Mock Trials

The three kinds of questioning, and the rule that distinguishes them

This is the substance of a mock trial and the part MU's oral communication topic is really about.

Examination-in-chief. Questioning your own witness. Open questions only: who, what, when, where, how. The witness should be doing the talking, and leading questions, which suggest the answer, are not permitted.

Cross-examination. Questioning the other side's witness. Closed, leading questions, put one fact at a time, to which the answer should be yes or no. The advocate does the talking and the witness confirms or denies.

Re-examination. Questioning your own witness again, limited to repairing damage done in cross-examination, and confined to matters that arose there.

The classic warning. In cross-examination, do not ask a question to which you do not know the answer, and stop when you have the answer you wanted. Every student's first cross-examination goes one question too far.

The language of the courtroom

An oral communication topic is entitled to test the vocabulary, so learn the phrases and what each is for.

Two rules of manner. Stand when speaking and sit when the other side or the bench speaks. And never argue with a ruling: accept it in one phrase and move on, which is the same courtesy Bacon required of counsel in Module 2, where he says counsel must not chop with the judge or reopen a matter after sentence is declared.

What a mock trial teaches, and this is what an examiner wants

To think while speaking. A prepared speech can be memorised; an examination cannot, because the next question depends on the last answer.

To listen. The single hardest skill. An advocate who is reading the next question off a pad while the witness answers will miss the answer that would have won the case.

To be brief. Objections must be one word and a reason. Closing arguments have a time limit. Nothing teaches economy faster.

To take a ruling. Losing an objection in public and continuing calmly is a professional skill and is not learnt from books.

To organise material. A case theory has to be settled before a question can be drafted, which forces the student to decide what the case is actually about.

And, for the purposes of this syllabus, to communicate orally under conditions of interruption, which is the difference between a speech and advocacy that the formal speech chapter identified.

How to prepare for one

Read the file twice. Once for the story, once for the details that will be disputed.

Write your case theory in one sentence. "This is a case about a man who was not there." If you cannot, you are not ready to draft questions.

List the facts you must establish, and next to each, the witness who can give it.

Draft chief examination as open questions and cross-examination as statements ending in "is that correct?"

Anticipate the other side. Write their three best questions to your witness and prepare the answers with the witness.

Prepare the closing before the trial, and then change it, because the closing must use what actually happened.

Rehearse aloud, standing, with somebody objecting.

A worked answer

Question. "What is a mock trial? Distinguish it from a moot court and state its advantages." Six marks.

A model answer. A mock trial is a simulated hearing in which students conduct a complete trial of a hypothetical case, taking the roles of judge, counsel for each side, witnesses, the parties and court staff, from the opening statements through the examination of witnesses to closing arguments and judgment. It differs from a moot court in that a mock trial simulates a trial court and a moot an appellate court: a mock trial is concerned with facts as well as law, calls witnesses who are examined and cross-examined, and involves the leading of evidence and objections to it, whereas a moot argues points of law alone on facts already found, has no witnesses, and requires a written memorial from each side. In short, a mock trial asks what happened and a moot asks what the law is.

Its advantages are practical. It teaches a student to think while speaking, since the next question in an examination depends on the last answer and cannot be memorised in advance. It teaches listening, which is the hardest and least practised skill, because an advocate reading the next question while the witness answers will miss the answer. It teaches brevity, since objections must be short and arguments are timed. It teaches the acceptance of an adverse ruling in public without argument. It requires a student to settle a theory of the case before drafting a single question, which forces clarity about what the case is about. And, for the purposes of an oral communication course, it is the only exercise that trains speech under conditions of interruption, which is what distinguishes advocacy from a prepared speech.

Why it scores. A definition, a comparison table turned into prose, and six advantages each stated as a skill rather than as praise.

Quick revision

Mock trial: trial court, facts and law, witnesses examined, evidence led, objections taken. Moot: appellate court, law only, no witnesses, written memorial.

Roles: bench, counsel both sides, witnesses, parties, clerk, recorder, assessors.

Stages: file, preparation, appearances, openings, evidence for each side, closings, judgment, feedback.

Three examinations: chief, open questions; cross, leading questions; re-examination, limited to what arose in cross.

Do not ask a question in cross-examination if you do not know the answer, and stop when you have it.

Courtroom language: may it please the court; objection, leading; no further questions; as your lordship pleases.

Test yourself

1. Distinguish a mock trial from a moot court. A mock trial simulates a trial court and is concerned with facts as well as law: witnesses are called and examined, evidence is led and objected to, and there may be a jury. A moot simulates an appellate court, argues points of law only on facts already found, has no witnesses, and requires a written memorial from each side.

2. What is the difference between examination-in-chief and cross-examination? In chief you question your own witness with open questions and may not lead, so the witness does the talking. In cross-examination you question the other side's witness with closed leading questions put one fact at a time, so counsel does the talking and the witness confirms or denies.

3. State the classic warning about cross-examination. Never ask a question to which you do not know the answer, and stop as soon as you have the answer you wanted. Most beginners lose ground by asking one question too many.

4. Name the stages of a mock trial in order. Circulation of the case file; preparation; assembly of the court and announcement of appearances; opening statements; evidence of the first side, examined, cross-examined and re-examined; evidence of the other side; closing arguments; judgment with reasons; and feedback.

5. Why is a mock trial the right exercise for an oral communication course? Because it is the only one that trains speech under interruption. A speech is delivered to listeners who wait; in a trial the bench and the opponent interrupt, and the speaker must answer what has just been asked rather than continue a prepared sentence.