Volunteering for Mock Trial Competitions Leads to Real Improvement in Trial SkillsBy Daniel E. Cummins | May 02, 2024 Pennsylvania Law Weekly
During high school mock trial season, common feedback provided by a number of judges is that the student attorneys and witnesses present their cases better than many real attorneys and witnesses that appear before the court. This often provokes laughter from the laypeople in the audience but nods of understanding and some wincing from the attorneys in the room.
Attorneys are urged to volunteer for high school mock trial competitions as advisers or jurors. Not only is this a great volunteer activity that puts the members of the Pennsylvania Bar in a positive light, but participating attorneys will likely end up improving their own trial presentation skills as a result—a win-win scenario.
As another high school mock trial season comes to a close, here are some reflections on lessons that mock trial students learn that can also be applied by real attorneys to real life trials in order to improve their presentation skills in the courtroom.
Preparation Is Key
The key to any successful presentation of a trial is the completion of extensive preparation and training leading up to trial. As discovery is gathered during the course of a litigation, it should be categorized and reviewed and summarized in order to get a deep understanding of the claims and defenses presented by the parties.
Also, knowing the elements of the causes of action and defenses presented is crucial and serves as an outline of the evidence that must be presented at trial in order for a party to prevail by meeting each and every required element.
Practice, and Then Practice Again
When preparing for a trial, it is important to do run-throughs of direct examinations, potential cross-examinations as well as the opening statement and the closing argument. Running through directs and crosses will bring to light changes that must be made and additions or subtractions that would make the presentation more concise and, therefore, more clear to the jury.
Such repeated practice will also bring to light potential objections that one may face with regards to the evidence to be presented. That way you can study the law behind the objections and the objection responses and be fully prepared to address the same in court, much to the chagrin of your opponent.
Practicing examinations, as well as opening statements and closing arguments, also allows the attorney to make a more effective and compelling presentation to the jury. Doing a run-through of different parts of the case with a layperson will assist in determining which parts of your presentation have to be fine-tuned and simplified for clarity purposes. Such repeated practices also serve to increase the confidence of the attorney in his or her ability to cohesively and simply present the information to a jury at trial.
Themes
Themes matter. Themes simplify cases for juries and appeal to a jury’s sense of what is right, fair, and just. Repeating a theme throughout one’s case, clues a jury into the case presented and keeps their interest as the case proceeds.
Accordingly, it is important to have a theme for the opening statement and to carry that theme through the entire case to the closing argument. That means weaving the words of your theme periodically through your direct examination as well as your cross-examination. The theme should not be “forced” into the direct examination or cross-examination questions or your witnesses’ testimonies. Rather, the theme should stem from the most important parts of your case and testimony where it can be naturally inserted into the case.
For example, one theme in a motor vehicle accident case could be: “This case involves a fender bender as a result of which neither fender was bent and no one was hurt.” Repeatedly stating that theme in both the opening and the closing, as well as confirming during the questioning of numerous witnesses that neither fender was bent during the course of the accident will repeatedly drive home the theme to the jury and appeal to their common sense.
Witnesses Preparation Wins Cases
Mock trials are won not only by good attorney performances, but also, and perhaps more so, by excellent performances by witnesses.
A case can turn on the quality of the witnesses presented by one side as compared to the other. Accordingly, witness preparation is vital for success at trial. Completing numerous run-throughs of direct and cross-examinations with witnesses will not only prepare the attorney but also fully prepare the witness to become more comfortable with the information to be provided to the jury. Such practicing will also help the attorney and the witness simplify the information being provided and make the witness more comfortable with the process.
In the end, the attorney and the witness will develop a rhythm that will result in a tight and interesting story for the jury on direct examination. Practicing the anticipated cross will also assist in preparing the witness for possible questions which can help the witness appear more at ease and less defensive.
The Rules of Evidence Matter
While in everyday practice, attorneys give a token appreciation for the application of the Rules of Evidence in any given case, once an attorney walks into the courtroom, the Rules of Evidence matter.
Judges are trained to provide the parties that come before them with a fair trial. The primary way the judges allow for a fair trial is to apply the Rules of Evidence in accordance with the law.
As such, one of the keys to a successful trial is to view the case from the perspective of the opposing party and anticipate objections to the testimony and demonstrative evidence that can be expected to arise. In that way, one can apply these anticipated objections to the Rules of Evidence and prepare to argue the objections before one even enters the courtroom.
