Introduction
Often during Mock Trial Competitions, the main focus for areas of growth is based on in-court performances such as opening statements or examinations. However, there are many detailed areas of trial advocacy that can be focused on to elevate performance overall and make a significant difference between your team and teams from other law schools.
One of these areas of growth includes preparing witnesses for trial. Often, advocates are more focused on their own performances during direct and cross examinations that we fail to properly prepare our witnesses to perform their “character” to the best of their ability. By communicating and preparing witnesses to help us, a direct examination can be more cohesive and natural.
Whether your witness is one of your teammates or a stranger that your competition is providing, here are some steps to take to fully prepare your witness for success.
Communicate Overall Goal
The first step in preparing a witness, whether teammate or stranger, is to state your goal in the trial. If you are a prosecution advocate, your goal will be to receive a guilty verdict and vice versa for a defense advocate. To take the next step, explain to your witness how you plan to achieve this goal through their examination. The most effective way to explain your plan is to explain the elements of the charge. For example, describe that to reach the goal of a guilty verdict for murder in the first degree, you need to prove that the victim was killed due to the premediated actions of the defendant.
Communicating your overall goal to your witness is crucial because it provides your witness with the big picture. How can your witness help you if they don’t know what you are working towards? Loop them in and both of your roles will become easier.
This step, along with many others, may seem more effective with witnesses that are provided by the competition because often those witnesses come into the trial with limited information. However, this step is crucial even if your witness is your teammate. Most likely, if a teammate is playing the role of your witness, they are an advocate for the other side. Therefore, their mindset and perception of the fact pattern will be geared towards their own goals and objections, which are opposite of yours. Take the time to remind them what your side is striving for and their role as a witness is to aid you in achieving that goal.
Communicate Objectives of Direct Examination
After communicating your overall goal to your witness, elaborate by laying out the objectives that you plan to achieve during the direct examination. For example, maybe the witness is a medical examiner, and your objective is to prove the cause of death during their direct examination. Again, this allows your witness to be on the same page as you and allows them to craft their answers to questions in a way that works towards your specific objective of proving or disproving elements that will ultimately help you achieve your overall goal.
If you plan on bringing in evidence during your direct examination, show your witness each and every exhibit you plan to enter so they can familiarize themselves with the document, picture, etc. This is particularly important if your witness is a competition provided witness because they may have not seen or remember the evidence that you plan to focus on during the direct. Further, discuss why you are entering the exhibit into evidence. Why is this evidence important? Why is the witness tied to this evidence? How does this evidence aid us in achieving our goal? The more information you can provide to your witness, the more your witness can work with you instead of making you work harder to bring out the information you need.
Be Clear about Expectations for the Witness’s Demeanor
Be clear with your witness about the type of person you want them to portray. Do you want your witness to be timid and shy? Defensive and evasive? This is a conversation that can be tied into the discussion about your objectives for the witness on direct examination but ensure the witness’s demeanor is clearly stated.
For example, if your witness is the defendant, the wife of the victim in a murder trial, explain that you want your witness to be portrayed as a sad, loving wife who could never murder her husband. State the importance of portraying the role in this way to help you achieve your goal of a not guilty verdict. Moreover, explain how certain demeanor, such as being aggressive, can be harmful to your case. Warn your witness that even if questions on cross examination become aggressive, you want their demeanor to remain calm.
Warn Witnesses of Potential Attacks on Cross Examination
When preparing a witness, the most preparation is given to the direct examination because the cross examination is unpredictable and therefore harder to prepare for. However, you can help your witness by warning them of the areas that you anticipate the cross examination to cover. Every witness has good and bad qualities, especially in mock trial competitions. Identify your witness’s bad qualities, or negative facts surrounding your witness, in the fact pattern and make your witness aware of them. Explain to your witness that they will most likely have to own and admit to these negative points of their “character” and help them brainstorm ways that they can respond to unfavorable questions on cross examination without being a hostile witness. Additionally, if there are objections that you can make to any of the negative topics, explain to your witness that you plan to object and argue in certain areas. This will ensure your witness is not caught off guard by any topic or objections that may arise on cross examination.
This step is more applicable to witnesses that are provided by the competition. If your witness is a teammate, they will likely know the fact pattern from the opposite perspective so they will be aware of the character’s negative aspects. Don’t skip this step if your witness is a teammate, it can still be useful to remind your teammate of potential attacks they did not pick up on or may have forgotten. However, give this step special care if your witness is competition provided because they will be truly in the dark about the unfavorable sides of the role they are about to play.
Practice, Practice, Practice
As with all things, the best way to prepare your witness is to practice as often as possible. If your witness is your teammate, meet with them separately from team practices to discuss the goals, objectives, demeanor and potential attacks on cross. Afterwards, plan regular meetings for the two of you to practice the direct examination so your witness is familiar with the questions, evidence and potential issues that can arise. Repeated practice is especially important considering your direct examination will most likely evolve and change from your first meeting to the day of competition. Make sure your witness is aware of the changes by practicing each time you revise your direct examination.
If your witness is to be provided by the competition the day of the competition or a few days prior, you will not be able to practice with your provided witness while you prepare for competition. However, you can practice by creating a similar situation with friends, family or classmates. Over the course of your preparation for competition, ask a friend, family member or classmate to help you practice. This creates a similar simulation because they, like a competition provided witness, will be unfamiliar with the fact pattern and witness role. Allow them to read the essential areas of the fact pattern and then prepare them by following the steps above. Practice your direct examination with your newly prepared witness and take notes regarding the responses or actions that the witness gave that you did not find favorable to your case. Finally, ask a teammate to perform a cross examination on this witness to observe whether you properly prepared your witness for potential attacks or whether there were areas you failed to warn the witness about. By fully preparing and practicing with a new witness several times, you will be a professional by the time you receive your actual competition provided witness at the time of the competition.
Relying on teammates or strangers to act and perform the way you want during competition can be nerve wracking. However, properly preparing a witness to help you do your best as an advocate is the most effective method to ensure your witness performs in a way that helps you shine as an advocate and receive the most points to bring home a win for your team!
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