Juror #6

I recently participated as a judge in a mock trial competition. There were law students from many schools engaged in a competition. The participants, all earnest, exuding anxiety, nervous and young, were wannabee F. Lee Baileys and Johnny Cochran’s. Through no fault of their own it was painful to watch. I recognized the anxiety, the fright, the nervousness. And, because of my age and experience, I knew all that was so misplaced and misdirected. It was just legal theater. All about the lawyers and not about the case or the client.

Each participant wanted to be the belle of the ball. The center of attention. The torero at the center of the ring around whom all activity flowed. You could just tell that each one wanted to do a devastating cross; a Churchillian closing that would bring jurors to tears and make them rise up and call for justice. And that would win the competition.

But that’s not what trials are all about. What I realized as I watched is that the mock trial process magnifies the greatest flaw in the trial lawyer’s DNA – EGO. A trial is not about the lawyer’s performance. It is about the case and the client. It is ego that gets in the way. Ego that drives each one of us to want to be the center of attention. To try to do the devastating cross-examination. To try to deliver the closing argument that makes jurors cry, that angers them and makes them call for justice.

Each one of us, if we’re honest, really wants to have that experience where Juror #6, after we finish our devastating cross, picks up the phone at the break and says to her mother, “Mom, you’ve got to get down here and watch this lawyer. The cross exam is like magic. The witness is destroyed.” That is our fantasy.

Of course, that never really happens. With time each of us comes to realize that what should happen when we’ve concluded a cross-examination is that that same Juror #6 should not call mom but instead should say to himself or herself “What a rotten witness. No one is going to believe that person. Why would they even call that person to testify?” And when we get to the point
where we have the skill to cause a juror to focus on the case and not on the lawyer, we realize we’ve learned how to be a good trial lawyer.

All trial lawyers have an ego. The good ones know how to keep it under control and out of the way. It’s not asking one question too many. It’s not shooting your mouth off when silence is what works best. And its most of all letting the attention of the factfinder focus on the case and not the lawyer. This all takes a while to learn. It’s just not about you; it is about the case and the client.

There is a value to mock trial. It teaches the mechanics of a trial. It’s the equivalent of spring training for trial lawyers. It allows students to do the drills, to hone their skills, and to practice the dance steps. And, as a plus, they can become the center of attention for that exercise. But when the season begins and the games count, you have to play to win, not for style points. That’s why it’s important for participants to have feedback from “real” lawyers who’ve won – and lost – trials for real clients in the real world. So, while it may be painful to watch, experienced lawyers can provide a “Thanks, I needed that” perspective that can make mock trial a real learning experience.