In the Matter of Alice Berkley

What does mock trial really teach participants about the legal system?

When I watched the video afterward, I felt embarrassed. I hadn’t realized that my bangs were quite so fluffy, the rest of my hair so very long and limp; I hadn’t realized how weird the belt on my dress looked or how high my voice sounded. Mostly I was ashamed of how young and awkward I looked. I was young and awkward, but before watching the video—from the previous year’s mock trial finals, when I was a fifteen-year-old high school sophomore—I’d convinced myself that I’d successfully embodied my character: a high school teacher who’d witnessed an accident between a car and a bike and had been called to testify in court on behalf of the defense. The prosecutor cross-examining me was also a high school student, though a slightly older and more polished one. The only fully convincing thing in the video was the courtroom, because it was a real courtroom in the 36th District Court in Detroit.

The video footage came from an official Michigan High School Mock Trial Tournament match. Sponsored by the Michigan Center for Civic Education (MCCE) and the State Bar of Michigan, the tournament provides teams of students at high schools across the state with case materials every fall: witness statements, exhibits, rules of evidence. Each team contains two groups of students, one to prepare and perform the prosecution’s side, and another playacting the defense. A small team might require students to prepare and perform roles on both sides, but my high school had more than enough interested students to fill out separate rosters for each side. During practices, we scrimmaged with each other, rehearsing opening and closing statements and practicing direct and cross-examinations. During competitions, in winter and spring, the two squads are randomly pitted against the prosecutions and defenses from other schools. A strong showing from both sides allows the whole team to advance to additional rounds of trials. A poor showing from either side can get the whole team sent home.

Presiding over the teenage lawyers is an adult judge, who with two additional legal professionals scores each segment of the trial on a 1–10 scale. Like ice skaters or gymnasts, participants in mock trial have no shortage of complaints about the subjectivity of the scoring. Competitors receive a score for each portion of the trial in which they take part: a strong lawyer might receive 8-9-9, for their opening statement, direct examination, and cross-examination, for 26 points to add to their team’s total. Judges receive little guidance on scoring, but according to the MCCE, they should look for thorough knowledge of case facts and legal procedure, the ability to advance a clear theory of the case, resourceful and innovative approaches, a polished and convincing presentation, and the ability to think on one’s feet.

I was mousy and awkward, but I knew my stuff, as did the opposing attorney. In fact, our coach started showing the video footage from the trial in her law classes because it was a demonstration of cross-examination as a kind of wrestling match: the opposing attorney kept trying to pin me down, and I feinted and wriggled away. With a mixture of pride and dismay, I went to her classroom during lunch or after school one day and asked to queue up the VHS tape on the boxy TV on the metal cart in the corner so I could see it for myself. I was too preoccupied with my bad hair and piping voice to notice the fundamental strangeness of watching teenagers in ill-fitting suits rattling off evidentiary objections. Or maybe I was too immersed. At the small alternative public school I went to, the extracurricular offerings were idiosyncratic; we had no sports teams, our only musical ensembles were multiple flavors of jazz band, and we were a mock trial powerhouse. I didn’t have a reason for joining the team beyond being flattered that the coach had suggested it after I did well in her law class, a required social studies course for freshmen, but once I started, I was hooked. I owned a suit, a copy of Black’s Law Dictionary, and a review guide for the Michigan Bar Exam. We had multiple practices every week, both at school and at team members’ houses. We were reliably among the very best teams in the state, but had only once gone all the way to nationals. We did not go to nationals during my three years on the team: this is not that kind of story.

In the case about the car and bicycle crash, when the attorney from my team asked for my version of the accident, I said the car in front of me had definitely swerved, causing the crash. Now, during cross—the part of the trial video our coach was showing to her law classes—the opposing counsel was practically licking his lips.

The actual sentence in the witness statement was “I think the car swerved a little,” and he pounced on the discrepancy. I’m sure he felt he was on solid ground doing so; I’m sure they all did, each opponent who asked me the same question over a series of matches. Invention of fact, which includes any contradiction of the case materials, is absolutely forbidden in mock trial.

