I am sitting on the second floor of the Dirksen Federal Building in Chicago, waiting for my two trial teams to finish getting critiqued after their competition rounds. We are competing in a regional competition of the ABA Labor and Employment Law Mock Trial Competition. Results will be announced in an hour or so.
I wanted to write this while it is fresh in my mind, and before results have been posted, to ensure that my thinking is not tainted by ballots or verdicts. I'm proud of my team, but I'm also proud of the teams we faced. We had some excellent rounds today that were marked not only by good advocacy, but also by a high level of professionalism and civility.
I'd like us to win and advance to the semifinals tomorrow, but if we don't, it will not be because people cheated, made up facts, behaved unethically or acted in an unprofessional manner.
Perhaps some of this is the luck of the draw. We did not face the same schools we faced last year, and it did not seem as if the teams we faced had been coached to game the rules and behave badly. Based on past experience, had we competed against one of the usual offenders in our region, I'm reasonably confident that we might have faced some bad behavior.
This competition uses the reasonable inference rule, with impeachment by omission as the remedy for made up facts. There are also 10 points given in the competition for professionalism and civility. Today, one of my teams did have to impeach by omission a time or two--and for actual material facts--but the technique worked and neutralized the behavior. In fact, after the round, one of the judges criticized our opponents for making up facts.
So, as much as I like Eddie's model code, I am wondering if it is possible to improve the quality of competitions without having to adopt an entire code. Are civility points enough? Can the techniques of impeachment by omission, as well as better control techniques on cross examination, solve the problem on their own, or is more really necessary?
Speaking from my own experience, in the last couple of years, I have been dismayed by some of the behavior (from a minority of schools) that we've encountered at competitions. But I was just as upset with myself for my failure--as a newcomer to the trial competition world--to anticipate this behavior and prepare my students for it. I think I've improved my coaching over the last couple of years, and as I've learned in the competition today, there are many more improvements I can make.
Addendum:
The results are in, and we did not advance to the next round. Only 4 of 20 teams did advance. Whether it says something about the high quality of our opponents or our own weaknesses as a team (I prefer the former, for obvious reasons), two of our four opponents advanced. I have no regrets: no anger at the competition, its rules or the other teams.
I think the impeachment by omission avenue is a better model to follow so long as you have competent and well prepared judges. That approach more realistically replicates what our students will encounter in actual practice. Also, the problem with a heavily detailed rule book is that it encourages "fly-specking" in a quest to find short-cuts, work-arounds, and meaningless technical distinctions. See, e.g., the US Tax Code.
ReplyDeleteOne thing we did to help prepare the judges was remind them of the rule in preliminary matters before the round. Our students asked the judges to take judicial notice of the competition rule that an impeachment by omission signified a made-up fact outside the record or reasonable inferences that could be drawn therefrom. They then cited the rule by number and quoted it verbatim. All the judges agreed to apply the rule. Only one of our opponents violated it, and then only twice with one particular witness, and from what we could tell, the judges drew the correct inference from the impeachment technique. I do not know whether the preliminary matters helped deter other misconduct; the demeanor and style of our opponents suggested to me that they would not have engaged in gamesmanship or unprofessional behavior under any circumstances.
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