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Advantages between Prosecution and Defense / Plaintiff and Defense

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  • Advantages between Prosecution and Defense / Plaintiff and Defense

    What are some of the advantages and disadvantages to playing each side? How would you rank them? Is there a specific reason that you feel one side is better than the other?


    *disclaimer: Mock Trial is, of course, judged on performance and not which side would actually win but I feel certain things you can do on each side can give you advantages performance wise


    I'll start. I've personally always felt Defense has an advantage - particularly in criminal cases. Reasonable doubt is a very high burden and in closings you can really stress this and play around with different metaphors and examples of why they failed to get rid of all reasonable doubt.


    That's just one example and I'm hoping to see many more in the comments!

  • #2
    Defense teams always have an advantage, and it's not just because of them having no burden (although that certainly is a factor.)

    I don't have the data in front of me, but it's been a well observed phenomenon that judge's tend to score higher later in the round. Since the second half of the round has more defense scores than prosecution scores, defense teams tend to benefit more and it can skew ballots regardless of the actual facts of the case.

    It's because of this that I always thought it would be a cool idea if AMTA let prosecution teams reserve one of their 3 witnesses to call as a rebuttal witness after the defense case in-chief. I'd certainly be a great way to maybe curb this phenomenon by giving the prosecution more points to earn in the second half of the round.

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    • #3
      I'd say one of the best advantages is held by the plaintiff/prosecution. By being able to tell their version of the story first the P is able to steer the conversation almost the entire trial. In fact, I often see one major strategic failure by most defenses. It seems that they focus so much effort on refuting the claims of the P rather than asserting their own story. This occurs because the P has the distinct advantage in this regard. The P gets to tell the story entirely on their own terms. I think sometimes defense teams get far too caught up in the rebuttal game and don't consider which witnesses might score the most points. From that you can still tell the story. But I unfortunately see too many teams sacrifice enjoyable witness testimony for the ability to refute facts of the case.

      Obviously the D can use this to their advantage. By going after the P they can formulate their case in chief to better illuminate their side of the story. They also have the always crucial "last word" though I'd say most teams don't use this to its fullest abilities, and that it doesn't present the advantage many think it does.

      I have many, many more thoughts on this topic. Will be curious to see if others agree or disagree with these basic thoughts here. Obviously I can't speak to what mockers are doing all across the country. I'm just speaking to my experiences throughout the Midwest and through ORCs, etc.

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      • #4
        Defense has almost all of the advantages.

        The burden of proof is one thing. More important is the way humans score ballots.

        Judges often like to use the first score as a middle weight gauge, and the second performance is compared against the first. If the second performance responds in some way to the first performance, judges tend to mark it up. This is true for openings and closings, but also entire cases in Chief. It is rare for defense openings to drop points.

        The second issue is the boredom factor. P side has to put on a convincing case in a time-crunched environment. The defense does not. The defense simply has to appear more refreshing than the P side to earn just as many points.

        There is a concept of momentum in mock trial score ballots. Of the P side can come across as brutally kick ass for three straight witnesses, then they might be able to keep the energy up, but that is rare. It is more common that a P side appears to take hits from a few cross points that slow down the momentum of the entire P side case in chief. If the Defense survives this phase of the trial by breaking even on cross, then they will tend to win the trial with higher witness scores on their case in chief.

        Judges also forget how impressed they were by P side witnesses by the time they judge defense witnesses. They tend to score defense witnesses higher because the defense witnesses are free of obligations to prove anything, so they seem quicker, cleaner, straighter to the point or the entertainment, etc.

        It is exceedingly hard to write cases that balance out these behavioral psychology problems.

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        • #5
          For the vast majority of teams, the difference in skill far outweighs any advantages to running one side of a case over another. That being said, in cases where two teams are very nearly equal in skill, or at the highest level of mock trial, case advantages really show their face.

