Monday, January 31, 2011

Favorite Pastime

Engaging in cross examination is like pitching a baseball. Not that I have extensive experience with the latter, but, from what I understand, the two can indeed be compared.

In baseball, the pitcher has much to consider. Firstly, does he throw a pitch, or try and get the ball to one of the infielders in an attempted pickoff of a leading runner? While rare, such a decision is often important and requires thinking ahead and, for lack of a better phrase, outside the box.

Such is the case for the examining attorney. Should he wait until it is time to throw questions at the opposing witness, or, before doing so, should he interrupt the efforts of the direct examiner with objections? These, in some ways, are like pickoffs; they are attempts to stop the other team from getting where they wanted to go. If done successfully, these objections can prevent witnesses from giving certain testimony, touching on certain subjects, or, if you will, reaching the necessary bases.

If argued poorly, an overruled objection has no immediate negative consequences, although the attorney posing it may look foolish, much like the pitcher who throws to the base where no one is leading off, after all. The psychological element then kicks in. Well-timed objections will discourage opponents from making some of their more vulnerable points, as it would discourage runners from taking vulnerable leads. On the other hand, failure to object during risky questions signals safety for the opponent to proceed, encouraging stealing as many bases as possible, until the pitcher, or examiner, notices.

Even if the pitcher is determined to pitch the ball, where should it be thrown? In the strike zone, where the opposing batter has the opportunity to use it to his advantage, potentially scoring a run, or at least a base? Outside the strike zone, either in an attempt to pressure a strike or else walk the batter? And in what style should the ball be thrown? And how fast?

Such are the considerations during cross examination, once the attorney is no longer the one objecting, but the one determined to "pitch" questions to the witness. Should these be clear, down-the-center fastballs, ideal for perfect strikes? Something like "Isn't it true that you killed your brother?" is direct enough, but, as with pitches, it could be turned around; the witness could take the opportunity to explain his actions. If done properly, the witness takes your fastball and transforms it into a home run hit.

Instead, you might want to restrict his opportunity to take advantage of the pitch. Maybe you ask, "You were at your brother's house that night, weren't you?" That requires asking less exact, less rhetorical questions, and runs the risk of foul balls, which give the witness not strikes, but time...time to think and warm up. The batter isn't going to knock one of those out of the park, but that kind of pitch isn't going to strike anyone out, either. The interaction between attorney and witness is also important; if a certain response seems to identify a weakness in the witness's knowledge or expository ability, this signals a good place to throw more pitches.

Of course, the attorney can intentionally throw some dangerous pitches. If the witness bites, he'll be made to look foolish, but if not, and especially if an opponent objects, the referee might call it a ball...too many of those, and the pitcher ends up responsible for giving the other guys a base. One can always defend the question in front of the judge, but becoming too argumentative won't look to good, and no one wants to risk getting thrown out of the game.

Certainly, these questions are not only the pitcher's decision. The catcher makes suggestions, though the pitcher may reject them. The coach has, perhaps, made suggestions before the pitcher took the field, although these too can be rejected, perhaps even more easily. And what factors influence the decision, or the suggestions? The number of strikes, balls, and outs, certainly. But also the inning, the score, the runners on base. Perhaps even the pitcher's successes and failures thus far in the game, or the batter's, or his record, or his tendencies.

The same goes for student attorneys. Team captains have laid out the general strategy, and the record of testimony and evidence in the trial thus far sets the tone for what is acceptable, likely, and effective. Attorneys pass one another notes, like signals, with suggestions for how to act, but while these may weigh upon the examiner, they cannot forcibly change his mind.

When it is his turn on the plate, the pitcher makes the last-minute decisions, attempts to strike out the opposing batters, and struggles to outwit both his immediate opponent and others who may be attempting to get ahead in the game. In much the same way, an attorney in trial must make choices previously unconsidered, try to trip up those opposing his case, and think ahead of both the man or woman with whom he is face to face, and those elsewhere in the courtroom.

In Baseball and Mock Trial alike, three opponents must be defeated before the teams switch roles. In both arenas there are teammates who must coordinate strategies and play off of one another's strengths. In the two competitions, there are appropriate uniforms to wear, rules that must not be broken, referees who call the plays, impartial scorekeepers, utility players, home teams, curve-balls, errors, doubleheaders, and closers.

There are, however, a few significant differences between America's favorite pastime and TMT's. After all, one is a test of skill, endurance, cunning, and teamwork, requiring enormous amounts of time spent in practice seasons or traveling to face away-teams, ultimately open only to those who train hard, try out for a team, start small, and work their way into the major leagues, potentially resulting in ridiculously high salaries for professionals who can perform well, even under great deals of stress. The other comes with peanuts and cracker jacks.

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