Words from Eddie Ohlbaum about Model Rules for Mock Trials

Ladies and Gentlemen Eddie has asked me to post the following discussion for your edification.

Enjoy!

Charlie Rose

Thanks to all who have participated in the discussion regarding the new Model Rules.  The Rules were test driven at both the NCRC (Civil Rights)  and the TofC (Tournament of Champions), both sponsored by St. Johns.  It should come as no surprise that the test drive was a bit bumpy on certain stretches of the road and that some of the passengers complained about design defects.     But when we look back, put this baby on the lift and more objectively examine the entire drive,  many of the problems we saw in earlier journeys–which we specifically sought to address in the rules--were absent.  Let’s not over-react and scrap what many regard as the primary innovations (i.e., the “no inference rule”) before examining what happened and why – and whether the problems were caused by the machine or by the kind of drivers (i.e., coaches and advocates) who, quite frankly, should be cited for reckless driving and sent to driving school.   To be sure, some realignment is necessary; but so is driver education and a re-commitment to read the manual and follow its spirit as well as its letter.  Let’s not panic people.    And let’s remember why else we’re here. 

Here are my observations from afar.  We didn’t go to the TofC this year, but I’ve received several emails off line (from both NCRC and TofC coaches as well as those publically posted and spoke with several coaches who attended both tournaments. 

1.  Was there less cheating than under the “old system?” – Absolutely.  Virtually no complaints that teams made up facts.  How cool is that?!    That’s because of the “no inference rule.”

2.  Did some teams ignore and stretch the rules on cross? – Absolutely.  How old is that?!

3.  Should those teams be outed or held accountable for violating those rules? – Absolutely.

4.  Can the rules be tweaked so that they are clearer – Absolutely.  But we had few rules before and the cheating was out of control.

5.  Are these or any rules going to stop the cheating completely? – Absolutely not.

6.  Did any team win at the TofC or NCRC because of cheating – Absolutely not.

7.  Were the “horror stories” the result of violating the rules or taking advantage of them? – Violating the rules.

8.  Is it time to publically discuss line over-stepping and cheating to prevent its re-occurrence – Absolutely.  I intend to do so – here and elsewhere.  I hope others will join me.

        No Inference Rule:
         Remember how we got here.  Cheating–specifically making up facts and calling it “drawing ‘reasonable’ or ‘necessary’ inferences was rampant.  Please review the preamble to the MRMT.  In the final rounds of  last year’s NTC, AAJ, and TofC, teams made up facts.  Let me say that another way: championship and/or finalist teams were reported to have cheated by inventing facts outside of the file in those three showcase competitions.  That’s how badly the “reasonable inference” or “necessary inference” rule worked.   Many of us have been doing this for a very long time – and it is beyond dispute that the “making up facts, going outside the file” cheat was rampant and showed no sign of stopping.  But none of that happened at the NCRC or the TofC..  There were virtually no complaints–and no protests–that teams in either tournament “went outside the file” or “made up facts” on direct or cross.  In fact, there were virtually no protests of any kind.  It would appear that the “no inference” rule actually did what is was supposed to do–it chilled the cheaters in this regard.  What other conclusion could one draw?  Scrap the “no inference” rule and we go return to the days of the OK Corral.  Is that what we want to do after one test drive?

        The Coaches Meeting Was Too Long with too many votes on what the rules meant:
         Running a coaches’ meeting, in my view, is right above “swimming in nuclear waste” on the list of ways of how not to spend an afternoon.  But if ya gotta do it, it probably makes sense to provide clarity and certainty by dictation, rather than by community consensus or voting.  Directors best serve when they direct.  Rulings are clearer when they come from the top.

        The cross-examination problem:

        There were several – but just several – instances where cross examiners violated both the letter and spirit of the rules and examined in bad faith.  The problem, as many saw it, was not in the rules, but in their mis-application.  Permit me to be blunt: Coaches and students took unfair advantage of an unfixable problem in mock trial–the closed universe of facts.

Let me address some of the specific TofC file concerns:

a.      The problem of quizzing a witness on the lack of background/qualifications.   A witness was asked about “classes the PhD took in college, the names of courses or the names of professors” where the file was silent on these matters.   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.”  Rue 2.2 requires a “good faith basis for asking questions.” 

There is no good faith basis for asking a witness about this information because the file says nothing about it.  This is not the kind of “cross examination on the absence of evidence” provided in Rule 2.3.   I will re-draft rules 2.0, 2.2 and 2.3 to specifically address this issue.  Those rules need tweaking, not scrapping.   

In such cases, the rules call for remonstration and protest–at the option of the aggrieved team.  By my lights, coaches who permitted their advocates to ask those questions on cross should be ashamed of themselves.

b.      “Two witnesses for the prosecution stated that they were positive that they saw someone that appeared to be the suspect in the video.  One team on cross really hammered away at the identification and asked, ‘you can’t even tell us the sex of the person in the video?’ In my opinion, we could have answered yes, but in the opinion of most other people, the witness had to answer no because the statement never said the sex of the person.

The witness could/should have said, “yes, I can tell you the sex.  It’s the same sex as the person whom I identified in the picture.  Note that because the “sex” of this person is not in dispute and is mentioned in other parts of the file, the witness may have stated the sex.  This is specifically authorized by MRMT 2.1 (Facts which are not in the witness’s dep but which are elsewhere in the file).  The rule as written permits the witness to identify the sex.  The more we use and refer to the rules, the more understandable they will become.

c.      “Witness testified about what they saw in the video.  Then on cross, when asked, “you didn’t see Dr. Galen on the video,” the witness replied that she couldn’t say that she didn’t see that, just that she didn’t know if she saw it or not.”  The witness’s statement is specifically prohibited by rules – as it always has been. If it’s not in the statement/deposition, it didn’t happen.  This is not complicated.   See Rule 2.3 and Rule 2.0

d.      Suppression arguments made during the trial (not during motions).  This is a file drafting/judging issue, not an MRMT problem.  Either the 4^th is in play or it’s not in play.  It all suppression issues have been resolved, it may not be raised at any time. 

e.      Witnesses preparing diagrams which makes objects look close – when the file says nothing about distance.  This is specifically prohibited by Rule 2.4.  It is also an issue which should be handled by the trial judge or by impeachment by omission.  See Rule 2.8.

         Remonstration:
        It should come as no surprise that when “some” students remonstrated (presumably, after talking with coaches and in the presence of the tournament director or her designee), they were excited and passionate.  At times, their memories and competencies as historians were challenged.  I wonder what instructions “we, the coaches” gave to our students and what tone we set for them. 

        There is nothing wrong with “disagreements” as to what was said at trial.  That students displayed “emotions and stress” is a teaching opportunity, not a reason to scrap the process. Those are teaching moments; not “woe is me” moments.  Let’s keep our eyes on the ball, folks.

        That “remonstrating” didn’t result satisfy one of the participants does not mean the process failed or that the rule is flawed.  The process is simple.  An advocate talks to her coach.  Where the decision is to remonstrate, a discussion with opposing counsel may resolve the problem.  Where it doesn’t, the process provides for a presentation to the court and/or the tournament director.

        The rules provide a framework for the ethical practice of law.  The ethics of the practitioners will, at all times, control. The consensus at the McGeorge and Stetson conferences is that we need to change the culture.  And we need to do it by holding ourselves accountable to adhere to the high standards of professionalism which the MRMT and other professional responsibility codes demand.   Until we are willing to do so–to suck it in and call out the cheaters–we are doomed to relive our history.