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WELCOME TO THE WORLD OF MOCK TRIAL!

At AHS, we believe in empowering our students with real-world skills, critical thinking, and a passion for justice. Our Mock Trial program is more than just a competition—it’s an immersive experience that hones your legal acumen, public speaking prowess, and teamwork skills.

🎓 UNLOCK YOUR POTENTIAL
Whether you dream of becoming a lawyer, honing your public speaking skills, or simply want to explore the fascinating realm of the legal system, our program is a great platform.

🏛️ STEP INTO THE COURTROOM
Picture yourself standing in a real courtroom, defending the innocent or making a compelling case for justice. Our program offers a hands-on experience, allowing you to delve into legal scenarios, analyze evidence, and present your case with confidence.

🤝 TEAMWORK MAKES THE DREAM WORK
Collaboration is key in the legal world, and our Mock Trial team is no exception. You’ll be part of a close-knit group of like-minded individuals, working together to build a strong case. Learn the art of teamwork, communication, and strategy as you prepare to face off against other schools.

🔍 UNRAVEL THE MYSTERY
Each case presents a unique challenge, and it’s up to you and your teammates to unravel the mystery. From witness cross-examinations to presenting compelling opening and closing statements, every trial is a new adventure that will keep you on your toes.

🌟 LEARN FROM EXPERIENCED COACHES
Our dedicated coaches bring real-world legal expertise to guide you every step of the way. This year our team has two patent lawyers, a former prosecutor (who is also a judge), a doctor who has been a special witness, an actor/accountant who did mock trial in high school, and a coach who has experience with speech and debate.  

Joining is easy! SLC students can sign up on Veracross – SLC Speech & Debate Registration – American Heritage School (veracross.com) 

COUNTDOWN TO OUR FIRST SCRIMMAGE

Location of Scrimmage 1 for High School :
Lindon Justice Court at 100 North State Street – Lindon, UT 84042    

The high school scrimmage is Saturday Dec 2 from 1:30 to 4:30 PM. Show up by 1:10 PM — meet outside the main building. Thanks to Judge Brook Sessions for hosting; no food or drink in courthouse. Bottled water should be ok. Families are welcome to watch as long as there are no interruptions.  

All recorded meetings can be found in this link: Joint Resources for MS and HS – Dropbox

Key Elements to Case Preparation

 

Theory of the Case: A short succinct statement of an advocate’s position that justifies the verdict he or she is seeking 

Elements of the Case: Components of the case that have to be proved to prevail

Case Themes: Words, phrases and ideas that evoke emotions and help communicate the case story to jurors so they can make sense of the evidence and testimony they see and hear. Think of these as sign posts – phrases that direct jurors to your case arguments and story

Witness Analysis: The strengths, weaknesses, and key testimony of each witness 

Exhibit Analysis:  The strengths, weaknesses, and key aspects of each exhibit

Burden of Proof:

  • Criminal Case: Prosecution must prove their case beyond a reasonable doubt
  • Civil Case: Plaintiff must prove their case by a preponderance of the evidence

Creating  a story:  Crafting a compelling, consistent, and believable story about what happened from your side’s point of view. 

 

Steps in Preparing a Case

Before the roles are chosen

 
  1. Individually read the material, make notes, highlight important parts
  2. The team meets to discuss: 
    • The case as a whole
    • Elements of the case
    • Burden of Proof
    • Create:
      • A timeline
      • A master issue list
  3. Analyze Witnesses and Exhibits
    • Suggest breaking into groups
      • Saves time
      • Each group takes one of more witnesses and exhibits
    • Identify and rank issues
    • Identity key testimony
    • Identify strengths and weakness
    • Report back to the team as a whole 
    • Team as a whole which finalizes the analysis 
  4. Creating a Story
    • Practice telling a story about what happened form both points of view
    • Students may develop preferences for what side they want to be on

After roles are chosen

Tasks for each side:

  1. Develop a theory of the case
    • Brainstorm
    • One or two sentences max
    • Use in openings and closing
    • Guides the overall approach
  2. Identify case themes
    • Brainstorm as many as possible
    • Choose the best ones
  3. Create opening statements, directs, crosses, closing arguments, and witness profiles using:
    • Timeline
    • Master issue sheet
    • Witness and exhibit analyses
    • Theory of the case
    • Elements of the case
    • Case themes
  4. Identify evidence to try to keep out
  5. Create a Master Trial Notebook which contains the following:
    • Case and rules
    • Stipulations
    • Folder with Rosters (8) 
    • Copy of all openings, directs, crosses and closing.
    • Folder with witness statements (2 per witness) 
    • Folder with exhibits (9)
    • Objection log
    • Gender sheets (3)
    • Objections within the bar form (3)
Courtesy of https://www.mocktrialstrategies.com/

Objectives

“The opening statement outlines the case it is intended to present. The attorney for plaintiff delivers the first opening statement and the defense follows with the second. A good opening statement should explain what the attorney plans to prove, how it will be proven; mention the burden of proof and applicable law; and present the events (facts) of the case in an orderly, easy to understand manner.” Mock Trial Material from State of Oregon v. Dulsa (2017-18 Season)

An opening statement is not an argument or a discussion of the law, but rather tells the jury what the evidence will show and serves as a road map for the jury to follow.  Objections by the opposing counsel are not permitted. 

 

What to know before drafting an opening statement

  • Can you tell a brief story about what happened from your side’s point of view?
  • What is your theory of the case?
  • What are the key elements that have to be proved (by you or the other side)?
  • What do you anticipate the evidence will show?
  • What are the important facts your side’s witnesses will testify to?
  • What themes (words and phrases that convey emotions) do you want to emphasize?
  • Who has the burden of proof and what is it?
  • What do you want the jury to do?
  • How much time do you have? (usually 5 minutes)

 

Anatomy of an opening: the basics

  1. An Introduction:
    • Attorney identifies themself (or not)
      • A typical introduction: “Your Honor, members of the jury, my name is (full name), representing the prosecution/defendant in this case.”
      • If they have already been introduced,  some attorneys just go right into their opening to save time, create drama, and make it look more like a real trial.
    • A theory of the case
      • One or two sentences which tell the jury what your case is about
      • “My client, Landry Lopez, was fired for reporting an illegal activity to his employer, the restaurant Buddies Burgers.”
    • Briefly tell the jury why they are there
      •  “This case is brought under Oregon whistle blower law, which prohibits employers for retaliating against employees who have a reasonable belief that an illegal activity has occurred and report it. ” 
  2. A brief overview (story) of what the evidence will show
    • Presented from your side’s perspective
    • Purpose is to give the jury the big picture 
    • “The facts of this case are straightforward.  The evidence will show that on May 5, 2016, Landry Lopez saw . . .”
  3. A brief explanation of what has to be proved
    • “Under Oregon whistle blower law there are three elements that must be proven.   First . .”
  4. Identify the witnesses 
    • “We will call three witnesses: Landry Lopez, Sam Jackson, a former Buddies Burgers employee, and Tyler Erickson, a journalist student.”
  5. Tell what the key testimony of each witness will be
    • “Mr. Lopez will tell you that . . .”
    • “Next, Plaintiff will call Ms. Jackson, a former BB employee . . “.
    • “Finally you will the testimony of Tyler Erickson, who was with Mr. Lopez . . . “
  6. A conclusion
    • Discuss the burden of proof  (some put this near the beginning)
      • “This is a civil case and Plaintiff Landry Lopez must prove his case by a preponderance of the evidence.” (Explain briefly and illustrate with hands what a preponderance of the evidence means)
    • Restate the theory of the case
      • “Oregon’s whistle blower law exists to protect, and encourage, employees to report illegal activity in the workplace. Mr. Lopez engaged in such whistle blower activity and was fired for doing so. “
    • Tell the jury what you want
      • “For these reasons, after you have heard all the evidence, at the end of this trial we will ask you to return a verdict in favor of Landry Lopez.”
      • “At the end of the trial the State of Oregon will ask you to find the Defendant guilty of . . . . .”
      • “Based on the evidence you will hear, at the end of the trial the Defendant will ask you to return a verdict of not guilty

 

Going Deeper: Ways to Improve the Opening Statement:

  • In a Mock Trial the attorney is judged on:
    • Substance and technique . . . AND 
    • Performance and style

