Down a Great Cross Examination — Mock Trial Film Sessions

[00:00:00] Speaker 1: Welcome into Mock Trial Masterclass, your guide to controlling the courtroom. I'm Luke and I want you to be a mock trial master. Let's talk about how you can make that happen. In this video, we're going to be taking a look at a top-notch cross-examination. And as we watch it, we'll be pausing the video and talking about what makes it so good. That way, you'll have some tips to work with to apply to your own cross-examinations while also getting to look at what it looks like in action to have a stellar cross-examination. The attorney we're going to be watching is one of my all-time favorites in Mock Trial. She's named Audrey Shepard. She is super, super talented, guys. I can't wait for you all to watch her. For a little bit of context about this case, there was, I believe, a 17-year-old girl who served alcohol at a bar, way too much of it, and shortly thereafter got in a car accident. And the sides are disputing whether the bar is liable for this girl's death because they served her when she was underage. This is going to be a plaintiff cross-examination of a defense witness. So Audrey, in this case, is going to be trying to prove that the bar was, in fact, liable. I can't wait for you to watch this. I can't wait to watch it myself. Let's dive in. [00:01:19] Audrey Shepard: Good morning, Ms. Mehta. Good morning, Ms. Shepard. Ma'am, I want to start by talking about the signs that you knew to look for on March 24th of 2019. You just told us on direct examination that you were specifically trained to look at all the signs. Yeah, we pass a certification test where they give us the signs that you observe when someone is, you know, too intoxicated to continue serving. It's a long list. Wait, let's go through that long list you're talking about. Because you know that one sign of intoxication is for someone to have loss of balance, right? Yes, that is very common. Another common sign would be having a vacant gaze. Yeah. Lack of hand-eye coordination. Yes, ma'am. Talking loudly. Yes. Not making sense. Louder in the night is definitely one of those signs. Ma'am, you'd agree that another one of those signs is for someone to be- Objection, Your Honor. [00:02:28] Speaker 3: I'm sorry, and I just think there's a little bit of confusion because of the Zoom format. People started talking over each other. I just asked the opposing counsel to allow my witness to finish their answer before moving on. [00:02:38] Audrey Shepard: I think that is the effect of Zoom. So just one pause. Miss Meta, were you finished with your answer? Yeah, my apologies for interrupting. I just wanted to say, you know, talking loudly is something we look for, and we're looking for that kind of progression. You know, they're getting progressively louder throughout the night. [00:02:53] Speaker 1: I remember the days of Zoom mock trial. It was terrible because stuff like this would happen all the time. [00:02:59] Audrey Shepard: Okay. Duly noted. And Ms. Shepard, you may continue. Yes, Your Honor. Ms. Meta, you'd say that another sign of intoxication that's part of that progression is if someone's not making sense, right? [00:03:11] Speaker ?: Yes. [00:03:13] Audrey Shepard: And if someone is obviously intoxicated in your bar, you understand that it's your job to stop serving them drinks, right? Yes, we are required to stop serving an obviously intoxicated person. Let's talk about whether you saw signs of obvious intoxication in Ms. Marks. [00:03:33] Speaker 1: Okay, so what Audrey just did, and she did it at the beginning too, but I wanted you to be able to get a second look at it, is she used what is called a signpost. And that's where you tell the jury where you're about to go in the content of your cross or direct examination, right? She just said, let's talk about fill in the blank. All of a sudden, everyone is on the same page about where we are, where we're going, and it makes the cross-examination a whole lot easier to listen to. But what was also really, really good about that signpost is it sort of connected the information that we just heard about, you know, the signs of intoxication and all of that to what we're about to hear. You know, there are these signs of intoxication. Well, let's talk about whether you saw those that night, right? We get the signpost, and then we sort of get a little bit of an argument snuck in by Andre. Really, really effective stuff here. [00:04:27] Audrey Shepard: On March 24th. Because on direct examination, you told us that you didn't see any of them in Ms. Marks that night? Yeah, I thought she was sober when she came in, and I thought she looked sober when she left. Well, let's talk about what you were basing this upon, what you were able to see that night. Because, ma'am, you were serving Ms. Marks' table throughout that evening, right? Yes, yeah, I cleared their table, and I served them, so I probably interacted, you know, eight or ten times quickly with them. You're telling us that you interacted with Ms. Marks eight or ten times that night? [00:05:04] Speaker 1: What I love there, and you especially, well, you really only saw it if you're watching on YouTube as opposed to listening to the podcast version of