Trial Advocacy Pt III
Week 3: Closing Arguments, Trial Preparation, and MOCK TRIAL!
Oh, and a Q&A with Amanda Knox. THE Amanda Knox, American college student accused of killing her British roommate while on a semester abroad back in 2007. It was a PRETTY INCREDIBLE WEEK.
CLOSING ARGUMENTS
Tuesday was our last real day of class, and we each wrote a closing argument for presentation and critique. Closing arguments happen after the witnesses are all called and the evidence is fully presented at trial - after both sides “rest their case.” Generally, the prosecution or plaintiff goes first; the defense follows; and then the prosecution gets a few minutes to rebut (because they have the burden of proof). It’s the last thing a jury hears before the judge gives legal instructions and sends them off to deliberate, so closing arguments are PRETTY crucial.
Unlike openers, closers are supposed to be argumentative - you lay out all the puzzle pieces, then fit them together for your factfinder. This is the time to question witness credibility, highlight your good witness testimony, point out the bad things you brought out on cross examination, draw inferences from the evidence, and generally appeal to the jurors’ common experience and common sense.
For example: the following appeared in our murder case where a man drove up onto a sidewalk and ran over a guy lying there. In opening, the prosecution said
“Witness A will testify that he didn’t see the defendant’s brake lights after the defendant drove up onto the sidewalk.”
After Witness A gave that testimony at trial, the prosecution used it in closing:
“Witness A didn’t see the defendant’s brake lights after the defendant drove up onto the sidewalk. In fact, Witness A saw him accelerate! If you’re in a car, and narrowly avoid hitting a tree by running up onto a sidewalk, do you brake or do you accelerate?”
(Rhetorical question: you brake! And because the defendant did NOT, it’s likely he intended to go up onto that sidewalk & therefore, intended to run over the guy laying there)
You wrap up the entire deal by telling the judge/jury about the legal elements of the crime, and how you’ve proven them through the evidence presented (alternatively, the defense talks about why reasonable doubt still exists). It’s not easy, but I got some good practice on Tuesday - which came in handy for my closing argument three days later!
Q&A WITH AMANDA KNOX
When I logged onto Zoom for our last evening lecture on Tuesday, my little brain hadn’t yet connected the dots. I figured “Q&A with Amanda Knox” meant a chance to speak with a judge or litigator about trial work (because that’s the whole point of the class, right?) But as I waited for my professor to begin the lecture, I noticed the woman in the Zoom box that said “Amanda Knox” and thought….
wait a second.
Is -
Is this the Amanda Knox?
Like, the one accused of killing her roommate while on a semester abroad in Italy? The one convicted, acquitted, convicted and acquitted again by the Italian courts? Who spent four years in a foreign prison before finally making it home???
It WAS.
As a true crime junkie, I’ve always been fascinated by Amanda’s experience, but hearing her speak about it was truly horrific. Long story short, Amanda returned to her Italian apartment one morning in 2007 and found blood everywhere and her roommate’s bedroom door locked. Her boyfriend called the Italian police, and they discovered her roommate’s body behind the locked door. The Italian police immediately considered Amanda their main suspect, but she had no idea; they told her she was just an “important witness.” As a result, Amanda gave multiple interviews without a lawyer present - her counsel appeared on the same day she stood in front of an Italian judge and pleading “Not Guilty.”
She described how, while preparing for trial, her Italian lawyers flipped casually to a photograph of her murdered roommate and she absolutely lost her mind - because she hadn’t seen it before. It never occurred to her counsel that this might be the case, or how triggering/awful that photo might be for the victim’s 20-year-old friend (which kind of tells you how much they cared about their client). Amanda also talked about how she couldn’t BELIEVE she was going to trial, and actually wasn’t too worried about the first one because she knew there was zero (actually, ZERO) evidence connecting her to the murder. Her faith in the legal system died, she said, upon that first guilty verdict.
Amanda now works with the Innocence Project, a legal group dedicated to freeing wrongfully incarcerated people. She doesn’t want to become a lawyer, HATES courtrooms, and prefers to act as a “bridge” between the legal world and the general population. Amanda said she’s not a “true crime person;” never has been, never will be. But this experience forced her to learn more about the legal system than she ever cared to know, and she feels compelled to help others in the same situation.
(If you’re interested, there’s a Netflix documentary called Amanda Knox that goes into detail about the entire story. She also has a book called Waiting to Be Heard, but I haven’t read it yet)
TRIAL PREPARATION
Just like that, class was over! It was time to put our courtroom skills to work. The mock trials were set for Thursday and Friday, with each student acting as a witness for one trial and a lawyer in the other. Luckily I was a witness first, so I got TONS of inspiration before performing my own!
