Between the nerves dawning the night before the big day or the resilience that comes with hours of digesting witness testimony in hopes of impeaching the witness on cross examination, there is a lot of excitement that goes into preparing for trial. While preparation is indispensable when trying a case or competing in a mock trial competition, there are steps before trial that often go overlooked by advocates specifically, the pretrial proceedings.
While there are exceptions for certain competitions that include motions in limine to preclude or include evidence, there are other pretrial matters that can have an even bigger impact on the case and call for a different strategy when compared to ordinary evidentiary arguments at or before trial. A motion to dismiss the indictment with prejudice can end the case before a jury is ever selected. Another common issue in criminal matters is the defendant’s incarceration status pending trial: will the defendant be detained, or released with special circumstances such as weekly reporting and GPS monitoring? Pretrial proceedings will answer these questions based on what the common law prescribes, and the testimony witnesses proffer.
I was recently afforded the opportunity to compete in the Stetson National Pre-Trial Competition hosted by Stetson Law School’s Advocacy program. This competition consisted of an evidentiary presentation and an oral argument, and both related to pretrial motions. The motion heard at oral argument was a motion to dismiss the indictment and the motion pertaining to the evidentiary presentation was a motion to detain the defendant pending trial. Some of the most notable differences between a regular mock trial competition and this pretrial competition were the finder of fact in the matter (presented to one judge instead of a “jury”), the evidentiary threshold (being that the Federal Rules of Evidence did not apply), and the goals advocates set out to accomplish in this phase of proceedings.
Pretrial competitions and proceedings present a unique set of circumstances for advocates, in that they are inclusive of witness examination and oral argument skills. Most competitions are comprised of one or the other, but advocates in pretrial competitions must be well-versed in both.
This difference carries over into another nuance that I previously mentioned: the audience. Throughout the entirety of the competition, advocates are presenting to a judge and not a jury.
It is always important for advocates to retain their credibility throughout the whole proceeding, but this is especially important when the judge is the finder of fact and law. Unlike a jury trial, judges are ready to harp on any ambiguities you create when characterizing the evidence and the law. They will ask pointed questions during your summation and during your oral argument because they are searching for answers that will provide them with the clarity that they need to make their decision. Being straightforward and accurate will help you score points at competitions and will also make it easier for a judge to rule in your favor.
The perspective I adopted when competing was to view the proceeding as a collaborative effort by myself, the judge, and my adversary to solve a problem. I did my research on the issues to find the right answers and gave the judge a reason to find in favor of my client. At the same time, and more importantly, I anticipated my adversary’s arguments in response to my weakest points, to counter their potential arguments thus preserving my case and maintaining my credibility with the court. Even in the event my adversary did not pick up on my weakest points, I still anticipated that the judge would.
We talk a lot about credibility in the sphere of trial and appellate advocacy, and for good reason. Credibility with a jury can mean something different from credibility with the court. Jurors may find an advocate credible because they speak to them a certain way and present their case in an open fashion without any surprises. The same applies when advocates are in front of a judge, but there is some added pressure to characterize cases correctly and concede when appropriate. Credibility in the courtroom will not guarantee a favorable result but a lack thereof will almost always result in a less favorable outcome, especially when competing in mock trial.
For example, if you argue at great length about the legitimacy of a fact you know the court has taken up as true, and for good reason such as legal authority or just plain common sense, it would be unwise to try to convince the court otherwise – unless this fact is what your case hinges on. If you do not concede when you should, then you will be wasting valuable time you could be using to argue your stronger points and you risk annoying the judge which will hurt your team’s case. If a fact you should concede is collateral to your case and can be dealt with, it would look better to concede on the fact or issue and move on to your stronger argument. For extra points, try to work the fact you conceded to into your argument showing that whether the court agrees with you or not, you should still prevail. Informing the court that you are correct, however, should be done with a great dose of professionalism and grace. Try to be informative and polite as opposed to abrasive and aloof.
Arguments during pretrial proceedings are not limited to summations and oral argument, but also include arguments on the admissibility of evidence. Like in any other competition, the advocate should find themselves equipped with expansive knowledge on the rules of evidence and trial procedure and should anticipate the obstacles they will face on this journey and invite whatever challenges may come their way. Things may be different from what advocates are used to, however, because the Federal Rules of Evidence do not apply to ancillary pretrial proceedings.
This does not mean that anything and everything is admissible because the rules do not apply. Rather, laxing the rules creates a greater need to know them because this will allow you to make stronger arguments as to why evidence should be admitted or excluded. Based on the fact the rules don’t apply, you will need to persuade the court with a legitimate argument supported by not only the rules themselves but the reasoning behind the rules. Many times, especially at competitions, judges want to see and hear all the evidence in making their decision. An advocate may have a strong argument as to why evidence should be precluded, and their argument might even be correct, but a judge may still allow the evidence in because the rules do not apply. Advocates should not be discouraged if they do not prevail on their objections because objecting and making coherent, on-point arguments will still add points to their team’s score. Prepare for the competition as if the rules do apply and do not think that just because the court is not compelled to apply the FRE, you will automatically get all your evidence in.
While preparing, it is also important to think about the goals of the proceeding and how you will accomplish them. Unlike a regular mock trial, we are not asking the jury to find our client guilty or not guilty. We are asking the court to grant our motion or decline to grant our adversary’s motion. Whether it is a motion to dismiss, exclude evidence, or detain pending trial, nearly all of pretrial proceedings come before the court by way of motion.
If your goal is to dismiss the indictment, it’s a good idea to start by looking for the reason why the court should grant the motion. The answer may be in a statute or a case but either way, it is not as black and white as asking for a verdict of “guilty” or “not guilty” found in the standards set forth in the jury instructions. Winning motions come with knowledge of case law to support your argument and it is important to approach the proceeding knowing the judge can only help you if you show them the law and why it applies to the case. Set your goal and work backwards. What does the statute concerning these offenses say regarding dismissal of an indictment? What is the leading legal authority on this statute pertaining to our facts? What facts do we have to show dismissal of the indictment is warranted based on the law? What is the weakest point we will have to defend?
Asking ourselves questions like this while determining how we want to accomplish our goal will not only help in devising a solid strategy but will keep our thoughts and arguments organized. Organization is a key component in any courtroom proceeding where people are going to listen to what we have to say and respond to it. The stories we tell and the arguments we make must flow and be easy to digest. When dealing with complex statutes and cases, it’s alright to tell the court things are complicated and then proceed slowly when explaining a confusing pattern of events. Clarity is key and with good organization comes clarity.
On a personal note: the great Muhammad Ali once said “[t]he fight is won or lost far away from the witnesses, behind the lines, in the gym and out there on the road, long before I dance under those lights.” The same can apply to pretrial work in that the trial can be won or lost based on how well you perform in pretrial proceedings. Precluding evidence or getting the case dismissed can win the fight without you ever having to step foot in the ring. Prepare for these proceedings or your competition the same way you would for anything else and the rewards can be extraordinary.
 Fed. R. Evid. 1101.
 Darren Rovell, Muhammad Ali’s 10 best quotes, ESPN (June 3, 2016), https://www.espn.com/boxing/story/_/id/15930888/muhammad-ali-10-best-quotes.