Anecdotal evidence suggests it is becoming increasingly difficult
for schools to place teams in fall invitational tournaments. This is especially
true for programs that have not yet achieved national prominence, are new, or
are rebuilding. Other schools are experiencing budget cuts that require a
reduction in travel expenses and the number of competitions in which a school
can participate.
If you're being left out or forced to cut back on competitions, have no worries. You can try a small-scale interschool trial competition that is inexpensive, provides a better educational experience for your students, and is more fun than a traditional competition. In this blog post, I’m going to explain how to set one of
these competitions up on your own. It’s much easier than you might think, and
the competition format lends itself to experimentation and innovation that
simply isn’t possible with one of the large invitational tournaments or
regional tournaments.
As documented in this blog (links available here), Southern
Illinois University School of Law experimented with a different competition format
last year, the dual-team interschool jury trial competition. We participated in
three such competitions last year. All of our opponents—The University of
Missouri at Kansas City, Northern Illinois University, and the University of
Illinois—were within a seven-hour drive of the law school. Consequently, the
competitions required minimal travel and hosting expenses. Both students and
coaches had positive experiences with the competition format. This year, we are
scheduling rematches with all three of our opponents from last year, with the
plan for annual home-and-away rivalries.
At the outset, you should know that my students have come to
prefer the interschool competitions, because they duplicate the experience of
an actual trial much more closely than invitational or regional competitions.
We are still participating in traditional competitions, but we have decided to
concentrate most of our efforts on the interschool competitions. This semester,
for example, we did not apply for any traditional competitions. Instead, we
plan to participate in three interschool competitions. During the spring
semester, we will participate in both types of competitions.
Guiding
Principles of the Small-Scale Interschool Competition
The interschool competition differs in philosophy from traditional
competitions. In the interschool competition, the educational experience comes
first. Rivalry and competition, while important, take a back seat to providing
the most realistic possible experience for the students.
The guiding principles of the small-scale interschool
competition are: (1) Professionalism; (2) Realism; and (3) Flexibility.
Professionalism
Trial directors and competitors must all commit to the highest
standards of professionalism, ethics and collegiality. There can be no
advantage gained from cheating, gaming the system, incivility, or other forms
of bad behavior.
In order to help facilitate high standards of professionalism,
competitors interact with each other prior to trial, just as real attorneys do.
There isn’t time for a full pretrial experience, but we do have them negotiate
a set of jury instructions and verdict forms, telephonically and via email, in
advance of trial. This is an optional element; in one of our competitions this
year, my counterpart at the University of Illinois and I agreed to use the jury
instructions from the case file. I prefer for the students to negotiate the
instructions with each other, because this forces them to find the
instructions, prioritize them, and modify them to reflect their theories of the
case. It also forces them to engage with their opponents prior to trial, much
as actual attorneys do in the days and weeks leading to trial.
We include a professionalism element in the pretrial order
that both trial directors sign and distribute prior to the competition. My
experience in the three competitions we’ve done so far is that the students
take this very seriously. Prior to trial, they ask questions to make sure they
aren’t violating any of the rules regarding evidence or witness performance.
Significantly, they are also able to ask these questions during trial breaks.
Collegiality is also important. In many jurisdictions,
lawyers are adversaries in the courtroom but colleagues in the community.
During our competitions, the teams share meals with each other, including an
end-of-competition dinner and awards ceremony.
Realism
In order to make the competition as realistic as possible, we
include the following elements: (1) limited pre-competition coaching; (2)
realistic case preparation time; (3) trial set in the home school’s
jurisdiction, using (to the extent this is realistic and possible) the
jurisdiction’s substantive law, voir dire procedures and jury instructions; (4)
an actual presiding trial judge from the home school’s jurisdiction; (5) lay jurors
from the home school’s community; (6) voir dire; and (7) a scoring system that
includes the jury’s verdict as a necessary element.