this, is Audrey's facial expressions. Because one of the keys to having success as an attorney is you've got to be able to look as though you're hearing this information for the first time. Now, when you step in the courtroom with a mock trial case, you have gone over these facts over and over and over again. So, you're not going to be shocked by anything that's coming out. Audrey knew that this witness was going to testify to that fact. But go back, if you will, on the video. Just look back a second, and look at that look in her eyes when this witness is giving this sort of bad fact for their size. It's this look of, like, shock. It's this look of, wow, I can't believe you're saying that, even though Audrey knew that was coming. This is acting. But you've got to be able to adopt that mentality as an attorney of, I'm hearing this stuff for the first time. Because that is going to make you be able to sell your side of the case to the jury a whole lot more effectively. This is really, really good stuff. [00:06:06] Audrey Shepard: Yeah, I mean, clear the drinks, you bring the drinks, you take orders. So, yeah, that kind of adds up. Well, ma'am, when you were talking to her these eight or ten times, you heard her speak, right? You heard Ms. Mark speak? Yeah. She didn't slur any words. She didn't, she made perfect sense to me. Okay, let's watch a video. Your Honor, we're pulling up what's been pre-admitted as Exhibit 10. But, Your Honor, before pressing play, I'd like to read stipulation 18 onto the record, if that's all right, Your Honor. [00:06:42] Speaker 1: Just a bit nitpicky. I don't like the phrase, I would like to. You're just going to do it, right? It's not, I would like to call this witness. I would like to put this into evidence. You're just doing the thing. I call this witness. Your Honor, may I play this video? You know, I'm putting this into evidence. Just try to take that like out of your vocabulary. But that's just me being nitpicky. [00:07:01] Audrey Shepard: That's great. Any objection? No, Your Honor. Stipulation 18 reads, Exhibit 10 was posted to Jessica Marks' Instagram account at 11, 11 p.m. on March 24th of 2019. Ms. Menta, you were serving Ms. Marks from 9 p.m. Until 11.45. Do I have that right? Yeah, I think they closed the bar out a little closer to 11.40, but yeah, that's the right time frame. Okay. Let's watch the video. [00:07:44] Speaker 4: Hi, everyone. Morgan and I are in Hollywood. We're at a bar. It's kind of like a silly bar, except everything is really, really expensive. $10 for a sponsor. But everyone here wants to be a model or an actress. You know, I'd like to thank the Academy. Mom and Dad, you've inspired me. Okay. Well, go big or go home. [00:08:21] Speaker 1: I will say, I wish mock trial had more opportunities for including more fun types of evidence like this. Most tournaments you'll find only, you know, paper evidence, but videos like this, when it works, can be really, really fun. [00:08:36] Audrey Shepard: Ma'am, yes or no, that's the woman you were serving drinks to on March 24th. Yeah, that's Jessica Marks. At no point did I interact with her when she sounded like that. [00:08:48] Speaker 1: So, I want to highlight the way Audrey asked that question. You know, that's the woman you served on August the 24th. Notice that what she didn't throw in there was a correct, or isn't that true, or isn't that right, or, you know, any kind of those fillers. My preference is that you never use fillers in your cross-examination questions. I don't think you need them. Now, Audrey has used some of them in this cross, and it's been totally fine. What she hasn't done is what I see a lot of attorneys doing, and that's overusing them, right, after every single question, having to have a right, isn't that true, correct? You just don't really need that stuff. I mean, what's more effective do we think? Her doing what she just did, where she said, you know, we watched that terrible video, and then we said, this is the woman, you served. And then we just kind of let that sit in the air versus, this is the woman you served, right? And it's just a very, very little thing, but I think it pulls away some of the power from the question when you add that in. So love the way she phrased that. [00:09:47] Audrey Shepard: Ma'am, you'd agree that in this video, she sounds drunk. I wouldn't necessarily say drunk, but you can definitely tell she's drinking. You know, I would have definitely noticed that. Ma'am, in your own words, you'd say that she sounds possibly drunk. Yeah, she could possibly be drunk. You know, drunk looks different in a lot of different people. [00:10:09] Speaker 1: Okay, this answer, and I'm sure this witness is stuck with this based on her witness statement, is obviously nonsense, right? Everyone who watches that video knows that that person was drunk. She's got a drink in her hand. She's saying these weird things about like, I like to thank the Academy, right? Everyone knows what is going on in that video, who watches that video. And what Audrey's doing a great job of pointing out with the way she's phrasing her questions, her tone of voice, you can see it in her eyes too. She's looking at the jury and saying, this is nonsense, right? She's not just asking the