Mock Trial:

The Basics
Prof. Robert T. Sherwin
February 4, 2011

Mock Trial: Defined

Mock: Feigned; not real; sham.
Trial: The examination before a judicial
tribunal of the facts put in issue in a
cause, often including issues of law as
well as those of fact.
In short: A simulated trial!
It is NOT a simulated oral argument
(thats moot court).
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How we prove and determine facts

In the justice system, juries (or judges)
are asked to determine facts based
upon evidence.
Evidence generally comes in two forms:
Witness testimony
Physical evidence (documents, videos,
objects)

Witness testimony
Witnesses are called to the stand to give
testimony under oath.
Their testimony comes in the form of
answers to questions (an examination)
by the attorneys.
The party who calls the witness to testify
conducts the direct examination of the
witness.
The side against whom the witness
testifies conducts the cross examination.
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Physical evidence
Witnesses may be asked to testify about
documents, videos, or other physical
objects.
These pieces of physical evidence can
be admitted into evidence as
exhibits and be considered by the jury
to the same extent it considers witness
testimony.
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Trial in sum
The purpose of the trial is to allow each
side to introduce evidence that the fact
finder can use to answer questions of
fact.

How does a mock trial go?

Housekeeping/motions in limine
Opening statements
Plaintiff/Prosecution puts on evidence
(two witnesses)
Defendant moves for directed
verdict/acquittal
Defendant puts on evidence (two
witnesses)
Closing arguments
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Division of duties
You compete as a team of two.
One teammate delivers the opening
statement; the other delivers the
closing argument.
Each teammate conducts a direct
examination of one of your witnesses
and a cross examination of one of the
other teams witnesses.
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Division of duties (cont.)

Other matters (housekeeping,
dispositive motions) may be divided as
you see fit, but try to equal each
teammates face time as much as
possible.
You must prepare both sides (Plaintiff
AND Defendant) of the case; you will
switch throughout the competition.
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Formalities
Plaintiff/Prosecution sits at table closest
to jury box (or left if no jury box).
Stand up when the judge enters or calls
the court to order (and any time you
speak).
Judge will ask attorneys to make their
announcements (Plaintiff/Prosecution
goes first).
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Housekeeping
Opportunity to address preferences of
the judge in how trial will proceed.
Permission to roam about courtroom
during opening/closing?
Arms length from podium during witness
questioning?
Constructive approach/witness swearing?
Reading of jury instructions?
Addressing judge as both judge and jury?

Plaintiff should present motions first.

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Opening statement
Your opportunity to introduce yourself
and present your theory of the case.
Tell the jury what you expect the
evidence will show.
This is an opening statement, not an
opening argument you are not
supposed to be argumentative or
combative.
Opening statements are NOT evidence!
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Opening statement (cont.)

Should last no more than five minutes
May it please the Court? Counsel
[acknowledge opposing counsel].
Ladies and gentlemen of the jury [turn
to the jury].
Introduce yourself, your co-counsel,
and the party you represent.
Begin telling your clients story as
framed by your theme.
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Theme
You should always have a theme to
describe your case a hook the jury
can latch on to and conceptualize the
evidence through.
Examples:
If the glove dont fit
CSI
Desperate Executives

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Opening statement (cont.)

Explain the dilemma in the case what
the plaintiff is claiming or why the
plaintiff is wrong.
Explain the burden of proof and the
elements of the claim (particularly if you
re the plaintiff).
Introduce your witnesses and explain
how you expect them to testify.
Explain how you expect the other sides
witnesses to testify.

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Opening statement tips (cont.)

Couch everything in terms of we
expect the evidence will show or the
evidence will likely show or youll learn
that
Remember you havent held the trial yet,
so you cant say things as a matter of fact
that are in dispute!

Objections?
Ending: Ask the jury to carefully weigh
the evidence and find for your client.
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Direct examination
After each side has opened, the parties
put on their case in chief. You do this
through calling witnesses.
Decide which of your two witnesses you
want to call first.
When the judge asks you to call your
first (or next) witness, stand and say
Your Honor, the Plaintiff calls Witness
McWitnessy to the stand.
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Direct examination (cont.)

Make sure witnesses have carefully read
their deposition/statements. Give them
a list of the questions youre going to
ask and the answers youd like them to
give (even though they cant take that
to the stand with them).
Plan out your questions according to
subject areas. Within each subject
area, move chronologically so your
questions make sense.

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Direct examination (cont.)

What do you need from the witness?
Be sure to ask whatever questions
necessary to get the witness to testify
about the essential elements of your
claim. If the witness doesnt say it, its
not in evidence and you havent proven
your case!
Ask open-ended questions. Any
question that suggests its answer is
leading, and therefore objectionable.

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Direct examination (cont.)