 Substance and Technique

  1. Keep revising your opening until it is exactly as you want it
    • Opening statements go through many edits and revisions 
    • Seek out the input from others
    • Try things out – if they don’t work,  don’t use them
  2. Consider a hook in the introduction
    • A hook is a sentence or very short paragraph in the introduction which serves as an attention-grabbing element
    • The effectiveness of the hook is defined by its ability to interest and motivate the jury to listen more closely 
    • The hook should arouse interest but not be argumentative
  3. Tell a good story
    • Story telling is at the heart of a good opening
    • A story paints a vivid picture – walk jury through it with each witness
    • Use active voice
    • Use language that reinforces your themes
    • Create interest but don’t tell everything
  4. Do not argue the case
    • The opening statement is not an argument
    • Do not argue the facts or law
    • Save arguments for closing
    • It is OK to state and develop your theory of the case
    • Stick with what the facts will show and what they will not show
  5. Use future tense when talking about what the evidence will show 
    • Proper phrasing includes statements like:
      • “The evidence will indicate that . . .
      • “The facts will show that …”
    • Use a few of these lines but not too many, don’t overdo it
  6. Stay in control of the picture you paint in the jury’s mind
    • Everything you say should have a purpose
    • Don’t ask questions during opening statements (it allows the jury to come up with answers you might not want)
    • Do not waste your time on unimportant things or go into excessive detail (may make the jurors lose focus)
    • Use descriptive emotional content in describing the most important facts
  7. State the facts affirmatively – do not negate  the other side’s facts or position
    • The more you repeat something the more it is remembered and believed
    • If you say the evidence will show that “Mrs. Smith did not run the red light,” the ‘not’ is lost.
    • The jury remembers the phrase “ran the red light”
    • Instead say the evidence will show “Mrs. Smith came to a complete stop at the signal.”
    • The jury remembers “came to a complete stop at the signal.”
  8. Personalize your side’s witnesses
    • Use their names
    • Depersonalize the opposition’s witnesses with language like ‘Defendant”  or  “Plaintiff”
  9. The Prosecution in a criminal case is the Government
    • Don’t be shy to take on this role
    • Refer to yourself  “The State of ___”  not just the “prosecution.”
  10. Talk about facts that are not in dispute (look at  the stipulations)
    • “There are certain facts in this case that are not in dispute . . . “
    • “The Defense/Prosecution have agreed . . .”
    • “The parties have agreed that . . . “

Performance and Style

Body language is a very powerful tool. We had body language before we had speech, and apparently, 80% of what you understand in a conversation is read through the body, not the words. – Deborah Bull, English dancer, writer, and broadcaster

  1. Practice, practice, practice
  2. Find your focus, energy and commitment
  3. Memorize the Opening Statement
    • Memorize content, movement, inflections, and gestures 
    • This will maximize the points you will get
    • If notes are needed
      • Use them sparingly
      • Use a legal pad or clip board so they do not flop around 
  4. Talk directly to the jury 
    • Look them in the eye
    • Educate  them about the case
    • Move closer (5-10 ft.) but not too close
    • Be natural to keep their attention
  5. Use conversational language that is engaging
    • Let the type of case dictate your style and tone
      • Example: A prosecutor might want to be more forceful whereas a defendant might want to evoke sympathy
    • Use legal terminology sparingly
  6. Use body posture and movement deliberately and consciously
    • Maintain upright body posture (do not slouch)
    • Keep shoulders back to show confidence
    • Stay balanced
    • If you move, make the movement coincide with transitions between points
    • Try not to change position more than 7 times in 5 minutes
    • Try not to fidget or have unnecessary gestures or body movements
  7. Use gestures 
    • Use gestures to create interest and drama
    • Gestures include the give, the show, the tell, and signposting
    • Don’t shy away from pointing to individuals in the court – the type of point may vary
      • If you are the prosecution and point to the defendant it will be using a harder accusatory “tell” gesture with a pointed finger
      • If you are pointing to your own witnesses it will be using an inviting open handed “give” gesture  
  8. Act professional and confident – even if you are nervous

What Witnesses Do

  • Supply the facts in the case
  •  Two types of witnesses:
    • Lay witnesses: Ordinary persons who testify based upon their personal knowledge and life experiences
    • Expert witnesses:  Persons who testify based upon their qualifications of expertise in their field
  • Official source for both witness testimony is:
    •  Witness’ statement
    • Stipulations
    • Exhibits that witness  would reasonably have knowledge of
  • The witness statements contained  are regarded as signed and sworn affidavits
  • Witnesses may testify to facts stated in or reasonably inferred from the record
  • Witnesses are bound by the facts in the record
    • Includes their own statement and stipulations
    • If they testify to facts that contradict that record, they can be impeached
    • However, a witness is not bound by facts in the statements of other witnesses, and witnesses often dispute what other witnesses observed or testify to
  • If an attorney asks a question, and there is no answer to it in the witnesses’ official statement, the witness can choose how to answer it within certain parameters:
    • May reply, “I don’t know” or “I can’t remember,” or can infer an answer from the facts they do officially know
      • Inferences are only allowed if they are reasonable
      • If the inference contradicts the witness’s statement, they can be impeached
      • Objections may be made such as  “unfair extrapolation” or “outside the scope of the Mock Trial materials”  
  • It is the responsibility of the attorneys to make the appropriate objections when witnesses are asked to testify about something that is not generally known or cannot be inferred from the witness statement

How to Prepare

  • Read and memorize the witness statement
  • The attorney who’s doing the direct examination works with the witness they are questioning to create a script
    • Know the witness’s weaknesses, draw attention to their strengths and the legal theories of their side
    • Create and use a witness analysis sheet (see sample below) 
  • Create a witness profile to help decide how the witness is going to be played
  • Act in character for an evening with family and friends
  • Decide what the witness is going to wear (costumes are not allowed though)
  • Consider attending an acting workshop
  • Get into character before you enter the courtroom
  • Learn the gender of the other side’s witnesses before each round by:
    • Introducing yourself before the trial starts
    • Creating a gender log for the other team’s witnesses before the trial starts 
    • Looking at the other team’s roster
    • Listening carefully during introduction
  • Practice, Practice, Practice

Tips for Direct Examination

  1. Tell the truth based on the witness affidavit
  2. Stick to the script you have practiced
  3. Stay in character during the entire trial, even when you are not testifying
  4. Listen to the question
    • Do not answer a question you do not understand
    • Ask for clarification if you do not understand
  5. Don’t guess or speculate
    • If you don’t know the answer say “I can’t recall,” or “I don’t know.” 
  6. Answer the question asked
    • Do not go into additional information
    • Exception: you and the direct attorney have choreographed something different
  7. Control the pace
    • Talk slowly
    • Pause and take a few seconds before  answering the question 
    • Think before you answer
  8. Be polite and courteous
  9. Look at the jury when you answer the quesiton
    • One of the ballots in the round scores only the witnesses
  10. Create drama in the courtroom
    • This is the time to shine – tell your story
    • React instead of just acting 
    • Think of Mock Trial as theater 
  11. Stay cool if you or the attorney doing direct make a mistake
    • Clarifying a mistake can add to the appearance of honesty 
    • If the direct attorney gets it wrong, it is OK to disagree with them
    • Planned disagreement can even create drama and the appearance of honesty
  12. Use the reporter stance as your default position
    • Back upright, not leaning back or forward, hands clasped in front 
    • Gesture and act from this stance
    • Deviate from this stance for dramatic effect if planned
  13. Stop talking if there is an objection
    • Wait for a ruling
    • If objection is sustained, do not answer
    • If objection is overruled, the attorney should re-ask the question 
    • If the attorney forgets, remind them by asking “Could you please repeat the question?” 

