experience and skill to start training their successors. The student mentors, all of whom have participated in interschool competitions, know what to demand of their mentees in terms of performance. When our competition cycle starts next year, we will begin at a higher level than years past, and those students will demand even more from next year's crop of mentees. Since the students are the ones who compete, it makes sense that they should take a leadership role in helping to prepare the next generation.

In addition to that, I now have the luxury of former trial team members who live in the area, know what the program expectations are, and are willing to help guide and coach our competition teams. I look forward to working with them in the years ahead to build a successful—and competitive—program.

Building a competitive program from the ground up means taking some hard knocks from the school of experience. It also requires a solid foundation built on student leadership and learners-turned-teachers.

Coaching a Trial Competition Team - Why Do It?

Lee Coppock, the trial team fellow at Stetson University College of Law, wished to offer the following commentary for the anonymous person who wrote in to the Advocacy Agony Aunt recently.  I find it so helpful that I thought that I would begin a new thread of discussion for the group.
As you read it you will quickly see why Lee is one of the great treasures of my school.  thanks Lee!


The question for the Advocacy Agony Aunt concerned whether or not it was really worthwhile to bother with coaching trial teams given the problems with simulated experiential learning, particularly as they relate to ethics, here is Lee's response:


1.  Some of what you have heard is certainly true.  You might also have heard from others that mock trials are remarkably like "real life" at least in many respects including:

      a.  The unexpected is to be expected and preparing for those times is great practice and good preparation for the real world;

      b.  Winning takes preparation - lots of it.  AND some are more willing to pay that price than others.  Those are the ones who predictably come out on top - just like real life.

      c.  Not everyone we oppose has the same ethical views as we do.  In other words, some opposing counsel come to the arena prepared to cut throats and others come with an expectation of putting the facts in front of the trier of fact with honed advocacy skills and then let that trier of fact make a call.  When opposing counsel tries to manipulate the system, we must be prepared to expose that behavior and exact a cost for it.  It is hard to imagine a lawyer stepping into a real life arena very often without the need to do exactly that.

      d.  SOME measure of "dog and pony" can help communicate to a jury what would otherwise be boring and ineffective direct examinations or opening statements and closing arguments. 

Most of us who are committed to mock trial competitions see great value to the skills that are learned and honed when the preparation is thorough and focused. 

2.  The method of preparation depends in large measure to the level of skills and natural talents of the advocates.  For true rookies, very small things like foundations for personal knowledge when directing a witness, litanies for introducing evidence or refreshing recollection, the purpose and form of mid-trial motions - as examples, need lots of time.  The successful advocates must be able to initiate and respond (just like in real life!) almost without conscious thought.  For those advocates who are more experienced, it is good to consider carefully the more subtle tasks like the rebuttal to an objection or the nuance of a rule of evidence.  In other words, since the objective is a skilled advocate, appropriate preparation requires a commitment on the part of the coach and the student to do whatever it takes - whatever that is.

3.  There are some variations - depending on the competition and rules of the event, but it hard to visualize a circumstance when preparation as though it were a real trial would be ineffective.  Certainly one should remember that the "jury" is usually made up of lawyers - which (thankfully!) is NOT real life.  However those lawyers usually try to evaluate as though they were "Joe six-pack" jurors.  At the same time, anyone who has done this any length of time has found that those juror/lawyers have a very wide range of views and what one of them may find laudable the one sitting next to her/him finds to be a reason for harsh criticism.  Of course that also happens in real life, doesn't it?

Certainly mock trial competitions are not for every law student anymore than trying cases in real life is for every lawyer.  Having pointed out the obvious, let me hasten to add that many who have gone through the fires of competition in law school have found those experiences to be very similar and great preparation for those great arenas in the big time - a.k.a. "real life."

Yours,

Lee Coppock

Case Analysis and Case Map Software--Request for Information

I'm sitting in the lobby of a hotel in San Francisco, where I am attending the AALS Annual Meeting. It's been a good meeting so far; I've attended some thought-provoking panel discussions. More importantly, I've been able to spend time with valued friends and colleagues, talking about things that matter.

