3. Mob Hits and the H-E-B

Learn more about the schools, programs and special guests:

Battle of the Experts Case File: Commonwealth of Pennsylvania v. Thomas Santosusso

St. Mary's University Law School

University of South Dakota Knudson School of Law

Elie Honig

Drexel University Thomas R. Kline School of Law

Up Against the Mob with Elie Honig

Follow us on Twitter @ClassActionPod and Instagram @ClassActionPod

Visit our show page for transcripts and more details about the series at ClassActionPod.com.

Follow host Katie Phang on Twitter @KatiePhang and Instagram @KatiePhang.

TRANSCRIPT

Katie Phang (narration): Class Action is a production of iHeartRadio and Sound Argument.

Tyler Volesky:

To give you a little background on South Dakota geography, you have what you call about two urban areas. Sioux Falls, you've been to Sioux Falls. That's the big city. It's a small city or a big town, but it's the big urban area of South Dakota. That's where about a quarter of the population is, and then out west, you have Rapid City. That's about 80,000 people.

Braedon Houdek:

I grew up in Rapid City, South Dakota. It was nice. It was pretty relaxed, not a lot went on. So, I don't mean to make it sound like it was boring, but it was definitely very, just very relaxed. My dad is the general manager for RDO Equipment, which is a John Deere dealership. And my mom drives school buses for the Rapid City School System, but she's done a ton of stuff throughout her life. I grew up in a family of five, my mom and my dad, and I have an older sister, who's 30, and a younger brother, who just turned 22.

Matt Skinner:

I'm the oldest of nine children. So I have eight younger siblings and I've always had this role model slash lookout for them. And I want to make sure that they're okay in life and that they're doing the right things. So by being a lawyer, I can apply that to other people. I can look out for other people.

Tyler Volesky:

But the cultural divide in South Dakota is East River, West River. That's more ranching out there, so you see more cowboy hats and that kind of stuff, where here it's more farming, so it's a little bit different culture. Where I'm from, it's considered one of the big towns. You got about seven, eight towns within that 15 to 20,000, and then every place else is pretty rural.

Baylie Moravec:

I'm a listener as opposed to being the first to speak. I think people talk too much sometimes. And I think we miss a lot of stuff when we're talking. So I'd kind of rather listen and take everything in and then add in an opinion. I'm a first-generation lawyer. So no one in my family has gone to law school. So this has been a fun, new adventure for all of us, I guess.

Matt Skinner:

I'm also Catholic. And I am really involved in my faith. I think it's important to do that work through the criminal justice system. And also, I'm Native American, and here in South Dakota, there's a lot of issues, especially on the Western side of the state with Native Americans and their treatment over the years and their problems that they struggle with.

Braedon Houdek:

My parents had to see a bankruptcy lawyer at one point and ultimately it saved their house, so that's something that really stuck with me when I was pretty young. So I started working as soon as I could apply for a work license in Iowa. I started off by detasseling corn. I did that every summer until I was old enough to get an actual job.

Tyler Volesky:

And you got Vermillion here, it's about 10,000 people, but with Vermillion, it's pretty much just a college town. I think the population doubles when the college gets here.

Baylie Moravec:

I went to undergrad at the University of South Dakota. So by the time all is said and done, I'll have spent seven years in this town and on this campus. And I can't tell you how much I'm dreading leaving Vermillion, it has truly become home.

Tyler Volesky:

I mean, South Dakota culture in general, people are nice, they're reserved, you don't see a ton of characters or big colorful personalities like you do in the city. They're very conservative people, don't have the most open-minded world view generally, because it's a small state, you're not around a lot, but I think people have good intentions here, they're good people. I mean, nobody's really going to spit in your face and slam the door on you.

Laura Rose:

We are the state's law school.

Katie Phang (narration):

Laura Rose, the feisty University of South Dakota coach has already uploaded the fact pattern to her entire team.

Laura Rose:

There was a quote that my dad used to use at Stetson when he was running their program. He used to tell people that when I send you out to a competition, I am putting the reputation of my school in your hands. If you drop the reputation of my school, I will cut your hands off. Now he can get away with that because he is a 22-year military veteran.

Katie Phang (narration):

Law school mock trial season it's like a hurricane and it's fast approaching.

Laura Rose:

Here's the deal, I'm not going to cut your hands off, but we're going to have to talk.

Katie Phang (narration):

Tryouts are over, a team is hand-picked. Classes are already in full swing. The law school grind, it's on.

Laura Rose:

But you're in a competition setting. There is no time to be Midwest nice. I love South Dakota nice and Midwest nice. One of my favorite things about this area of the country is how polite people are and how much people care about other people, but you know where it doesn't have a place in a courtroom. We're here to argue, we're here to argue about facts. You are not my friend. You're not my enemy, I don't have to cut your throat, precisely. Most of the time.

Katie Phang (narration):

Dozens of schools around the country are preparing for the fall invitational tournaments, where second- and third-year law students get a chance to compete before the big national competitions start in the spring.

Laura Rose:

But I do have to make sure that you're following through with what it is that I need done. And I do have to make sure that you're complying with the rules. And I do have to make sure that I am not, in an attempt to be kind and to be polite, actually giving away points of argumentation.

[music; mid-temp hip-hop positive triumphant groove]

Katie Phang (narration):

I'm Katie Phang and this is Class Action. Episode three, Mob Hits and the HEB.

Laura Rose:

Tyler, you look confused. What's up?

Katie Phang (narration):

It's 8 AM and everyone is working together to build an airtight case. Picture an old-fashioned barn raising on the prairie. Only this barn is cobbled together with arguments and legal strategy.