Tips for Cross Examination

  1. Tell the truth based on the witness’s affidavit
  2. Be polite and courteous – do not argue with opposing counsel
  3. Stay in character 
  4. Listen to the question
    • Do not answer a question you do not understand
    • Ask for clarification if you do not understand
  5. Don’t guess or speculate
    • If you don’t know the answer say “I can’t recall,” or “I don’t know.” 
  6. Answer the question asked
    • Do not go into additional information
    • Exception: you have choreographed something different
  7. Control the pace
    • Talk slowly
    • Pause and take a few seconds (try counting to three) before  answering the question 
    • Think before you answer
    • Slowing down prevents the other attorney from flustering you. 
  8. Take charge of your testimony
    • Many times you will have to answer ‘yes’ or ‘no’
    • If the answer needs to be qualified, give the qualification first, then answer ‘yes’ or ‘no’
    • Example: “I saw the car even though it did not have it’s headlights on, yes.”  If you do it the other way around you may be cut off
    • If you are handed an exhibit, take your time to read it
  9. Take advantage of the mistakes the attorney makes 
    • Correct the attorney if they get a fact wrong 
    • If asked an open ended question, run with it
      • Give a lengthy answer
      • Use up the other side’s cross examination time
  10. Do not look at the jury if the answer  really hurts your case
    • This will emphasize the testimony
    • It’s OK to look at the jury on answers that help make the points you want to make
  11. Stay cool if you  make a mistake or are impeached
    • Clarifying a mistake can add to the appearance of honesty 
    • If you are impeached
      • If you need to see a statement, ask for it politely
      • Take time to read it
      • Use up the other side’s cross examination time (making future impeachment less likely)
      • Admit the mistake gracefully
  12. Practice your redirect answers
    • Cross examination topics can be anticipated
    • Develop scripted re-directs with the direct attorney
  13. Continue to create drama in the courtroom
    • React instead of just acting 
    • Think of Mock Trial as theater 
    • Have fun playing with opposing counsel
      • Example:  cry, give the appearance of being picked on (especially if you are the victim of a crime), get indignant if that is in you character type
      • If you are an expert witness try putting the attorney in their place if you get the chance “No no, counsel, that is not correct”
  14. Stop talking if there is an objection
    • Wait for a ruling
    • If objection sustained do not answer
    • If objection overruled, the attorney  should re-ask the question 
    • If the attorney forgets remind them by asking “Could you please repeat the question?” 

Objective:

A Direct Examination is where an attorney conducts an examination of their own witnesses to bring out the facts of the case.

An effective direct examination should isolate exactly what information each witness can contribute to proving the case. It should be posed as a series of clear, simple questions designed to obtain that information. All testimony from a particular witness that is needed to prove the case must be presented or the jury cannot consider it later.

What to know before drafting a Direct Examination:

  • What is your team’s theory of the case?
  • What themes does your team want to emphasize?
  • What are the strengths and weaknesses of the witness in their statement?
  • What are the four to five most important points your team wants to make with this witness?
    • Suggest using a witness analysis sheet to prioritize issues
  • What are the key facts your team wants the witness to admit/testify to?
  • What is the overall impression your team wants to leave the jury with regarding this witness?
  • Are any exhibits going to be used and perhaps introduced with the witness?
  • What is the total time allowed for all direct examinations?
    • Check the Mock Trial rules in your jurisdiction
    • Allocate the time between all witnesses
  • What possible objections might be made to the direct examination questions? What response might you give?  
  • What objections could  be made against the witness’s testimony on cross examination?
  • What questions do you anticipate on cross examination?
  • What questions might you ask on re-redirect?

Anatomy of a Direct Examination: The Basics

  1. Call the witness with a formal request
    • “Your Honor, I would like to call (full name of witness) to the stand.”
    • The clerk will swear in the witness before you ask your first question
    • The clerk should also ask the witness to state their name 
  2. Choose an organizational structure to use
    • Most direct examination start with getting to know the witness’s background
    • A chronological approach is good for a lay witness
    • An issue approach is another option for some witnesses
    • Expert witnesses typically follow a different structure (see below)
  3. Introduce the witness’s background
    • It is good practice to ask some introductory questions of the witness to help him or her feel comfortable
    • Appropriate introductory questions might include asking their name (if not already given), residence, present employment, etc.
    • After this introduction the jury should learn why the witness is testifying
      • “Will you tell us a little bit about yourself?”
      • “How are you connected to the case?”
      • “Please tell the jury a bit about  your background?”
  4. Ask open ended questions
    • Who, what , when, where, why, how
    • Proper phrasing of questions on direct examination include:
      • “Could you please tell the court what occurred on (date)?”
      • “How long did you remain in that spot?”
  5. Do not ask leading questions
    • Generally, leading questions state the facts in the question and ask for a “yes” or “no” answer
      • “You waited there for 15 minutes, correct?”
    • Opposing counsel can object to a leading question on direct
    • There are some preliminary “yes”and “no” questions that are in the grey zone, and if objected to, the judge may rule either way
      • “Did you see anything while you waited?”
  6. Ask questions which allow the witness to tell the story.
    • Help the witness shine
    • Make the witness seem believable
    • Get out the facts that support your side
  7. Use transitions between points
    • “I would like to move to the events of …”
  8. Conclude your direct examination with:
    • Thank you Mr./s. ________. That will be all, your Honor

Going deeper: Ways to improve Direct Examinations:

  • In a Mock Trial the attorney is judged on both:
    • Substance and technique . . . AND
    • Performance and style

Substance and Technique

  1. Keep revising your direct until it is exactly as you want it
    • Work closely with your witness when drafting the direct examination 
    • Practice your direct examination with the witness many times
    • Keep revising the examination until both you and the witness are satisfied
    • Examinations go through many edits and revisions 
    • Seek input from others on your team as to facts and questions that may have been missed
    •  Try things out – if they don’t work, don’t use them
  2. How to ask questions
    • Open ended (who, what, when, where, why, how)
    • Use short sentences
    • Be simple and direct
    • Clarify and enlarge on previous questions and answers 
    • Avoid humor, hyperbole and sarcasm
    • No legal mumbo jumbo
    • Avoid commentary 
      • Use sparingly, if at all
      • Example: “Now this is very important…” 
  3.  What to ask questions about
    • Questions that get out the facts you want
    • Questions that allow the witness to act
    • Never ask questions you do not know the answer to
    • Limit your key points to 4-5 major areas 
    • Build the case, don’t win it – leave that for the closing argument 
  4. Listen to the answer
    • Even though directs are rehearsed testimony doesn’t always come out as intended
    • Know what your witness is supposed to say
    • Make sure they didn’t miss anything
    • If the witness forgets something
      • Try with an open ended question
      • Try to slip in a leading question
      • If objected to, then come back with an open ended question (witness should be reminded by then)
  5. Be prepared and organized
    • For each question, have a page and line numbers where the answer will be found in the witness’ statement 
    • Have exhibits ready
    • Have witness statement available if needed for impeachment or objections
    • Have Mock Trial rules ready in case you need them
    • After the first direct examination, check time remaining before starting each subsequent direct examination 
  6. Transition between subject areas or time periods. Transitions can be:
    • Pauses
    • Changes in body position
    • Language
      • “Now I’d like to talk about . . .”
  7. Use crime scene map or diagram if available 
    • If no map, use courtroom for distances
    • It’s easier to visualize “from here to the door” than it is “60 feet”
    • If you do use the courtroom make sure it is consistent with the distances in the witnesses statement
  8. Protect your witness on Cross Examination
    • On direct, don’t give away all the details – save some for cross or re-direct
    • Common objection to do this are “Argumentative, “Asked and answered,” and “Calls for speculation outside this witness’s knowledge”
    • Consider addressing that which will be brought out on cross
      • This is a tactical call – there is no right or wrong strategy
      • Pros:  can soften the impact and allow the witness to explain in advance
      • Cons:  the opposing attorney might not go into this, it results in repetition of the point so the jury will remember it more
    • Have re-directs ready to rehabilitate the witness (see section on re-directs below) 