By the way, the Golden Gate University Advocacy and Skills Reception, hosted by Wes Porter and Bernie Segal, was a tremendous success. For those of you who supported Wes and Bernie by attending it, allow me to thank you on their behalf.

I also spent some time wandering through the exhibit hall at the meeting. I was intrigued by the Lexis case map software. I've personally never used it, but I did read about it in David Thomson's book Law School 2.0: Legal Education for a Digital Age.

It seems to me that the software might be quite useful for helping students conduct case analysis in a trial advocacy class or in preparation for a mock trial. The software keeps track of information, organizes it by issue, and links it to other related exhibits and information. I think that some of our Millenial students, who love anything digital, could benefit from the software.

I plan to learn how to use the software when I get back home to Carbondale.

In the meantime, I'm curious to know whether anyone else has used this software (or anything similar to it, if such software is available) to help teach case analysis and assist students in conducting case analysis. If you've had experiences with it, please share them in the comment section of this blog.

Basically, what I'm trying to decide is whether the time investment to learn the software (and teach its use to students) is worth it. I personally consider case analysis to be one of the most important things I teach in an advocacy class. I'm all for improving the process, but if the software is not really amenable to the task, I'd like to know about it.

The No-Jackass Rule: Its Time Has Come for Trial Competitions

I have a very strict rule in my trial advocacy classes. I call it the No-Jackass Rule, and it is featured prominently in my syllabus, class lectures, and grading matrices. The rule applies primarily to students serving as witnesses, and it's simple: when playing a witness role, you can't act like a jackass. A jackass witness is one who attempts to "school" another student advocate by playing an unnecessarily--and almost always unrealistically--belligerent, difficult or intransigent witness.

Student witnesses in my trial advocacy class are instructed to be partisan, in accordance with the behavior of actual witnesses at trial. They have permission, for example, to answer the actual questions asked of them on cross, to spar a bit with opposing counsel, and to give narrative responses if uncontrolled on cross examination. But if they cross the line, they lose points, and if they cross it too far or too often, they can receive a failing grade on a trial or even the class. Since I adopted the rule a few years ago and incorporated it into my grading scheme, I've had remarkably few problems with bellicose witnesses.

We need the rule in mock trial competitions. A few years ago, I attended a conference during which Lee Coppock of Stetson University led a panel discussion on the issue of unprofessional behavior at trial competitions. He proposed a trial competition code of ethics, an excellent proposal that could go a long way towards solving some of the problems with witness behavior at trial competitions. New to the world of mock trial competitions, I was surprised to hear the horror stories that were shared during the discussion.

It seemed inconceivable to me then--and still does, frankly--that anyone entrusted to train young lawyers would encourage them to lie, cheat, dissemble, behave unprofessionally or act uncivilly--all for the purpose of gaining a brief advantage in a trial competition. But it happens. Some teams seem to be coached to violate the no-jackass rule in every possible way.

I believe this is because there is no real penalty associated with doing it. For instance, a common remedy at trial competitions for witnesses who make up facts is to impeach them by omission, using their depositions and other materials. This is supposed to send a signal that the witness is making something up. From what I've seen, judges don't seem to apply meaningful penalties for making facts up. In other words, the victim of this behavior can impeach by omission all day long, and nothing will ever come of it.

A similar problem is posed by witnesses who can remember complex details on direct examination but on cross profess deafness, inability to understand basic English phrases, a total lack of knowledge about their own depositions or sworn statements, and so forth. These problems can be dealt with, but they take time, and lots of it, sometimes leaving a team with little time for their closing arguments. Again, there are no meaningful penalties for this.

There is such a profound difference for everyone at a competition when witnesses play it straight and abide by the rules. I'm new to the world of trial competitions, but I've had the opportunity to see the good, the bad and the ugly in these competitions. Not much positive learning takes place when a team plays ugly. I'm fortunate to know many coaches who will not tolerate unethical or sketchy behavior from their teams, and it shows in competition. They play by the rules, and they still win.

I think that in competitions where the teams provide their own witnesses, the witnesses ought to be scored as well. And the score should be significant enough that a dirty team could get knocked right out of a competition. We ought to adopt a no-jackass rule, and give it some teeth.

