Thursday, December 12, 2013


Each semester in my Comprehensive Trial Advocacy course, the law students go to court, observe a day in trial and write a report about what they saw and learned. Students select either federal, state or municipal court, and choose either a civil or criminal trial. J. Spencer Thorson’s  report on a criminal case trial highlights the most important of all points in trial advocacy. While the names have been changed, the following excerpted account from the report is a true one:
 I could go on and on about Robert’s testimony (Robert was a close friend of the victim), but the bottom line was that he was a very relatable storyteller, and the prosecutor clearly did a good job guiding him.  At one point, the prosecutor asked Robert whether the victim ever told him to go into the trailer to check on him if “anything happened,” and defense counsel objected, hearsay; sustained.  The prosecutor, this time without missing a beat, asked, “was it your understanding that you were to go into [the victim]’s trailer if anything happened?”  Robert said yes, and described going into the trailer, and when he said that at first he thought the victim was asleep, he choked up, and began openly crying.  It did not seem manufactured to me in the slightest.
At one point, Robert described his fiancée screaming that Martin (the defendant) was trying to leave (while Robert was calling 911), and defense counsel objected on hearsay grounds.  Judge Anderson did not even look away from Robert when he said, “overruled.”
Later, perhaps learning from defense counsel’s example, when Robert described telling Martin that he would kick Martin’s “behind,” the prosecutor asked, “is that really the word you used?”  Robert said no, and admitted that he had told the defendant that he would kick his “ass.”
When it came time for Robert’s cross-examination, I wrote, “This should be difficult.”  And it was.  Where Anthony had not really treated either attorney differently, Robert clearly did not trust defense counsel.  He was immediately guarded, and answered questions with an edge of hostility.  Then defense counsel, inquiring into the landlord/tenant relationship between Robert and his fiancée, and the victim, asked, “He was really more your friend than your fiancée’s, right?”  Robert answered, with some emotion, “No! He was all our friend!”  I didn’t think that was the response defense counsel was hoping for. . .
When I left the courtroom that day, what I took away the most was that I had just been a part of a human story, and that I had been moved by Robert’s testimony.  I actually walked by him on the first floor on my way out, and had the impulse to thank him.  Of course I didn’t.  But, aside from the technical, but necessary, skills we have been developing in this class (the evidence dance; asking leading questions), the most basic, and most important, has been to learn to tell a human story based on human values. 

I saw that at this trial.

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