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Tuesday, November 15, 2011

A Debate and Solution on Tweaking the Model Competition Rules

This post is a collection of e-mail conversations between Eddie Ohlbaum, a law professor at Temple University and principal author of a new model code for mock trial competitions, and Gerald R. Powell, a law professor at Baylor University School of Law. Jerry's comments are in plain text, and Eddie's responses are in italics. They have given me permission to reproduce their e-mail exchange in this blog post.

Their debate is a valuable one. Please add to it by commenting on this post using the blog's comment function.

1. (Jerry) It seems to me that there are really two different abuses that we have seen. One type – inventing facts not in the problem – was largely exterminated by the model code at TOC, and that's a great thing. The other – using the competition rules as an offensive weapon – still occurred. I don't think you will ever legislate away that type of misconduct because you will always have some kind of competition rules and, as Eddie says, there is always a closed universe of facts. Nonetheless, we should try to tighten up the code and give innocent victims a remedy against rules gamers if we can. How about a rule that permits the witness to invent non-material facts in response to a cross question that inquires about a fact outside the record? Eddie, I can feel you cringe all the way across the country, but would that be so bad? We don't want witnesses to invent fingerprints not in the problem, but what's the harm in inventing the name of the teacher? The object is to deter the rules gamer from planning the game, and so we might never even have a remonstration on the invented non-material fact issue.

(Eddie) Thanks, Guys. I've included Susan Poehls on this list because she is in the process of deciding whether to use the MRMT at the NCTC next week. Jerry's "fact-finding" comports with mine. No facts were invented. But a few crossers stepped over the line. It's important to note that this was no simply "gaming the system" or finding a "weakness" in the MRMT. These gamers violated the rules.

Here's my reservation about the "Powell" exception. As I understand this suggestion, a team will be able to respond on cross with "non material facts in response to a cross question that inquires about a fact outside the record." I fear there is no way to adequately define "non-material facts." I'd be satisfied/delighted to adopt an exception for "personal or professional background facts" but, there, too, the line can be easily crossed. If I cross examine on the lack of fingerprint training (and there is nothing in the file one way or the other), is the witness free to make up having a level of experience which would qualify him to offer an opinion? Do we want to invite a contest on what constitutes a material fact? Remember, the rules currently permit cross examination on the lack of evidence and procedure -- see MRMT 2.3. Gerry (and I) were champions of this type of robust cross. If we allow teams to answer beyond the record, how do we control that? Am I then (as the impeaching team) permitted to impeach by omission? If so, must the witness answer, "your right, in my complete answer to your questions about my experience, I never mentioned anything about. . . ." Big problem, yes?

Here's what should happen under the current rules:

Rule 2.0 bars fact invention and provides that the file is a "closed universe." Rule 2.0(d) states, "A team may not invent 'anything' about a witness's background which is not specifically stated in the file." Comment 4[b] particularizes this concern in the context of "background info." Rule 2.2 requires a "good faith basis for asking questions." There is no good faith basis for asking a witness about the kind of background information which was at issue at St Johns (PhD thesis, courses, names of profs, etc.). The file says nothing about it. AND IT IS NOT THE KIND OF "CROSS-EXAMINATION ON THE ABSENCE OF EVIDENCE" PROVIDED IN MRMT 2.3'--WHICH IS THE CROSS-EXAM RULE FOR GOING OUTSIDE OF THE FILE. I will re-draft rules 2.0, 2.2 and 2.3 to specifically address this issue. Those rules need tweaking, not scrapping.

THE COACH AND ADVOCATES WHO DID THIS VIOLATED THE RULES. The question then becomes, protest and penalty. What we need is a straightforward and succinct explanation of how this works. I'm happy to draft one for approval. As well as the stones to enforce it.

2. (Jerry) Eddie, I see your point – the rules do address this very situation. But, the answer in the model rules is a remonstration trying to get the cross-examiner to admit that he did not have a good faith basis for the cross. So, if remonstration fails (and it will with a team willing to do this cross), then the judges must decide whether there was "good faith." The burden of proof is on the complaining party (the victim of the rogue cross) to show the cross examiner did not have good faith.

The cross-examination exception that I am suggesting permits the witness to answer a beyond-the-file question with a non-material fact answer. Then, if there is a remonstration, the judges must decide not whether the cross-examiner was in good faith, but whether the fact was material. And the burden of proof is still on the complaining party, but now the complainer is the cross-examiner (the rogue himself) to show that the fact was material.

To me, that is a standard more easily understood by the trial lawyers who are judging. Also, it places the burden of proof on the real wrongdoer. As trial lawyers we deal with materiality every day. On the other hand, if the issue is good faith of the cross-examiner then I fear the judges will be loath to conclude someone was in bad faith, especially when they are not themselves very familiar with the case file.