Organization Builds Credibility
Having a clean counsel table and organized exhibits matters. The organized attorney is the credible attorney. Organization sends off a signal that the attorney has prepared the case thoroughly and that the attorney respects the jury’s time as compared to opposing counsel who shuffles through many documents looking for a particular exhibit.
Both judges and jurors also appreciate an attorney who knows how to properly introduce a document into evidence. The proper way to introduce a document is to first note an intention to the court of a plan to introduce a document. Next, opposing counsel should be shown the proposed exhibit. Then, a request for permission to approach the witness with the exhibit should be requested.
After approaching the witness and handing the witness the exhibit, the witness should be asked to identify the document. The witness should then be asked if the document is a fair and accurate representation of the proposed evidence.
At that point, the attorney offering up the exhibit should request the court to admit the exhibit. The attorney offering the exhibit into evidence should be prepared to address any objections from the opposing party.
If and when the exhibit is entered, the attorney offering the exhibit should then request the permission of the court to publish the exhibit to the jury. That attorney should have an assistant prepared to either hand out copies of the admitted exhibits to the jury or have a technology assistant pull up the exhibit on the big screen for the jury to review as the questioning of the witness continues.
Visuals Break Up Monotony
In order to break up the monotony of a trial, the use of demonstrative exhibits and documents are highly recommended. In the absence of exhibits, the audience, i.e., the jury, who are typically experiencing an overload of visual information at any given time of any given day, may quickly lose interest. Wherever possible, a jury should be provided with exhibits and visual pieces of evidence to break up the monotony of testimony at a trial so as to keep them interested in your case.
Brevity and Simplicity Win Cases
Brevity and simplicity at trial are possible and can be compelling.
In a high school mock trial competition, a party has only five minutes to present their opening statement and only five minutes to present their closing argument. It is continually amazing how informative and compelling a five-minute opening statement or closing argument can be in any given case.
As attorneys are typically fearful of not presenting every piece of evidence to a jury for fear of leaving something important out, it sometimes feels impossible to do an opening statement or a closing argument in less than 30-40 minutes. However, if repetitive comments are cut out and the opening statement and closing argument are crystalized into a tight, concise, and compelling presentation, less is usually more when it comes to persuading a jury to rule in your favor.
In the opening statement, the jury should be provided with the “story” of the case so as to orient them as to what evidence will be coming. A short and concise description of the anticipated witnesses and their testimony should be provided. Some brief explanation of the burden of proof should be noted. Importantly, all of this information should be framed and driven home by the theme of the case at the beginning and/or the ending of the statement.
In the closing argument, counsel should let it rip by way of a more forceful recitation of the evidence that has been to the jury and how this relates to the applicable law. After the theme is emphasized at the outset of the closing argument, a review of the favorable evidence should be provided in a concise fashion. Near the end of a closing argument, the arguments of the opposing party should be anticipated and flipped on their head as being not worthy of acceptance by the jury. The closing argument should then end with a specific statement as to the relief desired from the jury on behalf of your client.
Courtroom Decorum and Civility Is a Must
Mock trial teaches that courtroom decorum is important and the tradition of respecting the court and the jury should be honored. Civility between opposing counsel is also required.
This means always standing when addressing the court and referring to the judge as “Your Honor.” This means requesting the permission of the court to move about and approach witnesses. This means never arguing directly with opposing counsel and always directing one’s comments to the bench. This also means treating even opposing witnesses with respect. Civility also means approaching opposing counsel following a trial, win or lose, with a show of respect.
Worthy of CLE/CJE Credits
Surely, as confirmed above, participating in a high school or college mock trial competition as an adviser, a judge or a juror is a highly educational experience. The educational value of participation by attorneys and judges in mock trial competitions is, therefore, unquestionably worthy of the granting of CJE/CLE credits. Certainly, attorneys learn more by participating in mock trial competitions than earning credits while passively sitting in front of a video of a prior CLE presentation while reading the newspaper or doing work.
A hope remains that the Pennsylvania Supreme Court will someday allow for an amendment of the rules pertaining to CLE/CJE credits such that credits will be permitted for mock trial participation similar to how such credits are allowed in many other states. In that way, more judges and lawyers will be enticed to volunteer their time and expertise to mock trial competitions for the benefit of high school and college students across the commonwealth of Pennsylvania. Even better, lawyers will be reminded of and educated on trial presentation skills for the benefit of their clients and the overall practice of law.
Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@cumminslaw.net. Cummins is also one of the Attorney Advisors for the 2024 National Champion Abington Heights High School (Clarks Summit, PA) Mock Trial Team.
Reprinted with permission from the February 29, 2024 edition of the Pennsylvania Law Weekly. © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.