Performance and Style

  1. Practice – rehearse the direct with the witness
  2. Create drama in the courtroom
    • Tell a good story that does not appear scripted
    • On some occasions it may be OK for the witness to correct the attorney 
    • It’s even OK to have the witness disagree with the attorney at times, if this is planned
  3. Help the witness shine
    • Keep the focus on the witness
    • Imagine you are invisible
    • Talk to the witness not the jury
    • Use courtroom to develop emotional content
      • Example: Referring and pointing to other witnesses present
    • Position yourself to optimize the connection between the witness and the jury  
      • This may vary based on courtroom configuration
      • Stand with jury (a bit to the side)
      • Stand with your client at appropriate times
      • Do not block witness’s view of the jury
      • The witness should not have to turn their head back and forth between the attorney and jury to answer questions
  4. Memorize the Direct Examination
    • Memorize content, movement, inflections, and gestures 
    • If notes are needed
      • Use them sparingly
      • Do not read them
      • Use a legal pad or clip board so they do not flop around 
  5. Use conversational language 
    • Let the type of case dictate your style and tone
      • Example: A prosecutor might want to be more forceful whereas a defendant might want to evoke sympathy
    • Enunciate clearly 
    • Use slight voice changes to emphasize points 
      • Do not overdo it
      • The primary emotions should come through the witness
  6. Use body posture and movement deliberately and consciously
    • Maintain upright body posture (do not slouch)
    • Keep shoulders back to show confidence
    • Stay balanced
    • If you move, make the movement coincide with transitions between points
    • Try not to change position more than 7 times
    • Try not to fidget or make unnecessary gestures or body movements
  7. Use gestures consciously and sparingly 
    • Focus should be on the witness
    • Gestures can be used to create emphasis
    • Don’t shy away from pointing to individuals in the courtroom 
  8. Act professional and confident – even if you are nervous

Direct Examinations of Expert Witnesses

Direct Examination of expert witnesses typically follow some variation of the following form:

  • First ask questions about the expert’s background and qualifications
  • Some competition rules require you to request that the witness be qualified as an expert – to do so you ask the judge that the witness be qualified as an expert in ____________.
  • Questions about what the expert reviewed to prepare to testify
  • Ask if the expert formed any opinions/conclusions based on what they reviewed (“yes”)
  • Identify the opinions/conclusions and go into them in more depth
  • End with something you want the jury to remember
  • Have some good re-direct questions ready to go

Making and responding to objections

  • Review and practice how to make objections (see this section on this website)
  • When the other side objects to something you will have an opportunity to respond
  • If the objection is a minor one as to the form of the question consider just correcting it so the flow of your story is not disrupted
    • “Objection, leading” – Just say “Your honor, I will re-ask the question”  Then follow with an open ended question,
    • “Objection, no foundation”, if there is no stipulation which establishes the foundation just ask a series of questions to do so. “Who wrote this”? When did you write this?” etc.
  • Protect your witness on cross with objections as to both form and substance.
  • You should adopt a different persona when making and responding to objection
    • When asking questions on direct the goal was for the attorney to disappear and let the witness shine
    • When responding to objections the attorney no longer has to disappear and should be assertive and respond directly to the Judge

Re-direct Examination

  • A re-direct is when the direct attorney asks the witness a question about something dealt with during cross examination 
  • A re-direct can help the witness have the last word and make a final impression on the jury
  • The direct attorney cannot ask a question on re-direct that does not relate to questions asked by the cross attorney or an objection may be raised 
  • The Mock Trial rules limit number of re-direct questions that can be asked. (typically 2 questions)
  • The questions still have to be open ended
  • Prepare in advance a list of possible re-direct questions and go over them with the witness
  • Make the questions count –  ask something the witness can expound upon 
  • Practice planned redirects beforehand with the witness 
  • Listen to what the witness says on cross – do not be afraid to deviate from the prepared list if something needs to be clarified – especially if the opposing attorney cuts the witness off on something
    • “On cross, opposing counsel was asking you about . . . . “
    • Then ask an open ended question allowing the witness to provide clarification

Objectives

A cross examination is where the attorney conducts an examination of the other side’s witness.  

The attorney usually pursues one or more of the following objectives:

  1. To develop favorable matters left unsaid on direct examination
  2. To demonstrate that the witness is lying 
  3. To establish that the witness could not have seen or heard what they claimed
  4. To show the witness’s inability to recall the events accurately
  5. To show the witness’s bias or prejudice
  6. To establish any interest, pecuniary or otherwise, the witness may have in the outcome of the trial
  7. To impair the credibility of the witness
    • By getting them to admit that they made statements on a prior occasion contrary to their current testimony
    • By laying the foundation for proof of contradictory statements by another witness or document
  8. To impeach the witness
    • By proof that he has been convicted of a crime
    • By any other way permitted by law
  9. To introduce all of a conversation or document if the witness has testified to only a part out of context
  10. To bring to the jury’s attention that the witness testifies evasively, hesitantly, belligerently, or so slowly that they seem to be struggling to support their testimony
  11. To challenge the opinion of an expert witness

What the Attorney needs to know

  • What is your team’s theory of the case?
  • What themes does your team want to emphasize?
  • What are the strengths and weaknesses of the witness in their statement?
  • What are the three most important points your team wants to make with this witness?
    • Suggest using a witness analysis sheet to prioritize issues
  • What are the key facts your team wants the witness to admit/testify to?
  • What is the overall impression your team wants to leave the jury with as to this witness?
  • What exhibits do you want to use and perhaps introduce with the witness?
  • What is the total time allowed for all cross examinations?
    • Check the Mock Trial rules in your jurisdiction
    • Allocate the time between all witnesses
    • In Oregon, e.g., the total time allowed is 11 minutes
  • What objections do you want to make against the witness’s testimony on direct examination
  • What are the possible objections that might be made to the cross examination questions?  What will be the response? 

Anatomy of a Cross Examination: The Basics

  1. Identify the main points to address  
    • The objectives listed above are the ones most often used
    • Others are case specific
    • Suggest no more than three subject areas 
  2. Develop a series of questions around each of these points
  3. Identify an organizational structure to use
    1. Based on importance 
    2. Chronological
    3. Other
  4. Control the witness by asking only closed ended questions 
    • Questions that can only be answered ‘yes’ or ‘no’
    • “You were driving you car at about 50 miles an hour, correct?”
    • Open ended questions (who, what, when, where, why, how) will illicit a long response from the witness that will use up valuable time
  5. Have the exhibits ready that are needed
  6. Have the witness’s statement ready
    • Be prepared to impeach the witness if they do not give the right answer

How to do a Cross Examination

Focus on two or three points, make sure that questions under each point are well organized,  and leave the jury with a clear understanding of the points that were made.

The specific steps include:

  1. Analyzing  the witness’ statement and ranking the possible issues in order of importance 
    • Identify the two or three top issues to focus on
    • The objectives listed above are possible points
    • Many points will be will be case specific
  2. Put the strongest points first and last and the weaker point in the middle
  3. Develop a series of questions under each of the points
  4. Use introductory remarks and transitions between each point
    • Sometimes you may not want the witness to know where you are going (“Now I’m going to talk about your lying”) so just use a more general transition “Let’s talk about what you say you heard my client say at the party.” 
    • On the other hand, a transitional statement like “Now I’d like to talk about the order in which events occurred that evening” helps the jury to understand what the points are

Advanced Strategies

  • Use different organizational structures depending upon the specific point
  • Possible strategies for some common points
    1. Areas of agreement/favorable matters left unsaid on direct
      • Excellent area to start with
      • Non confrontational – an easy way to ease into the cross
      • Don’t rush – let the jury hear each area of agreement
      • Start and end with the most important areas of agreement to leave the jurors with the strongest impression 
    2.  Demonstrate the witness is lying
      • Put this point last if it is the strongest, or in the middle if if is the weakest
      • This point will create the most confrontation
      • Pin down the witness’s testimony first
      • Stick to the facts – do not directly accuse them of lying – let the jury come to this conclusion
      • Establish motive for the lie – why are they not telling the truth?  
    3. Establishing the witness could not have seen or heard what they have claimed
      • Tell it as a story or paint a picture so the jury will get a picture in their mind
      • Chronological and descriptive organization work well for this
      • Use the precise language in the witness statement
    4. Bias or Prejudice
      • Usually not strong enough to end with
      • Use facts and do not argue
      • Be clear on the type of bias you want to argue on closing
        • Interest in the outcome
        • Paid to testify
        • Bias against a party
        • Unconscious bias based on life experience
        • Express conscious bias based on what they say and do
        • Confirmation bias – you see you are looking for (and do not see other things) 
    5. Impeachment of testimony at trial
      • Best as the middle point – there are a lot of ways the witness can backtrack, qualify what they said, and wiggle out of the trap
      • Confrontational by nature
      • Compare and contrast structure works well for this
      • Start slowly
      • Keep the element of surprise – do not let the witness know where you are going
      • Lock the witness into their testimony – get them to repeat what they have said
      • End with the prior statement as a fact
      • Do not argue with the witness
    6. There are certain unique points that can be made with expert witnesses (see discussion below)