Tyler Volesky:

Nick, he owed me $200,000. Nick's a bad guy, he's a drug user. A lot of problems, that you can attack his credibility and then you also got the bartender, who's a good witness, he's a law student, very credible kid. And he was saying, "Tommy is peaceful. Tommy's a very peaceful guy, and he's generous."

Laura Rose:

Oh, 3L's. You all made faces when he said the word peaceful. Why did we make faces? Justin? If you say peaceful in your opening, what have you done?

Justin Petereit:

You have opened the door to character evidence.

Laura Rose:

To what? To character evidence, but you don't know yet, because you're a baby too, all right. If you get a criminal fact pattern, there is an instinctive desire to start to humanize your client, which you can do, but you got to watch the adjectives because if I say he's peaceful and if there's any evidence that he's not, what am I doing? I am giving the state attorney the moment, I am giving Braedon the moment to get up and go, "Hey, you just said that you love peace and love and all happiness. You were in the fricking mob. You were doing this. You were with these people, you were doing this." You're giving the opportunity to pounce.

Tyler Volesky:

He said he would never kill somebody. He had to beat some people up because he was... That's the business he was in, but...

Laura Rose:

So he's not going to go full wise guy. He's not going to be a made man, he's not going to burn the car to the saint in his hands...

Katie Phang (narration):

Case file, Commonwealth versus Santosuosso. A mock trial case torn out of the script of a grizzly mafia murder story. It's a movie plot, and one you may be familiar with.

Philip Pasquarello:

I've always wanted to do a mob case and there's not really ever been one that's done at any level of mock trial. My name's Phil Pasquarello. I'm the trial competition director at Drexel University, Thomas R. Kline School of Law and the tournament director for the Battle of the Experts. So the Battle of the Experts is a national mock trial competition where 16 law schools compete to be the national champion of the Battle of the Experts.

[traditional Italian folk music]

Philip Pasquarello:

So this year's case is loosely based on the plot of Goodfellas, changed the names of the characters and the story's slightly different than what you'd see in the movie for lots of reasons. I hope, knock on wood, we're in the clear there. I think Marty's got bigger things to do than read our case file, but I hope he reads it, that'd be excellent.

Philip Pasquarello:

[sound effects, bar scene, two men fighting]

There's a classic scene where the character played by Joe Pesci is insulted in a bar and he and the character played by Ray Liotta kill that person, kill that character. Character's name is Billy Batts.

Elie Honig:

It's still my favorite mob movie for sure. Nothing has come close. My name is Elie Honig. I spent 14 years as a prosecutor. But yes, I spent most of my career in the Southern District of New York indicting, prosecuting and trying real life New York City mobsters.

That is a great murder scenario for a mock trial because it's not your obvious premeditated murder. That was not supposed to happen. When they're done beating him to death, I think the De Niro character sort of says to the Pesci character, "What'd you do?" I think that's a great scenario because then you have to argue things like intent and premeditation and what degree of murder are we in here? Is it manslaughter? Is it murder? So that's a good scenario because I think there are arguments to be made, but you're getting into trickier issues that would be argued at a real trial.

The purpose of mock trial, I think, is to get kids interested in this, to get students wanting to do this in their future careers. And what are you going to do? Try some boring fraud case that's based on tax law and accounting? No. Give them an interesting case, give them an exciting case, give them something out of a movie and that'll spark their interest.

Katie Phang (narration):

Laura Rose has handpicked four of her top students to argue this case: Baylie Moravec and Justin Petereit will defend Tommy Santosuosso.

Baylie Moravec:

What happens is this guy, William Cafiero. We call him Billy. Billy goes to a bar, he gets out of jail, and he kind of needs to reestablish his boss presence. And Tommy Santosuosso and Nick Patrick arrive. Everyone knows each other, but Tommy's trying to get out of the mafia. He's still in the mafia, but Tommy just wants to be respected because who doesn't want to be?

Katie Phang (narration):

Braedon Houdek and Bill Murray, not that Bill Murray, will prosecute Tommy.

Braedon Houdek:

When I first read this fact pattern, for example, I thought the state slightly had the edge, and then I kept reading it, and then I thought the defense was going to blow us out of the water. And then I kept reading it and I realized maybe the state actually has the better case.

Baylie Moravec:

And so when Billy starts shoving it in his face that he used to be a chauffeur, Tommy gets mad. They start a brawl, and after this bar fight, then it's only Nick and Billy. And that's all we really know from there. That's what we know for sure. They walk out of the bar together and you know that Billy's dead.

Braedon Houdek:

It's just kind of always a work in progress. It's important never to get too in love with a certain theme or theory, because you can always think of something that completely derails everything that you just built.

Katie Phang (narration):

The rest of the team is spread out in the peanut gallery of the law school's practice court, firing potshots at the new case.

Laura Rose:

As she's going through it, does it make sense? Does it make sense with what you've read? And what questions is it leaving you with as you're hearing it for the first time? tell me what you're thinking about.

Male Student:

So I texted Baylie this as well, but it probably goes both ways. The knife is under the assumption that it's the mother's knife, the knife that she regularly uses. So where's her prints? On the other flip side though, the prosecution say the knife is wiped. There is no prints now because they're trying to cover it.

Laura Rose:

Did you have that?

Matt Skinner:

This might be a stretch, but I was going to say who's to say that when he left the bar the first time he didn't take Nicky's car. If his car is parked there, but further away he could have taken Nicky's car, or I don't remember what I was thinking.

Laura Rose:

Wait, Matt. Braedon, go ahead.

