The Competition
March 2 - March 5, 2000
Philadelphia, PA

Well, y'all have heard me bitch and moan about trial practice since the middle of January. The following is the story of the competition itself. In case you haven't heard, it has a happy ending. For clarification purposes, my team consisted of myself and my co-counsel, Jay, as plaintiff's counsel, and our defense counsel, Rob and Nadine. The other team from my school were Cindy and Annmarie (for the plaintiff) and Steve and Jason (for the defense).

Before this whole thing started, we figured we would be out of the competition by Saturday afternoon, and since I had made plans to spend the rest of the weekend with my girls, I passed up the opportunity of riding in the school-rented van with the others and decided to drive myself.

It's a good thing, too, because I'd never have been ready to go by noon on Thursday. I spent the morning packing and straightening up the apartment, having made arrangements for my upstairs neighbor to pop in on my kitty once a day and make sure she was okay.

After a last-minute stop to return a suit jacket that I never found a skirt to go with, I was tooling down the turnpike, praciticing my opening statement to passersby who must have thought I was on something. I hit Philadelphia just in time for rush hour, but due to excellent directions, was able to find my way right to my hotel in Center City.

I checked in just in time to change and meet up with my teammates for dinner. I had made reservations for all of us at a restuarant called The Victor Cafe, recommended by a professor. It's a terrific Italian restaurant where every fifteen or twenty minutes a member of the waitstaff rings a bell and launches into an aria. They were wonderful! We all felt bad for them, having such talent and yet working as waiters, waiting for their big break.

Our coach met up with us there, after attending a meeting where he was given the draw for the first three trials. As luck would have it, my partner and I were the half of the team that had to try the case twice, and we also had to go first on Friday morning. The only good thing about going again on Saturday morning was that my journaling pals would get to see me as counsel rather than just a witness, which I was afraid would have been a bit boring for them.

We all went back to the hotel, stuffed to the gills, but I was really starting to get nervous. I was rooming with the other girl on my team, Nadine. Our room connected with Steve and Jason's, and even though they weren't counsel until the second trial on Friday, we all strategized together for about an hour. Nadine and I were each other's witnesses, so we went through our direct examinations of each other, and then I practiced my opening statement once.

Finally, we slid the connecting doors closed. Since Nadine also wouldn't be trying the case until Friday afternoon, she wasn't really nervous and was able to go to sleep. I stayed up a little bit longer, working out some kinks in my cross examination, and finally turned out the light at just after 1:00 a.m.

And laid there. No sleep. I had had a couple of glasses of wine with dinner, hoping it would help, but I was still very anxious. I woke up three or four times during the night and I hadn't moved, which indicated that I wasn't sleeping very well anyway.

Finally, it was 6:30, time to get up. I took a shower, dried my hair, and pulled on sweats to meet up with Jason and Steve for breakfast.

I took a chance and had coffee, figuring it couldn't make me any more nervous than I already was. I choked down half a stale bagel and gave up. My stomach was having none of it.

Fortunately, I had enough time to take my time getting dressed. I did my make-up and hair, put on the understated pearl earrings and matching necklace that I had bought just for the occasion, then gave my opening statement once more in the mirror while Nadine was getting dressed.

It was not my idea to walk to the courthouse, but everyone else seemed to want to. It was about eight blocks, which is certainly not a long distance, but when you're in heels and carrying 2' by 3' exhibits, it's a big pain in the ass. Plus we weren't even sure exactly where we were going. I mean, we knew what intersection to approach, but we didn't know precisely where on that intersection the courthouse was.

However, we didn't really need to worry. As we approached it, we saw several other people looking decidedly like lawyers, so we just followed them. We got through the metal detectors and my three teammates and I headed to our courtroom.

Almost as soon as we got up there, my nervousness turned into adrenaline, and the good kind. I wanted to get started. We set up our table, introduced ourselves to the opposing team who was already there, and confirmed the gender of all the witnesses, so we could at least make an attempt to get them right during our opening statements. Fortunately for me, the defendant was a guy and the expert was a girl, which is exactly how it had been during our practices.

Then, we waited. We were supposed to start at 9:00. Soon it was 9:15, then 9:30, and we joked with the other team, things like telling the judge we decided to settle.