Going deeper: Improving Cross Examinations:

  • In a Mock Trial the attorney is judged on both:
    • Substance and technique . . . AND 
    • Performance and style

Substance and Technique

  1. Ask closed ended questions
    • This deserves re-mentioning because deviation from this rule is a common mistake
  2. Ask closed ended questions in different ways
    • Closed ended questions can be asked using words or using vocal inflection.
    • Using words:
      • “Isn’t it true that … ?”
      • “You said . . .  correct?”
      • “You saw . . . right?”
    • Through vocal inflection
      • “You got out of your car?” (Inflection at the end) 
      • “And you ran away?” (Another inflection)
  3. Ask only questions you know the answer to
    • The answer to these questions should be:
      • In the witness’s own statement
      • In the stipulated facts and within this witness’s  knowledge
      • In an exhibit this witness is familiar with
      • In the direct examination testimony just given
    • An exception is if you have a different direction to go if the witness answers either “yes” or “no.”
  4. Be prepared and organized
    • For each question have a page and line numbers in the witness’s statement with the answer
    • Have exhibits ready
    • Have witness statement available if needed for impeachment or objections
    • Have Mock Trial rules ready in case you need them
    • After the first cross examination, check time remaining before starting each subsequent each cross examinations
  5. Ask questions that establish one fact at a time
    • Paint a picture for the jury fact by fact allowing the jurors to reach the conclusion
    • Ask only one question at a time
    • Compound questions are objectionable
      • “You hit someone lying in the road?” 
      • “You got out of the car?” 
      • “And you ran away from the accident scene” 
  6. Lock the witness into testimony
    1. Questions should be clear and simple
    2. Avoid ambiguous questions
    3. Pin down witnesses to inaccurate versions of the facts, so they can’t wriggle free later
  7. Make adjustments based on each witness
    • What type of witness are you dealing with?
    • How is the actor portraying that witness?
    • Are they honest?
    • Are they nervous?
    • Will they give control to you or fight you?
    • Are they prone to exaggeration?
    • Are they going to try to use up your time?
    • Know your case and the witness well enough to be able to adjust your cross-examination approach on the fly
  8. Use the technique of looping
    • Looping is when you take a previous fact admitted by a witness and weave it into subsequent questions for effect
    • Still, only establish one new fact per question 
    • Practice double and triple loops.
    • Example
      • “It was about 12:00 noon?” 
      • “And you were driving your car down Washington Street?”
      • “And while you were driving your car down Washington street at noon you were looking at a text on your cell phone?”
      • “And as you were looking at the text on your cell phone you hit someone in the street?”
  9. Keep the questions simple and direct
    • Do not use legalese
    • Do not use big words – this is not an intelligence contest
    • Complex questions confuse both the witness and the jury
  10. Use word repetition
    • This is done for effect, to emphasize a point, and for drama
    • Example:
      • “You were responsible for the safety of the athletes on the football team?”
      • “You were also responsible for having the football helmets tested?”
      • “And you were responsible for recognizing the signs of a concussion?” 
  11. With narcissistic and know-it-all witnesses consider pushing their testimony to the extreme 
    • This makes their testimony lack credibility
    • Witnesses are not supposed to be advocates 
    • If a witness uses extreme language like “never,” “always” or “impossible” think of ways to push this to the point of appearing obstinate or even ridiculous
    • Compare and contrast the extreme statement with other known facts and other extreme statements the witness may have made in the past
  12. Maintain control of the witness
    • Ask simple closed ended questions 
    • Ask the witness to answer “yes” or “no” – be firm
    • Impeach the witness if needed – but do so quickly so it doesn’t eat up time (see section below on impeachment)
    • Witnesses are often coached to qualify their answers and use up valuable cross examination time – it’s part of the game some teams play
    • Take advantage of the psychology of these negative witness habits (evasiveness, hostility) – let the witness show their worst qualities for a few questions while you try to be courteous and get them to just answer the question  – once you have allowed the judge to see what they are doing, ask the court for assistance
    • Ask the judge to instruct the witness to answer the question asked with a simple “yes” or “no” answer  
    • If the Judge denies your request the first time and the witness keeps doing the same thing, ask again for assistance.
  13. Stick to the facts – do not argue with the witnesses
  14. Do not ask the one question too many
    • This is the question that tries to get the witness to agree with with your conclusions
    • Keep to the facts
    • Leave conclusions for closing argument 
    • Witnesses won’t usually agree to broad conclusions that make them look foolish.
    •  Example:
      • “The woman was attacked at night.”   “Yes”
      • “It was raining.” “Yes.”
      •  “There were no stars.”  “No.”
      • “There was no moon.”  “No.”
      • The street lights were out.”  “Yes”
      • “You left your eye glasses in the bar.”  “Yes”
      • “And the whole assault took only a few second.”  “Yes”
      • Here is where the attorney should stop and not ask the next question (tying to get the witness to agree with the conclusion)
      • “You didn’t see her attacker very well did you?

        Answer: “No, I saw him clear enough. No doubt in my mind that that’s the guy (pointing to the defendant in the courtroom) It wasn’t so dark that I could not see his face.”

Performance and Style

  1. Practice 
  2. Create drama in the courtroom
    • Take charge 
    • Your focus should be on the witness
    • Do not look directly at the jury
    • Use pauses and silence as tools to build tension and emphasis 
    • Enunciate clearly
    • Use an assertive voice (but not an aggressive voice) 
    • Vary your volume and tone for emphasis 
  3. Positioning
    • Position yourself so that the jury pays attention to you
    • Proximity to the witness can create more drama
    • Do not have your back to the jury
    • Try to arrange it so that the witness looks at you and not the  jury
  4. Memorize the Cross Examination
    • Memorize content, movement, inflections, and gestures 
    • Listen to the witness’s testimony on direct examination and make adjustments accordingly
    • If notes are needed
      • Use sparingly
      • Do not read from them
      • Use a legal pad or clip board so they do not flop around 
  5. Use body posture and movement deliberately and consciously
    • Maintain upright body posture (do not slouch)
    • Keep shoulders back to show confidence
    • Place equal  balance on both feet
    • Move confidently, with purpose
    • Movement can also help emphasize transitions between approach points
    • Try not to fidget or have unnecessary gestures or body movements
  6. Use gestures consciously 
    • Gestures can be used to create drama and emphasis
    • Don’t shy away from pointing to individuals in the courtroom 
  7. Act professional and confident – even if you are nervous 

Cross Examination of Expert Witnesses

Common objectives: 

  1. To identify the facts and conclusions the expert agrees with 
  2. To show the expert is not competent because they lack experience in the area they are testifying about
  3. To identify information the expert did not consider in forming their opinion
  4. To identify, and perhaps challenge, the assumptions on which the expert opinion is based
  5. To challenge the expert’s reasoning and the steps they follow in reaching their opinion 
  6. To show the expert (or others the expert relied on) did an inadequate investigation, research, or testing 
  7. To get the expert to admit that the opposite conclusion is possible (although they will still say it is not likely)
  8. To show expert is prejudiced or biased in some manner
    • To show the expert has been paid to testify for one side, or routinely serves one group (for example defense attorneys)
    • Confirmation bias – you see what you are looking for (common in research and in clinical studies)
    • Consciously admitted bias
    • Unconscious bias based on past experiences 
  9. To impeach the expert on one some part of their testimony to show they were wrong –  this casts doubt on their entire testimony
  10. To make the expert appear so adamant and opinionated that they lose credibility 

Making and responding to objections

  • Review and practice how to make objections (see this section on this website)
  • When the other side objects to something you will have an opportunity to respond
  • If the objection is a minor one as to the form of the question consider just correcting it so the flow of your story is not disrupted
    • Example: “Objection, argumentative”,  If it seems argumentative perhaps say “I’ll re-ask the question your honor.” 
    • Example: “Objection, no foundation”, if there is no stipulation which establishes the foundation just ask a series of questions to do so. “Who created this document?” “When was it created?” Etc. 
  • You should adopt a different persona when making and responding to objections than you have with the jury.
    • Look at the judge
    • Make your argument to the judge (not the jury or opposing counsel)
    • Argue the law as applied to the facts

