IMT Insights (Witnessing by Ethan Bai)
I watch a lot of soccer, so I always like to think of roles on the mock trial team as players on a soccer pitch. Attorneys act like the midfielders and forwards, dictating the tempo of the game (or, in this case, an examination), and getting to show off flashy skills and score goals (such as a really punchy cross examination or opening/closing). However, the witness acts as the defender. They may not be the center of the trial at all times, but their work should never be understated. Just in the same way that a defensive mistake can have catastrophic consequences, a witness’s performance can determine whether one side’s theory lands well with the jury or falls flat.
So then, what do witnesses need to do in order to survive a round? There are many parts to it, but they ultimately split into two parts: the direct, where the witness is expected to establish key facts, forward one side’s theory, and sometimes establish a fun character/depth to the witness, and the cross, where the witness is expected to hold their ground, remain credible, and maintain their character. In the next few paragraphs, I’ll go over each part and explain its significance so that you can (hopefully) have a stronger understanding of how these parts compliment one another (and ultimately achieve victory!)
Direct Examination
One of the most fundamental parts of a witness’s role comes on direct examination. Here, just as it is the attorney's job to ask questions that forward the case, it is likewise the job of the witness to provide answers that make sense. So what is in a good direct examination for a witness?
First, it is important to never say too much. One might think that a good response just takes an entire paragraph from their affidavit and copy/paste it into their examination. While this may initially seem like a good idea, there are several main drawbacks to that plan. The first being with delivery: typically, the longer a response gets, the harder it becomes to maintain a natural cadence and delivery that makes your witness appear human and “lifelike". The more you drone on and on, the more the jury stops seeing you as a human witness taking the stand and more of a robot who regurgitates whatever information was fed into it. That is not to say that longer responses are never allowed (in some cases, such as with an expert witness who rely on complex facts and data, it is almost unavoidable), but even in those exceptions there are ways to work around simply copying and pasting words (which I will get to later). The second being with cross examination: when you copy and paste an entire paragraph from your affidavit, you can sometimes give a good crossing attorney fuel to attack you. Longer responses often contain unnecessary details, absolute statements, or small inconsistencies that may not initially seem important but can be isolated and exploited on cross examination. The more information you volunteer, the more opportunities the crossing attorney has to twist your words or force you into defending a statement that did not need to be included in the first place. Put simply, every additional claim you make is another claim the crossing attorney can attack. The final flaw can sometimes be the most fatal: simply reusing paragraphs verbatim may contain a lot of useful facts, but if you do not effectively tie every fact back to a bigger point, then you risk losing the jury and doing nothing on direct examination for your side. It is like handing the jury all the pieces to a puzzle without ever showing them the picture they are supposed to create. The pieces may all be useful, but without connecting them together, the jury may never understand what they are meant to see. Remember, it is not the actual facts that are important, but rather how your side utilizes those facts to their fullest potential and connect them to your theory (otherwise the judges could just read through all the affidavits and rule on the spot).
So what's in a good response? Asides from incorporating character for the appropriate witness (which I will address later), the best responses try to get out the information your side wants in as little words as possible. The shorter your responses, the more likely it is that the jury will remember key facts, and the more effective your points become. Since you are also giving the opposing side less ammunition by using fewer words, you are also able to avoid opening the door to some very bad cross examination points later on. By using fewer words, you also force yourself to really maximize the effectiveness of each word on cross examination, increasing the likelihood that your witness actually forwards important facts/one side’s theory in a case, rather than explaining a lot of facts but having none of those facts connect back to the central theory of one side.
Going back to what I said earlier about expert witnesses, it is inevitable that some responses will be long. Sometimes, there is simply no way around that, especially when the witness is very technical and reliant on complex facts and data. In that case, the use of demonstratives becomes key. Think of demonstratives as the pictures in a storybook. The words may help get the point across initially, but the visuals helps your brain actually see what the characters are talking about. Likewise in mock trial, using a demonstrative makes ideas the witness is spelling out for the jury remain in the jury’s head longer, as they can physically see or remember the highly complex process a witness went through for their analysis. This is one place where you will see good expert witnesses, even while giving very technical responses, stick with the jury. Their demonstratives, utilizing acronyms or fun visuals, help the jury understand events or their analysis much better, and make the facts stick better as well. In a similar vein, the use of analogies (as I had been doing throughout this analysis) also helps distill complex information into legible and relatable parts.
