On not being a trial lawyer

Here's another tale from my "men are from Mars, women are from Venus, but I am from Vulcan" file: Eugene Volokh has a summary of a Georgia appellate case involving a prosecutor who, mid-closing-argument on a murder victim's birthday, brought out a birthday cake and began singing "Happy Birthday" to the victim.

All 2Ls at my law school had to enroll in its Trial Techniques program, which culminated with us having to try a mock case in front of mock juries drawn from the local community. In contrast to real life, we student lawyers got to watch the mock jury deliberations and then got to listen to feedback from the jurors afterwards. A number of my jurors came from a paralegal program at a local community college, or something similar (I may be misremembering the details of what they were studying.)

Anyway, they had seen the birthday cake trial that Eugene wrote about on a field trip for their educational program. They LOVED it. Positively thought it was sheer brilliance. They understood that it was not our fake murder victim's birthday and so that we could not have literally done the same thing. But really, our performance had been disappointingly colorless by comparison. If we took home anything, it should have been the need for more drama.

I had an Advanced Con Law paper to polish that night, but I remember putting it off for a nice stiff drink. After a glass or two, I concluded, "Well, there's always civil lit. And blessed are those who wrote Rule 56 of the Federal Rules of Civil Procedure..."

I don't have an opinion on the substantive legal issues in the appellate decision itself to which Eugene linked. But for good or ill, I understand why that prosecutor decided to risk that stunt. And perhaps why the defense lawyer hesitated to interfere with the performance.