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National mock trial honors for Marin school

By Diane Curtis
Staff Writer

The defense attorney was determined to rattle the witness, a mechanical engineering expert who supported the plaintiff’s contention that a faulty bolt caused the death of NASCAR racer Mitch Robertson.

Mt. Tamalpais High School
Mt. Tamalpais High School mock trial team hams it up after winning the state competition. Coach and Mill Valley criminal defense attorney David Vogelstein raises a clenched fist in the rear.     PHOTO BY FERNANDO CRUZ

In rapid, hostile succession during cross-examination, the attorney bombarded the witness with one technically challenging question after another. The witness answered each query politely, respectfully and confidently. Obviously frustrated, the defense attorney backed away.

Such unflappability, quick thinking and grace under pressure are some of the qualities that members of the mock trial team from Tamalpais High School in Mill Valley believe led to their win as the 2005 National Mock Trial Champions.

After winning county (Marin, for the 10th year in a row) and state competitions, the 23-member team headed to Charlotte, N.C., last month for the national competition.

With eight team members actively participating in the finals, the Tam students emerged triumphant over 43 teams from states throughout the nation, including the runner-up from Lihue, Hawaii.

 “It was a lot of work, but it was so worth it,” says “mechanical engineer Dr. Chris Engels,” who in real life is Kelly Stout, a junior at Tam, a public high school located about 10 miles north of San Francisco. “I know it sounds so cliché, but hard work and perseverance really do pay off.”

The fictional case for which Stout and her teammates prepared in the finals involved NASCAR driver Robertson, who was killed as a result of injuries suffered during a race at Lowe’s Motor Speedway (which does exist in Charlotte and where the Tam students got in a 110 mph spin around the track).

The driver’s estate contended that a faulty bolt led to the racer’s death. Members of the estate filed suit, charging breach of express warranty and breach of implied warranties of merchantability and fitness for a particular purpose.

County, state and national competitions have slightly different rules, but in general the students are handed a packet of materials about a case and then must learn the facts as well as strategy. For the national finals, the students were sent a packet that included a case summary; complaint and demand for jury trial; answer; jury instructions; verdict summary; stipulations, witnesses and exhibits; and witness statements.

“I really do realize how complex the law is,” says Courtney Khademi, a plaintiff’s attorney during the finals who, like her teammates, memorized rule after rule only to learn that rules don’t always apply. “It seems there’s a loophole in every rule; there’s an exception to everything,” she said.

At the same time the students were learning the facts of the case and technical aspects of the law that apply, they were being taught about what Mill Valley criminal defense lawyer David Vogelstein, who has been coaching the Tam mock trial team for 10 years, calls the “humanity” in law.

“I learned early on that being a criminal defense lawyer is a sacred proposition and that if you’re going to litigate cases in front of a judge or jury, the most effective technique is to show humanity and integrity in the courtroom,” says Vogelstein, who sports a “Tam High Mock Trial — State Champs 2005” tattoo on his right arm. (He’s considering a national champs version.)

Knowing the case inside and out — anticipating what the other side is going to do, being ready with objections and with arguments against your opponent’s objections, knowing how to keep evidence in or out of the trial — is crucial, as are adjusting to a particular judge’s style, reading a jury, listening carefully and using as few words as possible (“I teach them about the power of silence and the power of fewer words because lawyers talk too much,” Vogelstein says). But the heart of the case, is, well, heart.

A jury “may not accept your facts, but they will walk the path with you if you are credible and human,” he says. “My kids are tough as iron but human beings in the courtroom.”

Just as Kelly knew not to get belligerent as a witness when challenged, Sandra Allen, as lead plaintiff’s attorney, knew not to match sarcasm with sarcasm or objection with objection when the opposing attorney tried to turn up the heat. In one case, an attorney made 50 objections, “which is just insane,” Sandra said.

In contrast, Sandra would withdraw a question or say, “I’ll move on, your honor.” But showing humanity isn’t being a milquetoast. When one particularly smart witness adroitly skirted Sandra’s questions, she felt “a little war between us.” And while she was thinking, “This greasy business person is dodging my questions,” uppermost in her mind was the need to “get my client the money he deserves” and to maintain her professionalism and ability to think on her feet while she pushed the witness to trip up.

Samantha Schifrin, a sophomore who acted as a defense attorney during the state competition, enjoyed the challenge of trying to outsmart an opponent in what the students and Vogelstein like to call an “elegant” manner.

“You learn how to work through things, to get what you want from someone during cross-examination. You listen to what they say and try to trap them in a hole they can’t get out of. It’s lawyerly.”

Marin County Superior Court Judge John Sutro, who has taken part in “scrimmage” mock trials for 12 years, saw Sandra in action during one practice session and counted her among the better lawyers who have come before him — during real or mock trials. “She was good. She showed great ingenuity and imagination and she never missed a beat,” he says. “There was not an ‘uh.’ She had it down and it was completely extemporaneous.”

Vogelstein and his teams talk a lot about being themselves, and Sutro said it was evident they’d learned that lesson. “Their personalities come through. They’re not automatons,” the judge says. “The way you win is by getting people to listen to you. And the way you get them to listen is to build credibility and get them to like you . . . The lesson is not just about how to run a lawsuit but how to conduct yourselves with other people in stressful situations.

“I’m so impressed with these kids and a lot of it has to do with David Vogelstein. He has taught these lessons, not just in law, but in life. It’s teaching kids about being honorable and not just going out there and trying to emasculate or eviscerate the opposition. You know that you can compete on a very high level as a personable, decent human being. It’s really easy to talk in superlatives about these kids.”

“I have probably learned more in mock trial than I have in my entire high school career,” says Schifrin.

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