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Saturday, November 20, 2010

The No-Jackass Rule: Its Time Has Come for Trial Competitions

I have a very strict rule in my trial advocacy classes. I call it the No-Jackass Rule, and it is featured prominently in my syllabus, class lectures, and grading matrices. The rule applies primarily to students serving as witnesses, and it's simple: when playing a witness role, you can't act like a jackass. A jackass witness is one who attempts to "school" another student advocate by playing an unnecessarily--and almost always unrealistically--belligerent, difficult or intransigent witness.

Student witnesses in my trial advocacy class are instructed to be partisan, in accordance with the behavior of actual witnesses at trial. They have permission, for example, to answer the actual questions asked of them on cross, to spar a bit with opposing counsel, and to give narrative responses if uncontrolled on cross examination. But if they cross the line, they lose points, and if they cross it too far or too often, they can receive a failing grade on a trial or even the class. Since I adopted the rule a few years ago and incorporated it into my grading scheme, I've had remarkably few problems with bellicose witnesses.

We need the rule in mock trial competitions. A few years ago, I attended a conference during which Lee Coppock of Stetson University led a panel discussion on the issue of unprofessional behavior at trial competitions. He proposed a trial competition code of ethics, an excellent proposal that could go a long way towards solving some of the problems with witness behavior at trial competitions. New to the world of mock trial competitions, I was surprised to hear the horror stories that were shared during the discussion.

It seemed inconceivable to me then--and still does, frankly--that anyone entrusted to train young lawyers would encourage them to lie, cheat, dissemble, behave unprofessionally or act uncivilly--all for the purpose of gaining a brief advantage in a trial competition. But it happens. Some teams seem to be coached to violate the no-jackass rule in every possible way.

I believe this is because there is no real penalty associated with doing it. For instance, a common remedy at trial competitions for witnesses who make up facts is to impeach them by omission, using their depositions and other materials. This is supposed to send a signal that the witness is making something up. From what I've seen, judges don't seem to apply meaningful penalties for making facts up. In other words, the victim of this behavior can impeach by omission all day long, and nothing will ever come of it.

A similar problem is posed by witnesses who can remember complex details on direct examination but on cross profess deafness, inability to understand basic English phrases, a total lack of knowledge about their own depositions or sworn statements, and so forth. These problems can be dealt with, but they take time, and lots of it, sometimes leaving a team with little time for their closing arguments. Again, there are no meaningful penalties for this.

There is such a profound difference for everyone at a competition when witnesses play it straight and abide by the rules. I'm new to the world of trial competitions, but I've had the opportunity to see the good, the bad and the ugly in these competitions. Not much positive learning takes place when a team plays ugly. I'm fortunate to know many coaches who will not tolerate unethical or sketchy behavior from their teams, and it shows in competition. They play by the rules, and they still win.

I think that in competitions where the teams provide their own witnesses, the witnesses ought to be scored as well. And the score should be significant enough that a dirty team could get knocked right out of a competition. We ought to adopt a no-jackass rule, and give it some teeth.

1 comment:

  1. Your comments in this post are very well received! I have competed in mock trial competitions since high school and have seen exactly the kinds of behavior you are talking about. In high school and college, witnesses are scored. Whether or not that stops them from forgetting their entire witness statement on cross examination depends on the judge, but it can be an incentive to behave like a normal person. I would definitely support some kind of guidelines, rules, or scoring for witnesses in trial competitions at the law school level.