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Monday, November 7, 2011

A Response to Eddie Ohlbaum on Mock Trial Competition Rules

This is from S. Michael Streib of Duquesne, in response to Eddie Ohlbaum's recent post (available here):


I wanted to respond to you last week, but had to leave for Buffalo, which was fantastic, as usual.

I am not going to start this by laying compliments at your feet – others have already done so, and you deserve them. I am going to be the dissenter here.

I do not like the “no inference” rule and think that it and its counterpart (anything not expressly set forth in the witnesses’ statements must evoke a “no” answer on cross examination) are involving us in the same non-productive gamesmanship as we had with people who stretched inferences too far. I believe we should strive for something akin to the real world, not an artificial “no inference” world, but before I go there, let me take issue with your facts.

Starting with last year’s TOC, I spoke with Mike Gianantonio who both drafted the problem and ran the competition. In short, he was the perfect person to receive and properly rule on any factual disputes. He confirmed what I observed, that not a single complaint about making up facts in the final rounds was lodged. I do not know where you got your information, but the tournament director ( and me and Amelia Michele Joiner) know of no cheating/made up facts that should/would cast aspersions on any of those finalists.

Turning to AAJ, we were fortunate enough to win that competition last year and, thus, have first-hand knowledge of those final rounds (through Michele – I am banned from Vegas by judicial order issued from Her Honor, Judge Streib). I assure you that we did not make up any facts, did not experience any egregious behavior by any of the other finalists, and again, did not see a single complaint lodged in the final rounds (nor did we even hear of a single allegation). In fact, every team that we were involved with in both the semi-final and final rounds complimented each other on how clean and fair the rounds were.

Eddie, I don’t know what is going on with the factual disparity between what you seem to have been told and what I observed/have been told, and don’t really know what else I can say about it, but I do know we are headed in the wrong direction here. These anonymous complaints about unnamed teams is unfairly and inappropriately casting in a very bad light the excellent teams who competed in those two competitions last year. (I have no information regarding last year’s NTC, and thus, no comment.) This, to me, is horrible, and from an ethical perspective, as you know, in Pennsylvania at least, the failure to report observed unethical behavior is itself an ethical violation. So, what does that say about us as coaches and role models?

In my opinion, if someone needs to be taken to the woodshed, it should be done – and it should have been done when it happened. Unethical behavior is unethical behavior whether it involves necessary inferences, reasonable inferences, no inferences, or real life. It can’t be policed by rules, and must be policed by the participants themselves and the competition organizers. We need to take the lead and stand up publicly in opposition to those who try to succeed by cheating, and I think all we are doing here is hiding behind a rule. That is an abdication of our responsibility. (In my judgment, what occurred at TOC this year on cross examination was just as much “gaming the system” as is making unnecessary or unreasonable inferences. I also think it is unreal and worse than making up facts – who in the real world has not had a witness come up with something new in the middle of trial? This is a teaching experience and to suggest that witnesses will give you a favorable answer to anything they did not expressly mention in their deposition/statement is a very bad lesson. Witness, Irving Younger’s 4th Commandment: “Never ask a question you do not know the answer to. Cross is not a fishing expedition in which you uncover new facts or new surprises at the trial.” I, myself, have not been able to improve on Irving Younger’s observations, and I don’t think these rules do either.)

Let me end where I started, and on a positive note. Buffalo was great. Thirty schools from all over the country, inferences were allowed, there was camaraderie and I heard not a single complaint/rumor of inappropriate behavior (and we didn’t experience any up through the quarter finals when Georgia beat us fair and square). I attribute this to the quality of the coaching and the tournament director. This is how it should be – how it can be – and how it will be when we all do our jobs. Creating rules that take us farther from reality and trying to use them to insulate us from unethical behavior is not what we need. We need to fix the problems by standing up to them when they occur and we need knowledgeable tournament directors/protest committees that take fair and appropriate actions when someone steps over the line. I am not against model rules, but I am against deviations from reality and anonymity.

1 comment:

  1. After reading the latest posting I cannot agree more with Professor Streib. My opinion comes from the standpoint of a former competing student, a current practicing trial attorney, and a current coach. I detest the “no inference” rule because it is not practical and it does not properly prepare any student for the practice of law. I do not find this "skill" to be useful at all.

    When a witness testifies or gives a sworn statement that says, “I made it to my house at 10:00 p.m. and went inside” anyone can logically infer the witness opened the door to his home, entered, and shut the door behind him. According to this academic “no inference rule”, the witness must say “no” if asked these factual questions on cross examination.

    In practice, law enforcement narratives and reports are constantly missing details, and in order for a more effective and detail oriented cross examination, logical inferences are made constantly. This does not mean an attorney "makes up facts" or "bolsters" a position, it simply means that no one - and I mean no one - provides every single solitary detail in deposition testimony or sworn statements.

    No where is this skill shown more effectively than in Professor Charlie Rose's video on Stetson's Advocacy Resource Center - Trial Advocacy; Cross Examination. At the 14:25 mark of that video, Professor Rose properly displays how one fact (being convicted of armed robbery) can be presented in a more persuasive manner by building towards a goal. Applying the "no inference rule" would prevent student advocates from practicing this incredibly practical skill, unless the author of the fact pattern provided detail after detail after detail.

    I believe a much more balanced attack should be used to prevent the "invention of fact" problem from occurring. A more comprehensive approach with coaches, judges, and competitors on ramifications of making an illogical inference could be applied. Administrators of competitions have the power to stress this rule to their respective judges in any manner they wish. Administrators of competitions need to be more transparent with coaches on what they share with judges so that everyone is on the same page. When Mississippi College School of Law had the opportunity to host NTC, I am positive we took this approach, and the best teams who adhered to the rules made it out of that Regional Tournament.

    I find it amusing that in the undergraduate ranks of the American Mock Trial Association, where AMTA now has more than 600 competing teams, nearly 30 regional competitions, and 4 national competitions, this “problem” of inventing material facts is dealt with solely through the process of impeachment by omission. No point deductions are allowed. The same amazing schools and programs have made it to the finals year after year because they teach advocacy the right way; they do not allow coaches to overthink the problem on behalf of the students.