Establishing character and response delivery
Establishing character is perhaps the best way a witness can make themselves stand out amongst a pool of highly talented witnesses. A witness can have perfect responses and avoid all the traps I pointed out above, but may simply fall flat with the jury if they are not memorable. Character helps elevate the realism of certain characters, and often also makes the trial more fun for the competitors themselves.
So what is character? There is no single definition, but most often in mock trial, “character” shows up in the form of costumes, accents, backgrounds (physical), witness backstory, or a combination of the three. Together, these elements may take a witness that has a lot of facts but feels flat on paper, and elevate them into feeling like an actual person. Remember, part of witnessing (a rather large part of it in fact) is acting. The better acting you have, the more likely judges are willing to score you highly, and prefer you to a witness who is more technically sound but a bit boring and lacking emotion.
Now let’s talk delivery. Delivery basically refers to the tone, speed, anything that the coaches can hear coming out of your mouth. It is one of the ways that separates good witnesses from truly great witnesses in competitions (applies to attorneys too!) The most important takeaway for witnesses is making sure to vary tone, and as always, slow down. The more variance you have in speed and delivery, the more genuine your character feels, the more likely you are to score highly.
Cross examination
One of the trickiest parts of witnessing is in regards to cross examination. Everything is unscripted, and you have to give near instant responses that are reasonable, succinct, maintaining character, credible, and still somehow helping your side. How do you do all of this? Well, there are many different ways. We’ll start with one of the key parts: choosing your fights
Choosing your fights basically means the same as fighting wisely. In short, don’t just fight because you are going against your opponent (remember, it is ok to agree!) So if you don’t fight on everything, when do you fight? This is generally the part that is done best through preparation before the round. It is simply too difficult to, on the spot, come up with a near perfect response on cross examination. This is why preparing material as a team is important ahead of time, and why as a witness, you should get as much experience being exposed to different theories and questions on cross examination prior to a tournament. That way, when the time comes for that hard hitting question, you have a general idea of whether you should fight or not, and what content your response will have.
Character and tone delivery
A common pattern of criticism you’ll see across all kinds of judges for cross examination has to deal with maintaining character. Oftentimes, many people who put on a character, especially a character that appears to be friendly and light hearted on direct, suddenly turn argumentative and overly aggressive on cross. This ruins the continuity of your carefully crafted character, and, unless you are a defendant, by fighting a lot you also reduce your credibility. Another way characters often slip up is with accents. People who try to get too ambitious with an accent to elevate their character on direct sometimes lose their accent altogether, which ends up doing more harm than leaving out the accent entirely.
There are several ways to combat this. Like preparing for good responses, the best way to maintain character is just through lots of practice. The more practice you get with teammates, the more you will learn to keep your character through the pressure. The second, which deals mainly with accents, is picking an accent that you can reliably execute. For example, I personally essentially only ever do southern accents, because it is an accent I can keep reliably under pressure on direct and cross. Play it safe, there is no harm in picking an accent you think is easy to do. If you can do it well, go for it! Finally, if you do not think you can maintain an accent, that is fine! Remember, character can come from a multitude of aspects, whether it is maintaining your friendliness, adding jokes here and there on cross where appropriate, or even just having something passive like a cool background or costume. If you cannot reliably apply the risk of an accent and execute it on cross, it is better to leave it out entirely and strengthen the multitude of other parts of your character.
Now that we got character out of the way, let’s look at another key part of witnessing: delivery. In the same way that varying tone and speed on direct is important, it is equally important if not even more so to keep those habits on cross examination. One of the most surefire way to score highly on directs as a witness is by doing your own thing and not letting the attorney rope you in (unless, of course, you are being robotic and lifeless). What do I mean by rope in? Remember, you are there to be the witness. There is nothing you gain from trying to match the attorney. If the attorney becomes aggressive, you do not need to sound aggressive in return. If the attorney speeds up, you should slow down and take your time. Never let the attorney seem like they are in control of you. You want the attorney to follow the beat of YOUR drum, not the other way around. That way, it lets the jury know that you are confident, in control, and calm.
Content of responses
Something I often notice is some people misunderstanding that exactly a “yes sandwich” does, and when it is effective. What is a yes sandwich? It is one of the most basic and effective templates for a witness to respond to hostile questions on cross examination. You start the response with a “yes”, then usually do something like “but that was not the reason” or whatever is appropriate, and end with another “but that is a yes to your question.” It seems foolproof at first, but there's several big traps some people overlook.
