Associates can also take advantage of the opportunity to begin or strengthen a relationship with the partner who serves as the coach. This may be an opportunity to garner a better review, to be selected for choice assignments, or to demonstrate expertise in your chosen field. These opportunities are more than just "mock trial"—they are a chance to highlight your strengths and skills in stressful situations and to demonstrate marketable talents to a key target audience for your own practice and your firm. In a similar vein, associates and partners alike can leverage the mock trial experience to strengthen relationships with in-house counsel, expert witnesses, and local judges, as you join together to increase the knowledge and experience level of all participants.
Yet another benefit to participation in a mock trial is the opportunity to prepare and mark exhibits, refresh your knowledge of the rules of evidence, and develop examination techniques. If you are taking or defending a witness, you should be well versed in the rules of evidence, local or federal. You will want to object to leading or cumulative questions or argue relevance to get in a piece of evidence. A timely objection can also disrupt opposing counsel's rhythm. Similarly, familiarity with the record is a must. In an actual trial preparation situation, you would likely have been involved with the case for months or even years, providing a deep knowledge of the case materials and record. For mock trial, expectations are the same despite the tighter time frame. In our professional experience, every participant—including team members, witnesses, coaches, and mock judges—knows the materials and spends several hours preparing for a mock trial. As attorney participants, we are presenting our case not only in front of our colleagues but also before partners at our firm, expert witnesses, federal judges, and in-house counsel—potential employers and clients. While, technically, client interests are not at stake at a mock trial, our reputations, individually and as a firm, are still on the line. Tasks can be assigned based on the benefits to professional experience and individual strengths. Specifically for our most recent mock trial, we decided the litigators would gain most from witness examination, and our patent prosecutor handled the opening and closing. Drafting direct and cross-examination questions, preparing the expert witness, and strategizing for an uncooperative, sometimes contentious, cross-witness are experiences that serve to enhance litigators' trial skills, while experience presenting a succinct and compelling story to the jury bolsters a transactional attorney's public-speaking skills. This breakdown of duties allowed for a new depth of experience for each associate that was applicable to his or her individual practice.
Trial teams, whether mock or actual, must work as one unit rather than as individuals. In some cases with a limited trial team, the same attorney may handle both direct and cross-examination, enabling the attorney to tailor both and to make any necessary adjustments to secure admission of key evidence. However, when these roles are spread across multiple attorneys, it can create missed opportunities if everyone is not strategically thinking with an eye toward the big picture. For example, a contentious mock trial witness for the other side provides a great opportunity for teamwork and thinking on the fly. If one attorney cannot achieve anticipated admission of a key piece of evidence on cross-examination, then the attorney handling the direct examination of your expert witness should try to introduce the same evidence during a subsequent examination. In such a mock setting (as in actual practice), responsibility for ensuring this evidence goes back to deliberations with the jury may transfer to the next attorney. Therefore, it is important for the trial team to function as a unit and communicate with each other, recognize missed opportunities, and capitalize on those missed opportunities to obtain the best result for your client.
In some lawsuits, e.g., patent litigation, an expert can be the centerpiece of the trial. Accordingly, selection of an expert witness is more than choosing an expert who knows the subject matter. The battle of dueling experts is often won not just on the subject matter but also on how the experts conduct themselves on the stand. Your handling of a witness is a tricky task that takes much practice, which is precisely why participation in mock events is so valuable. Badgering a witness will likely alienate the judge and jury, but at the same time, it is important to control your witness, especially during cross-examination. Some judges want to see how you attempt to control your witness before they will step in. And even when a judge does not side with you, you must keep your composure and continue with your examination of the witness.
Furthermore, experts often have the vantage point of observing the entire trial, thus permitting them to comment on the evidence or weave a response to a point made earlier at trial into their examination. Seize these opportunities when preparing your expert to testify. Helpful advice to experts includes that they should keep a level head and refuse to let an attorney get under their skin and that they should occasionally make eye contact with the jury to draw them into the testimony. And while attorneys should not badger witnesses, likewise, experts should not appear combative or overly biased to one side. These tips increase credibility and jury rapport, and jurors are taking notes on everything.
Finally, juror feedback is paramount in a mock trial or actual trial. Mock jurors, just like a real jury, should be unattached to the case so they can provide an unbiased critique of your performance. Critiques may include feedback on legal arguments, presentation materials, attorney likability, unconscious habits or "tells," and your overall presentation before the jury. For example, you may learn that you fidget with your watch when speaking, distracting the jury from your message. A mock juror's feedback that you start every sentence with "umm" or overuse a particular empty word like "basically" is essential because we are often unaware of our own quirks or become accustomed to a familiar colleague's "tells," only to find they are magnified when that colleague or you are center stage before the jury. Identification of such habits by a mock jury allows an attorney or witness to curb them at trial. In an actual case, attorneys frequently ask jurors to meet with them after trial to discuss how they voted and their general views of the case and attorneys.
Conclusion
While mock trial can be time-consuming and require significant efforts, the benefits to participation far outweigh the burden. The additional practice in trial preparation certainly provides a professional with an enhanced skill level and confidence. The relationships developed through such an exercise are strong and fruitful, paying greater dividends from participation for years to come. We offer a few key takeaways for future mock trial participants:
- Be prepared. You should know your facts and arguments well enough that you can present a succinct and coherent case to your jury and are ready to respond to any unexpected twists presented by opposing counsel.
- Listen carefully and watch the jury. When you are not speaking, you should observe the judge's and jury's reactions to counsel and witnesses. Also, listen to your colleagues' examinations to evaluate whether you need to revise your questions to get in key information or evidence. Jurors are normally difficult to read, but paying attention to them may provide real-time insights, which can maximize the effectiveness of your trial team. For example, you may hasten a witness who is boring the jury off the stand or have an interesting and engaging witness expand on your key points more than anticipated.
- Be clued in to your personal habits. If you have not watched a videotape of yourself, you should. Mock trials are also invaluable for identifying those personal tics we have become unconscious to. Fidgeting with buttons on your jacket, swiping your hair behind your ear, and repetitive vocal intonations, among many others, can be distracting to a jury and detract from your message. A mock trial can help identify and mitigate these behaviors in a low-risk, high-reward situation.
If you are interested in participating in a mock trial, contact the National Institute for Trial Advocacy (NITA), ChIPs (Chiefs in Intellectual Property, a nonprofit corporation dedicated to advancing women at the confluence of law, technology, and regulatory policy), your law firm training programs and practice leaders, or your local bar association. For example, the State Bar of Arizona offers the Arizona College of Trial Advocacy, which is a five-day workshop for trial lawyers. In addition, several law schools offer trial advocacy institutes for practitioners, which are typically intensive weeklong programs; one example is the University of Virginia's Trial Advocacy College.