How to Impeach a Witness

  • Impeachment poses a dilemma:
    • Impeach the witness and use up valuable cross examination time; or
    • Let the incorrect answer stand and use cross examination time on something else. 
  • Impeach the witness if:
    • It is a critical issue
    • You need to exert witness control
    • You are not pressured for time
  • To impeach efficiently you must:
    • Know exactly where (page in line) the contradictory statement is in the witness’ statement
    • Have the witness statement ready and available.
  • Steps to impeach a witness 
    1. Clearly establish the witness’ answer that contradicts their statement
      • “I don’t remember”
      • “The car was blue.”
    2. Option 1: Read from the statement yourself:
      • “I would like to refer you to your sworn statement on (date)”
      • “Counsel, I direct you to page ___ line ____”
      • Read the part of the statement that contradicts or refreshes the recollection of the witness
      • “This was your statement on  on _____, was it not.”
      • And you were under oath when you made this statement
    3. Option 2: Show the statement to the witness and have them read it
      • This takes more time and a smart witness will take as much time as possible
      • Under some rules, the opposing attorney or the judge may require you to show the witness their testimony 

How to do Re-Cross Examinations

  • A re-cross is when the cross attorney asks the witness a question about something the direct attorney went into on re-direct 
  • A re-cross can help the attorney have the last word and make a final impression on the jury
  • The cross attorney cannot ask a question on re-cross that does not relate to questions asked by the direct attorney on their re-direct or an objection may be raised
  • The Mock Trial rules limit the number of re-direct questions that can be asked (often only two questions)
  • Listen to what the witness says on re-direct  
  • Only ask a question if you think it will help your side

Objective:

The closing statement is the attorney’s final statement to the jury before deliberation begins. The attorney reiterates the important arguments, summarizes what the evidence has and has not shown, and requests jury to consider the evidence and apply the law in his or her client’s favor.

What to know before drafting a closing

  • What happened from your side’s point of view?
  • What is your theory of the case?
  • What are the key elements that have to be proved (by you or the other side)?
  • What do you anticipate the evidence will show?
  • What are the important facts your side’s witnesses will testify to?
  • What themes (words and phrases that convey emotions) do you want to emphasize?
  • Who has the burden of proof and what is it?
  • What do you want the jury to do?
  • How much time do you have? (usually 5 minutes)

Anatomy of a Closing Argument : The Basics

If you are the prosecution or plaintiff you must reserve time for rebuttal before you start your closing argument. Check your Mock Trial rules.

  1. An Introduction:
    • Attorney identifies themselves (or not)
      • Some attorneys begin with something like:“Your Honor, members of the jury, my name is (full name), representing the prosecution/defendant in this case.”
      • If they have already been introduced,  many attorneys just go right into their opening to save time, create drama, and make it look more like a real trial.
    • Using a hook to begin
      • The closing attorney has a lot more flexibility than the opening attorney
      • Closing is a persuasive argument
    • Briefly review what has to be proved (by you or the other side)
  2. Theory of the case
    • One or two sentences which tell the jury what the evidence has shown in the context of your theory of the case
    • “The evidence has shown by a preponderance of evidence that my client, Landry Lopez, was fired for reporting an illegal activity to his employer, the restaurant Buddies Burgers.”
    • Could be combined with a brief overview of what the evidence has shown using general statements or through a descriptive story
  3. A brief review of what you (or the other side) must prove or disprove
    • This is essentially the elements of the case
    • Do not delve too deep into legal terms or you will lose the jury’s attention
    • Talk about burden of proof 
  4. Tell the jury what the evidence has (and has not) shown and how the elements that need to be shown have (or have not) been proven
    • Focus on the key issues 
    • Identify witness testimony and exhibits supporting each issue
    • Tell a the client’s story 
    • Reinforce case themes
    • Help the jury tie things together in their mind 
    • The organizational structure will vary depending on the case
  5. A conclusion
    • Discuss the burden of proof  (some put this near the beginning)
      • “This is a civil case and Plaintiff Landry Lopez must prove his case by a preponderance of the evidence.” (Explain briefly and illustrate with hands what a preponderance of the evidence means)
    • Restate the theory of the case
      • “Oregon’s whistle blower law exists to protect, and encourage, employees to report illegal activity in the workplace. Mr. Lopez engaged in such whistle blower activity and was fired for doing so. “
    • Tell the jury what you want
      • “For these reasons, after you have heard all the evidence, at the end of this trial we will ask you to return a verdict in favor of Landry Lopez.”
      • “At the end of the trial the State of Oregon will ask you to find the Defendant guilty of . . .”
      • “Based on the evidence you will hear, at the end of the trial the Defendant will ask you to return a verdict of not guilty.”

Tracking the evidence at trial

  • Closing attorneys can only talk about what evidence came in at trial
    • Witness statements are not evidence (unless they were admitted to impeach a witness)
    • Exhibits are not evidence unless admitted
    • What an attorney said in their opening statement is not evidence
  • What the closing attorney anticipates the evidence will be may not happen at trial
    • Witnesses may forget key evidence
    • Attorneys conducting the direct and cross examinations may forget questions
    • Attorneys may forget the last step of offering an exhibit into evidence
    • Testimony and exhibits may be kept out the judge after the other side objects 
  • Consequently, it is important to track what evidence comes in during the trial
  • Ways to track evidence include:
    • Memory (fallible)
    • Notes (cumbersome and hard to access)
    • A master outline to checking key items off of as they come in (better)
    • Keeping a flow chart (better) 
  • Outlines:
    • Prepare in advance
    • List the key facts for each witness
    • List all exhibits
    • Do not go into too much detail (makes things hard to find)
    • Contain blank space for notes on actual witness testimony and quotes
    • Contain blank space for the opposition’s cross examination 
  • Flow Charts are:
    • Prepare in advance
    • List the key facts for each witness
    • List all exhibits
    • Do not go into too much detail (makes things hard to find)
    • Contain blank space for actual witness testimony and quotes
    • Contain blank space for the opposition’s cross examination 
    • Includes places to track other sides’s theory of the case and arguments in openings and closings

Going Deeper: Ways to Improve the Closing Argument:

The attorney doing the closing argument is being judged both on the substance of the closing and on their performance (public speaking ability).

How to improve the substance:

  1. Whether to use an outline or write out your closing:
    • Practicing attorneys differ on this
    • The choice may depend on
      • The attorney’s speaking style
      • The attorney’s comfort level with impromptu speaking 
      • The attorney’s ability to memorize a speech
      • Other roles the attorney might have in the case
    • In either case, the closing argument must be modified based on what evidence comes in
    • Using an outline
      • Certain parts can still  be memorized (intro, conclusion, etc)
      • Body of the argument can be easily modified as trial progresses 
      • Delivery style may seem often more natural 
      • More difficult to use rhetorical devices
      • More difficult to implement themes in the body of the speech 
    • Using a written speech
      • Most of the speech is memorized
      • More difficult to modify based on the what happens at trial
      • Delivery style is often more formal
      • Easier to use planned out rhetorical devices
      • Easier to implement themes in the body of the speech 
  2. How many other roles should the closing attorney have?
    • The closing attorney  must track what evidence comes in 
    • Having other roles makes it more difficult for them to do this
    • It is especially difficult for a prosecution/plaintiff attorney to do cross examination and a closing because this is when they should be putting together their thoughts for closing argument
  3. Keep revising the outline of your your closing argument  until it is exactly as you want it
    • Closing arguments go through many edits and revisions 
    • Seek out the input from others
    • Try things out – if they don’t work, don’t use them
  4. Read the opening statement 
    1. Is it consistent with the theory of the case used in closing?
  5. Read the direct and cross examinations
    1. Are they consistent with the theory of the case used in closing?
    2. Has evidence been left out that is needed for closing argument? 
  6. Consider a hook to begin your closing
    • A hook is a sentence or short paragraph which serves as an attention grabbing device
    • See section on advance public speaking techniques
  7. Keep telling your client’s story 
    • Use descriptive, emotional content 
    • Use active voice
    • Use language that reinforces your themes
  8. Use past tense when talking about what the evidence has shown 
    • Proper phrasing includes statements like:
      • “The evidence has shown that . . .
      • “The facts have shown that …”
    • Use a few of these lines but don’t overdo it. 
    • You can just as easily say :
      •  In her testimony Landry Lopez told you . . . “
  9. Everything you say should have a purpose
    • Don’t ask questions (it allows the jury to come up with answers you might not want)
    • Do not waste your time on unimportant things 
  10. State the facts affirmatively – do not negate the other side’s facts or position
    • The more you repeat something the more it is remembered and believed
    • If you say the evidence will show that “Mrs. Smith did not run the red light” the ‘not’ is lost.
    • The jury remembers the phrase “ran the red light”
    • Instead say the evidence will show “Mrs. Smith came to a complete stop at the signal.”
    • The jury remembers “came to a complete stop at the signal.”
  11. Make strategic decisions on how to attack and challenge the other side’s witnesses
    • Depends on the witness
      • Are they a sympathetic witness who just got it wrong?
      • Are they deliberately lying or lacking in credibility?
    • Be professional with opposing counsel – attack  the facts and witness, not the other attorney
  12. Personalize your side’s witnesses
    • Personalize your witnesses by using their names
    • Depersonalize the opposition’s witnesses with language like ‘Defendant”  or  “Plaintiff”
  13. The Prosecution in a criminal case is the Government
    • Don’t be shy to take on this role
    • Refer to yourself  “The State of ___”  not just the “prosecution.”
  14. Talk about facts that are not in dispute (look at the stipulations)
    • “There are certain facts in this case that are not in dispute . . . “
    • “The defense/prosecution have agreed . . .”
    • “The parties have agreed that . . .” 