Braedon Houdek:

He still didn't go back to the bar, which is where Tommy's car would've been. So even if you were to have taken him back to his car and not home, the cell phone records still don't show that.

Laura Rose:

There's not a place for him to have been dropped off?

Braedon Houdek:

Yeah, I don't know.

Female Student:

I was just say...

Braedon Houdek:

I can't say it's comfortable. It's definitely not comfortable. You put a lot of work into your theory, in your case, and then it's easy to kind of get upset when someone tries to poke holes in it. Though it's a team sport, it can quickly feel very personal.

Katie Phang:

So Laura, during boot camp, it looks as if you're taking all of the students that you're working with and you're having them hive mind this problem that they've been presented with. Can you walk us through that method and that procedure and why you think it's effective to be able to give them a foundation to work from?

Laura Rose:

The reason for the hive mind, with the Battle of the Experts fact pattern in particular, came about for a few reasons. Number one, it's a great way to knock the rust off from the summer. It's a great way to get started and get going and get everybody back to thinking about those things. Number two, it's a great way for the students that are so deeply entrenched with the fact pattern to realize, hey, the thing that you thought was very clear, isn't clear from your presentation. That inference that you thought was so obvious, isn't actually as obvious as you want to make it be.

Laura Rose: Tyler?

Tyler (male student):

Is it a good idea? Because I'm just thinking about this. What Matt's really saying here is, if you can say that he was here for these parts and say, are there some fuzzy inconsistencies? Yes. But remember he's not a saint, he's a drug addict and drug dealer. Was he high on heroin when he was doing this? I don't know. But is there enough to say, yeah, there's some inconsistencies, but do we think he did it? You're reasonable members of the jury, I'd say yes, and then just kind of blur up...

Katie Phang:

So is it a combination of a confidence builder, an icebreaker, a substantive dive into the law and the evidence and the rules of procedure kind of all in one?

Laura Rose:

Yeah, it's everything. It's a kitchen sink kind of approach. It's trial and that's why it's wonderful because you have to deal with the facts, the law, the rules.

Male Student:

But Tommy, on the other hand, he's smart. He's methodical. He knows what he's doing, but it's kind of ironic that our star witness has all the things that make him look like the bad guy.

Katie Phang (narration):

In San Antonio, Jasmin Olguin has finally managed to stream Martin Scorsese's mob classic, Goodfellas, one of my favorites. Anyway, her St. Mary's University teammates, Andy Vizcarra and Cole Davila, they feel like it's their legal obligation to break down the plot.

Andy Vizcarra:

Yeah. And the movie Tommy didn't like...

Cole Davila:

Definitely did it.

Andy Vizcarra:

Yeah, but in the movie, even in the movie, I was like,

Mariele Encinas:

I saw casino and was like, "Oh, so Tommy did it, he did it."

Cole Davila:

And then somebody came up and shot him too.

Andy Vizcarra:

Yeah.

Mariela Encinas:

I was like, whoa, whoa, whoa. That didn't happen. Not in our story. They're adding a third person up in this joint.

Cole Davila:

There you go. He's there.

Mariela Encinas:

He killed Billy. When he walks in-

Andy Vizcarra:

You didn't see anybody there.

Jasmin Olguin:

That's a good movie. Jimmy deserved better. I'm just saying. I'm going to pretend Jimmy's Tommy tomorrow. Die for this man. That's not very professional, okay. Jury, members of the jury. I'm sorry. I'm going to start, but I'm just trying to really think about this.

Andy Vizcarra:

No, you're good.

Jasmin Olguin:

Let me get on this vibe.

Jasmin Olguin:

I'm going to kill... Let me start that again. I'm sorry. That sounded weird. I'm going to kill this bastard. I'm going to kill you, you fake tough guy. Those were the last words that the defendant told Billy Caffiero the night that he was murdered. It's a dark night in Sienna, Pennsylvania, and while walking on the street, you see a bar to the right. It's called the Bamboo Lounge. And from afar, you think it's just a mom-and-pop little bar, something quiet. But inside that bar is a whole nother story. Inside that bar, it's another world of people. They have a code. Violence, drugs, money and family above all. Breaking that code can cost you your life. They make money from prostitution, loan sharking, theft and extortion. Now these families have a hierarchy. It goes boss, under boss, consigliere, capos, associates and soldiers. And these are the types of people that you will find at the Bamboo Lounge. When you walk inside, the first person...

Jason Goss:

So, I really like the story.

Katie Phang (narration):

That's Jason Goss. He's a St. Mary's grad and a trial team legend. Jason tried cases for the Bexar County DA's office, but then he left to join his old boss and take up for the defense.

Jason Goss:

Now, when you got towards the end, you just started basically reading it. It was like, blah, da, da, da, some things never change.

Katie Phang (narration):

In whatever spare time Jason manages to get, he and his wife, Maritza, who's expecting their first baby, coached the battle team.

Jasmin Olguin:

Sorry. I felt like it was too long and I was boring you guys.

Jason Goss:

It is too long. But the only reason is, and the reason why it felt that way is because you did something that's, it's kind of rare in mock trial. You wove all what the witnesses were going to say into the story, which is cool. But one of the things I noticed was is you're talking about grab, he had the knife, he stabbed once, he stabbed twice, three times. You need to talk about it like that. He got the knife. He stabbed him once, he stabbed him twice, he stabbed him three times, nine inches deep right into his heart. Something like that. Drama, add a little bit.

Maritza Stewart:

I like it. Keep going.

