Donoghue v Stevenson

The Paisley Snail MiniTrial

Mini Trial Procedure – some suggestions

1. Before the actual trial, please allocate students to the various parts in the mock trial. The roles are described in more detail the Student Handout on MiniTrial Procedure (see Chapter 2). Please feel free to use the suggested timetable and the role allocation forms (in Chapter 2) as aids to preparation. Up to three students can be selected to be the lawyers for each side of the case. If you wish, one student can conduct examination-in-chief, one the cross-examination, and others the speeches to the jury. Or the students can share the tasks. If you feel that asking three students to speak causes complications then nominate just one (or perhaps two) to ask the questions – and ask the other two to help him / her prepare and then sit beside them in “court”. To keep the trial moving and to inject more realism, a lawyer volunteer could act as Judge.

2. Assign students to role play the parties (the pursuer and the defender), the Clerk of Court, the witnesses, members of the jury, Macer and reporters / media representatives – depending on numbers.

3. Before starting the trial, spend some time going over the basic court procedure and describe the main steps of a trial as outlined in the “Student Handout” (see Chapter 2) – in whatever detail is appropriate for the students concerned and the time available. There is a summary of the procedure in the handout.

4. For the purposes of MiniTrial there will be no re-examination of witnesses (unless students are comfortable with the idea) and there will be no objections by the lawyers. If there are objections (and you may not be able to prevent them) – reserve discussion of them for later. Be flexible and play things by ear. It’s meant to be fun.

5. Prepare enough copies of the relevant papers in advance.

Any lawyer volunteers should probably have a complete set of MiniTrial materials each.

The students need only get copies of Chapter 2 – The Student Handout and copies of Chapter 3 – MiniTrial Case Papers.

6. Timing. You may think it best to spend a period of time preparing for the trial and discussing things – and a second period actually running it.

Try to find everyone a role to play – even if it means having a jury of more than 12. Remind jurors and other that they will have to pay close attention to what happens in the court if they are to carry out their roles properly – and return a true verdict.

7. Arrange the available furniture so that it roughly resembles the layout of a court (or as near as possible). Some imagination may be required. See the “Court Layout” in the student handout below. There is an interactive illustration of a criminal Sheriff & Jury Court Scene on the MiniTrial web-site at www.minitrial.org.uk. In a criminal case the lawyers sit at the table in the well of the court beside the Clerk. In a civil case in the Court of Session the lawyers sit in the first row of seats – behind the bar of the court. A “gavel” is not used in the Sheriff Court or in the Supreme Courts.

8. Provide the students with instructions along the following lines:

Lawyers

Tell the lawyers (students) to read all the papers – the facts, the court documents and all of the witness statements (including the witnesses for the other side). They should prepare

Provide them with copies of the Student Handout (Chapter 2) to use in their preparation.

Lawyers could prepare in a small group. When they are in “court” the lawyers (and their helpers) should sit in rows in front of the Judge. In civil cases the lawyers for the Pursuer normally sit on the right hand side (as you look at the bench from the public gallery). The pursuer is the person making the claim – in this case Mrs. Donoghue. The lawyers for the defender normally sit on the left. The defender is the person resisting the claim – in this case David Stevenson. In civil jury trials, however, the pursuer’s lawyers can chose to sit nearest to the jury if they wish (which in some court layouts might be to the right!).

Explain the difference between credibility (by asking “is the evidence to be believed?”) and reliability (by asking “is the evidence to be relied upon?”).

You may even wish to introduce basic advocacy skills – creating an event, short and simple questions, open and closed questions and so forth.

The lawyers should assume that no-one knows anything about the case. They may wish to set a goal for themselves – such as trying to allow the witnesses to paint a vivid picture of each of the relevant facts so that the jury will remember them in the jury room.

Be careful not to risk “information overload”. The basic idea is to help students become more familiar with the legal process and to have some fun at the same time.

You may wish to give the students some more details about of what the lawyer is trying to achieve. You could outline, in simple terms, some of the main concepts by reference to: –

– copies of which are all with the case papers (in Chapter 3).

Lawyers should remember to bring notebooks (or paper) and pens with them – so that they can take notes of the evidence during the trial and add to their written submissions if need be.

Witnesses

Tell each witness to read his/her statement at least three times so that he/she will be prepared to answer questions. The pursuer and the defender can sit in the row behind their lawyers if they wish. They are the “parties to the action” and as such that are entitled to be present. The other witnesses in the trial are not normally permitted to sit in court until after they have given their evidence. Another seat should be provided at one side of the court – opposite the jury box – to mark the position of the “witness box”. Normally witnesses would remain in the “witness room” until they are called to give evidence – but if that is not practicable in the location concerned they could simply sit in the public gallery until called.

It is extremely important that all the witnesses and the lawyers asking the questions can be seen and heard by the others in the class. Please make a point of asking each witness to stand (rather than sit) while giving their evidence and to speak up loudly and clearly so that everyone can see and hear what they have to say.

The Judge can remind them gently if need be.

Judge

The Judge should read the Student Handout (Chapter 2) and review the procedure for the oath that he/she will administer to each witness. This is the Judge’s “homework”. The Judge should sit behind a table – which acts as “the bench” – facing out over the Court.

If questions are raised by students during the MiniTrial the Judge (or some of the other lawyers present) could try to reply later in the form of a mock “Note by Counsel” or a “Solicitor’s letter” – to illustrate what those sort of documents might look like. In most cases, however, a verbal response will be sufficient.