Each student was assigned a co-counsel (mine was an AMAZING 3L named Roberta) and trial advisors (real lawyers to help us prepare), as well as opposing counsel (my opposition included my friend Nick, who I mentioned last week - SO FUN!!) and our respective clients.
Unlike our other two cases, the trial case was a fictional custody battle. Our professor took elements from several real scenarios to concoct a dramatic set of facts, and he certainly achieved drama! The mother was a recovering alcoholic, and the father was a cheater and abuser. Their respective best friends testified (the mom’s best friend might have been attracted to the dad, and the dad’s best friend was a nasty guy) and we had about 28 different documents to use in the case.
Roberta and I were the plaintiff’s counsel, and represented the mom in this particular case. She and her husband fought about the following three things, in order of importance:
Custody of their daughter (both legal custody and physical custody)
A fault divorce (meaning, the other side behaved in a way that provided legal grounds to end the marriage. The mom said she should get a fault divorce because her husband cheated & abused her; the dad said HE should get a fault divorce because of his wife’s excessive drinking)
Alimony payments (still not sure why this wasn’t child support? But that was the assignment)
At first, we planned to go ALL OUT on crushing the dad for his cheating, beating ways - I mean, we wanted to get our client a fault divorce from this scumbag!! But since custody of the child was her primary goal, we (reluctantly) re-vectored. Proving the husband was a bad guy became secondary to proving our client was READY for custody; we used his past bad actions as a foil to the mom. Lynn had struggled with alcohol, we said, but it was only because of her husband’s abuse and affairs; after he walked out, she started recovering. While Lynn took responsibility for her actions and made SIGNIFICANT changes to better herself, Robert is the same scummy guy. This strategy meant conceding that the mom drank a lot during the marriage (which gave our opposition fodder for their fault divorce) but we had to prove Lynn was a responsible person, who owned her past and took control of her future.
Making big strategy decisions is stressful because you have to (a) find everything that supports your theory, (b) brainstorm all the ways your opponent will cast doubt on it, (c) find a way to negate that doubt. Plus, there’s ALWAYS a “what if” factor - what if we didn’t choose the strongest strategy? What if the judge/jury reacts differently than we expect? What if we’re missing something huge??
And that, my friends, is just how trial goes.
TRIAL
The trial timeline was set up like this:
2:00 Pretrial Motions, etc. (5-10 minutes of telling the judge which exhibits we planned to use & fight about any we wanted to exclude)
2:10 Plaintiff’s Opening Statement (10 minutes)
2:20 Defendant’s Opening Statement (10 minutes)
2:30 Plaintiff’s Case (45 minutes total for direct examination of Plaintiff’s witnesses, 30 minutes total for cross examination)
3:45 Defendant's Case (45 minutes for direct examination of Defendant’s witnesses, 30 minutes total for cross examination)
5:00 Final argument to the Court (15 minutes maximum for each side)
5:30 Consideration and decision by the court (approximately 10 minutes)
This was a bench trial, so we argued to a judge instead of a jury. Roberta and I divided the work evenly, so I performed a direct examination of the mom’s best friend, a cross examination of the dad (which was SO FUN, we absolutely destroyed him) and gave the closing argument. At 2 pm on Friday afternoon, we met our judge (an actual retired judge from Illinois), ran through pre-trial motions, and got to work!!
OUTCOME
In a nutshell, trial was more stressful and WAY more fun than I expected. You’re simultaneously trying to (1) listen to the other side’s questions and (2) how the witness responds, while (3) objecting to the right things (4) at the right time, and (5) brainstorming how you can use what you’ve heard in your next line of questioning or closing argument. I had papers EVERYWHERE - my own exam questions, post-its with scribbled notes, seven printed exhibits in case I needed them to control a witness. It was chaos.
But we WON!!!!!! Lynn Simmons walked out of the courtroom with joint legal custody and sole physical custody of her daughter, which is what we asked for. The judge didn’t grant either side a fault divorce (and we did NOT successfully prove adultery - boo) and alimony was TBD, but mom got her daughter and I felt like a freakin’ CHAMPION. We also had about ninety minutes of feedback after the judge made his ruling, which ended the experience on a really encouraging note.
After logging out of Zoom and cracking a beer (hallelujah), two things hit me at once. The first was - what a brutal case. Abuse, alcoholism, adultery…all that stuff happens in real life, and I’ll have clients come to me with similar situations. And those cases will have real-life consequences for parents and child - the stakes are much higher than in our little mock-up.
But at the same time, I couldn’t help but think about how incredible it would be to stand in a courtroom with a young mother who just learned she can have her child back. That the struggle was worth it because she can be a mom again. Ultimately, that’s the goal, and now I have a little confirmation that I like it and don’t totally suck!
That said, I did take video throughout the trial - but those will never hit the internet. No need for future employers to see Ground Zero 😬