Jasmin Olguin:

I'm Jasmin Olguin, and I'm a 3L. I’m not doing too well today. I have cold brew just running through my veins right now. Probably going to get two to three hours of sleep. I already told Andy, she sees me tomorrow she didn't see me because... First two weeks I was dressing up nice, and tomorrow it's going to be bad. And I'm working on top of this, and I think that's what killing me, because I don't have that extra free time.

Andy VIzcarra:

Yeah. I don't know how Jasmin's living right now. I got a sabbatical for my job because I physically could not do everything. She is not human. She's not real.

Jasmin Olguin:

But my job keeps me sane. When I'm there, I love it. I'm not worried about anything. I'm like I'm here, it's just I wish there was more time in the week.

Katie Phang:

So Laura, when you perceive from some of the students, the ones that maybe you predict are going to have a struggle after law school, do you pivot a little bit and maybe give a little bit more of yourself, maybe a little bit more mentoring, maybe a little bit more individualized attention to maybe get them more prepared for what the real world's going to be like?

Laura Rose:

I try to do that with all of my students in all honesty. And it's one of the things that I'm really fortunate with being here at South Dakota, because I have the number of students that I interact with. I'm very closely involved with all of my trial team members, and I get to do that individualized attention that you're talking about, but you can always pick out those one or two where it's like, "Hey, you're going to need a little bit of extra coaching or a little bit of extra support. My office is a safe space for you."

Baylie Moravec:

One of the biggest obstacles that I see in a lot of my friends at school and in myself is that imposter syndrome that most women have, where it's like, you don't realize that you are smart enough or think you have the best argument. And there's always kind of a push to be better without accepting that you're already good.

Laura Rose:

Yeah.

Baylie Moravec:

And that's been one of the hardest things to overcome in advocacy is knowing like, okay, my argument is good. My style is good. Now I just need to trust it, but make it better.

Laura Rose:

And that's the thing, right? And I will empathize with you on the imposter syndrome point and tell you it's not something that goes away. I've got it horribly bad. My friends love to laugh at me because every other week I'm like the law school's going to fire me. I'm going to lose my job. And they're like in what world? And I'm like, somebody's going to see through that I have clearly just faked it till I made it at this point.

Baylie Moravec:

One of the things about being a female advocate that I found challenging until, well, still find challenging, but less challenging after working with you is I think the practice of law has had maybe kind of aggressive and straightforward and loud and boisterous and all of these kinds of different qualities that you see in all the movies that lawyers portray. But being a female advocate, as you said, we have a different skillset. And in trial tech, I got a lot of comments about being too gentle or motherly or I speak too soft or something. And it kind of leads you to a different skillset of how you take those kinds of things and then make them better in your advocacy and make them dangerous in a courtroom. And I think that's one of the coolest things that I see women advocates do is you kind of know where they're going, but you don't know how that final cut in-

Laura Rose:

Sneaky.

Baylie Moravec:

Yes. So sneaky.

Laura Rose:

And here's the thing. I think that part of the reason that we've had to become that is because the idea that if you're aggressive as a woman, you're going to get labeled as a “bitch”. But number one, that's not necessarily true. The jury will give you leeway if the witness is being ridiculous. The more unreasonable they get, the more reasonable that you get, unless you have to do the control. And then it shows the jury, "I've got the range to go there. I'm choosing not to go there because I know I'm more effective when I take these different approaches," and that's not a bad thing. The thing that you get to figure out now is what your range truly is. You figured out a couple of octaves that you're comfortable singing in to make the analogy work, but you can expand out of that.

AJ Bellido de Luna:

We bring to the room our own biases and beliefs. And if you don't understand that when you're an attorney standing up and presenting to a jury that is going to decide the facts of your case, you will always lose.

Katie Phang (narration):

For trial team director AJ Bellido de Luna, running a trial program means keeping track of several competition teams.

AJ Bellido de Luna:

The thing that has to be at the forefront of your mind from beginning to end, trust me, they are watching every little thing that you are doing. Every little thing that you are doing.

Katie Phang (narration):

It means coaching up the younger lawyers and trial advocacy classes, but also looking out for promising rookies.

Mariela Encinas:

Your Honor, opposing counsel, ladies and gentlemen of the jury. She couldn't escape. She wanted to leave, but she couldn't. He would not have it, so instead he killed her.

Katie Phang (narration):

Rookies like Mariela Encinas, the second-year lawsuit from Tucson who knocked it out of the park in boot camp. This is her first opening statement in what may prove to be a very promising legal career.

Mariela Encinas:

October 14th, 2019 starts as a typical day for Detective LaVelle. He goes into the office, probably grabs some coffee, sits at his desk, when the phone rings. Someone tells him that a body was found at the marsh. Unfortunately, in Detective LaVelle's line of work, this isn't uncommon. So he treats it just like any other homicide. He goes to the scene, he examines the scene. He examines the body, suspects foul play. And that's when it hits him. That's when he makes the connection. He realizes Molly didn't go missing just randomly three years ago. She didn't just run away from the defendant. The defendant killed her. Thank you.

Professor Steven A. Lopez:

Great job, Mariela.

Katie Phang (narration):

This is assistant coach Steven Lopez.

Professor Steven A. Lopez:

Really love your presence and your poise up there. You're not moving around. You're very strong. You're very powerful. Your voice fills this entire room, which is awesome. Your theme that she couldn't escape, right? It's okay. It's not punchy. It's not really catchy, but I think the bigger problem with it is you didn't really use it. If that's your theory and that's your theme, then you got to play that through your whole opening. Great job.

