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.

pimpscript02

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.

{ 7 comments… read them below or add one }

B May 8, 2009 at 6:08 pm

I’ve done Mock Trial since High School ( i’m a 0L) and I’m coming up on my last year in undergrad. I’ve heard More Prejudicial than Probative, so many times its ridiculous! I mean technically isn’t everything more prejudicial than probative?

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Joshua Auriemma May 8, 2009 at 7:56 pm

Heh, you might think that given the number of times the objection is made. When 403 actually applies though it’s pretty obvious. For instance, the prosecutor who wants to bring the bag a head was found in into the courtroom for the jury to see is obviously looking at a 403 objection, and it’s probably going to win.

It’s definitely not true that “everything is more prejudicial than probative” though. In fact, most facts are substantially more probative than prejudicial.

Read more: http://legalgeekery.com/2009/03/09/7-common-mock-trial-errors/#comments#ixzz0EyT3YhOv&B

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Mock Trial Student February 28, 2010 at 12:04 am

I have just finished the Regional Championships in my first year of High School Mock Trial. My team is now going to the state competition. My team in ranked 8th on a national level. I am a double lawyer for my team and, although it’s my first year, I am at least partially responsible for our win. I tend to disagree with the author when he says that scripting is bad. My whole team scirpted everything; including openings, closings, and directs. Even though everything was scripted we won first in our region and we are going to state. True, we have had our openings and closings memorized two months before competition which gave us plenty of time to practice voice inflection, but I do not believe scripting is bad. Furthermore, I think the teams that get up on closing or opening and just read off of a legal pad, stutter and mumble LOSE points. I’ve seen it happen in my very first round. Alternatively, if a person (who has it memorized) gets up on an opening or closing without notes and pauses all the time for 20 seconds then, yes, I do not think that that particular person should have scripted. But on a whole, I believe that if a person really is good at mock trial and really cares about mock trial then they should be able to memorize a four minute closing and a three minute opening and be able to pull it off. According to the above article, only 5% of mock trialers can pull of scripting; but, honestly, I do not think that my team is one of those 5% percent. People should script and be able to recite it forward and backward in their sleep, bottom line.
On the issue of more prejudicial than probative, I agree with Josh in saying that, no, not everything is more prejudicial than probative. If a person partakes in underage drinking two nights before they murdered someone (but did not get drunk) then, yes, it is more prejudicial than probative. But, if a witness is testifying to a tumultous behavior between the murderer and the victim (and incidents between the two the day prior to the murder) then, no, it is not more prejudicial than probative because the existence of this evidence tends to prove an important fact of the case.

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College Mock Trial Student September 27, 2011 at 10:58 pm

Mock Trial Student-

You may not see the benefit of refraining from scripting your ENTIRE case but rest assured, the benefits are there. You’ve obviously been exposed to advocates in the past who haven’t practiced enough or perfected their art and these same advocates, as a result do not come across as professional and their arguments are anything but cogent. These same teams just happen to be the ones that you’ve observed that haven’t attempted to script their case. The very best teams, however, do not script their material. The very best advocates, do not script their closings or crosses. The very, very best attorneys in mock trial don’t script a thing. Why? Because scripting isn’t true advocacy. Anyone can script a case, practice it, memorize it, cuddle it close as they sleep at night, rehearse it and probably present a pretty aesthetically stellar case, but these aren’t the teams that practice true advocacy. The teams that are one of a kind, the attorneys that deserve to be studied, are the ones who don’t need to memorize every word to sound good. Yes, in any context, fumbling through a closing whilst reading off scribbles on a legal pad looks bad. But that’s not what I’m talking about. I’m talking about the guy who listened to the evidence presented during that particular round, had a hook/theme going in, and sounded awesome. Sounded like he or she was familiar with the evidence backwards and forward, sounded like he or she owned the room, mostly because he or she did. Because he or she could point out inconsistencies with the opposing council’s presentation of evidence and subsequent closing argument because the opposing council DID script their entire case and when a certain piece of evidence didn’t get in at trial, they weren’t sharp enough to alter their closing and bam! Their closing doesn’t reflect what happened at trial but instead just 800 words they spit out on MS Word two months prior after reading the problem for the first time.

I could go on for pages. In short, extemporaneousness is the way to go.

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Bridgette January 25, 2012 at 11:40 pm

I realize this is an older post, but I just happened to find it while researching objections for AMTA. I was in high school mock trial all four years and just started an AMTA at my college. The process of starting a new team was extremely daunting, but we’re getting through it. The real issue I’m having right now is struggling with what procedural formalities might be subtly (or not so subtly) different from high school that I’m not aware of. I’ve scoured youtube for videos, but haven’t found any that show the in between formalities (like calling a witness) or submitting items into evidence. What are the common mistakes you saw during your involvement with AMTA that participants made? Thanks so much!

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