Pretrial is usually the most intimidating part of mock trial. And yes, it can be a bit tricky, but don’t worry, I’ve got you!
Now let me quickly acknowledge one thing: I know ten steps seems like a ton. And honestly, it kind of is. Especially for someone like you, who’s got already got a ton on their overflowing plate.
I ended up with so many steps because, as much as I could, I broke things down into actionable bits that you can totally tackle and create a plan around.
Just take your pretrial team through it one step at a time.
This was written with California’s mock trial program in mind. Most of the steps should apply to you if you have a pretrial argument, but please check your rules.
Step 1: Identify the exact issue
In all of the years I’ve been involved with mock trial, the pretrial motion has always been a motion made by the defense and opposed by the prosecution. And it’s always been a motion to exclude evidence from trial.
The defense argues that using the evidence against the defendant violates their constitutional rights. (For example, the police obtained the evidence through an improper search.) The prosecution argues that the evidence is fair game and that they should be allowed to use it.
So the first thing your team should do is figure out what evidence is at issue. What evidence is the defense trying to keep out of trial? Is it physical evidence, like a weapon found in the defendant’s vehicle? Or is it certain testimony? Either way, they should be very clear on what evidence they’re dealing with.
Step 2: Write down the argument, plus the two (or more) supporting sub-arguments
Next, each of your pretrial attorneys needs to understand the argument they’re making. Are they trying to keep evidence in, or are they trying to exclude it from trial? What’s the basis for their argument? There are usually two (sometimes three) main points that form the basis for the argument. Think of these as sub-arguments.
Lucky for all of us, the case packet usually spells this all out by stating something like “The prosecution will argue…” and “The defense will argue…” As you read the case packet’s description of each side’s argument, note that each argument likely consists of two (sometimes three) sub-arguments.
Also note that an attorney might not need to win on all of their sub-arguments. It might be enough for them to win on just one or some of them. Write down the argument and the two (or more) sub-arguments in outline form.
Step 3: Analyze case law
Next, have your pretrial attorneys read the laws and figure out how they relate to the arguments.
Your case packet will have about 6-10 cases to analyze and use in the pretrial arguments. Here’s what your team will do with them.
First, it will write a summary of each case. Each case in the packet will include a description of the facts (what happened in the case) and the court’s holding (the court’s decision). Your team should summarize the facts in one sentence, and the holding in one or two sentences.
Then, your team should figure out which sub-argument(s) each case relates to, and make a note in the summary.
Next, analogize and distinguish the cases. Analogizing a case means explaining how its background facts are similar to those in the case you’re arguing. Distinguishing means explaining how a case is different from yours.
Tell your team to analogize the cases that have a holding they like. They’ll argue that because their case is similar, the judge should follow the ruling of the prior case. They should also distinguish the cases with holdings they don’t like. Your team should explain why those cases are distinguishable from their case, and why they’re not good cases for their judge to follow.
Step 4: Draft argument using case law
Each of your pretrial attorneys should now go back to the argument and sub-arguments they wrote down in Step 2. This is the skeleton for the first draft of their argument. Now they’re going to add some meat to those bones.
They should start by finding the cases that deal with their first sub-argument. Of those cases, find any landmark cases that give a legal principle or test. You and your team will be able to spot these landmark cases because they were decided earlier than other cases on the same issue. And they are usually United States Supreme Court cases. You might notice that landmark cases use buzz words that are interpreted, applied, and discussed by other cases in your packet. If you have any landmark cases for your first sub-argument, the first thing part of your sub-argument should be an explanation of that case. Guide your team through this process.
Then, each pretrial attorney should look back at all of the cases that deal with their first sub-argument. These cases may interpret, apply, or discuss the landmark case they identified.
As you look at these cases, they should decide which ones they want their judge to follow. They should explain how they are similar to your case, and why your judge should therefore follow them. Write those explanations out.
They might also want to preempt the arguments their opponent might make. Which cases do they NOT want their judge to follow? They should distinguish those cases and explain why they’re not appropriate cases for your judge to follow.
Repeat this process for all other sub-arguments.
Congratulations!! Your team now has a rough draft of their arguments.
Step 5: Add discussion of Constitution and/or statutes
Next, your pretrial attorneys should add to their draft by discussing the Constitution and any statutes in your case packet.
There shouldn’t be much of a discussion on these – just a sentence or two at the very beginning of your argument or at the start of your discussion of a sub-argument. Generally, all your attorneys really need to do is introduce the Constitution or statute by telling the judge what it says. They should aim for a short description, not a full re-reading of a statute or one of the Amendments of the Constitution. Describe the Constitution or statute in a way that relates to the argument they’re making.
Step 6: Read and record draft arguments
Your pretrial attorneys should keep in mind that their argument draft is a draft. It’ll be a work in progress. Encourage them to just be ok with that. They shouldn’t wait until it’s perfect before they start saying it out loud. The best editing is actually done when they say it out loud, not when they sit in front of a computer tweaking their argument for hours on end.
Here’s how I recommend they go about it.
First, have your pretrial attorney print out the draft argument and read it out loud, as if it were being argued today. Have them make an audio recording of this – just a simple recording on their phone would be great. As they read their argument aloud, ask them to note if there are parts of the argument that are awkward, like spots where they stumble over the words a bit. They should underline or highlight their print-out to mark those awkward spots.
Then, have them listen to their recording. I know this is uncomfortable, but I swear this is the fastest way to make progress. Tell them to pretend they don’t know anything about this case as they listen. Even better, encourage them to share their recording or read their draft argument out loud to actual, live people.