But then they arrived, three lawyerly looking people, one of whom was our judge and the other two, our jury. The judge introduced himself, and I should have known how it would proceed when he admitted that he didn't hear very well, so we would have to speak up.

One of the attorneys on the other team rose and asked permission to create a visual aid during the opening statement. The judge said yes, the witnesses could testify in any order she wished.


So court was called to order, the witnesses were sworn in, and I was up.

I felt very strange walking up to the jury. As soon as the words were out of my mouth, I had panicked thoughts, that we had worked on the wrong case, that I was on the wrong side, all sorts of things. But I kept talking, connected with the two jurors, never looked at my notes once, and as soon as I sat down, I felt great.

I felt even better after listening to the other side's opening. It was rather clear that they hadn't prepared as much as we had. One thing they tell you is that if you prepare nothing else, you prepare the first words out of your mouth and the last words out of your mouth, so you know exactly how you want to begin and how you want to end. His opening statement drifted around, and he basically drifted it to an end, and when he looked like he couldn't think of anything else to say, he just sat down.

The only other thing I can remember about it was that guy's cross examination and that it really wasn't very good either. The idea on cross is to get the witness to agree with what you're saying. You're allowed to ask leading questions, and the most common technique is to simply make statements starting with "Isn't it true that..." or ending with "isn't that correct?" or some variation on that. Part of the theatrical element, which really can't be ignored, is that you do this effectively, mixing up your qualifiers, making it seem like you really have this witness under your control.

This guy made his statements and ended everything he said with: "Right?" It got to be almost funny. There was no variation, no "Isn't it true"'s, no "So your testimony is", none of that. Just "statement statement statement, right?" "Statement statement statement, right?", with the same exact inflection every single time.

The jduge was really no help at all. He was old and deaf, and half the time when there was an objection, he would look down at us like he had no idea what was going on. At one point, while counsel and I were in an extended discussion about the admissibility of a certain piece of evidence, he looked at us and said, "You two work out what you want to do here." The girl and I just looked at each other with wide eyes, and I could tell we were both laughing on the inside. She finally asked him for a ruling directly, he admitted the evidence, and we went about our way.

After it was all over, I felt good about it. The judge made a few standard comments ("You all did very well") and we packed up our stuff and went in search of our other team. We found them and headed out to find lunch.

Back to court for trial #2. Just a witness this time, but I was just as nervous for the other half of my team, Nadine and Rob. They were defense counsel, and during plaintiff's opening, the guy started to argue, a lot.

See, in opening statements, you aren't allowed to argue. It's a difficult distinction, but the idea is that you are only supposed to tell the jury what you are going to prove with the evidence. That's why you almost never see anyone do an opening on The Practice: they're rather dull. There's no fire and brimstone allowed. It's all a bunch of "The evidence will show... " and "The plaintiff will testify...". You present the case, you don't argue it. That's why they're called opening statements, as compared to closing arguments. You get to argue the evidence in your closing, call the opposing witnesses liars, refute their testimony, basically say whatever you want as long as there's been some hint of it in the evidence you got out during trial.

However, it is considered bad form to object during the openings or closings. It usually reflects badly on the attorney who objects, because it looks to the jury like they're just trying to draw attention away from the person who's talking to them at the time. But this guy was making argument like you wouldn't believe. "The defendant wanted to fulfill champagne dreams with beer money." That's argument, plain and simple. Risky as it was, Nadine objected, asking the judge to direct counsel to restrict his remarks to the evidence he reasonably believed would be admitted at trial.

I wanted to applaud. We hadn't practiced that objection, and it came out of her mouth like she had said it a hundred times. The judge completely backed her up, admonished the other side, and the attorney continued, except that he did it again, saying to the jury: "Don't believe the uncorroborated evidence the defense is going to show you."

Okay, if you weren't sure champagne dreams and beer money was really argument, you can bet your ass that telling the jury what to believe or not to believe is absolutely argument. All Nadine had to do was stand and say, "Your Honor," and the judge took it from there, admonishing the guy again, even more severely than he had before.

It was an omen, because the trial was ours from then on. I was an excellent witness, if I may say so myself, holding my own and giving nothing away. Rob's closing was fantastic, much better than we had ever seen him in practice.