Use the witness to explain physical
evidence.
To give the witness an exhibit, first ask
the judge, Your Honor, may I approach
the witness?
Before you approach the witness, give a
copy of the exhibit to opposing counsel,
and ask the judge if he/she would like a
copy as well.
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Direct examination (cont.)

Once you finish your direct examination,
look to the judge and say Your honor, I
pass the witness.
Dont say I have no further questions,
which may lead a mean judge to say
that youve waived your right to do a
re-direct examination after cross.

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Cross examination
Your opportunity to question the other
sides witnesses
Goals:

Tell the rest of the story

Impeach a witness/make him look bad
Collect ammo for closing argument
Make yourself look good

Hardest part about trial work (and mock

trial). Also most fun.
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Why so hard?
Three reasons:
Witness is adverse
What we think we know about cross is
wrong
Cant rehearse it

Control over the witness is vital.

Without it, the examination goes badly.
With control, you look good, and when
the witness tries to deny you of it, he
looks bad.

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How to get control?

Leading questions?
No! SHORT, SIMPLE, STATEMENTS

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Problems with questions

Jury wants to hear the witnesss
answers.
You lose the ability to tell a story.

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The benefit of short statements

The length of the statement dictates the
length of the response.
Focusing on short statements prevents
asking compound questions that allow
the witness to say No when at least
part of the answer begs a Yes.
Allows you to communicate with the
jury, not the witness.
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So how do I do it?
Decide the points you need to make through
the examination.
Only ask questions to transition from point to
point.
Mr. Smith, Id like to ask you some
questions about _____. Is that OK?
Eliminate prefixes.
Eliminate suffixes.
Design short statements to move in a logical
progression toward each point you need to
make.

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What if it doesnt work?

If witness stares at you, say, Correct
or Isnt that right? while nodding. On
the next statement, nod.
If witness argues with you or says
something other than Yes, listen to his
answer. And then

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What NOT to do
The Deal
Cut off witness and thank him/her for
answer
Just answer yes or no
Ask the court for help (except as a last
resort)

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What TO do
Ask, repeat, repeat.
Or ask, repeat, reverse.
Full, formal name.
Shorten the question.
Im sorry, you must have misunderstood my
question. I wasnt asking about
That didnt answer my question, did it?
Then your answer is yes?

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Cross examination tips

Theres no need to be mean to the
witness
Avoid the one question too many it
might be OK to save the conclusion for
jury argument.
Try to end with a powerful point.
Pass the witness when youre done.

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Re-direct examination
The person who calls the witness
always has the last word. So, after
cross, you can ask additional direct
examination questions of your witness.
Fix any damaging testimony that came
out on cross by letting the witness
explain.
Limited to scope of direct/cross.
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Re-direct examination
When youre done, say Your Honor, I
have no further questions. May this
witness be excused?
No re-cross examination allowed in our
mock trial competitions.

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Closing the case in chief

After the Plaintiff has called its two
witnesses, rise and tell the judge Your
Honor, at this time the Plaintiff rests its
case in chief.
Defendant should do the same after it
calls its two witnesses in its case in
chief.

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Closing argument
Opportunity to be theatrical (and
argumentative!).
Use the same theme that your partner
introduced in opening.
Talk about what the witnesses said. If
a witness didnt say it or it didnt appear
in an admitted exhibit, you cant talk
about it!
Point out inconsistencies in opposing
witnesss statements.

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Closing argument (cont.)

Explain the elements of the claim and
how the evidence did/did not establish
those elements.
If there are jury instructions, explain
them and how the jury should answer.
Explain the burden of proof and make it
work for you.
Ask the jury to hold for your client.
Plaintiff can reserve time for rebuttal.
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Objections
For mock trial, weve eliminated nearly
all evidentiary objections.
The objections you may make:

Ambiguous
Argumentative
Asked and answered
Assumes facts not in evidence
Compound
Leading
Narrative

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Objections (cont.)
The objections you may make (cont.):
Non-responsive (as to witness testimony)
Relevance

You may not object to any evidentiary

issues other than relevance. In
particular, no hearsay objections!
Only the attorney handling that witness
may object.
Keep a list of available objections at
counsel table.

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Objections (cont.)
When the other side asks a question
that is objectionable, rise and say
Objection, Your Honor, and then state
the grounds of your objection.
The counsel objected to should then
say, May I respond your Honor?
(unless you know youre wrong, in
which case just say, Id be happy to
rephrase, your Honor.)
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Closing thoughts
Keep counsel table neat and clean.
Consider putting everything in a binder
with tabs.
Other than announcements and
objections, speak from podium (unless
permission to roam in opening/closing).
Stand up straight look like a lawyer!
Dont talk or overly whisper to cocounsel.
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Mock Trial:
The Basics
Prof. Robert T. Sherwin
February 4, 2011