AJ Bellido de Luna:

I have something I want to add. I can see in your face disappointment. I can see it because you just got criticized pretty heavily.

Mariela Encinas:

Yeah.

AJ Bellido de Luna:

And you don't like it.

Mariela Encinas:

I mean, I take criticism. Well, it just-

AJ Bellido de Luna:

But you don't like it.

Mariela Encinas:

Yeah. You want to be perfect all the time, but it's just not a thing.

AJ Bellido de Luna:

So I want you to hear something. I sent him a text. What did that text say?

Steven Lopez:

I didn't read it. My phone's off, sir.

AJ Bellido de Luna:

Read it out to her.

Steven Lopez:

She is a champion in waiting.

AJ Bellido de Luna:

I see in your face where you're feeling failure. I see in your face where you're like, "Damn, I didn't do it right. I didn't meet the expectation." It's not good enough yet, but there's great stuff there. So don't get discouraged when you get these comments. We're never going to tell you that you're good enough until you're good enough. And you know when you're good enough? When you bring home a national championship like he did.

Mariela Encinas:

Okay. Small burden. [laughter]

AJ Bellido de Luna:

When we put your trophy in the trophy case, that's when we stop saying things to you. It's like, you tell me what we're going to do now. All right. That's when you're good enough. So great job. Now you can give her applause.

[applause]

Mariela Encinas:

Last week was probably my most stressful week so far, more and more things to do, and as we get deeper into classes, it gets a little more time consuming. Also I was asked to practice with Coach Stewart and Coach Goss as a witness for their Battle of the Experts competition. So I was really excited when I got the email. It was AJ who emailed me. I was really excited. He let me know that this means I'm doing well. He also told me, don't let this get to your head. This isn't a golden ticket. You know we're offering you this opportunity contingent on you doing well in Trial Ad and keeping up the work. It's definitely been a whirlwind of craziness. I haven't even finished my evidence class. This is going to be very scary.

Cole Davila:

I’m Cole Davila. I'm a 3L. I definitely feel a ton of pressure because I have experience. I should be better in theory. I should be really good and should be able to not necessarily carry the team, but at least do a really good part. But because of that competitive nature, you always feel like you're not there. We had practice yesterday that was a full sort of round. And I didn't think I did as well as I should have. I messed up some really basic stuff that I know better than to do. I missed certain cues for things. I missed objections, stuff that I shouldn't have screwed up. And we have a couple weeks, two, three weeks to prepare and hone that in. So it definitely, that pressure gets to you. And there's a lot more pressure on it because all the leaders of the program are on this specific team.

So it makes you want to be better, but it also, it makes you really hard on yourself and does take a mental toll, which is probably a good thing that law schools' competitions don't go all year. I have a meeting with my counselor later on today. I haven't spoken to her in a long time, and I've had to keep putting it off due to how busy I've been. But in general it seems like everybody's noticed everyone's mental health is sort of collapsing far more than it was our 1L year. So I think people seem to be just generally worse off. And I think it's a mix of continuing pandemic, returning to classes, knowing that the Bar's coming up.

It started 1L year. I mean, I saw counselors periodically in undergrad, dealing with stresses and some medical issues that threw me off. So I saw her regularly, but since things have gotten worse, decided to pick it up a little bit again, just to at least have a third party, to be able to vent to. Talking to your friends is great, but if your friends are going through the same things you are, it does feel kind of weird to complain to them, because they're not complaining to you. They get it. They know where everybody's at. They're dealing with the same stuff, but here you are complaining to them. It feels weird, even though they don't mind, it just doesn't feel quite as effective and it's just off.

Katie Phang:

So Elie, what advice do you have to guard against the burnout that does happen in the business?

Elie Honig:

Don't do mock trial. [laugh] No, I'm only half kidding. Look, when you're on trial, it's all consuming, real trial. There's just no way around that. It devours your life. I will speak from my experience. You ignore your kids. You don't take care of yourself in terms of what you eat and you sleep. And I think that mock trial, from what I've seen, can be similar on these kids and on these students. And I don't have an easy solution to that. I don't know how they do it. I don't know how they do mock trial and also keep up with their classes and their social activities and their other activities that they're trying to do at school. So God bless them. It wasn't for me.

If I had to give advice, I guess I would just try to say, don't let it invade your dreams. Try to put it in a box, put it to the side, and keep in mind, as much as it can feel all-consuming and competitive, it is a mock trial and you don't have someone's actual liberty at stake or the family of a murder victim at stake. So take a breath, keep it in perspective, but God bless you for doing it.

Laura Rose:

[singing] “Everything has its season. Everything has its time...”

Katie Phang (narration):

Somewhere. There must be footage of a young Laura Rose on stage.

Laura Rose:

I can't do any more than that because my voice is going to bother me too much. From the time that I was very small. I loved musical theater in particular, and I blame my parents for this because they took me to see Little Shop of Horrors when I was two. I fell in love with the storytelling element of that particular world. And when dad was first in the military and when I was younger and we would drive everywhere, he would play musical soundtracks. And the storytelling aspect of that for me was everything. Part of my plan was I wanted to work for Children's Television Workshop. And so that's where I wanted to be. But I knew that if I couldn't make it work and I was going to become a financial burden to my parents at that point, I couldn't justify it in my own head.

Laura Rose:

I graduated from college in May of 2009. I was two years behind when I should have been because my mom got sick before I went to school. She has MS, and I stayed home to help out with the family with that. I said, I can't, I can't do it as much as I want to, as much as I would've loved to go there. And so it was better to go with a practical thing to have the thing that I knew could feed me and then find a way for my creative love to become a part of that. And I got really lucky. I got really, really lucky and found a way to do it. The reason I was comfortable going to law school is I knew that the law school that I had chosen was the one that was going to make me an advocate, which meant that I was going to get to take my talents and all these things that I'd spent time developing and use them for the betterment of other people.

