Recently, U.S. Supreme Court Justice Ruth Bader Ginsburg joined by Justice Stephen Breyer and three D.C. federal judges presided over a mock proceeding at the Shakespeare theatre company Sidney Harman Hall in Washington, DC was convened to decide on a matter regarding Don Quixote, a character in a Spanish novel by Miguel De Cervantes Saavedra. In the novel, the main character Hidalo reads so many romance novels that he loses his sanity and heads off “to revive chivalry, undo wrongs and bring justice to the world under the name of Don Quixote.” The mock trial looked at whether or not he was so delusional that he needed a guardian and ended with a ruling in favor of Don Quixote.

In law school, we see mock trial competitions play a large role in the law student experience as many students are eager to get actively involved, and a lot of faculty, well known judges, and attorneys get involved. It was interesting to find that Judge Poser had some interesting thoughts on Mock Trials. Apparently in a 2012 speech, Judge Posner criticized the Supreme Court judges, as he likes to do, for participating in mock trials. He called the mock trials “ridiculous” and stated that the judges “have no competence.” But this clearly did not deter judges and justices from continuing to participate in mock trial competitions.

Upon looking further into this issue, it appears that Judge Posner actually has some strong thoughts on the subject of Mock Trials and actually wrote an article in 2013 called “Mock Trials and Real Justices and Judges”, which was published in the Cardozo Law Review in 2013 where he laid out his viewpoint on Mock Trials. Richard A. Posner, Mock Trials and Real Justices and Judges, 34 Cardozo L. Rev. 2111, 2129 (2013). Overall he does not believe in judges participating in Mock Trial programs that are not adequately structured to preserve the reputation of the trial. He starts out by giving a description on the different forms of mock trials and why judges agree to do them. He attributes the judge’s willingness to participate in a Mock Trial to a combination of factors. For example “the Court’s light caseload of recent years, the decline in the value attached to dignity and formality in today’s America, the diminished respect for authority, and the growth of the electronic media, which has increased the access of officials including judges to the media, has eroded the culture of oracular reticence and remoteness that judges and Justices once embraced.” Id. at 2129. He also adds that modern technology enables a video to be made of a mock trial, with good production and little cost, enabling the trial to reach a much larger audience. Id.

Then he describes the role of judges in Mock Trials and notes that the judge’s conduct in a mock trial has a big effect on the quality of the Mock Trials that are put on. Posner states, “The judges and Justices tend not to take their role in the mock trials as seriously as the lawyers do…Often they joke and clown— and when they do, the lawyers often take this to be an invitation, which they gladly accept, to join in the fun, provoking laughter by the audience. This is low comedy, and I find it distasteful”. id. at 2128. He continues this critique by stating,

“It seems that many, perhaps most, of the judges want to show how sharp and funny they are, and that many, perhaps most, of the members of the audiences for the mock trials are looking for a good time. If low comedy is what the mock-trial market wants, so be it. My own view, marking me no doubt as a grinch or sourpuss, is that the only possible value of a mock trial is educational—educating an audience about legal history and forensic methods (and their limitations).” Id. at 2148

Because of this he feels that Mock Trials are not realistic and as instructive they should be. He feels that the level of participation by the judges and the amount of humor that occurs in mock trials takes away from the educational purpose of the trial. With regards to mock trials of fictitious characters Posner feels that these don’t “contribute to anyone’s enlightenment.” He feels that mock trials more or les “symptomizes the broader ills of contemporary “celebrity culture.” Posner makes a valid point, especially since mock trials are in many cases based off of fictional circumstances such as the recent Don Quixote mock trial noted above. Its easy to see how the mock trial can turn into something less serious and more comical if procedural standards are not set out in the beginning.

Judge Posner then goes on to detail his own experience with Mock Trials and lays out 5 steps that he feels if done right will assure a decent minimum level of quality, and avoid making a laughing stock of the genre. These steps are:

“1) maximum realism, a desideratum that limits the choice of suitable trials and is most likely to banish cheap humor and maximize the educational value of a mock trial; 2) minimizing the role and number of judges, and using a jury wherever possible (and where there is a jury, one judge is enough); 3) enlisting the audience as the jury, 4) requiring the lawyers to submit briefs 5) holding a planning meeting, well in advance of the trial, attended by all the trial participants except jurors, to assure that everyone is well prepared and understands the ground rules.” Id. at 2148

Posner offers valuable insight and good advice for mock trial programs. His concerns are warranted, as Mock Trials should be conducted for its educational purposes and serve as a realistic view of what trial advocacy is actually like. Law students for sure benefit more from those kinds of experiences and judges and attorneys alike benefit from taking part. His steps towards creating a more superior mock trial program are also very reasonable, easily implemented, and steps that will positively impact the structure of a mock trial program. It will make mock trials more realistic and parties participating more involved, prepared, and enlightened.