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Lessons from a Mock Trial
I spent yesterday (from about 8:30-3:30) inside the DC Superior Court pretending to be a prosecuting attorney. It was fun, exciting, exhausting, and just extremely difficult! I wish I had some great lessons or advice to share after the experience, but probably the best I can do is confirm what you'll hear from anyone who's done it before: There's just no such thing as too much preparation.
I can't emphasize that enough: If you're doing mock trial, you have to know the facts -- every one of them -- cold. I didn't, and I got nailed a couple of times for it. Of course, you should also know the Federal Rules of Evidence pretty much backwards and forwards, as well as how to introduce and use exhibits to the best advantage. Why don't law schools just make this part of the first semester curriculum? I mean, wouldn't an intro to trial procedure, evidence, and advocacy be a good introduction to the law? A school could replace contracts or torts with one a more practical class like this, and I think its students would be well served.
But we don't learn evidence or trial procedures or advocacy in our first year, so we just had to wing it. Over the past couple of weeks, I've watched or participated in about four mock trials based on the same case materials (that's counting scrimmages and participating as a competitor in one instance and a witness in another), and each "trial" was very very different from the others. This tells me that you have to be prepared for anything, and have contingency plans for any approach your opponents might throw at you. So again, the main lesson is: Be prepared.
In all, I learned an incredible amount, but participating in Mock Trial has only deepened my ambivalence about being a trial lawyer. While the preparation part seems enjoyable and satisfying, the actual trial part seems like a crap shoot. Does the judge like you? Do you have the right "style"? Does the judge or jury like it that you cross your witnesses aggressively, or did you lose them there? Did you wear the right clothes? Did you hold your notes in an acceptable manner? All of these things seem so hard to predict or control.
But worse: Can you really think fast enough on your feet to solve all the random problems that might arise in a trial? Can you recover and reroute on the fly when your own witness gives you the exact opposite answer you were looking for and threatens to torpedo your case? Can you remember the exact spot in the deposition where the opposing witness impeached herself? Can you keep in your head the five different points opposing counsel misrepresented so that you can effectively explain and spin them in your close? And even if you can keep them in your head, can you find that effective spin in the two minutes you have to actually prepare that close?
I admire trial lawyers even more after doing mock trial. They have to be brilliant, no "ifs" or "buts" about it. But do I want to be one? Do I have what it takes? For now, I guess that will remain a question of fact to be left to the jury....
Posted February 22, 2004 09:34 AM | law school
I'm not sure if being a trial lawyer is quite as overwhelming as you make it sound, but there are plenty of lawyers who can't stand setting foot in a courtroom, so you must be onto something.
Some think it's fun, though. I'm one of them, despite the fact that you're right about needing to overprepare. This never seems to change. What if don't have the time, for whatever reason, to overprepare? You can take some comfort in knowing that you're going up against someone else who has many of the same questions that you do, who is just as busy as you, and who is likely to be underprepared.
About your crap shoot theory--you're largely right, I'm sorry to say. This is why most civil cases settle. Both sides tell their clients that there's a chance they're going to lose, no matter how great everything might seem to go at trial: so the more rational thing to do is to settle. Of course, this depends on how much money is being offered, but by the time of trial, the negotiations have usually reached a stage where it makes the most sense for both sides to settle.
Posted by: Evan Schaeffer at February 22, 2004 11:04 AM
In real life, you know what style to use because you know who the judge is and what style he likes. Judges tend to be known quantities after awhile, and their likes and dislikes get known pretty quickly. That's especially true if you practice in the same court again and again; you get to know them, and they get to know you.
Posted by: lawyer at February 22, 2004 09:00 PM
You express many of my fears about being a trial lawyer. Thus far, I think I am interested in litigation. But I, too, wonder if I would be able to think quick enough on my feet in a trial situation. Do I really want the added stress that preparing for trials can bring? Or would I prefer to become an 'expert' in one area of law and not have the pressure of preparing cases for trial?
Posted by: Kelly at February 23, 2004 08:17 PM