When we got back to the hotel and were getting ready for dinner, that became a common theme in our conversations. Everyone agreed that we had really risen to the challenge of this competition, and we all felt that we had done at least as good as we ever had in practice, if not better. We were still joking at the idea of going to Florida for the finals, but I think we all secretly starting to want it. We had come in to this competition focused only on the experience, not on winning, but we all felt that we had had good trials that day, and we wondered if maybe we wouldn't be shopping Saturday afternoon after all.

We headed out aimlessly for dinner, the only goal being to blow our $44 per diem that we had for meals. We ended up at a hotel restaurant/bar, where I had two amaretto sours, a $9 hamburger, and some out-of-this-world tiramisu. We split up on our way back, a few people heading into a jazz bar, but I was tired and wanted to try to sleep a little bit better before my trial in the morning.

Saturday morning, I was nervous again, and this time not only because of the trial, but because my friends would be there. I had talked to Kate briefly on Friday night, and kept insisting that if 9:00 was too early for them to be anywhere, I would understand.

But they made it. Like I said in my regular entry, I don't really remember if I was in the courtroom when they got there or not. I just remember turning around and seeing them, Colleen, Kate, Melissa, Corina and Wes, my very own cheering section. I felt bad that we were in this broom closet of a courtroom, after having both our Friday trials in nice big comfy ones. But they didn't seem to care.

Fortunately we got an advance word that the judges were on their way, since I needed a few minutes to settle down from the laughter that always ensues when this gang is together. I took my seat at the counsel table, inhaled a few deep breaths, and prayed that I wouldn't make a fool out of myself in front of my friends.

I stood up to make my opening statement and was not one minute into it before I drew an objection from opposing counsel. "Argumentative," he said.

I'll take this time to explain my opening a little. My client, Alex Dawson, hurt his head on a sharp piece of equipment on a children's playground. In telling the story of what happened to Alex, I do so in the second person, asking the jury to put themselves in Alex's place. "Imagine you're a parent. You like to do things with your kids, and you've read about this new playground, so you decide to take them." I then go through the whole story of how Alex got hurt, using "you" instead of "Alex".

Technically, it's not argument, but it's a bit on the periphery of what an opening statement should be. I decided not to argue the objection, just silently waited for the ruling, and when the objection was sustained, I nodded confidently at the judge, turned right back to the jury, and finished my opening, putting "Alex" back in every place I would have normally said "you."

Although drawing an objection in the opening is never a good thing, I was really proud of the fact that I handled it so smoothly. This is what continues to surprise me most about my own ability. I used to be terrified at the idea of having to think on my feet. It was the one reason I had always said I wouldn't be a litigator. I didn't necessarily mind talking in front of people, as long as I could prepare every word. But as this competition went on, I realized that I could make and argue objections, and defend those made against me, without getting flustered or tongue-tied or red in the face.

That didn't happen during my opening, but it did happen later. Jay was great, as good as I've seen him be, but halfway through his cross examination of the defendant, he stole my lines.

I had a specific line of questioning that I had been using on the cross of the defendant's expert since halfway through our practices, and he stole it. I was sitting there staring daggers into his back, because I didn't have very much to cross the defendant about in the first place, and he stole about half of it. I admit that it was working for him, but it left me panicked. I had to completely rearrange my questions, and I didn't get it done by the time I had to go, so my cross went right into the toilet. I made the number one mistake of cross examinations: I asked the "why" question. You never, ever ask a witness "why" or "why not" on cross, because it gives them too much opportunity to restate their case in a way you can't control. And I did it. Yuck.

After it was over, the gang waited for me while we had a brief meeting with our coach. He was able to find out the scores from the first day's trials, and our other team had gotten three votes out of three in both of their trials and were certain of moving on. My team had gotten three votes on the first trial and two on the second, so we were poised to move on as well, even if we didn't win the trial we just had. I was glad to hear it, because I didn't think the last trial had gone our way, and I would have felt completely responsible if it kept us from moving on.

But I put it out of my head as we piled into Corina's car and went to lunch: one steak with onions and whiz, and a diet Coke, please.

They waited in the car in front of the courthouse while I went in to see if we had advanced. We had -- YAY! -- and I arranged to meet them for dinner.