“Oh, I’m sure the car swerved,” I said, a pleasant smile plastered across my face. I’d gotten my braces off the year before, and my teeth were very straight. “I think it was a little. It might have been a lot. That’s what I wasn’t sure about. But the car definitely swerved.” The look on the opposing attorney’s face each time I said this was a mix of bafflement and outrage and perhaps jealousy that it hadn’t occurred to them to train their own version of my character to say the same thing. Sometimes they looked back to their table, up to the judge, over to the scorers, hoping for rescue. It never came.

The convenient re-interpretation hadn’t been my idea, but I’d thought it was clever. I’d rehearsed over and over again how to say it with concerned sincerity, rather than crowing. No one on my team—not me nor our coach nor the parade of local lawyers who advised us—was troubled by the fact that our interpretation was not what that particular arrangement of words was meant to convey. Our spin was part of a case strategy that included maps of the stretch of road in question and sticky-backed vehicles to move across them. Our prosecution and defense teams drew their maps to different scales, creating visual illusions of either inevitability or recklessness. No one penalized us for doing any of this. Other teams brought their own manipulative maps, or wished they had. After the particular match in the video, one scorer gave me a perfect ten, although we ultimately lost later that day to a team that would go on to win nationals.

• • •

Mock trial attempts to replicate, as closely as possible, the United States’ adversarial legal system: there are two sides, each making its case before a judge and sometimes a jury. Only one can be declared the winner. It’s worth remembering that not every country has this kind of legal system; the other major model is an inquisitorial system in which judges are not merely referees between two sides but also serve as active participants in the investigation. Neither system is intended as a winner-take-all game, but rather as a sincere effort to arrive at truth; the approaches they take are very different, however. A trial in an adversarial system is essentially a storytelling competition; each side starts with a story, and the judge or jury must decide which one seems more true. An inquisitorial trial, in contrast, builds a story. Both models have strengths and liabilities. A well-functioning inquisitorial system is, arguably, more equitable and less biased. Factual discrepancies are something to resolve, rather than exploit. In such a system, our team’s different maps and sticky-backed vehicles might be considered a distortion of evidence rather than good gamesmanship. In an adversarial system, the defendant has more opportunity to advocate for themselves, though this ability is heavily dependent on the skill and time of the defendant’s lawyer, which in turn is usually dependent on the depth of the defendant’s pockets.

As the MCCE explains, mock trial

helps students develop important knowledge about the law and legal system and it  develops critical-thinking and speaking skills. Good mock trials leave student participants with an appreciation of the difficulties that judges, lawyers, and juries face in attempting to present all relevant facts and legal arguments and how these pieces fit together to ensure the just resolution of the issues involved.

But in practice, a “just resolution” to an actual mock trial case is irrelevant. The judge presides over objections and procedure, but does not offer a final ruling. The only verdict is the score: which team won and which team lost. In this context, an adversarial trial can take on a vicious, nihilistic gleam. Collegiate tournament names include Top Gun, Sundown Showdown, and Trial by Combat.

Competitive mock trial never felt to me like the purely educational, polite activity the MCCE probably intended. But it did indeed impart “important knowledge” about our legal system, everything from the courtroom rules and roles that occupied me during my first year on the team to the darker suspicion I had by my third: that mock trial is not an abbreviated, teen-friendly version of our legal system, but its frightening distillation.

• • •

My junior year, we were assigned a civil case: a man suing his ex-wife for negligence. Their child had brought an unsecured gun from the mother’s home to the father’s, where, unsupervised, the child had accidentally shot and paralyzed his stepbrother. Given the pathos of the case, our gamesmanship was more subdued than the previous year, but not discarded. The shooter, like many mock trial characters, had been given a gender-neutral name to provide the widest possible casting options. We picked the smallest person on our team. He cried on the stand. I thought the case was well balanced, with both parents claiming legitimate grievances. I didn’t understand until much later—in fact, until researching this essay—what it really means for a mock trial case at any level, high school or college, to be “well balanced.” Because the case itself is never ruled upon, what most needs balancing is not the evidence for or against a defendant’s culpability, but the number of opportunities for each player to score points. Witnesses from both sides should have chances to act their hearts out or to squirm away from damning questions on cross-examination. Attorneys on both sides should have ample opportunities to raise objections, demonstrating their knowledge of the Federal Rules of Evidence.