It's just not the way that I thought it would happen. I thought I would be in the courtroom trying cases all the time. And in reality, I'm much better suited to what I'm doing now, which is taking the next generation and saying, you go do it. If I am successful and get tenure here, I could stay here for the rest of my academic career. If I do that, I will know at the end of my career, that for 30 plus years, I will have put out every single advocate that's come out of University of South Dakota Knudson School of Law. So I will know that the evidentiary issues in courtrooms across the state are being handled in a way that's appropriate. I will know that the people who are advocating in courtrooms have been trained this way, and it's going to change the legal landscape here because it's desperately needed.

Katie Phang (narration):

The clock is ticking and Coach Rose needs to whip her team into shape for the Battle of the Experts.

Laura Rose:

Good morning. Good morning. Good morning gang.

Katie Phang (narration):

And for all of the competitions that are coming in the fall.

Laura Rose:

Get your coffee, get your caffeine in drink. Make sure that you're awake. We will get through today as quickly as we possibly can. Y'all know that I'm all about efficiency in making sure that we don't waste our time. And I know that you have other things that you've got to do, but today what we're going to be covering, we're going to talk about cross examination, which is everybody in this room knows is my absolute favorite thing that we end up doing in a courtroom because it's when you have the most control. So are we all clear about what we're doing this morning? Are we awake? Vaguely. 3Ls, let's go around the room. What's your favorite part about cross examination? Justin?

Justin Petereit:

The thing I like about it the most is I feel like I'm in control and no matter how hard they're trying to squirm out of things or if they're trying to be cute with me, it's an easy situation to flip that back on them.

Laura Rose:

Matt you've had trial tech. What's your favorite thing about cross?

Matt Skinner:

The power, I like the power behind it.

Katie Phang (narration):

This is Matt Skinner, a future defense attorney and the team's best sniper.

Laura Rose:

Be honest, man. Let's go for it. Come on, talk about it. Why do you like the power? What about that is good?

Matt Skinner:

I like the power and forever I've called it the oh shit moment. Like Ian said, you just lay these breadcrumbs and eventually it leads to this trap where the witness is like, "Oh shit, I'm stuck. I don't know it to do here." Yeah. I like the power of having control, basically. You now, what's going to happen. They don't. And eventually you're going to lead that witness to do exactly what you want.

Baylie Moravec:

I think one of the most intimidating things that you can't really do on Zoom, but they call it working the well. So your well is kind of right in front of the judge and the witness table here. Coach Rose teaches us how to walk your dog in the well. And when you have an unfriendly witness, when you start kind of cornering them on a point, you start walking towards them and you keep the eye contact. And as you keep asking questions, you keep taking more and more steps. And once you've kind of cracked on a major point, you just turn your back to them and walk away. But it's one of the most kind of powerful moments that you can have in a courtroom. You know when you go to the zoo and you turn your back to like all the monkeys and they get mad, that's kind of what walking the dog is like.

Katie Phang (narration):

Hour after hour, Coach Rose puts her team through a crash course on trial techniques.

Laura Rose:

So if you get somebody on the stand who says, "Well, Sally told me that Billy Bob told her..." Objection, Your Honor, hearsay within hearsay, may we approach?

Katie Phang (narration):

All in the service of building a stronger case for the Battle of the Experts competition.

Laura Rose:

Your Honor, under federals of-

Katie Phang (narration):

And in the process, knocking the South Dakota nice out of her young lawyers on the team.

Laura Rose:

Why is it unfairly prejudicial? Why is that the case? Explain it. Draw it for me in crayons if you fricking have to, but explain it. If it's egregious, if it touches upon a fundamental right, in particular, if we are in Battle of the Experts and Justin hears them say that the defendant for sure is going to say something, he's going to be up off of his chair having a heart attack, but he's going to make the objection and make sure that it's on the record because fundamental rights, constitutional issues, things that could get people into prison if we were in real life, you got to be mad about that. And you gotta be big mad. You've got to say that it's wrong and you've got to call it out for being wrong.

Elie Honig:

When I was getting ready to do my first ever jury address as a prosecutor, I asked my supervisor, who had been doing it for a decade plus, I said, "This is a stupid question, but what am I supposed to be tomorrow when I give this opening?" And he said, "What do you mean?" I said, "I don't know, what's the vibe? What am I trying to do? Am I trying to be tough guy or cool or what?" And he said, "Look, as the prosecutor, your job is two things, to be clear and credible and that's it. Leave the dramatics to the defense lawyer, leave the pounding of the podium and the clever stories to the defense lawyer. That's not for you. Your job is to stand up in front of that jury, to be clear, they understand what your case is about, and to be credible. They believe you. They believe our evidence. That's it."

I was once told, a friend of mine said, "I figured out your style." I said, "Okay, what is it?" He said, "You're Jersey conversational." I'm from New Jersey. And I said, "Oh." I don't know that he meant it as a compliment. I think he meant it like I'm not super intellectual, but I said, "Perfect. That's great. That's what I want to be." Part of the beauty of our jury system is I think people tend to think our jury system is mechanical or mathematical, but in fact, every judge instructs every jury, use your common sense. Use your good everyday common sense that you use every day out there. And it can really resonate with the jury. And you say, "Why would this defendant take this action? Look, you all know, you're all human beings. You've all been in scenarios where someone has insulted you. You know how that maybe made you feel now you didn't act on it, but he did." You can use common sense type arguments like that. And it's part of the beauty of our jury system, and it can be quite effective in advocacy.