Clerk of Court

The Clerk should read the Student Handout (Chapter 2) and review the procedure for the oath that he/she will administer to the jury and for reading the “Proposed Issue for the Pursuer” (the written question which the jury require to answer and which they use to give their verdict in relation to the various heads of damages). The Clerk of Court sits in front of the Judge (or if that is not practicable beside the Judge for MiniTrial) – also facing out over the Court. The Clerk should also be familiar with the trial timetable. The Clerk should be asked to monitor the times of the various stages of the trial and be able to indicate to the Judge when they should be drawing each stage to a halt. A “timer” or stopwatch can help.

It would be helpful if the Clerk of Court could bring extra copies of the “Proposed Issue for the Pursuer” with them – so that they can be distributed to the jury at the start of the trial for reference. The jury may also wish to take notes – and pens or pencils should be available if required.

Macer

Tell the Macer to collect the Judge from “chambers” (the Judge’s room / part of the classroom or corridor) and bring him or her on to the bench – saying “Court Rise” as the Judge enters and leaves. The Macer should use a loud voice – so that everyone in the room can hear. If there is a lot of noise in the room at the time it may be necessary to use a very loud voice. The Macer also ushers the witnesses to and from the witness box when they are called to give evidence.

Jurors

The jurors in MiniTrial are chosen from the remaining students. They should imagine that they have all been cited to attend court for jury service (to act as jurors) and that they have been selected for jury service – by Clerk of Court. When the Clerk of Court asks the jurors to take their places in “the jury box” – the jurors should make their way to the jury box / seats on the other side of the court from the witness box. There are some “Jury Observation Sheets” with the case papers (in Chapter 3) which the jurors may wish to look at as homework. Such sheets are not normally issued to jurors, but they may aid discussion in MiniTrials. There are 12 jurors in a Scottish civil jury trial (as opposed to 15 in a Scottish criminal jury trial).

Reporters / Members of the Public

The remaining students who are not on the jury – can be reporters / media representatives who are asked to prepare a short news report of the trial.

If there are other pupils present who would prefer not to take any active part they can be members of the public or relatives.

Preferably each student should have a task to complete and no-one should feel left out.

9. For the purposes of MiniTrial, a simplified procedure is used for jury selection. The Clerk of Court simply asks the jurors to take their seats in the jury box. In most cases, the teacher can simply prepare a list of jurors in advance. If need be the Clerk of Court can call out their names as a reminder. Actual pieces of paper in a ballot box or glass are not required and there is no right to challenge the jurors selected in a MiniTrial. For the purposes of MiniTrial, the number of jurors can be increased to over 12 to include more students (or all of them) if need be – or the number can be reduced below 12 to suit the class size.

10. The trial begins with a short opening speech to the jury by Counsel for the pursuer – Junior Counsel if there is one. This is followed by the examination of the pursuer’s witnesses (the pursuer first then her second witness). If some evidence has been agreed by the lawyers in a Joint Minute (as here) then the Joint Minute is also read to the jury by Junior Counsel. When the pursuer’s case is finished, Counsel for the defender makes a short opening speech for the defence. This is followed by the examination of the defender’s witnesses (the defender first then his second witness). Once all the evidence is completed the lawyers for each party address the jury (pursuer first then defender). This is done by Senior Counsel if they have been involved in the case. The Judge then gives his or her “charge” to the jury and the jury retire to consider their verdict. The trial may take about an hour or more – but you can speed things up or slow things down to suit the time available. The simple aim of MiniTrial is to increase the students’ knowledge of courts and trials and to encourage discussion about the people and processes. Questions raised by anyone can be noted down to be asked after the trial. Please ask the Clerk of Court to monitor the times of the various stages of the trial following the suggested timetable (outlined in Chapter 2) and to indicate to those speaking when they should be drawing to a halt. A stopwatch or a kitchen timer can help to keep track of the times – and give an audible indication of when to stop.

11. The judge should “charge” the jury at the end of the trial using the jury instructions contained in the case papers. The charge can be kept short – but it is probably helpful to include the essentials as many people may not know what they are. The jury should require only a few minutes to reach a verdict. After they have announced the verdict, you could ask the jurors to explain how they reached their decision.

12. Ask the media representatives what kind of story they would have written. What was most newsworthy about the trial? What would grab the reader’s attention? Did they agree with the jury’s decision? Who gave the strongest testimony? If time is running out, this step can be done while the jury is deliberating.

13. Once a verdict has been returned, you may wish to debrief the trial. Encourage all students to participate in the discussion of the trial.

Questions that might help discussion include:

Q. What were the strong and weak points of each side?

Q. What additional information would have been helpful?

Q. Who was the most believable witness? Why?

Q. Did any of the students change their minds during the trial? When and why?

Q. Are there other ways that Mrs Donoghue’s alleged upsetting experience could have been dealt with? What would have been the advantages or disadvantages?

Q. Was the formal court language and procedure helpful? How could it be improved?

Q. What, if anything, did you find confusing or hard to follow.

14. Please send some feedback to SCLR.

All comments and criticisms welcome. For example: –

  1. What did you enjoy about the MiniTrial?

  2. What did you learn from the MiniTrial?

  3. What did you not enjoy about the MiniTrial?

  4. What would you like to change about the MiniTrial?
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