Monday, February 3, 2014

Judging the lawyers

On Saturday I had the privilege of being a judge at a high school mock trial competition in Houston with other defense attorneys and prosecutors. The matter was a civil trial on a defamation claim.

As I sat in the jury box and listened to the students I couldn't help but think like a lawyer. But, once I got past that hurdle I was able to appreciate the work the students put into their efforts. Each side had three attorneys who split up opening, closing and examination. Each team also provided three witnesses.

The same problem was presented every round - but for the second round everyone switched sides. This means each team had a total of six witnesses - three when they were the plaintiff and three when they were the defendant. It also means that each of the attorneys had to know their case inside and out because they would have to argue it from both sides.

Let me start off by saying that the students who were witnesses all did a fantastic job. While the attorneys had to draw up a list of questions and points for direct and cross, the witnesses had to fill in the details of the story. As you listened to them testify you could almost forget you were watching a mock trial competition.

As for the attorneys, I'm guessing that they were taught to use as much of their allotted time on examination as they could. It's the only thing that would account for the line of questions asked by the plaintiff to their second witness. Every time he opened his mouth it made the plaintiff's case worse and worse (not because the witness was doing a bad job - but precisely because he was doing his job very well). Having done this long enough I would have pulled the plug on his testimony very quickly.

Unfortunately the attorneys for the other side never did go for the jugular with that witness. From our perspective the plaintiff's case could have been killed once and for all had the attorneys driven home the point.

But for all the criticism we had of the defense team's performance during the plaintiff's case in chief - they shone when it came time to put on their case.

Judging a competition such as this can make you realize just how far you've come since you got your ticket punched by the state. After a while you learn that the quality of your questions is far more important that the quantity of questions. You learn that sometimes silence is the most effective tool at trial. But one thing that stood out for these teams was their preparation. And that's something that's just as important at trial as it is in a mock trial competition.

I'm sure I was stiff and wooden when I first started trying cases. I still get nervous standing up in front of the jury. I scripted my direct and cross way too much. But, just as these high school students will eventually learn - you can go in with the best game plan you can draw up, but once the case starts it's all about running with the ebb and flow.

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