Andy Vizcarra:

H.E.B. should be right up there.

Katie Phang (narration):

Back in San Antonio, the team piles into Andy's car. They're not searching for facts. They're hunting down snacks, brain food for a tournament that will stretch over three marathon days.

Cole Davila:

My grandmother calls it “cheebee.”

Andy Vizcarra:

It's better than “El Heb.”

Mariela Encinas:

My dad calls it “Heb.”

Andy Vizcarra:

Okay. So focus. We need energy drinks. I'm probably going to [crosstalk]. We need them for tomorrow, because we're not going to have time to go get coffee in the morning. I'll probably get the double shot espressos from Starbucks. Like a pack of them. We also need snacks because.

Jasmin Olguin.

I have water bottles.

Andy Vizcarra:

Yeah. We need water bottle... Oh.

Jasmin Olguin:

Way to hog all the water.

Mariela Encinas:

So when I go home, this is what I miss the most.

Jasmin Olguin:

Yay. For sure.

Andy Vizcarra:

Okay. So Jasmin wants mocha. I want vanilla. I do the double shot ones or I mean there's triple shot, but I'll be bouncing off the fricking walls with that.

Mariela Encinas:

These kept me alive my 1L year.

Andy Vizcarra:

Yeah, the triple shot ones? There you go. All right. I think we're good. I got snacks. We got drinks. Ready to go?

Mariela Encinas:

Yeah. Let's roll out.

Andy Vizcarra:

You want to give your opening right now?

Jasmin Olguin:

What? Here in front of everybody?

Mariela Encinas:

Do it. If you can do it here, you can do it anywhere.

Andy Vizcarra:

There's no better way to get over your fear than just doing it. [crosstalk 00:41:09].

Cole Davila:

Yeah. Get on the intercom:

Andy Vizcarra:

Some things are too good to be true. Yeah. Get on the intercom.

Jasmin Olguin:

You want me to do it now or not?

Andy Vizcarra:

No, I want you to do it at the hotel and get animated. I'm going to write all the sayings.

Mariela Encinas:

Oh my God. I didn't even remember that. It was my car.

[car drives away]

[knock on hotel room door]

Jason Goss:

Come on in, come on in.

Katie Phang (narration):

Coach Jason Goss is waiting at the hotel.

Jason Goss:

So the way that it was described in the coaches' meeting is not if you plan to use any character evidence of Tommy, if you plan to use any character evidence at all for any witness.

Andy Vizcarra:

My entire Nick Patrick cross.

Jason Goss:

Right.

Andy Vizcarra:

The opening?

Jason Goss:

Well, so the idea is and what they were talking about...

Katie Phang:

So Jason, how do you help these students get over their nerves?

Jason Goss:

What I always tell them is you're going to, you're going to have it. It's there. I used to throw up before these things, I always did. And I don't now, but I tell you what, I mean, I’ve tried 150 cases and I will still feel so nervous every time I do an opening or every time I do a cross examination. So I don't really know how to tell them because it's kind of how they do it.

Jason Goss:

I'll tell you that tomorrow, the first round we are going against University of Chicago-Kent. So those are your advocates. Those are your witnesses. You can give notice to any...

Jason Goss:

My coach before me, that was coaching this team before me, and I remember telling her, these kids, they're not ready. They don't know what they're doing. She said, "It's weird, but right when the competition starts, whatever it is, all that stuff you told them, it just kicks in and then they just go and they do it." Tomorrow, they're going to amaze and astonish. They're going to be great because they're going to take those nerves and whatever, and they're going to be on stage, and they're going to be ready to go, and they're going to deliver.

Katie Phang (narration):

Like any collegiate athlete, these law students have something to prove on the field of play. The battle starts in one day. And on top of all of the legal strategy, there's another major stress factor. These trials are held on Zoom. And this year, the second year of the pandemic, the stakes are higher for mastering the technology.

Bill Murray:

Yeah, last year it was old webcams, bad internet, bedrooms. And here we've got really nice cameras.

Katie Phang (narration):

This is Bill Murray from South Dakota.

Bill Murray:

Your Honor, a moment to situate myself in the well of the courtroom.

Braedon Houdek: So this is us right now. Then we go to screen share, already got our thing pulled up, permission to publish. And that we...

Baylie Moravec:

I think they need to click through it instead of waiting.

Bill Murray:

We've got some lighting. We're going to be in the courtroom. It's almost set up for the competition. So I think the school has had some more time to prepare for it. There's been a whole year of Zoom trials, so they've had time to think about it and the best way to go forward.

Bill Murray:

Can we run through the motions once of where we would be motion in limine, and then...

Justin Petereit:

I just don't know how you see this switching it out.

Bill Murray:

Well, let's run it quick. Braedon, do you want to go in there with this laptop, and then Rose, you're presiding.

Bill Murray:

So now all of our teams will be using this setup for all the competitions and hopefully we're back in person next spring, but if not, we've got a very nice setup going forward.

Braedon Houdek:

Okay. So I'll be given the motion in limine. So I'm going to be giving it from the Williamson room. Granted, obviously.

Bill Murray: So state ready to proceed. Permission to prepare the well, Your Honor. Thank you, Your Honor. Nothing further. And then turn off my camera maybe?

Laura Rose:

And then turn off your camera.

Bill Murray:

I would unplug this, then I'll do my direct. They'll do their cross. I'll be seated here.