Only by that measure could my third high school case ever have been called balanced. The gender-neutral names of previous years were replaced by the deeply and traditionally gendered characters of In the Matter of Alice Berkley, summarized by the MCCE High School Mock Trial Tournament as follows:

The burden of proof is on the Petitioner, the State of Michigan, to prove beyond a reasonable doubt that: 1. That respondent, 16 year-old Alice, is repeatedly disobedient to the reasonable and lawful commands of her parent; and, 2. That confinement in a secure institution is necessary for the well being of respondent and her unborn child. If the jury finds that the Petitioner proves this, the court will determine th [sic] place of confinement. It will be an institution from which she would not be free to leave unaccompanied and where she would not have access to alcohol. She will be able to complete her final semester of high school while so confined.

I was assigned the role of lead attorney for the Petitioner, arguing for the involuntary commitment of a sixteen-year-old girl whose disobedience, according to the witness statements included in the trial packet, appeared to be limited to sneaking out with her boyfriend and—on as few as one and on no more than a handful of occasions—binge drinking. I loathed this case. I felt like I’d been transported into The Handmaid’s Tale and was representing the government of Gilead. Alice’s mother, my lead witness, spun a tale of stashed bottles and boozy breath, convinced her future grandchild was in such danger of contracting fetal alcohol syndrome (FAS) that involuntarily committing her daughter was the best course of action. Dutiful as ever, I started compiling research on FAS. This wouldn’t be admissible during testimony, but I thought I might be able to work it in during opening or closing statements. Except that nearly everything I read made the Petitioner’s position look ludicrous. FAS appeared to develop only after extended, extreme drinking. Except when it didn’t—there was evidence that fetal development could be affected by light or moderate drinking at the exact wrong moments very early in gestation. No one had pinpointed that most vulnerable window of gestation, except that Alice Berkley’s pregnancy, in its second trimester by the time of the trial, would almost certainly be beyond it. The medical literature on FAS even now is inconclusive, but nothing I read in 1998 seemed to support the idea that Alice was an ongoing menace to her child. The entire case seemed to be based on a questionable understanding of FAS and a patronizing, punishing view of teen sexuality.

I thought the facts, the science, the entire moral underpinning of what we were asking the court to do was wrong. The idea that a fetus’s rights held preeminence over a pregnant woman’s was anathema to me. But I spent hours and hours every week for months arguing that position, learning how to argue it better. None of us particularly liked this case, including our coach, but none of us did anything more than grumble about it amongst ourselves. Our coach could contact the tournament for clarification on rules or case materials, but as far as we knew, the MCCE had never meaningfully altered a case after it was distributed to schools. You either argued that year’s case as-is, or you didn’t compete, and none of us seriously considered not competing.

After regionals, we advanced to states. We traveled the night before to a hotel near the courthouse. I don’t remember anything particularly debauched happening at the hotel, although I might or might not have been invited if anything had—I was behind the debauchery curve in high school, even among kids who did mock trial, which tells you something about me.

That night in the hotel, paid for by our parents, was one more way in which mock trial mirrors the inequities of the actual legal system. The high school teams that were reliably good were the teams that no one could remember ever having been bad. They were schools in wealthy or middle-class communities, whose students had parents willing and able to pay for a suit and a hotel room before states, who could piece together, through connections, local lawyers to help coach them. The dominant teams at the collegiate level are, with some scrappy exceptions, the usual suspects: Harvard, Yale, University of Virginia, University of Michigan, UCLA, Stanford. Feeder schools to the country’s most prestigious law firms and clerkships.

In the hotel, we all ended up in one room talking, piled on the beds and on the floor, everything in the room—bedspreads, carpet, paintings—perfectly neutral and inoffensive. In a moment that started ironically and somehow turned sincere, the group demanded a night-before-the-big-game speech, and as the most experienced team member, I was supposed to deliver it. Improvisation had never been my strength as a fake attorney, and I did not rise to this occasion. I said something short and unmotivating. I hoped this would be our year, I said, which served only to remind everyone of the years we’d lost.

Indeed, late the next day, we lost again. But I gave it my all: I stood and argued, as persuasively as I could, for the involuntary commitment of a sixteen year-old-girl who had done almost nothing wrong. A girl like me, I thought, except that she’d managed to have sex.