How to improve the performance:

  1. Practice
  2. Find your focus, energy and commitment
  3. Memorize your overall outline and the portions of the closing that you can
    • Memorize  movement, inflections, and gestures  to the extent you can
    • If notes are needed
      • Use them sparingly
      • Use a legal pad or clip board so they do not flop around 
  4. Talk directly to the jury 
    • Don’t be afraid of the jury
    • Look them in the eye
    • Educate them about the case
    • Move closer (5-10 ft.) but not too close
    • Be natural so as to keep their attention
  5. Strive to appear honest and helpful
    • Do not be overly aggressive in your argument style
    • Being overly aggressive can make one less believable
    • Help the jury – assist them in evaluating the evidence in a persuasive way
    • Do not shout except to make a particular point
    • Use rhetorical devices to persuade
  6. Use conversational language that is engaging
    • Let the type of case dictate your style and tone
    • Example: A prosecutor might want to be more forceful whereas a defendant might want to evoke sympathy
  7. Use legal terminology sparingly
  8. Use body posture and movement deliberately and consciously
    • Maintain upright body posture (do not slouch)
    • Keep shoulders back to show confidence
    • Stay balanced
    • If you move make the movement coincide with transitions between points
    • Try not to change position more than 7 times in 5 minutes
    • Try not to fidget or have unnecessary gestures or body movements
  9. Use gestures 
    • Use gestures to create interest and drama
    • Gestures include the give, the show, the tell, and signposting
    • Don’t shy away from pointing to individuals in the court – the type of point may vary
      • If you are the prosecution and point to the defendant it will be using a harder accusatory “tell” gesture with a pointed finger
      • If you are pointing to your own witnesses it will be using an inviting open handed “give” gesture  
  10. Act professional and confident – even if you are nervous

Establishing a Foundation

  • Until an exhibit is actually admitted into evidence, a witness cannot be asked substantive questions about it  
  • Prior to an exhibit being admitted, witnesses can be asked preliminary questions to establish the foundation to ask the court to admit it
  • These preliminary foundation questions include identifying:
    • What the exhibit is
    • When he exhibit was created
    • Who created the exhibit
    • Whether it would be helpful in supporting the witness’s testimony (as in the case of an expert witnesses).
  • Stipulations between the parties in the Mock Trial material may establish part or all of this foundation – read these stipulations carefully.

Introducing Exhibits

1. Hand copy of exhibit to opposing counsel while asking permission to approach the bench. “I am handing the clerk what has been marked as Exhibit X. I have provided copy to opposing counsel. I request permission to show Exhibit X to witness .”
2. Show the exhibit to the witness. “Can you please identify Exhibit X for the Court?”
3. The witness identifies the exhibit.
4. Offer the exhibit into evidence. “Your Honor, we offer exhibit X into evidence at this time. The authenticity of the exhibit has been stipulated.”
5. Court, “Is there an objection?” If opposing counsel believes a proper foundation has not been laid, the attorney should be prepared to object at this time.
6. Opposing Counsel, “no, your Honor,” or “yes, your Honor.” If the response is “yes,” the objection will be stated on the record. Court, “Is there any response to the objection?”
7. Court, “Exhibit X is/not admitted.” The attorney may then proceed to ask questions.
8. If admitted, Exhibit X becomes a part of the court’s official record and, therefore, is handed over to the clerk after the witness is done testifying.  Do not leave the exhibit with the witness or take it back to counsel table.

Additional Notes:

  1. Attorneys do not present admitted evidence to the jury (judges in jury box) because they have exhibits in their case materials; thus, unless the Mock Trial rules provide otherwise, there is normally no “publishing” to the jury.
  2. If the opposing side objects to the introduction of the exhibit based on the lack of foundation (“Objection, no foundation”) This can usually be easily corrected by asking additional questions, or, in many cases, referring to what has been stipulated. 
  3. Once an exhibit has been admitted into evidence, attorneys can then just get it from the clerk and use it with witnesses without having to re-introduce that exhibit.
  4. If an attorney tries to ask the witness questions about an exhibit which has not been admitted (expect for the preliminary foundational questions), opposing counsel may object.
  5. Common  objections to Exhibits include hearsay, relevancy,  and inadmissible character evidence (as in the case of criminal records).

Overview

  • The rules vary slightly with each competition, jurisdiction, and case.  
  • Teams are not precluded from raising additional objections so long as they are based on Mock Trial rules of evidence or other Mock Trial rules
  • Objections not related to the Mock Trial rules are not allowed
  • Objections generally fall into three categories
    • Objections unique to Mock Trial 
    • Procedural objections based on the rules of civil procedure
    • Substantive evidentiary objections

Common Objections unique to Mock Trial

  • Witnesses are bound by their statements
  • Unfair extrapolation
    • If a witness is asked information not contained in the witness’ statement, the answer must be consistent with the statement and may not materially affect the witness’s testimony or any substantive issue of the case 
  • Witnesses are not permitted to use notes while testifying during the trial
  • Only two questions are allowed on re-cross examination
  • Only two questions are allowed on re-direct
  • Prosecution/Plaintiff did not reserve in advance time for their rebuttal 
    • On closing arguments the prosecution/plaintiff must ask the court before start that they want to reserve any unused time for rebuttal
    • Rules and the judges may vary on how the failure to do so is treated
  • No objections are allowed during opening statement and closing argument
  • Any other deviation from the Mock Trial rules can also be objected to

Common Procedural Objections

  1. Argumentative Questions
    • An attorney shall not ask argumentative questions
    • Example: during cross-examination of an expert witness the attorney asks, “You aren’t as smart as you think you are, are you?”
  2. Lack of Proper Foundation
    • Attorneys shall lay a proper foundation prior to moving the admission of evidence
    • For the purposes of Mock Trial this is treated as procedural because:
      • Mock Trial objections based on the lack of foundation can usually be corrected by asking the witness further questions 
      • Mock Trial stipulations often take care of foundation issues and can be referred to if the objection is made 
  3. Assumes Facts not in Evidence
    • Attorneys may not ask a question that assumes unproven facts
    • However, an expert witness may be asked a question based upon stated assumptions, the truth of which is reasonably supported by the evidence (sometimes called a “hypothetical question”)
  4. Question calls for a Narrative (or too general an answer)
    • Questions must be stated so as to call for specific answer
    • Example: “Tell us what you know about the case.”
  5. Non-responsive answer
    • A witness’s answer is objectionable if it fails to respond to the question asked
    • This objection also applies to the witness who talks on and on unnecessarily in an apparent ploy to run out the clock at the expense of the other team
  6. Repetition (asked and answered)
    • Questions designed to elicit the same testimony or evidence previously presented
    •  Improper if merely offered as a repetition of the same testimony or evidence from the same or similar source
  7. Leading Question on direct examination
  8. Outside the scope of cross examination
    • Cross examination is not limited to the scope of the direct examination
    • Re-direct examination is however, limited to the scope of the direct examination. 
    • If a question is asked on re-cross it is limited to what was asked on the re-direct

