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Wednesday, March 2, 2011

Mock Trial Competitions 1: Competing Objectives

Cheryl Wattley is an associate professor of law and director of clinical programs at the University of Oklahoma College of Law. This is the first of two pieces she has submitted about the mock trial process.

As I watch my mock trial competition team enter the room for their beginning round, I am moved to reflect upon this experience that we call "mock trial". So, drawing from my clinical classes, this is my "journal" of the experience, thinking about the broader picture.

A recent posting lauding the skills that can be taught through the preparation for mock trials found me generally in agreement. There can be little dispute that there is no substitute for working through case analysis, preparation and conduct of witness examinations, and drafting of opening statements and closing arguments. Students invariably gain knowledge and insight from those experiences alone. Similarly, the opportunity to engage in trial activities with students who are strangers, who are not known, provides an element that cannot be duplicated in a single law school.

Even the stress and anxiety that the competitors feel is a valuable growth experience. But, even with those givens, I find myself wondering how we might maximize the instructional component of competitions.

I have worked with students in a variety mock trial competitions including those sponsored by professional organizations, law schools, and student organizations. The rules of the competitions vary. For some competitions, there are stipulated exhibits removing the need for evidentiary foundations. For others, creation of material facts is not only permitted, but the absence of any consequence tacitly encourages such imagination, a virtual equivalent to encouraging perjury. Impeachment by omission may be prohibited. Re-cross examination, which is not provided by the rules of evidence and exists only within the discretion of a trial judge, may be made an integral part of the witness examination, creating an expectation that it is a routine component of a trial.

These variables present me with a fundamental conundrum: because I believe preparation for competitions is an opportunity to work with students in the development of skills and techniques that they will actually use in court in the representation of their clients, do I teach to the "real world" or do I prepare the students for a competition? Which do my obligations as a professor dictate that I pursue? I firmly believe that law professors are fiduciaries, charged with the responsibility of using our best efforts to prepare students for the practice of law. At the same time, I realize that I have an obligation to my academic institution to actively work towards the building and maintenance of reputation and presence. Clearly, success at competitions has become one symbol of a law school's stature and a well used tool for promotion.

An experience at a well regarded, invitation only, competition illustrates my conflict. The case revolved around evidence gathered during a police interview. The problem described a scene where the defendant was sitting at a table, across from the interrogator, being asked questions. Much of the case revolved around the defendant's demeanor and understanding of the interrogation process. For the closing argument, one competitor dragged a chair from behind the counsel table and set it a few feet in front of the jury box. He delivered his closing argument seated in that chair to evoke images of the defendant. That presentation was received with great enthusiasm and compliments by the judges who awarded scores reflecting their endorsement of the presentation.

Putting aside my thoughts as to whether the expected articulate, persuasive closing argument would reflect the anxiety and apprehension of the defendant, it is the "drama" of that action that gives me the greatest pause. Most of the judges in the courtrooms in which I practiced would have asked me if I had lost the ability to use my legs if I sought to speak from a chair. If I had dared to be so bold as to move the furniture, my creativity would have been crushed as arrogance and insolence.

At another competition, again involving a criminal problem, one of the witnesses was testifying pursuant to a plea bargain. The problem very pointedly did not provide any sentencing information, allowing the argument that the witness was testifying with the hope of receiving a benefit. One team had the witness testify that she had already been sentenced and received a 10 year sentence with no opportunity for reduction, an outrageously high sentence for the amount of drugs involved. But this testimony made it impossible to argue that she was expecting a benefit. Because the competition did not have a grievance procedure for the creation of material facts, there was no scoring penalty for this fabrication. My students' performance invariably suffered because witness credibility was an essential component of their defense case and it was effectively gutted by this manufactured testimony.

These examples illustrate the conflict that frequently occurs between the artificial reality of mock competitions and the actual practice of law. My colleagues who have coached and attended other competitions frequently share similar stories. So, I am left asking: what do I do in coaching my students? Do I acquiesce to the creative, focusing upon earning the favor of the mock judges? Or do I worry instead about the real judges, the clients, and the profession and concentrate upon acceptable decorum and procedure?

I wonder also what message we send students when we encourage them to engage in conduct that would not be acceptable in "real world" settings. Will the student, having received positive feedback, be eager to engage in such dramatic presentations in a courtroom? What if the student does such a presentation and incurs the wrath of the judge, what responsibility should be borne by the professor who encouraged such presentation? What of the ethical boundaries that are trampled by the manufacturing of testimony? Does such invention make the possible subornation of perjury one step closer and more palatable? Do we create a dynamic where lines that are not always crystal clear can become even more blurred?

Perhaps my thoughts are too bleak, my observations too melodramatic. Perhaps I have overlooked some asterisk marked note that provides a cautionary instruction. Perhaps we are not headed down a path analogous to profit making sports competitions that encourage and engender conduct that values winning above learning.

But if my concerns have merit, then I believe that the law professors who coach these teams should exercise our fiduciary responsibility and send a clear message about the standards and obligations that should direct participation in such programs. Without our students, these competitions would not exist. We, advocacy law professors, could come together in a proclamation, committing ourselves and our schools to participation in these competitions with integrity, professionalism, and mutual respect. Not a new rule or ground for a grievance or an objection to a team but a unified voice adopting an "Advocates Creed". After all, aren't these the very attributes that attorneys are to bring with them to every courtroom?

1 comment:

  1. The conflict in Cheryl Wattley’s mind as she teaches her advocacy students and readies them for competition is an issue near and dear to me. We have just completed a competition with High School students here in Colorado, and the results of that Regional very clearly set out Professor Wattley’s concerns.

    In this competition, students play the parts of witnesses, as well as lawyers. The witnesses are scored, along with the lawyers. Bearing in mind the issues of professionalism that are critical in this learning experience, we have always directed our student-witnesses that if a student-advocate asks a question that allows for argument, or is not a tightly worded cross examination question, that they have my permission to “run” on the examiner. But if a student/advocate asks a decent cross examination question, the student-witnesses are directed to answer directly. This is just fairness, and more close resembles what would happen in a real courtroom (if the Judge is paying attention).

    In one round, after a student-witness on an opposing team was not answering direct questions directly, I saw a student-advocate use a very good control technique: she asked the witness, “If I ask you a direct question, would you please limit your answer to yes or no?” The witness responded (with a smirk), “I will answer your questions any way I want to.” This was followed by the witness’ entire team laughing. What was most horrifying to me was that the student-advocate asked the Court to direct the witness to answer direct questions directly, and the Court refused. This interplay was ridiculous, and would have never happened in a well-run courtroom in real life. What made it even worse, is that this particular team placed highly in the ultimate results.

    I could give many more examples of this sort of behavior, but all of them emphasize the points that Professor Wattley made. I am very disappointed in most mock trial competitions for this very reason, whether they be at the High School, College or Law School level, it seems as though a premium is placed on entertainment, and little or no respect is paid to excellent trial skills. What these kids see on television (Harry’s Law, The Defenders, etc.) is what they want to do, because it is fun. However, just because it is more fun, doesn’t make it right.

    We wonder why the professionalism of the wonderful discipline of trial lawyering is deteriorating? Please. It is OUR fault for not pushing professionalism as the main component of these competitions, and we allow it to happen every time we simply shrug off this type of thing. I, for one, will continue to work with these kids. I also will continue to expect them to live up to my standards of ethics and professionalism. I may not be able to alter how these competitions are scored, but I damn well can help these young people become ethical human beings. That will have to be enough.