effect. She's like, you know, you don't believe this. She's saying, but you don't believe this. You know, she's pointing out the fact that this witness, the character, again, not the person playing this role. I'm sure the person playing this role is doing the best she can with what she's given, but pointing out the fact that this witness is nuts for trying to convince a jury that that isn't an example of intoxication. So really good stuff here. [00:10:59] Audrey Shepard: Comes down to the individual and how they're presenting those symptoms. [00:11:02] Speaker 1: I mean, that's just, it's stupid, right? I know that's probably in her witness statement, but just dumb. And Audrey's pointing that out. [00:11:08] Audrey Shepard: Well, ma'am, in your experience and with your training, watching this video, you'd say she sounds possibly drunk. Yes or no? Yes. I mean, I can't be certain. So she could be possibly drunk. Yeah. Now you say that you saw Jessica and her friend leave your bar around 11.45, right? Yes. That is when they were leaving. We closed at 12. And on direct examination, ma'am, you told us that actually at that point you were way more concerned about her friend, Mr. Levin, right? Yeah. He was stumbling at that time, so it was good that they were going home. And you thought Mr. Levin wouldn't be safe to drive? Yeah. And I remarked that to Jessica. I wanted to make sure that Morgan was not driving. I want to make something clear, ma'am. On direct examination, you told us that from what you saw, it looked like they had about the same amount, at least, of drinks that night. I said that they ordered the same amount. I can't be sure who drank what. Obviously, I wasn't watching that. Ma'am, you'd agree with me that Ms. Marks was a five-foot-tall woman? [00:12:18] Speaker 1: I don't know why, but I've always really, really liked the question you would agree with me. I used that all the time. I encourage my students to use that whenever I'm working with them to develop a cross. I'll throw that question in there. I think it's just an easy question to ask because most of the time the witness will side with you. It almost develops a little bit of rapport. It's like, hey, I'm on your side. We're going to agree on this. And then you can kind of go for the throat punch after that. So I don't know why, but I've always really liked that question. I think it's pretty effective most of the time. [00:12:47] Audrey Shepard: Yes. But you're telling us that when she left the bar that night, 1145, she didn't seem even the littlest fit. [00:12:55] Speaker 1: Even on a Zoom screen there, Audrey used movement really, really well, right? She's on one side talking about this thing, right? We agree on this, but then she's going to the antithesis, the but, right? But we don't agree on this. And she moves her body to a different place as if to illustrate to the jury, hey, we agree over here, but now that I'm moving over here, we don't agree anymore. Intentional movement like that where you're using your body to sort of show the jury where you're heading can be really, really effective. I love that a lot. [00:13:23] Audrey Shepard: Tipsy. No, not to me. She was walking fine. She was speaking fine. She seemed sober. It was Morgan. She was kind of dragging out. And at no point did you stop Ms. Marks from leaving the bar that night. [00:13:39] Speaker 1: Again, hugely powerful question, no filler. At no point did you stop her from leaving the bar. And then the question just sits there and the witness is probably going to say yes. [00:13:54] Audrey Shepard: No, no. If I had thought that she, if I had thought that that was going to happen, I obviously would have stopped her. But ma'am, you didn't. [00:14:08] Speaker ?: Woo! [00:14:09] Speaker 1: I love that, man. That's like, it's like driving the knife in. She's sitting there crying, which I don't know about the acting choice there. Probably not my favorite, but, but you know, she has, but you didn't. Oh my gosh. Love that. [00:14:24] Audrey Shepard: No. No. No, I didn't. I didn't see the signs. No further questions. You're on. [00:14:32] Speaker 1: Man, what a great way to end that cross. That was so, so good, guys. As much as you can watch of Audrey Shepard, you know, just copy anything she does because most of it is really, really good. I hope you can take some of those tips we talked about to apply to your cross-examinations. If you want to learn more about how to write, develop, give good cross-examinations, I cover the topic extensively in my book, Mock Trial Masterclass. There's a whole chapter on cross from an attorney perspective and from a witness perspective diving into a lot of the stuff we talked about in this video, but a ton of other tips as well. The book also has tips for opening statements, direct examinations, closing arguments, impeachments, objections, everything you need to know to succeed in mock trial is in this book. If you want to pick up a copy, you can head to Amazon by clicking the link in the description on YouTube or in the show notes on podcast platforms. That's all I have for you in this episode. Hope you enjoyed watching this as much as I did. And I can't wait for your cross-examinations to start nearing the level of a mock trial master.