In September my mock trial team put on a short mock trial for assembly for the whole school. One of the Exeter students, not on the team, did not much like what he saw, and he posted a long critique on his facebook page.
As is the way of these things, other people saw the post, commented, word got around. The student newspaper here asked me to comment, and I put pen to paper. On some levels, mock trial is easy to mock; a bunch of kids pretending to be lawyers! But, as anyone who has read this blog knows, I find mock trial incredibly rewarding, mainly because it allows me to work with incredible students.
Anyway, here is the article, word for word:
An Exeter student has posted a critique of mock trial, based on last month’s mock trial assembly. Some of his points reflect a misunderstanding of mock trial. In other cases, he raises good questions, not just about mock trial, but about our legal and political system more generally.
First, a brief explanation of how mock trial works. The two competing teams are given the same case materials, about 60 or 80 pages. Three students on each side are lawyers: they prepare opening and closing statements and the questions to be asked on direct and cross-examination. Three students on each side are witnesses: they try to become the witness, whether that is the accused murderer or the expert medical doctor.
The trial is governed by rules: procedural rules that govern questions like how much time each team receives, and evidence rules, that govern what kinds of questions and answers are allowed. The evidence rules are closely based on the federal rules of evidence, that govern real trials. The judges are generally experienced court-room lawyers; at high levels, judges are often real-world judges.
The student was annoyed that the mock trial lawyers, in the assembly, kept repeating certain phrases; that did not strike him as effective. He is right and wrong on this.
Repeating the same phrase ten times in the course of a five minute argument is annoying, and it will get a low score from mock trial judges. On the other hand, some repetition, some structure, is crucial to effective argument. An argument that consists of just one fact after another is hard to follow, not very persuasive, not going to get a good score.
The student critic was also troubled that mock trial “encourages quibbling about trifles instead of the important stuff.” Here he is wrong: if judges think a mock trial lawyer is quibbling about a trifle, they will mark him down; they want to see lawyers focus on the important points.
Our critic was concerned that mock trial lawyers use “emotional manipulation” rather than relying on facts. Mock trial lawyers, and real lawyers, use emotions as well as facts because that is how to persuade people. Judges and juries are people, not computers, and I for one am not eager for the day in which computers decide legal cases.
These concerns about “manipulation” and “argument” seem to reflect deeper doubts about our adversary system. An American trial is a contest, between two sides, each represented by lawyers, each using every technique, within the rules, available. That means that, in some cases, the “truth” does not emerge because one side has a weak lawyer, or because the other side makes clever use of a rule.
But the adversarial system has deep roots in American and English history, and most Americans believe that it is the best way to decide contested court cases. To put it another way, most Americans would not want to live in an inquisitorial legal system, where the judge is also the prosecutor. It is not a perfect system, but better than many others.
The student argues that we have too many lawyers in the United States, that too many of our leaders are lawyers. He is not alone: the Economist of October 19 has an excellent article saying that “a legalistic approach to politics is no longer serving America well.” But if people think there are too many lawyers in Congress, vote them out. Every member of the House has to run for election every two years; every Senator has to run every six years.
When I think of Exeter mock trial, I think especially of last year’s team, which won the state championship, and then took tenth at the national championship. I think of the joy we shared as we learned of that honor, the result of weeks of hard work. I think of the congratulations we received from other teams, and how we congratulated them in turn.
I am not sure how many members of that team will go on to become lawyers. But I am sure that each who does will be a great lawyer: a good listener, a careful reader, a team player, an effective advocate. The kind of lawyer, in short, whom I would want to have work for me on a complex, critical case.
Walter B. Stahr, Exeter 1975, is the adviser to the Exeter mock trial team.