Initial Case Analysis for Trial Teams

This post is from Wes Porter. Wes teaches trial advocacy, evidence and white collar crime at Golden Gate University School of Law in San Francisco. If you are involved in coaching trial teams, please take the time to comment on Wes's approach to case analysis.

The fall mock trial season is upon us.

The trial competitions’ fact patterns come in, we select our trial teams and advocacy teachers and trial team coaches begin to meet with their trial teams. In recent years, the most dramatic change to my approach with trial teams, and with our adjunct professors and trial team coaches, has been with these initial meetings and the instructor’s role. I have abandoned my former approach in favor of an approach which benefits students more down the road in practice, than in the impending mock trial competition. I am interested in thoughts and comments about your initial meetings with trial teams.

I start from the premise that (i) the review, analysis and organization of a “case file” as an advocate and (ii) “brainstorming” case theory and potential themes are critical advocacy skills. These are skills that may not translate into tangible results in competitions, but they are equally worthy of our attention in training future advocates. Stated differently, we should not allow ourselves, other instructors or even more seasoned (read: more confident, more vocal) students to review, analyze, organize and “brainstorm” for our student competitors. Like all other aspects of our skills training, we must communicate our expectations to our students and provide modeling and critical feedback about their performance. Lastly, we must impress upon our competitors the relative importance of this skill as compared to the glitz and glamour of the significant cross exam and closing argument, to which they will all want to fast forward. In practice, without the hard work with the file and early “brainstorming” about case theories and potential themes, the dramatic closing or “big” cross exam will never see its fullest potential.

What are our expectations from all mock trial team competitors in these initial meetings? And what are the teaching points that we hope the students can gain from “their time” with a file before we become involved?

I have three expectations / teaching points for these initial meetings: review, report and review again.

First, review: we expect students to spend their own time with a new case file reading, re-reading, structuring, dissecting, analyzing and “brainstorming” case theories and potential themes before their instructors and teammates are involved.

Second, report: we expect our students to communicate independently their hard work with the file and their own persuasive ideas (the good, bad and ugly) about their case presentation.

Third, review again: we expect student to return to the file with different perspectives and ideas after these initial meetings.

To these ends, after assigning attorney roles, I used to require closing arguments during these initial meetings. A closing, as we all teach, should demonstrate a careful review of the file, persuasive organization of the facts and the semblance of a case theory and theme. Sometimes they did. Most often these initial closings reflected poorly organized speeches about some of the facts and little true consideration about the case. I abandoned the “closings approach” a few years back.

In my new approach aimed at these same pedagogical goals, I, and our other instructors, play supervising attorney or senior partner conducting an initial case review. I read the file, but I do not use what I know other than to ask questions of the advocates. For instance, I require the party with the burden to set out the claim or charge, their case theory, anticipated witness testimony, other evidence, possible themes and evidentiary issues. I do the same for the opposing attorneys. I only ask questions. To inquire about potential themes we may ask, how will you explain that to jurors so they understand it? I ask questions that lead to more questions, research, meetings and, most importantly, a purposeful, re-view of the file.

These initial meetings should gain a slight reputation in the mock trial program. That is, if done right, the level of review it takes to be “ready” for an initial meetings with the supervising attorney, I believe, is more significant than giving a preliminary, shoddy closing and more beneficial to the students in practice. When students repeat as trial team competitors, the quality of the reporting at these initial meetings improved exponentially. I know I can analyze, organize and “brainstorm” a file and my case. We owe it to our students to teach them how to do it as well. I look forward to learning about other approaches for these initial meetings.

Forthcoming Blog Topics - Here's a sampling

We've just invited a number of distinguished advocacy teachers to join us in authoring this blog.

Possible topics for forthcoming blog entries from them include the following:

Innovative Teaching Techniques

Trial Teams and Competitions

Advocacy Scholarship

Course Design

Assessment and Grading

Critiquing Methodology

Lifelong Learning

Drills

Demonstrations

Intensive Advocacy Programs

Alumni Relations

Adjunct Relations

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