7 Common Mock Trial Errors

by Joshua Auriemma on March 9, 2009

I have a long history with mock trials.  I was the captain of my undergrad AMTA mock trial team, I’ve coached and judged mock trial, and I’m a member of the 1L Mock Trial Committee at law school.

As I help to organize the upcoming 1L trial, I’m absolutely certain that I’ll see all of the following errors on several occasions.  To be fair, our 1Ls have two weeks to learn everything from advocacy to the FRE, so we can’t hold them to an AMTA standard.  Hopefully by reviewing these errors, you can prevent yourself from falling into the common traps.

pb0410007.  Not Taking It Seriously

Oddly enough, this seems to be more of a problem in law school than it is in undergraduate.  It may be that AMTA is “srius busnes,” but isn’t law school as well?  Your committee may tell you that “it’s all fun and games” but when you get up there not knowing hearsay exceptions (meaning that they exist, at a minimum), you’re going to look like an idiot.

In my experience, smart people can learn a lot about putting on a good mock trial just by watching one.  If you can get your hands on a past mock trial, I strongly recommend that you do so before going into your own trial.

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6.  Over Scripting

This may be controversial, since it’s obvious that many of the top teams script heavily (especially on openings).  I’m sorry though, we can tell you have it memorized.  You might be able to get away with it if you’re an incredible actor, but 95% of people are going to trade off some persuasion by working from their memory.  For most people, they’re so focused on saying the right line that they can’t put forward the proper emotion.  And if they can proffer emotion, oftentimes it seems contrived.

I judged a trial once where every single judge made a note to ask plaintiff’s counsel whether she had actually written down “walk to the right” into her opening statement.  She said no, but I think she was lying.

A good alternative recommend by our advocacy professor is to outline for realsies.  By outline for realsies, he means do something other than create a script with bullet-points.  He recommends that you shoot for no more than 4 words per bullet.  Sound difficult?  Give it a try.  You may be pleasantly surprised.

itspat5.  Gender Conformity

Many mock trial problems are designed to be gender-neutral with respect to witnesses.  Many students are so used to practicing with their own witnesses that they don’t “waste time” conforming genders to opposing counsel’s witnesses on the day of the trial.

While it seems nitpicky and harmless, it can cause huge headaches for judges.  Whether the judge has heard the case three times already or they’re hearing it for the first time, gender pronoun messups will stop a judge in their tracks.  How am I supposed to picture a scene when defense counsel asks “and then what did he do” when you’re referring to the plaintiff’s [female] hot blonde witness?  Answer:  I can’t.  So I’ll stop you and ask, “Wait, who are you talking about” and throw off your game.

Simple solution:  At the captain’s meeting or at the earliest time possible, ask for the genders of the witnesses and try to associate the personas with the new witnesses.  Don’t just say “Jaime is a girl, Jaime is a girl” to yourself or you probably won’t remember.  Instead, try “Jaime is that girl right there.  The one in the crazy pant suit.”

tuxedo4.  Be Super Formal

Even before the judge walks in, you should be in super formal mode.  Even though you may be in a jurisdiction where all the attorneys do everything from their seats, mock trial is meant to mimic the most super formal New York City courtroom.

Your interactions with opposing counsel should be professional, and you probably don’t want to get “out of character” right before the trial or it could throw off your game.  Courtroom demeanor should be obvious:  stand when the judge enters, stand to make objections, don’t cut anyone off, etc.  Don’t confuse being formal with being stupid, though.  You don’t have to thank the judge when he overrules you.

9973tressduncecap3.  Getting Annoyed By Your Own Stupidity

Nothing says “rookie mocker” like losing your cool over a witness who won’t say what you want him to say.  You really want this guy to have a Perry Mason moment and spill his guts to you in front of the courtroom, but it’s not going to happen.

Chances are it’s your fault.  Maybe you’re asking the wrong questions.  Maybe you’re asking the right questions in the wrong way.  If you find yourself becoming annoyed with answers that you think are non-responsive, step back and think about your questions for a minute.  Are you giving the witness loopholes by your phrasing?  Hint:  Asking a question beginning with, “Would you say that . . .” should be a giant red flag that you’re about to get owned.  Sure, it would be great to get a witness to admit that someone with a criminal record like the one you just got admitted shouldn’t be allowed to be a school teacher, but unless the witness is a moron, he is not going to admit that.  Instead, introduce the evidence and let the jury draw the conclusion.

Most importantly, please refrain from cutting off witnesses.  If you’re positive that you’re asking a question that could be answered with a yes or no (recognizing that there really aren’t *too* many of these in the world of mock trial) you have a few options:

1.  Cordially explain to them that they will be allowed to clarify their responses during redirect, and ask them to answer yes or no when possible.
2.  Motion to strike the non-responsible portion of the testimony.  If the witness is being ridiculous, the judge probably won’t be annoyed if you make this motion after every answer.
3.  Ask the judge to instruct the witness to answer yes or no when possible.

By responding professionally in this kind of situation, you can gain points in a situation where most student attorneys lose points.

p242.  Hearsay Exception: Rule 804

To this day, the reason why Rule 804 makes this list eludes me.  It seems like at every trial I’ve ever judged or participated in, someone uses Rule 804 incorrectly.  Apparently there is some movement in mock trial land to make the fact that a witness is unavailable into its own exception.  To them, I give a rousing “naaaaay!”

For the love of God, please read Rule 804 in its entirety.  Understand that the fact that the declarant is “unavailable” doesn’t mean that the testimony is admissible.  What it means is that you are now eligible to argue one of the exceptions enumerated under 804(b).

While we’re on hearsay, you should probably spend some time figuring out exactly what “the truth of the matter asserted” means because while difficult, you can probably figure it out after an hour or so of googling and it will save you a lot of headaches for the rest of your life.

389ojwzbb9kbimirfwvwkdgs_5001.  “More Prejudicial Than Probative”

So you’ve got this phrase down.  Congratulations: I’m sure you sound very smart when you use it in a sentence.  You may even actually understand how to weigh probative value against prejudicial value.  However, please recognize that this objection is a counter to relevancy.  What you’re essentially saying by making this objection is that while the evidence may be relevant, it shouldn’t be allowed to go to the jury because they couldn’t make a fair decision.  So, if you’re looking to rebut a piece of hearsay with 403, you’ll likely in for an unpleasant surprise.

It’s unfortunate that the structure of the rules of evidence isn’t generally examined until law school because it would assist lots of mockers in picking an appropriate objection.