As they listen to their recording, have them note any parts that are hard to follow when you’re listening to the words and not reading them. Or parts that aren’t well-articulated. If they are sharing with others, ask them to get feedback about parts that were hard for an audience member to understand.
Finally, have your pretrial attorneys update their draft argument by rewriting the problem spots they discovered. If they’re stuck and can’t come up with words, have them try talking them out instead of typing.
They should then do a few (no more than 3) more run-throughs with their notes. Don’t let them get dependent on their script. And they definitely shouldn’t be trying to memorize it word for word! Move on to the next step as soon as you can.
Step 7: Practice using an outline, not a complete written argument
Your pretrial team should start by delivering the first sub-argument using just an outline, instead of the complete written draft. First, they should make a list of the laws (Constitution, statutes, cases) they’re discussing. Then, they should verbally explain their first sub-argument. Looking at their list of laws, they’ll next explain each law and how it supports their first sub-argument. Have them do this as if they were speaking to someone, not as if they were trying to memorize a script. Have them continue practicing until they can argue the first sub-argument without notes.
Repeat this process with the second (and any other) sub-arguments.
Then, your pretrial attorney can practice delivering all sub-arguments one after the other.
Have them practice in front of your team, their friends, or their family. If their audience is confused by something or have other feedback, they might consider modifying their argument.
Step 8: Add introduction, conclusions, and transitions
Introduction and Conclusion for Entire Argument
I recommend adding the introduction and conclusion toward the end of the pretrial preparation because at this point, your pretrial attorneys have an excellent grasp of your arguments and can pretty easily articulate them in a single sentence or two.
The introduction tells your judge exactly what you want and why you should get it. And the conclusion summarizes your arguments and asks the judge to grant or deny the motion.
Introduction and Conclusion for Each Sub-Argument
Your attorneys will also prepare a one-sentence introduction and one-sentence conclusion for each sub-argument. This helps your argument flow better and will make it easier for your audience to follow it.
Practice, practice, practice!
Your pretrial attorneys should practice their argument literally every day, everywhere. I personally like practicing while I’m drying my hair. When I’m starting to prepare for an argument and am not super comfortable with my delivery yet, I appreciate the loudness of the hair dryer because it helps me practice verbalizing things without having to listen to my own babbling. Once I’m more comfortable, I like practicing in the car while I’m driving to and from work.
As your pretrial team practices, they can update their arguments when necessary. But they should resist the urge to constantly tweak every little detail. Encourage them to focus on the big picture for at least the first few practice rounds.
Step 9: Prepare for judge’s questions
Brainstorm questions the judge might ask. I suggest having your two pretrial attorneys (prosecution and defense) work together. Their “opposing counsel’s” arguments are likely the questions their judge will ask them.
For each potential question, your attorneys should make a flashcard. On the front side of an index card, they should write down the question. Then, they should answer the question verbally and on the back side of the card, write notes or phrases to remind them of their response.
[Side note: They should NOT be preparing written scripts. Encourage them to do this exercise verbally; it’s the fastest way to find the words that they are comfortable using to answer the judge’s question. And, since they can’t predict every possible question a judge may ask, they’ve got to get comfortable thinking on their feet.]
When they can’t come up with any more potential questions, they should start quizzing themselves with the flashcards. As much as they can, they should practice saying their responses out loud.
Your pretrial attorneys should keep a few blank flashcards on hand. As they do practice rounds and scrimmages, they’ll uncover more questions that a judge might ask them. When that happens, they can just write the question on a flashcard. They can work on a response to the question right then and there, or save the card and work on the response at a more convenient time.
From now on, every time they practice delivering their argument, they should “interrupt” themselves to draw a random flashcard. They should practice their response to the question they drew, then resume their argument. (Better yet, they should practice with someone else and have them interrupt the argument with questions.)
Step 10: Plan for rebuttal
A rebuttal is a chance to counter the arguments made by your opponent. After each pretrial attorney delivers their arguments, they each have a chance to respond to their opposing counsel’s arguments.
To prepare, each pretrial attorney should make a list of some of the best arguments their opposing counsel might make. For each of these arguments, they should prepare a response. (Hint: they have already done this in Step 9, since opposing counsel’s best arguments are often what a judge will ask about.)
A rebuttal should focus on just one or two of the arguments made by opposing counsel. It should not try to refute every single point made by the opponent. There isn’t enough time to do that well, and the audience won’t be able to follow along.
When they are in competition or scrimmage, your pretrial attorneys should listen to opposing counsel’s arguments and listen to the questions the judge asks opposing counsel. Make a list. Which of the arguments seem to be the most convincing? These are the arguments to address during rebuttal. Circle those arguments on the list.
If they’ve prepared well, the arguments they circled are arguments they had already prepared an answer to. When delivering rebuttal, give response to first circled argument, then (if applicable) give response to second circled argument.
Fine-tuning and even more practice
Your pretrial team should continue presenting their entire argument and rebuttal, using flashcards to simulate being asked questions by the judge.
Encourage them to practice in front of friends and family, who can interrupt with any questions they have. They should be able to answer questions and return to their argument.
Whew! You made it!
Look, I know this was long, but hopefully, you’re feeling confident about guiding your pretrial team. I really wanted to take my process for preparing for arguments and break it down as much as possible to give you a clear plan.
Speaking of clear plans…I’ve laid out this entire 10-step process in outline form. You can scroll down to see it and download a PDF here: 10-Step Pretrial Plan.