One of the biggest traps deals with the fact that the yes sandwich doesn’t suddenly wipe the mind or hypnotize the attorney into moving on. Yes it can be effective, but if you drone on endlessly in between the “yes’s,” then you are actually hurting yourself by seeming evasive, and the opposing attorney can even loop questions back and use content that you gave them in your own yes sandwich to make you look even worse. A good yes sandwich is often short and punchy, not endless and “flimsy”.
One of my favorite techniques is a modified version of the “yes sandwich.” Essentially, instead of droning on endlessly, I try to find a way to directly sneak in my fight into the wording.
For example, let’s take this fictional expert examination pocket. Imagine for a second that the defense attorney is trying to establish bias in the prosecution expert’s role in the case.
Att: You’re doing forensic analysis for the prosecution, correct?
Witness: Correct.
Att: And if the prosecution wins the case, your self proclaimed “arch nemesis” will be convicted, correct?
Witness: Yes, though that was not my concern.
Of course, it is not perfect, but it gives you the general idea, especially because it might be easier to slip under the nose of an attorney on cross examination.
Picking your fights
This section will remain pretty short. Picking your fights essentially means that rather than fighting on every question or no question at all, you pick the best questions to fight on cross examination. So how do you know? The best way to know is simply to practice with your teammates. With more exposure to the case, you will get more experience knowing what are critical points to your side of the case/your case theory, and what are points you should let go.
Generally though, eyewitnesses and experts should try not to fight as much (since, if you think about it, they have zero stake in the case and have no reason to resist to attorney questions so heavily). That does not mean never fight, but it means you should be very selective and smart about when to push back. Defendants, on the other hand, should fight a bit harder in order to assert their case and remain credible/not conceding to bad questions.
Impeachments
Perhaps the worse nightmare for any witness, impeachments hit at the very core of a witness’s job in mock trial. During an impeachment, there are several options, all of which can be used depending on the severity of the impeachment.
The first strategy is to concede the impeachment. This naturally looks much worse on an expert or defendant, but if it is a small point, then there should not be an overly long fight, as that is likely to worsen the effect of the impeachment and damage your credibility further. However, with eyewitnesses, especially if you have given a fun character, agreeing can actually help. Adding a small quip or joke in there can make your witness, despite a bad impeachment, honest and frank, and it also gives you some small points for keeping character.
The second strategy is to fight. This is a very high risk high reward action. If there is a very obvious contradiction between the statement you just gave and your affidavit, it is probably not a good idea to fight at all. It can damage your already wounded credibility and dig yourself into a further hole that you do not need to be in. However, this is why it is very critical to know your affidavit inside and out. Fighting on an impeachment does not work best if all you are trying to do is scrutiinize and argue back and forth with the attorney about how a handful of words are interpreted from your affidavit. Instead, the best way to fight is to use concrete statements or facts to make the attorney look clumsy. For example, if the attorney thinks you are contradicting or omitting information, pointing to a specific line number in your affidavit that completely flips the impeachment is a much better fight than trying to argue. It also lets the jury know that you have taken the role seriously and are well prepared prior to the tournament.
The final strategy is a bit different from the first two, but it is something jurors have pointed out in the past whenever I get impeached. It combines the first part (conceding with a simple answer) with your presentation. Essentially, you never want to stutter, get smaller, or lose all your composure during a concession or impeachment. Always remain calm, in control, and most importantly, confident. A confident, relaxed “yes” can sometimes exude the confidence needed to simply brush the impeachment aside and not let it drag you down too much. It also helps give the appearance (unless it is a really critical contradiction/omission) that the point the attorney is trying to make is not useful at all.
Conclusion
There you have it! A very general overview of some of the tips and tricks I have learnt throughout my years of doing witnessing in high school mock trial. Of course, these are far from the only advice and guidelines to witnessing, and there are plenty of elite witnesses who have an entirely different approach. Ultimately, the best guide is the one that you find is perfect for yourself. Regardless of what your takeaways from this section were, always remember to be relaxed, be confident, and enjoy the experience. Happy witnessing!
Hello! My name is Ethan Bai, and I’m currently a senior at Harvard-Westlake school in California. I had never done any sort of debate or public speaking prior to starting mock trial in eighth grade, and since then I’ve competed with the ModernBrain Mock Trial Team online. Originally, I started as both an attorney and witness, before transitioning to essentially a witness specialist in my more recent years of competing. I hope to one day continue mock trial in college and explore more in the field of public advocacy, law, and political science. Outside of mock trial, some of my favorite hobbies includes playing the violin and reading.