Fortunately, I did not have to try the case in the semi-final round. I would have been up to it, once I had made my co-counsel promise not to steal my cross, but I was relieved that I didn't have to.

I thought the trial went well, but it was the first time the opposing team really gave us a run for our money. As we met with everyone else in the jury room to wait to hear who would be in the finals the next morning, the my school's other team was much more confident in how they did than we were. We really felt it could go either way.

It didn't go our way, but it did for our other team, which made up for any disappointment. By that point I was really too exhausted to be upset, and none of us on my team was surprised that we hadn't made it. And I was so looking forward to meeting up with everyone for dinner and an evening out, that any sadness I felt was fleeting. Our school was in the final four... that's what mattered.

Sunday morning. Jay and Rob had gone back to school Saturday night, but Nadine and I stayed to watch the other team in the finals. Jason and Steve had decided to walk, and since Cindy and Annmarie were taking the exhibits with them in a cab, Nadine and I decided to walk too.

We headed off down the street, Jason and I in front of Nadine and Steve. After about a block, when Jason hadn't spoken a word, I looked back and noticed that Steve had his headphones on and wasn't talking either. Realizing that they were using the eight-block walk to get into their zone, I dropped back to walk with Nadine and Steve stepped up to walk with Jason.

We found our courtroom and settled in. The team we were going against was from one of the litigation powerhouse schools. Two teams from this competition go to nationals, and last year, both teams were from this school. (Okay, it's Temple.)

They were a machine, and I thought they were awful. I mean, they had great exhibits and there was nothing wrong with their legal arguments or their theory of the case, but you could tell that every single word that came out of their mouths, from both counsel and witnesses, was scripted. Biased though I was, I thought it was horribly ineffective. In fact, one of the coordinators of the competition, a guy who had been our judge in the semi-final round, came over to Nadine and I in the middle of the trial and told us he thought we were winning, even though it was still the middle of the plaintiff's case and we hadn't even done anything yet. I asked him if he thought the scriptedness was working for them, and he waffled, clearly not wanting to say anything against them, but I had the feeling he was pulling for us, the scrappy country team going up agaisnt them big city folk.

But I was thinking what he was hesitant to say. They weren't connecting with the jury, they were hostile on cross, their witnesses were standoffish to the judge, and they kept giving us these smirking glances. Stiff, formal, completely arrogant.

I think, in the end, it totally worked against them. Jason and Steve were so strong and convincing, and so personable, they could sell you a bridge. They were polite to the opposing counsel and witnesses and were nowhere near arrogant or cocky.

I started to think this might actually go our way when the trial was over and the judge asked the three jury members for comments. The first one said that we really needed to mold our attitude during cross to the witness, because the jury won't want you to be hostile to a witness that's being cooperative. (Strike one: the guy who crossed our defendant.) The second juror said that we needed to make sure we could go with the flow of the trial, listening to the witness's testimony and buidling the questioning on it, and not think about staying close to a script. (Strike two: their entire trial was scripted.)

Finally, it was all over, nothing to do but wait. We packed up our gear and headed to the courtroom downstairs, where the other final round had also just finished, the other Temple team going against the team that had knocked us out Saturday afternoon.

Once we were all gathered, the coordinators got up there and gave the same speeches we had heard over and over already. How impressed they were, how obviously hard we had worked, how many of the jurors said they would hire any one of us on the spot. Blah blah blah.

Then it was announcement time. The first guy announced the winner of the other trial: Temple 2. (If your school had two teams, you were School 1 and School 2.) Then the other guy, the guy who had come and talked to Nadine and I during the trial, announced the winner of the second trial.


I have to admit, we were really gauche about the whole thing. Steve shouted "Yes!" a couple of times, and I think Cindy screamed. There were hugs all around, and the actual members of the team just looked stunned, and more than a couple eyes welled up. To their credit, the team we beat beelined for us, shaking our hands and offering congratulations.

Slowly, we realized. We were going to Florida. Maybe not all of us, but half of us, and that's enough. We had all worked so hard together, and like I told everyone else, I honestly couldn't imagine being happier than I was if I had been on the team that actually won. We had won, all eight of us together, and it didn't really matter that only four of us were on the ticket.

We had done it.


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