Let’s get the bragging part of this post out of the way early: The high school mock trial team that I coach at the Winsor School won the state championship this year and placed 18th in the national tournament. I first posted about this team winning a state championship in, well, my first post, back in 2013. That win was the first of a “threepeat,” culminating in a 3rd-place finish nationally in 2015. Winsor was eliminated in the semi-finals last year, and graduated seven seniors—the bulk of the team’s veterans. This year’s championship was therefore a surprising achievement for the team, as many of the students were participating in trials for the first time. Going 2-2 in the national tournament and earning a top 20 finish was icing on the cake. Not bad for a rebuilding year.
It is a sappy cliché to observe that “the teacher learns as much as the students.” And while I suspect that the sentiment is not quantitatively accurate (as a coach, I should probably be teaching more than I’m learning, no?), certainly there are many legal, tactical, and rhetorical lessons that are reinforced through coaching mock trials. The national tournament this year was no exception. There were many thorny evidentiary issues to pick through, as well as some important reminders about having your witnesses testify in a way that makes them likeable and engaging. But the principle that stood out the most was the one that is the most fundamental to trial practice: You are telling a story, and you need to tell it well.
Telling your client’s story effectively requires overcoming various challenges, the nature of which shift from case to case. Trial counsel must identify the factual and legal challenges and tell the client’s story in a way that addresses them. The fact pattern in this year’s national mock trial tournament presented an unusual troika of problems for the defense:
1. The defendant was not testifying.
2. The defendant was not likeable.
3. The defendant had confessed to the crime, but claimed that he was lying when he did so.
Specifically, during an initiation ritual for a college secret society, the defendant had confessed to murdering a girl years before at a high school party. The defendant had been a suspect in the killing, but had not been arrested or charged due to a lack of evidence. The secret society’s pledge process included a “confession”—a theatrical ritual in which pledges were asked “What’s the worst thing you’ve ever done?” Knowing that the defendant had been a suspect in a murder investigation, the president of the secret society asked him, point blank, if he had done it.
“Yeah, I killed her. I did it because she resisted my advances. She pulled away and ran, so I hit her with a hockey stick until she stopped moving. You don’t say no to me.”
How do you persuade a fact-finder that the “confession” was just a fib designed to impress the members of the secret society and earn admission? How do you get a fact-finder to believe that what was at best despicable, dishonest behavior was precisely that, and not damning evidence of something far worse?
Mock trial national tournaments appear to be a breeding ground for blog posts about storytelling. In 2013, it was “Storytelling 101: Selecting a Theme.” So let’s call this Storytelling 102: Eschewing Empathy, Assembling Acceptance.
Wear Your Own Shoes
Trial advocacy courses are chock full of suspicious truisms. “Never start your opening statement with a ‘civics lesson’ about the importance of jury trials.” (Why not?) “Never ask an open-ended question on cross-examination.” (What if any available answer helps you?) “Never try to tangle with an expert witness about the merits of their findings.” (Even if that’s the only way to diminish the impact of the opinion?)
Here’s one that I do agree with: Never ask the fact-finder to put themselves in your client’s shoes. “Imagine you were in his position—what would you have done?” Bad idea.
Because maybe the answer is, “I don’t know. But I sure as heck wouldn’t have done what he did.”
Besides, you are asking more of the judge or jury than you need to. You don’t need fact-finders to agree that, under similar circumstances, they would have done what your client did. You only need them to believe that your client behaved that way under those circumstances, and that doing so was reasonable. You don’t need to force the fact-finders to adopt your client’s perspective, but you do need to them to appreciate that it is legitimate, not spurious.
The Devil is in the Details
The key to telling a difficult story well is the key to telling any story well—lots of details, to make it come alive.
You will make no headway with fact-finders by telling them repeatedly that your client was frightened when he confessed to a gruesome murder, and that he did so to gain acceptance into a collegiate secret society.
But start adding facts:
- He would have been the third generation in his family to be admitted into this group;
- The “confession” took place in a room with tools for torturing people hanging on the walls;
- There were rumors that if the president of the secret society didn’t like your confession, he would use those tools to extract a better one;
- For a week prior to the “confession,” the pledges were forced to participate in humiliating or dangerous activities, designed to demonstrate their devotion to the club;
- Your client engaged in all of those activities, despite being genuinely terrified;
- Right before his “confession,” your client talked to another pledge, and expressed concern that the worst thing he had done might not be bad enough; and
- The advice he received was to “use his imagination”—to lie.
String those facts together, put them in front of the jury, and what happens? Will the fact-finders believe that they would have confessed to murder under those circumstances? Probably not. But will they believe that this college freshman was frightened enough to say such a stupid thing, even if it wasn’t true?
Depends on how well you told the story.