Common Substantive Objections

Most Mock Trail Competitions use the Federal Rules of Evidence, or some variation thereof

  1. Relevance FRE 401, 402
  2. Relevancy: Prejudicial Effect exceeds Probative Value, Confusion, Waste of Time FRE 403
  3. Character Evidence Not Admitted to Prove Conduct, Exceptions FRE 404, 607, 608
  4. Methods of Proving Character FRE 405, 608
  5. Lack of Personal Knowledge FRE 602
  6. Improper Lay Opinion FRE 701
  7. Who may Impeach FRE 607
  8. Improper Expert Opinion Rules FRE 702, 703 and 704
  9. Expert cannot give an opinion on Ultimate Issue (guilt or innocence of the accused) FRE 704
  10. Hearsay FRE 801, 802
    • Prior Statement by Witness not Hearsay under certain circumstances FRE 801(d)(1)
    • Admission by Party Opponent not Hearsay FRE 801(d)
    • Hearsay within Hearsay FRE 805
    • Hearsay Exceptions (examples)
      • Present Sense Impressions
      • Excited Utterance
      • Then existing emotional or mental state
      • Statements for the purpose of medical diagnosis or treatment, reputation as to character) FRE 803
  • Notes
    • The competition may not use all of these rules – it depends on the case
    • The notes of the advisory committee on the rules (see link below) can be helpful to understanding the rule itself
 

 

 

Federal Rules of Evidence

Strategic Considerations

  • Just because an objection is possible does not mean one wants to make it
  • For example, consider the objection of relevancy
    • If made, the other team (or you if it was made against you) should argue your case to the judge (which the jury will hear) and explain why the evidence is relevant
    • This explanation can actually hurt in the long run, unless the explanation is weak and there is a good basis for keeping the evidence out
  • If the other team is really good, making objections as to evidence, should you lose, makes them look better
    • Example: Objecting to hearsay when it is a statement by the party opponent
  • With a weaker opposing attorney or team, one can be more liberal with objections if you do not think they will be able to respond well
  • Have your evidentiary objections against the testimony of your opponents witnesses and exhibits planned out in advance
  • Have your responses to the evidentiary objections you anticipate against your witnesses and exhibits planned out in advance
  • You cannot plan out objections based on the Mock Trial rules or procedural objections so listen carefully to the questions being asked
  • Do not object simply because the testimony is going bad against your side
    • Relevancy is often a common objection made by inexperienced attorneys when the evidence is not coming as they hoped and they panic a bit
    • Ironically, the fact that the evidence hurts one’s case is often a sign that it is relevant
  • Even if evidence is objectionable and could be kept out, there may be strategic reasons you want it in
    • It helps your case factually
    • It helps your theory of the case
    • It plays well to one of your themes
    • It makes the other side look like they are grasping for straws
    • You would rather argue against it in closing argument 

Typical Sequence of a Mock Trial

  1. Clerk calls the court to order.
  2. Judge enters and takes the bench
  3. Judge may make a few initial comments
  4. Each side introduces itself
  5. Each side may bring up preliminary matters such as:
    • The bailiff sit in the jury box during opening statement and closing argument so speakers can see the time cards
    • Permission to freely move around the courtroom during direct and cross examination
    • Permission to video tape the court (if wanted).
  6. Parties make opening statements 
  7. Prosecution/plaintiff presents their case:
    • Prosecution/plaintiff calls their witnesses and seeks to admit exhibits.
    • Defense cross examines these witnesses
  8. Prosecution/plaintiffs rest their case
  9. Defense presents their case:
    • Defense calls their witnesses and seeks to admit exhibits
    • Prosecution/plaintiff  cross examines these witnesses
  10. Defense rests their case
  11. Prosecution/plaintiff makes their initial closing argument
  12. Defense makes their closing argument
  13. Prosecution/Plaintiff makes their rebuttal closing argument
  14. Jury/Judge deliberate and fill out their ballots
  15. Ballots are sent to the competition coordinator
  16. Judges may make a few comments to the participants

Trial Sequence and Time Limits

The time limits for each competition may vary slightly based on the competition and jurisdiction.  The following is an example of what these could look like:

Each side has 43 minutes to present its case, which, allowing for introductory matters, arguing objections, judges deliberations, and preliminary matters would make each round approximately 1 hour 40 minutes.

The trial sequence and time limits are as follows: 

  1. Introductory matters – 5 minutes total (conducted by judge)
  2. Opening statement – 5 minutes per side 
  3. Direct and redirect (optional) – 22 minutes per side
  4. Cross and re-cross (optional) – 11 minutes per side 
  5. Closing argument – 5 minutes per side*  
  6. Judges’ deliberations – 10 minutes total (judges in private)

*Prosecution may reserve time for rebuttal at the beginning of closing argument.

** Each side may make objections during the direct and cross examinations. The time taken making and arguing these objections is not counted against a side’s overall time.  Objections are not allowed during opening statements or closing arguments.

Brief Overview of the Roles

  • Attorney doing the opening statement:
    • Gives a memorized oratory speech
    • Excellent for someone who may miss some meetings
    • No objections are allowed so this attorney does not have to learn rules of evidence
    • Attorney is familiar with the overall case and works closely with the other attorneys 
  • Attorney(s) doing Direct Examination
    • Asks their own witnesses open ended questions to help them tell their story
    • May introduce Exhibits.
    • Makes and responds to objections.
    • Makes sure the evidence comes in that their side needs.
    • Tries to keep out objectionable evidence the other side want in.
  • Attorneys(s) doing Cross Examination:
    • Asks the other side’s witness closed ended questions to get admissions.
    • Is able to control the opposing side’s witnesses.
    • May need to introduce exhibits.
    • Makes and responds to objections.
    • May needs to know how to introduce exhibits
    • Makes sure the evidence comes in that their side needs.
    • Tries to keep out objectionable evidence the other side wants in. 
  • Attorney doing Closing Argument
    • Know the entire case
    • Listen to the testimony that comes in at trial.
    • Makes the final argument based on this evidence.  that comes in.
    • Does not make or respond to objections.  
    • This role is best for a team member who has done mock trial before.
  • Lay Witnesses
    • Ordinary witnesses that testify based upon their personal knowledge and life experiences.
    • Great for team members who like to act.
  • Expert Witnesses
    • Persons who testify based upon their qualifications of expertise in their field.
    • Great for team members that want to be in a professional role.
  • Clerk and Bailiff
    • These roles can be learned quickly and are excellent for someone who wants to be involved in mock trial but does not have a lot of time to devote to it. 
  • Team Captains (optional)
    • Consider having two team captains, one for the Prosecution/Plaintiff and one for the Defense.  
    • These are often the attorney doing closing argument.
    • Have experience in a variety of mock trial roles and possess leadership qualities.
  • Non-Trial Roles (optional;)
    • Not officially listed on the roster or introduced to the Court.
    • Artists who sketch the courtroom and participants.
    • Reporters to video tape the trial (with the permission of the court)
    • Support and backup team members.

Court Decorum (General Suggestions)

  • Always stand when talking to the court and when the judge enters or leaves the room
  • Attorneys are officers of the court – be professional
  • Stay in your role the entire time as if this were an actual trial 
  • Always be courteous to the judge, attorneys and witnesses
    • When being assertive on cross examination go after the witness not the person playing the role
    • Don’ t laugh or make sounds if the other side makes a mistake
  • Dress appropriately
  • Say “Yes, your Honor” or “No, your Honor” when answering questions from the judge 
  • If the judge rules against you on a point or in the case, take the adverse ruling gracefully and be cordial with the judge and other team
  • If you are a witness, don’t be seated until after the clerk swears you in
  • Follow the seating chart that comes with your case material
  • Don’t show you are having fun until after the round
  • Shake the hands of the other team after the judges retire to deliberate and give complements generously

MEETINGS

The American Fork Group meets weekly on Thursdays at 7:15am while the Salt Lake City Group has meetings on Tuesdays at 3:30-5:00pm. There are no meetings when school’s out. 

Links to join meetings are posted on our GroupMe chat. Please contact Mr. Ong to be added to the group. 

Click on the icon below to access it once you have been added.

USEFUL VIDEOS

AHS 2023 Mock Trial Team