Dear Student:
Greetings and welcome to a fascinating look into the theory and practice of law. My
name is Gene Straughan and I am the instructor. My educational background is in political
science, law, and criminal justice. Along with this course I teach criminal procedure,
criminal law, juvenile delinquency, comparative criminal justice systems, constitutional
law, American national government, introduction to the social sciences, and several other
courses at Lewis-Clark State College. My research interests focus on how public policy
seeks to work out conflicts within the United States between a dominant culture and
various subcultures, probing the significance of the unwritten character of the law and
calibrating the weight to be assigned to societal values. I also work closely with various
agencies on projects dealing with juvenile delinquency, adult corrections, organizational
assessments, policing, and so on. Underscoring my experiences is a keen interest with how
the laudable, but sometimes overzealous efforts to regulate human behavior must be
carefully tempered by a democratic spirit to do justice.
What makes the study of law so intriguing is the enduring struggle of the legal system to
reconcile the competing and evolving interests of a democratic society. Mock trial looks
through the lens of social science to discover philosophical and legal solutions to
everyday conflicts between human beings. It provides a unique hands-on opportunity
to learn the substantive and procedural aspects of litigation. Legal advocacy consists of
the art and science of advancing a legal cause of action which is confined to theories of
recovery and defense, constrained by rules of evidence, and gentled by an awareness of
conscience. The practice of advocacy requires a knowledge of the substantive (legal rights
and duties) and procedural (legal rules and methods) dimensions of the law. Of equal
importance, the advocate must enjoy verbal jousting—a willingness to respond to the
challenges of a good argument with an awareness of moral integrity and social justice. In
the words of Quintilian, the master of the art of rhetoric, an orator is a "good
person" who understands his or her subject and speaks very well. Indeed the job of an
advocate is to know the facts of the case, develop sound lines of questioning, and make
corresponding legal arguments of a substantive and procedural nature. Not altogether a
simple task, but the reality of the mock trial enterprise.
Each year, the American Mock Trial Association puts together a criminal or civil case for
undergraduate students. LCSC joined the AMTA ranks a few years ago. It is one of only four
institutions of higher education within the Northwest to offer an opportunity to learn
about the law and compete against other universities and colleges. LCSC competes every
year at a Northwest Invitational Tournament and Western Regional Tournament. Since 1994,
the students have performed well at the regional tournaments and qualified twice for the
national tournament. At the core of the mock trial process is the development of critical
thinking, problem-solving, and public speaking skills. Each case contains witness
affidavits, substantive legal principles, and procedural rules of evidence. The students
are responsible for conducting opening statements, direct examination, cross examination
and closing arguments.
This year’s case is a civil one involving a wrongful death and product’s
liability action. It is about whether the plaintiff can prove--by a preponderance of the
evidence--a case of negligence (duty, breach, causation, and damages) and whether the
defendant can raise any defenses to such claims (assumption of risk and comparative
negligence). How the important facts relate to these questions are equally important.
Opening statements must begin with a theme about civil liability and operate within such a
legal framework. Lines of questioning must be narrowly tailored to bring out what was the
duty, who committed the breach, what were the actual causes of injury, and what damages
were sustained. The admissibility of evidence must be evaluated within the context of
permissible objections and how they relate to questions calling for problematic evidence.
Closing arguments must reduce this complex case to a simple question of who was most
negligent (factually and legally) and why. Sometimes the students overlook such matters or
fall into the tunnel vision of being too immersed within the details. Students must focus
on who is liable and what evidence goes to prove liability. No doubt a challenge, but
certainly not impossible.
Equally important, the legal theory and factual application of the rules of evidence must
be understood. Most students are able to express the basis of their evidentiary objections
and explain the underlying rationales for their objections. A typical courtroom exchange
goes as follows: the plaintiff’s lawyer asks pilot Randy Earhart whether United
Gauges of America admitted to the fuel gauge malfunction in a memo sent to General
Aviation. The defense attorney responds with a less than emphatic "objection, your
honor, hearsay?" In a similar doubtful tone, the plaintiff’s attorney remarks
"admission by a party opponent or a prior sense impression?" Left wondering who
is right, the judge is given the chance to figure out how the evidentiary problem should
be worked out. Perhaps the judge makes a less than educated guess about the admissibility
of the evidence and the students hope for luck. Maybe the judge randomly selects one of
the lawyers to explain the issue. Then the judge is bombarded with the all too familiar
ring of legal conclusions with little or no accompanying analyses. Once again, the judge
reminds the lawyers about the importance of fully understanding and advocating the
evidentiary position of their respective clients.
What the judge knows is that the outcome of a case is affected not only by substantive but
also by procedural law. Most of the work of the legal advocate is understandably devoted
to the content of the case. What do the witnesses know? What facts are available to prove
the case? How can the facts be squared with the theories of recovery and defense? But a
substantive knowledge of the facts, legal theories, and corresponding lines of questioning
is only half the battle. The other half is learning and articulating the evidentiary
points of law for purposes of controlling what evidence gets into or stays out
of the courtroom. A legally sound story cannot possibly persuade the fact-finder when
its substantive elements are not admitted into the record or when the opposition has
benefited from inadmissible evidence. Students are required to learn the objections and
explain their application to the substantive law within the context of the facts. Legal
arguments and lines of questioning must be combined with objections designed to underscore
who is liable and why. Like the strange people encountered by Gulliver during his travels,
the legal system has a peculiar cant and jargon of its own. So the key to unlocking the
mystery of the litigation paradigm is to read about the law and practice legal advocacy on
a regular basis. Carpe diem!
Sincerely yours,
Gene T. Straughan, Ph.D., Justice Studies/Social Science Professor
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