Notes for Mock Trials
Professor Keefer, based on Trial Techniques by Thomas A. Mauet
I.ORGANIZE facts--reports, chronology of events, pleadings, discovery (interrogatories and answers), motions, charts-- including trial chart with elements of claims, defenses and proof, openings, blank pages ofr notes on opponent's opening, outlines of direct examinations and crosses, closing, blank pages for opponent, rules of evidence, copy of key statutues and key cases.
II. The trial must be legally sufficient-- meet the burden of proof on each element of each claim or defense raised in the proceedings. Evidence must be persuasive in all aspects--logos, ethos, pathos-- and be understood, absorbed, remembered and accepted by the jury.
III. You must have a theory of the case, consistent with credible evidence and with the jury's perception of how life works. 1)Review elements of each claim and prepare jury instructions. 2) Analyze how you intend to prove or disprove each element. 3) Analyze opponent's contradictory facts. 4) Research everything admissible. 5) Re vew this to identify strengths and weaknesses. 6) Bolster your weaknesses.
IV: Identify theme, something you will repeat so that jury doesn't turn off from information overload. i.e. "If it doesn't fit, you must acquit." Themes must be simple, emotionally appealing, focusing on people, not issues.
V. Dramatize, humanize, visualize. In our "wonderful" American culture, most people stop learning when formal school ends, except what they get from TV. So jurors want drama, an emphasis on personalities, sophisticated visual effects, simple, digestible sound bites. Everything should be easy and enjoyable.
VI. Above relates to presentation. But this show must be grounded in sound
argumentation, an incisive understand of logical fallacies and how to construct
valid and cogent claims. There should also be an intellectual sophistication
behind the show so that the case is respected by the judge, the opponents, the
press and the pundits. Like Shakespeare, you must appeal to all kinds of people
on all kinds of levels.
VII. Work backwards. Plan your closing argument first. This way you win the war over the high ground and the disputed facts.
VIII. Engage in excellent public speaking techniques. The only reading you should be doing is from key exhibits or quoting key testimony. Outlines should be no more than one page, or index cards-- large print. You should know your material so well you could talk extemporaneously for hours.
IX: Your opening statement should state your themes and theory of the case, in the first few minutes. You can repeat the theme. 2) You should describe what happened in storytelling form. 3) Anticipate problems and weaknesses by weaving them into narrative. 4)It must be delivered forcefully, with conviction, even if you have doubts underneath. Lawyers are good actors.
X: With witnesses, stick to your claims and don't get side tracked by other issues, unless you are purposefully trying to manipulate logical fallacies as Leslie Abramson did in the Menendez case when she put the psychiatrist on trial to distract the jurors from the brothers. Prepare witnesses and right everything down on paper. Show witness how he could be impeached by opposing lawyer. Review probably testimony of other witnesses for inconsistencies. Practice actual cross examination with your witnesses.
XI. While you can use humor, irony, and other creative interpretations of reality in subjective monologues, or the book you write after the trial, keep your tone during the trial literal, serious, respectful, warm, but neither effusive or overly friendly. On redirect examination and recross-examination, leading questions are not permitted so make sure you cut to the chase right away.
XII: Prepare, number and organize exhibits so that they help prove your case and can't be used by opponent against you. They must be admissible. XIII: Order your case. Chronological usually works unless it is more important to focus on a concept. Start and finish with strong, important witnesses. Corroborate important evidence immediately. Alternate lay witnesses and experts for variety. IXV: Outline, anticipate and question. Your cross-examination should elicit only enough information to support your closing argument.
Did I develop a persuasive theory of the case? Persuasive themes? Persuasive labels for people, places and events? Did I identify the key disputed issues, and develop important facts on these issues? Did I anticipate my opponent's strategy? Problems and weaknesses? Did I present my theory and themes, labels, storytelling, exhibits effectively? Was I realistic about weaknesses? Was I dramatic and efficient? Did my examinations serve myh overall strategy? Did I use simple, factual, nonleading questions on direct? Did I elicit "word pictures" on direct? Did I use simple, factual, leading questions on cross? Did I "save" my conclusions during cross for closings? Did I make and use persuasive exhibits in openings, closings and witness examinations? Did I provide legally sufficient and persuasive foundations? Did I have a good delivery, voice modulation, pacing, pauses, eye contact, supportive nonverbal communication, appropriate attitude? Was I attentive, polite and respectful, all the while maintaining the force and conviction of my advocacy?