• • •

Mock trials and moot court are pedagogical tools in law schools and law classes, or even in elementary classrooms where kids put the Big Bad Wolf or Goldilocks on trial, but they are also a tool in actual trial law. In complicated cases, firms often try to test audience reaction while there’s still time to change strategies, to emphasize a certain part of the story or to turn a narrative in a different direction. Trial lawyers may attempt to gauge a jury’s likely reaction to everything from a single videotaped direct examination to an entire show trial, performed start to finish. This is colossally expensive and, some legal experts argue, not particularly useful. “It is . . . puzzling to me that some lawyers . . . advocate running a mock trial early in the trial preparation process. It amounts to running a dress rehearsal before everyone has learned her lines or the director has even settled on a theme for the production,” the trial consultant Edward P. Schwartz writes for Lawyers Weekly USA. He urges firms to “[t]hink of the full-blown mock trial jury as the New Haven preview of your Broadway play—you wouldn’t want to run the whole production before a live audience before you’ve tested the lighting, practiced with the orchestra and fine-tuned every scene for maximum impact.” The comparison with Broadway is made not with a wink or an apology but as a matter of fact. Mock trial is a form of theater. So is a real trial, except that people face life-changing consequences afterward.

There was never any real case of Alice Berkley, as far as I know, although mock trial cases can be as ripped-from-the-headlines as any TV legal drama. The case’s anonymous author was probably a law professor who, to be fair, was not compensated for their time. Mock trial tournaments require hundreds of hours of volunteer effort from case writers, coaches, team advisors, scorers, judges, timekeepers, and tournament administrators. Many people, in an already time-intensive profession, give kindly and generously of their hours and expertise so that thousands of teenagers nationwide can pretend to be lawyers. I suppose they must believe that they are training future members of their profession, paying it forward to the next generation of lawyers. I was afraid to tell any of them what I’d come to realize over my months of representing Alice Berkley’s mother—that I was pretty sure I didn’t want to be a lawyer.

Any legal system requires people who are ready and able to do the hard work of wholeheartedly representing their clients, without regard for their personal feelings. This is a real and important necessity. But I’d begun to fear how easily I argued all those things I didn’t actually believe. During my closing argument in In the Matter of Alice Berkley I could feel my own loyalties tilt to match the words coming out of my mouth. Sure, lock her up. Think of the baby. Better safe than sorry. It was evident to me, to all of us teenagers, that cases were routinely won in the “real world” not on the merits of the case, but on the skill of the performers. No one ever disabused us of this perception. There were no lectures about the sanctity of the law, about how mock trial had no more in common with real trials than Model UN did with diplomatic negotiations. The message was the opposite: this is, in fact, the way things are, and if you ever get in trouble, you should hire the very best lawyer you can afford. 

The only real lecture I remember receiving on the nature of mock trial happened during a match one year at regionals. The moment the trial started, I’d popped out of my seat like a jack-in-the-box with a procedural objection. The presiding judge, an elderly man, told me to sit down and calm down, and paused the trial for a speech about how we were all there simply to have fun and learn. Do you know how much time we’ve put into preparing for this? I silently fumed. I’m sure he didn’t. I’m sure if he had, he would have been surprised and alarmed. Once he let me stand, I resumed my objection in the exact same way. I didn’t want to anger him, but I needed him to understand that although we were kids, we were also already sharks.  

I didn’t know, arguing Berkley at states, that it would be my final competition. At the time, I had an audition with the University of Michigan’s mock trial team already lined up. Despite my disillusionment, I wasn’t quite ready to let go of this thing I’d grown so weirdly good at. And I didn’t have a plan B: if I wasn’t pre-law, then what exactly did I plan to do with my life? Then, at the last minute, I made the decision to attend a small liberal arts college out of state. It didn’t have a mock trial team, or any pre-professional majors, and after a brief flutter of loss, I decided that was a very good thing. I sent in my enrollment deposit and canceled my university audition with an overwhelming sense of relief, even though I’d been the one to both schedule the audition and call it off. I left for college and started writing fiction, thankful that it never felt like lying.

About the Author

Caitlin Horrocks

Caitlin Horrocks lives in Michigan. Her work has appeared or is forthcoming in Tin House, Epoch, Colorado Review, The Cincinnati Review, and elsewhere. She misses Finnish baseball, but not Finnish winters.

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