Welcome to Law School 3L: Control Issues

It's not as easy as it looks. This semester, in my Trial Advocacy class, I'm learning the skills I'll need in the courtroom, as my classmates and I practice direct- and cross-examining each other, spotting objections and giving opening and closing statements. I thought it seemed easy until I called my partner Keith to the stand for a simple direct examination drill. Somehow, I cannot get his story out the way I want it presented to the jury.

Even though my "witness" is a peer who has heard the same lecture I have, understands the goals of the exercise and has practiced this line of questioning with me before class, my direct examination does not sail the smooth course I had planned. With Keith on the stand before the "jury" of our classmates, I rush too quickly through some crucial details, or my questions get arduous and slow the pace too much, or I stumble headlong into a hearsay objection. Testimony is a slippery medium, and I'm finding it difficult to tell the jury the facts through my witness' mouth.

It is not that Keith is insufficiently prepared as a witness, and it is not that I am stifled by public-speaking anxiety; it is that I'm missing the most crucial element: control. Proper control in the courtroom looks effortless, which is why I thought it would be so easy. When my professors, two successful lawyers who teach this class in addition to working full-time, demonstrate a line of questioning, they bring the story out at the pace they choose, they stop the witness if he begins to rush, they circle back around crucial segments of testimony so that the details fasten in the jury's mind, they play with their own tone and body language.

They paint character portraits by bringing out background details that at first seemed irrelevant to me. Who cares if the witness has kids? Isn't the important fact that he was two states away at the time of the crime? But trial testimony is a story told on many levels; missing from a two-dimensional transcript of testimony is all the nonverbal, subconscious information that fills the space between the questions and the answers. To be a good trial lawyer, one must operate on all those levels at once; one must control what is said, not said, implied, seen and done. The mastery of that skill gives the lawyer immense power over the perceptions of the unsuspecting jury. It is perhaps for that reason that lawyers are seen in such a negative light as scheming and shady: the power of persuasion is a type of mind control, and no one likes to think their thoughts are being manipulated by someone else.

I don't think trial advocacy skills have to be seen as ominously as all that, however. Although the presentation of it is malleable, all testimony is rooted in the same immutable facts of the case. As we learn the skills to adeptly recount these facts, my classmates and I are not learning to be dishonest and guileful, we are learning to help our witnesses best tell us their truths.

Annika K. Martin is a third-year law student at the University of Southern California Law School in Los Angeles, CA. She earned her undergraduate degree from Northwestern University. She likes Swedish furniture, German cars, French films and Indian food.