Trial Advocacy Pt I
THEORY OF THE CASE, DIRECT & CROSS EXAMINATION.
This was my week - learning how to form a vision of “what happened” that helps my client, and practicing how to address and handle witnesses on the stand! Plus some good old-fashioned storming of the Capitol, but that wasn’t in the syllabus.
Also, quick heads up: this article is a little longer that normal because I love this stuff!!!!
BEFORE DAY 1
For me, the most stressful parts of a class are the first day and the final. Even if I prepared for Day 1, I’m not really prepared - there’s just no way to anticipate what’s coming. So I rolled into the first class having read a few chapters on trial history, courtroom ethics, and developing a fact theory…but I didn’t really understand what they meant.
I’m definitely a jump-in-the-deep-end-to-learn-how-to-swim kinda gal.
Before class began, we were given a 312-pg packet with the course schedule, assignments, rules of evidence, and three case files. We’re dealing with two cases of those now, both based on real events; one is a police brutality case and the other is a vehicle homicide. Each student has a specific task to prep before every class, which will then be performed in class. For example, I wrote a defense theory for the homicide case on Tuesday, then prepped one direct and one cross examination for Wed, Thurs, and Fri.
There are approximately 80 students enrolled in the course, but I only see about 26 of them because we’re split into three sections. My section is led by a retired judge and a TA named Rylee (I have a mini heart attack about 17 times a day when he asks her to do something). Each class starts in these sections and various people present their assignments for the full group - those are critiqued in front of everyone and video’d for review with the judge. Then we split into smaller groups of 7-8 so that everyone gets a chance to perform and hear faculty input on their prep. It was a little confusing at first, but we quickly got the hang of it.
THEORY OF THE CASE
This is where we started at 2 pm on Tuesday, Jan 5. Case theory is the heart of good courtroom lawyering because it underlies everything you do in a trial - it answers the questions “What happened, and why do we believe that?” To craft the best theory, you have to first examine your evidence and think about all the theories that could fit. Then, you have to decide on the one that fits best and is associated with whatever legal rule is favorable to YOUR client.
For example, take the vehicular homicide. If I’m the government, I’m going for premeditated, first degree murder. I’ll use the available facts to show the jury that when he jumped in his car, the defendant PLANNED to run over the victim. If that’s too much of a stretch, then I’ll choose a different case theory; maybe that he formed the intent to kill just seconds before running the man down with his car, but he still meant to do it. If I’m defending the murderer, on the other hand, I’m not presenting this as a “murder” - I’m presenting it as a tragic accident. My client didn’t see the victim and didn’t mean to run him over, but it was dark and he couldn’t stop in time - terrible, but not criminal. He is innocent.
Here’s the crazy part: both theories can be supported from the same set of facts, and it’s my job as a lawyer to ethically represent my client - the American people or the defendant - to the best of my ability.
Anyway. I prepared a theory of the case for Tues as assigned, but quickly realized that it suuuuuucked. In the large group of 26ish students, with several faculty members present, we were called on individually to read our theories. After presenting, one or two instructors gave the student feedback. They always started with positive comments, gave one or two points of critique, and then ended on a “great job” or “good start” - in other words, the classic feedback sandwich! Their attitude immediately set a tone of “we know you’re learning, we don’t expect perfection” which is (a) not typical of a law school classroom and (b) a huge relief.
Luckily, I wasn’t called on to perform mine. But I got to hear about 20 students and their feedback, so my awful V1 slowly transformed over a few hours. And that’s a good thing - theories of a case develop over time in real life as well, as more and more evidence is uncovered. Sometimes, they change right up until trial!
In My Cousin Vinny, the defendants’ case theory is mistaken identity
DIRECT EXAMINATION
I paid the price on Wednesday for not performing on Tuesday, when I acted as both a witness and a lawyer for the large group. I was direct- and cross-examined as the police officer on the scene of the vehicular homicide before getting up and giving a direct exam of the police officer from the police brutality case. My feedback?
“Ms. Vann, I bet you are a great conversationalist in real life, and I would love to have coffee with you because you seem very fun. But the witness is not your friend. You are simply asking them questions. Don’t affirm everything they say!”
I died after that critique (in a good way - like I said, it isn’t scary). When I watched the video back, I was all over the place; hands waving, head nodding in response, saying “yep” and “okay” and once, “wow” to my witness…YIKES YIKES YIKES.
On direct, the witness is the center of attention, not the lawyer. The person on the stand is telling a story for the judge or jury, and the lawyer is just there to guide and control how the story is told. As the direct examiner, therefore, I should stand fairly still, ask simple questions in a “who/what/when/why/where/explain/describe” format, react as little as possible to what my witness says, and let them do the story-telling.
I also drew my first objection during my examination, for an alleged hearsay statement (something about a 911 call). My opposing counsel was overruled (yay!) but not on the grounds that I stated (booooooo).
Other lawyers vs. me on direct
CROSS EXAMINATION
If direct examination is about the witness, then cross examination is THE LAWYER’S TIME TO SHINE!!! Of course, cross is not nearly as dramatic as shown in the movies (ex: Elle Woods drawing out a confession from an adverse witness - literally never happens). But in my opinion, it is much more fun to prepare and to deliver a cross than a direct, and my preference showed in my performance.
On cross, you aren’t asking the witness questions. Instead, you make affirmative statements and merely ask them to confirm the statement. This is called “leading the witness” and it’s never allowed on direct examination, only on cross (the idea being that on direct, the judge/jury wants to hear from the witness, not the lawyer). Therefore, a chunk of cross might look like this:
Counsel: You saw A hit B.
Witness: Yes.
Counsel: You saw this through your window.
Witness: Yes.
Counsel: The men were wearing camouflage.
Witness: Yes.
Counsel: You saw this at night.
Witness: Yes.
Counsel: There was no moon.
Witness: Correct.
Counsel: There is no streetlight outside your house.
Witness: Correct.
The goal with these questions is to discredit the witness’s testimony on direct, suggesting that his perception was flawed because of where he was sitting/the limitations on his vision. This is why cross is fun - you’re trying to draw out a few important points for the judge/jury to chew on and for you to attack during closing argument, and then you get down. The mentality on cross is “get in and get out” and the lawyer is visibly in control the entire time, so….definitely my cup of tea.
Of course, you have to be careful on cross. If a lawyer is too hostile towards an opposing witness, the jury will likely side with the witness, not the lawyer. Also, counsel’s points must either advance their argument or discredit their opponent’s; asking questions just to ask them is not good strategy or use of time. Finally, a lawyer on cross will know the answer to a question 99.9% of the time, but have to be ready for an answer they didn’t expect - witnesses can forget, try to justify, or be straight-up hostile under cross examination. How you respond and regain control of a runaway witness is super important when the lawyer is the star!
OVERALL IMPRESSION
I am exhausted and obsessed with this class!!! The rate at which we’re improving is truly incredible; I have gotten a ton of great pointers, strengthened my direct examinations, and found my calling in life on cross. At the same time, I feel like I have a million questions which each new draft - what’s the best strategy here? Is my order of questioning effective? Confusing? How do I acknowledge the ‘bad facts’ for my client without completely destroying my case theory? HOW DO I KEEP MY HANDS AT MY SIDES DURING DIRECT EXAMINATION?????
Seriously though - the first week was awesome, and I’m excited to expand on these foundational skills over the next two weeks. Tomorrow is all about Opening Arguments, and I’m defending the officer in the police brutality case (gulp) - if nothing else, I know I’ll get some great feedback!!