Most importantly, though, the exception sends a message to the schools that would try this kind of cross: if you do it, the ploy won't likely work because the witness does not have to say "I don't know." That deters the misconduct. If you incorporate clear examples of non-material facts (the ones at issue here seem very appropriate ones), then the team calling the witness can point to the code examples in defense of the answer given.

(From Eddie) Hi Gerry:

Thanks for continuing to advance the ball with yet another well thought-out and balanced approach. I think we're close. The "abuses" of the Code -- from my reports -- were as you summarized. I don't know the primary offender(s). It was not widespread, which makes the reaction somewhat surprising. My suspicion is that the 3+ hour coaches meeting and the "let's try something new which sounds radical but really isn't" was too much for many to handle. You are also right that the "no inference rule" had a positive impact -- no complaints of anyone making up facts as has been true of TofC and other competitions in the past. The problem, as you articulated it, was the gamesmanship (gamepersonship) on cross

Let me specifically comment on your observations and proposal -- the spirit of which is spot on -- and offer what I hope will be a friendly tweak.

Your suggestion: "How about a rule that permits the witness to invent non-material facts in response to a cross question that inquires about a fact outside the record? Eddie I can feel you cringe all the way across the country, but would that be so bad?" First, I am not cringing. I have been taking anti-cringing meds, which have helped. I am, however, "crechtzing" (the ch is a gutter "h") which means kvetching with emphasis. Here's why: Without the bad actors and the strayers (for whom, after all, these blessed rules exist) among us -- some of whom are coaches who have won major championships -- your rule makes sense and would be rarely invoked since there would be very little gamesmanship. But substiting the phrase, "non-material facts" (even if limited to cross) draws the same battle lines but with a different name. Instead of arguing about whether an inference is reasonable, the fight will now be about whether a fact is non-material. I am especially concerned about new MRMT 2.3 (for which you and I and others passionately championed) which permits crossing on the absence of evidence, the failure to perform tests or exams or conduct an investigation or search which would have been reasonable for the witness of the institution to which the witness belongs to conduct . . ." Given past over-reaching (see MRMT 2.0, Comment 3 for examples of hall of fame cheating), I'm concerned that we open ourselves us to a return to the past. One persons "that's a non material fact to which you opened up the door by asking it on cross" is another's "that is a material fact which goes to the merits of the exam." Some may read this change as permitting witness's to make up information which would provide the witness with special competency qualifications which the file did not provide. Eg. Q: "You're an internist?" A: "Yes." Q: But you have no special training in "child sex abuse." A: "Yes I do." (Is that material--if the file calls for the witness to provide an expert opinion on CSA. Of course it is and all would agree. But what if the crosser asked, "you took no courses in child sex absue, did you?" Is the answer, "Yes, I did, and the names of two were, 'CSA I and CSA II.'" Are those answers material. Of course they are if the issue is whether the Doc is qualified to offer the opinion. Do we want to invite that debate?

My friendly tweak is directed to this type of silly background info and will both bar these types of questions and provide relief to beat back the gamers who can't help but ask them. New paragraph to MRMT 2.3: "An advocate may not cross examine a witness on non-material personal or professional background information which is not contained in the fact pattern. Non-material information is information which does not impact on the witness's competency to express an opinion or generally credibility. This type of question includes, but is not limited, to information about the names of spouses and children and the names of schools, professors, employment sites and supervisors. Where a witness is cross-examined about this type of non-material background information, the witness is permitted invent a non-material answer. See Comment _____.

3. (Jerry) Eddie,

This makes my head hurt. Is there a Yiddish word for that?

Your tweak places a new restriction on the cross-examiner ("An advocate may not cross examine.…") in addition to providing the witness a way to answer without violating the rules. I fear the law of unintended consequences to the innocent cross examiner. How about rearranging the sentence, and cutting the restriction on the cross-examiner?

If a witness is cross-examined about non-material background information not contained in the case file, the witness is permitted to invent a non-material answer, even though it is not contained in the case file. Non-material background information is information about a witness which does not affect the witness's credibility or competency to express an opinion. This includes, but is not limited to, information about the names of spouses and children or the names of schools, professors, employment sites and supervisors.

Since the cross examination abuse is relatively rare, and the model rules do seem to chill the abuse of invented facts on direct, I will support your model rules whether you decide to adopt some version of a cross examination exception or not. I think it is worth more "trial."

(Eddie) Thanks, Jerry. Great job. I am totally on board. Your proposed language is better than the language I suggested for the reasons you put forward. This addresses the problem . . . while still preserving the "non inference rule" which most--but not all--thought chilled the propensity of some folks to invent facts under the guise of "reasonable inference." I will amend MRMT 23. accordingly.


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