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Thursday, September 15, 2011

Model Rules of Conduct for Mock Trial Competitions

From Eddie Ohlbaum, Professor of Law and Director of Trial Advocacy and Clinical Legal Education at Temple University's Beasley School of Law.

Mock trial competitions are primarily teaching and training enterprises, yet professionalism and ethics have become mere slogans which are preached but not always practiced. For some, excellence in advocacy and the drive to win have collided with a commitment to teaching professionalism and ethics as part of the fabric of trial law. For others, perhaps the demand for success, the search for jobs and the thirst for rankings have translated into an aggressive competitive spirit that has often made a casualty of professionalism. These rules seek to rectify the imbalance by ensuring that we are all playing on the same field with the same rules. Existing competition rules have not done the job. They are, too often, murky, ambiguous and overly general. They have often failed to provide concrete answers to the more controversial and recurring questions. Often, these current rules are marginalized as “advisory” and either frequently ignored or arbitrarily and unevenly enforced by well intentioned evaluators who, understandably, resist the opportunity to penalize or sanction violators.

Rules of professional conduct specifically geared to mock trial competitions are necessary because mock trial scoring is substantially different from real trial evaluations. In mock trial, the facts are artificial and are limited to the four corners of the file. There are often “no facts” or explanations or answers to questions which are raised in the file, either because they are overlooked or purposely omitted by the file drafter. Because there are no explanations for their absence, questions require fact invention. In real trials, the availability or unavailability of evidence is certain. It is offered or not offered. Its unavailability may be explained (often, by “I don’t know,” or “I don’t have that information”). And it may be offered for virtually all relevant facts. In the real trials, proceedings are conducted so that the facts are outcome determinative. In mock trial, evaluators are told to disregard the merits of the case; advancement is based upon advocacy skill. In the real trials, lawyers adapt their conduct to the rules. In mock trial, competitors all too often conform the rules to their conduct. These differences are invariably ignored by the evaluators. The result has been competitions corrupted by unprofessional conduct–cheating–and stained by protests and appeals.

The Model Rules of Conduct for Mock Trial Competitions (MRMT) are intended to provide both guidance for and regulation of the conduct of participants (i.e., advocates, witnesses and coaches) in mock trial tournaments. Like the American Bar Association’s Model Rules of Professional Conduct (MRPC) and other lawyer codes, the MRMT is an attempt at self-regulation. It reaffirms that excellence in trial advocacy and the zeal to win must be guided at all times by professional integrity in the fullest sense of the term. It offers concrete ways to address particular issues so that competitions ensure high standards of ethics and professionalism in tournaments at all times. While advocates are obligated to represent their sides vigorously and passionately in their efforts to win a tournament, they must abide by the demands and restrictions imposed by the rules of the competition, the rules of professional responsibility and the standards of professionalism, just like in the real trial courtrooms. Momentum for codification emerged from two workshops at the following conferences: The University of the Pacific McGeorge School of Law’s, Future Directions in Teaching Ethics Conference (April 14-16, 2011) and Stetson University College of Law’s Educating Advocates: Teaching Advocacy Skills (May 25-27, 2011). The conferences at McGeorge and Stetson made it possible for trial advocacy teachers and trial team coaches to exchange ideas and facilitated the drafting of these rules.

I am delighted to report that Tournament Directors at the following competitions have committed to using the MRMT: Tournament of Champions, National Civil Trial Competition, National Civil Rights Competition, Top Gun Competition, Buffalo-Niagara Trial Competition (modified form). We hope others will follow. Please let me hear from you -- comments, questions, suggestions for change, and whether we may use your name as a mock trial participant (faculty, coach, supervisor, advisor, director, etc.) as a supporter of the MRMT. Contact me at Ohlbaum@temple.edu.



Model Rules of Conduct 9-14-11-D7

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