          P tends to lose more cases for a variety of reasons. The biggest is mainly the fact that judges score higher in the second half, where the D witnesses and attorneys score the most points. I also feel that P having to put on a case often hurts them more than people think. Case strategy is much harder for P side because you often have a very specific thing to prove. Although you have a lot of evidence at your disposal, you also only have 25 min to put on a case, meaning you gotta narrow the focus of your case. This is exceedingly difficult when the burden is murder or in civil cases where there are several elements of the claim in dispute. I find one of the biggest pitfalls for P teams is that they try to bring in too much evidence, to a point where the story they were trying to build gets lost. Often times, D teams can get away with attacking just one aspect of the P case, usually pinning the murder on someone else or showing that the claim is faulty in civil cases. I don't think the reason D wins more is because they don't have to put on a story. D teams that build a narrative to follow tend to do way better than teams that don't. Rather, I think the lack of strong evidence for D teams forces them to focus on smaller pieces of evidence, making their directs much more to the point. They are able to build a narrative with less evidence they need to bring in, and because this narrative doesn't have to be as strong as P, they can get away with having holes as long as they are able to provide reasonable doubt. It's worth noting that Civil cases tend to be way more balanced, where the burden isn't as high, and where the Defense need to prove their story much more than in a Criminal case. In fact, there are often times where the plaintiff is at an advantage, such as in MTS V Kosack after Fall case changes (prior to ORCS) and Empowermilk v Anderson. Not always the case, but in general, Civil cases are pretty balanced.

          I also think a D advantage less talked about is the fact that they do their crosses first. The Defense basically gets to poke holes in the P story while hinting at the "true" story during the P case in chief. Being able to poke holes in the other side's story first provides an advantage, since you're effectively telling the judge that there is more to the story that they aren't hearing. This is also apparent in opening statements, where I feel the defense has a strong advantage in being able to get up and prompt the judge to not believe anything that the P side is saying. Also, because D goes after P in closings, they get more time to argue against specific points P brought up in their closing argument. I know P gets a rebuttal, but a 30 second rebuttal is nothing compared to the several minutes D gets to argue against specific points P brought up.

          Finally, D teams are allowed to be more creative. More often than not, D teams get witnesses that aren't bound to affidavits, specifically in criminal cases. This gives them a huge advantage from the start. In addition, because D teams don't have a burden, they can attack the P claim in a variety of ways, meaning there is more room for case theories. Not only will judges who go to multiple rounds be more interested because the D side has a new case to present, but it also means P teams have to deal with facing a variety of different D theories, and find ways in round to combat them. Since P teams are more limited in the stories they tell, D teams can prepare more effectively for combatting evidence in trial.

          Again, it's important to stress that Case advantage isn't as significant as people think for the majority of teams. It mainly matters at ORCS and Nationals where all the teams are at the top of their game, and even then, only in closer rounds. Still, recognizing that D teams are usually the ones with an advantage going into rounds might make people get less salty about case changes "ruining" the D side of a case.

          Comment


          • #6
            I think one thing that hasnít been mentioned is that the plaintiff/prosecution side often has a more straightforward (and therefore easier to put on) case. They are more likely to get their swing witnesses since in most cases P chooses their witnesses first, and so as a result plaintiff/prosecution has a more stable theory and has less crosses to memorize.

            That, in my view, has always been the most difficult part of defense. Defense has to have a malleable theory or else pick side constrained witnesses in order to be polished enough for trial with the amount of variability in its case. If the defense wants to work creatively, their witnesses often need to memorize backup witnesses, which in my experience, the prosecution rarely has to do.

            This past case the defense did not get the same advantage of lacking the burden of proof, because both sides had to prove their case by a preponderance of the evidence. But I agree, the defense has a lot of advantages, because that variability leads to creativity that the prosecution often canít anticipate and is outshined by.

            Comment


            • #7
              I think one thing that hasnít been mentioned is that the plaintiff/prosecution side often has a more straightforward (and therefore easier to put on) case. They are more likely to get their swing witnesses since in most cases P chooses their witnesses first, and so as a result plaintiff/prosecution has a more stable theory and has less crosses to memorize.

              That, in my view, has always been the most difficult part of defense. Defense has to have a malleable theory or else pick side constrained witnesses in order to be polished enough for trial with the amount of variability in its case. If the defense wants to work creatively, their witnesses often need to memorize backup witnesses, which in my experience, the prosecution rarely has to do.

              This past case the defense did not get the same advantage of lacking the burden of proof, because both sides had to prove their case by a preponderance of the evidence. But I agree, the defense has a lot of advantages, because that variability leads to creativity that the prosecution often canít anticipate and is outshined by.

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