Laura Rose:

This video quality, right? This video quality right here, not the same as the video quality that we have in here. That's going to be too much of a difference. But if we have the setup in here so that we have that quality camera in here, I'm fine and I will stop my bitching.

Katie Phang (narration):

It's equally as tense inside that hotel room in San Antonio.

Andy Vizcarra:

Okay. So right now we're setting up the witness rooms. So we have to set up the backdrops and the cameras and the microphones in the rooms of the team members who will be witnessing in this competition.

Katie Phang (narration):

Every little detail matters. The lights, the cameras, the backdrops, even the makeup and hand movements. If you can see it on Zoom, chances are you're going to be judged on it.

Andy Vizcarra:

So John has built this contraption that's going to hold up the backdrops that another one of our classmates made.

John Sydow:

If something [crosstalk 00:46:51]...

Andy Vizcarra:

It's supposed to look like wood. It's like a wooden backdrop. It has the scales of justice in the middle of a little circle. How would you describe it, John?

John Sydow:

So it's a piece of vinyl that's wrapped around a frame built of PVC and printed on there is wood paneling with the scales of justice kind of super imposed on it. Kind of like you would see in the wood paneling in the back of a courtroom or an office space.

Just got to get all these wrinkles out. So it's going to be behind the advocate. And so the advocate, if the advocate's right here, I'm going to hang or put the ring light up, which I can do actually behind you. See what I'm saying? Because that ring light also has a spot on it for the camera to screw in. Yep.

Jasmin Olguin:

We went through our defense case, opening of defense, our crosses. Then we did our direct examinations. And Andy closed on defense and kind of got some more stylistic feedback. For my opening, Coach Stewart told me that I can bring it up a notch in my energy, maybe sound a little more powerful. And also she wants me to move around more.

Andy Vizcarra:

I have to do less. She was like stop doing this with your hands. I was like, "I just want to emphasize.'" It's like teetering on jazz hands. Because I'm like, there's this, there's that, there's explosions coming out of your hands. And then this is just like, you're thinking. We have a thought. You're thinking. It's like you're pulling a little band between your hands. Like you're exercising your forearms or something.

Jasmin Olguin:

We've gotten feedback. Like one of the judges commented on a girl's eyelashes and her hair. You have to be very natural, natural makeup. That's what they want. For sure, hair tucked back. Because last year my coach, he was like, you have great hair, which is true, thank you. But he was like, you need to move it from your face. You don't need to have it blocking your face because it's distracting. And natural makeup, no heavy eyeshadows. Nails need to be professional. Nude, nothing crazy. With the clothes, just blue or black suits and then a white top. They had to approve our outfit. They even approved our other advocate's tie. He had to send his tie colors because you can't have something too distracting. Because they know, the judges will be like, "I hate that tie. I hate you. It's over for us."

Andy Vizcarra:

We got to work on your demonstrative. What are you doing?

Jasmin Olguin:

We're not going to sleep tonight, are we?

Andy Vizcarra:

No.

Jasmin Olguin:

I’m texting my nail guy, because he's-

Andy Vizcarra:

How are you going to make it to your nail guy, bro? We're going right here.

Jasmin Olguin:

I love this man. I do though.

Katie Phang (narration):

The only thing left to do in South Dakota...

Baylie Moravec:

I am a bundle of nerves.

Katie Phang (narration):

Besides the usual panicking is to fuel up for the brutal days that lie ahead.

Bill Murray:

I'm for feeling pretty good. I think we're ready to go. I'm ready for some pasta tonight. And then we're ready to roll. It's La Cosa noodles, like La Cosa Nostra.

Baylie Moravec:

Rose makes this infamous pasta sauce and you can smell it through the school whenever she brings it. So she made that sauce for a team dinner tonight before competition. And Bill calls tit he La Costra noodles.

Laura Rose:

I make homemade spaghetti sauce. It's one of my ways of decompressing and de-stressing, and I was also coring and blanching 179 pounds worth of tomatoes. And so I have fast tracked some of that to make homemade spaghetti sauce. We're going to have a spaghetti dinner because it just felt appropriate with the fact pattern. It's kind of an insane time. Everything gets a little discombobulated. Everything's a little stressful. Everything's a little bit heightened, but it's also a lot of fun. But what I'm most looking forward to is regardless of if it's Bill or Bailey, whichever one of them first gets to say, "Your Honor, a moment to prepare the well," and then get up and stand and be in a courtroom and make an argument in front of people. That's what I'm looking forward to.

Baylie Moravec:

I think it's a ton of fun just doing all of our run throughs with the team. I've never competed, but it's fun watching a case come together, and then it's fun listening to what someone else has done and then flipping it on them. I mean, it sounds a little mean, but it's fun to just tear something apart.

Laura Rose:

I'm amped and here's why I'm amped, guys. You are ready. You're absolutely ready for this. There is nobody who is going to be able to know this fact pattern as thoroughly as you know this fact pattern. There is nobody who has come back and put in the amount of hours outside of typical practice time that you guys have. Rely on that and rely on your knowledge. You guys are ready to go. Don't let the bells and whistles worry you. We're about to screw some people over big time and I cannot wait to watch what happens.

Katie Phang (narration):

That's next time on Class Action.

Class Action is a production of Sound Argument and iHeartRadio. Created, produced, written and edited by Kevin Huffman and Lisa Gray.

Sound design, editing and mixing by Lisa Gray, Evan Tyor and Taylor Chicoine

This episode had additional field production by Kristen Cabrera and Paul Ebsen.

Executive producers are Taylor Chicoine and Katrina Norvell.

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