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Saturday, March 3, 2012

In Praise of Civility: Are We Turning the Corner at Trial Competitions?

I think the trial competition world may--just may--have started to solve the problem posed by incivility and lack of professionalism at trial competitions.
In the past year, the Advocacy Teaching Blog has hosted several discussions about civility and professionalism. There seems to be a consensus among the contributors to this blog that the absence of civility and professionalism is a problem; we've all seen or been victimized by bad behavior at trial competitions. Such behavior includes disrespect to opposing counsel and witnesses, making up material facts, bending the spirit (and sometimes even the language) of competition rules in order to gain a real or perceived advantage over opponents, unrealistic witness behavior, and so on.
I'm in my third year of coaching trial teams, and I've often felt incredibly disheartened at trial competitions by some of the behavior I've seen. It certainly falls short of the high standards used by the Army JAG Corps when I was a young JAG attorney, as well as the general civility and good will I've observed among most members of the trial bar in civilian jurisdictions. (I am aware that many have identified a general downward trend in civility in the practicing bar, but my own experiences have been mostly positive.) In fact, I have a colleague who quit coaching trial teams over 25 years ago because of how disillusioned he was by the complicity of law professors and lawyers in teaching young advocates to win at the cost of integrity, civility and professionalism.
Along with identifying the problem, we've also seen some excellent discussions about proposed solutions. For example, Eddie Ohlbaum drafted a set of model rules for trial competitions, one of the primary features of which is doing away with the "reasonable inference" rule at trial competitions and replacing it with a "no inference" rule; the theory is that a no inference rule provides a bright line for identifying and policing fact creation. Others have suggested that since bad behavior also occurs in practice, we need to teach our students to deal with it effectively at trial through methods such as impeachment by omission and closing argument. One friend of mine has prepared what he jokingly refers to as a knife-fighter's guide to surviving dirty tricks at trial competitions. Some coaches have a zero tolerance policy for bad behavior by their own students, suspending or removing malefactors from competition teams. We've also seen suggestions to start naming and shaming offenders publicly.
Whatever the approach, though, the underlying problem is the same: bad behavior occurs, and current competition rules and practices either incentivize or at least tolerate bad behavior. Malefactors sometimes move on in competitions. Teams that follow the rules sometimes suffer for it because others take unfair advantage, or judges and/or competition directors don't know or won't enforce competition rules.
I've taken students to two competitions in the past six months that have adopted different, yet effective, approaches in dealing with the civility issue. The ABA Labor and Employment Law Competition, a national competition with regional qualifying competitions, includes civility points as part of the scoring. In addition, at least at the regional I attended, the competition organizers strongly emphasized civility in the coach's meeting and gave specific examples of behavior that would not be tolerated. The positive incentive of civility points, coupled with the emphasis by the competition directors, seemed to make a difference. This particular regional was a much better experience for us than the year before.
This weekend, I took one of my teams to the Santa Monica Regional of the AAJ STAC competition. The competition directors here used another innovative approach that seemed to work remarkably well. They actually gave a prize--a $50 pre-paid Visa card--to the student advocate judged to be "most civil" in the first two qualifying rounds (they also gave similar prizes for best advocate and best witness). In addition, they emphasized the importance of civility in the coaches meeting, made it clear they would not tolerate certain types of behavior (including, by the way, teams whining about their opponents creating "material facts" that were not actually material and were, in fact, reasonable inferences from the record), and promised to vigorously punish all actual violations of the material fact rule.
From what I observed, the students had a lot of fun trying to win the civility award. Students (and I observed this not only between my own students and their opponents, but also overheard similar things in the hallways during breaks) opened doors for each other, complimented each other's performances during breaks, apologized for misunderstandings that might have occurred to that point in the trial, shared easels and exhibits, and behaved much more like professionals than cutthroat competitors. In the hallways and at the reception, I heard them joking in a positive way about qualifying for the award.
This has caused me to reflect that positive incentives, in the form of professionalism or civility points, or even awards, are perhaps the best way to encourage appropriate behavior at competitions. If civility and professionalism points are a big enough portion of the available points in a round, advocates would run quite a risk in behaving unprofessionally. Awards for civility also incentivize good behavior. And by the way, the "most civil" advocate award is not the equivalent of "miss congeniality" in a beauty pageant; as our competition director pointed out this weekend, they've had the pleasure of awarding both "best advocate" and "most civil" to the same person some years.
I'd like some feedback from experienced competition coaches and directors. Is it naive to believe that positive incentives can lift us out of the mud? Do we need sticks to go along with the carrots?

Sent from my iPad


  1. Chris:  Although trial competitions aren’t my bailiwick, I thought you might be interested in language that I’ve included in my standard civil pre-trial order for years.  The last paragraph of the order reads: 
    This is a CIVIL division.  “Rambo lawyering” will not be tolerated.  Counsel will treat jurors, parties, witnesses, me, my staff, and each other with professionalism, courtesy and respect at all times.  This applies not only to the actual trial, but to all aspects of the case, including discovery and motions practice, and includes what is written as well as what is said.
    Does it improve behavior?  Who knows.  I’d like to think so. A variation of my order -- including this paragraph -- has been adopted as the suggested Pre-Trial order for Colorado’s recently  initiated Civil Access Pilot Project. 
    Civilly yours .....

  2. Chris--I'm not a trial team coach or director, but I can give you my perspective of ethics and civility from a practicing attorney's viewpoint. Being civil and ethical gives you an edge as an advocate, particularly as a prosecutor. I suppose engaging in sharp practices can give you an edge in a particular case, maybe. Over the course of a career, however, the collateral benefits of being perceived as, and actually being, ethical, civil and reasonable pays huge dividends with the bar in general and judges in particular. On any question that matters, the ethical and professional attorney gets the benefit of the knowledge that he or she wouldn't be pursuing that issue if they didn't have a good-faith belief in their position.

  3. I think both Bob and Tom have offered valuable insights on civility. I like Bob's pre-trial order a great deal, and I like Tom's prosecutorial perspective on the benefits of dealing fairly with opponents on a day-to-day basis.

    One of the reasons it's so easy for law school trial teams to abandon civility is that they never have to face the professional and social consequences of their behavior. Likely they will never see their opponents or judges again. They will never have to cross back over the bridges they've just burned, in other words. If there is no penalty for incivility or reward for being civil in a trial competition, students who behave badly and advance in competitions learn the wrong lessons--as do the students who are victimized by this type of behavior.