Limited
Pre-Competition Coaching
Because the educational aspects of the process take priority
over winning at any costs, we’ve limited the role of coaches in interschool
competitions. Prior to trial, coaches serve as a resource or sounding board for
students, answering questions rather than directing the use of particular
theories, themes or trial strategies. During breaks at trial, students are
permitted to discuss the trial with their coaches and ask questions, much as
they would be able to seek advice or guidance from supervisory attorneys or
senior partners in an actual case. Scripting students is strictly forbidden. We
want the students, not the coaches, to be ultimately responsible for their
trial performances.
In this respect, the coach acts much more like a teacher than
a competitor. The process closely resembles the assistance one would provide to
students preparing for a final trial in a trial advocacy course.
In all three of the interschool competitions we’ve held so
far, all coaches have agreed to this type of limited teaching role and have
found it to be an effective method of preparation for the students.
The trial directors for each school jointly produce a
pretrial order that is binding on the students and on the trial judges. This
pretrial order can, if necessary, resolve factual issues or deficiencies from
the case file. The goal is to ensure fairness, transparency and a level
competition playing field. As necessary, the pretrial order can be modified as
issues arise during the case analysis and preparation phase.
Realistic
Case Preparation Time
With relatively few exceptions, most trial attorneys don’t
have the luxury of spending six to eight weeks, closely supervised and directed
by multiple outside consultants or coaches, in order to put together a
two-witness, three-hour trial. I firmly believe that many of the shenanigans
that take place in traditional competitions would disappear if the competitors
had the case files for less time.
In the interschool competition, we’ve somewhat arbitrarily decided
that the students should not have the case file longer than three weeks. Two
weeks is preferable. The shorter time period puts pressure on the students to
conduct sound case analysis and prepare an efficient case.
Actual
Jurisdiction
We actually set the trials in the jurisdiction of the host
school. This includes rules of evidence, voir dire, and procedural, evidentiary
and substantive jury instructions. We modify documents in the case file, such as
pleadings, to reflect the existence of an actual jurisdiction; this can also be
done by pretrial order (for instance, “trial takes place in the First Judicial
Circuit of Illinois, using local court rules and procedures.”).
Some might argue that the “away” team faces a disadvantage if
they are from far away or out of state. So far, this has not presented a
problem for us. In fact, it is a useful exercise for students to learn how
trial issues are handled in different jurisdictions. We have not noticed a
problem with “home cooking” any of these competitions, even when the judges
were aware that one of the teams was from somewhere else.
Real Judge
Having a real judge with actual experience trying cases is
critical to the success of these small-scale competitions. We provide the pretrial order and agreed-upon
jury instructions to the judge in advance. Judges use their own trial scripts
and procedures in the courtroom. We ensure that pretrial discussions with the
judge about courtroom procedures are not a competitive event: we ask the judge
to take control the moment he or she enters the courtroom, just as if it were
an actual trial.
A real judge, presiding over a trial with a real jury,
eliminates the use of unrealistic and counterproductive strategies at trial.
Lay Jurors
and Voir Dire
We use community members as jurors. Without the benefits of
compulsory jury service and a sheriff’s department, it can sometimes be
difficult to find enough jurors. In all of our competitions so far, home and
away, we’ve hoped for 12-person juries and ended up with 6-person juries.
We use modified voir dire procedures for the trials. We
permit the attorneys to conduct voir dire, after which we remove the jurors
from the courtroom for challenges. What we’ve found is that the combination of
real judges and student inexperience results in the denial of causal challenges. After the challenges are over, the jury returns and is sworn
in.
And now the students face a different courtroom dynamic than exists in a
traditional trial competition: they have to try the case in front of the people
they’ve just spent time questioning and building relationships with.
Having lay jurors changes everything and is the single most
important innovation of the small-scale interschool competition. The jurors in
these competitions take their responsibilities seriously, as real jurors do.
Verdict and
Scoring
In the three competitions we held last school year, we
experimented with three different scoring methods. The first trial was a civil
trial, and so we used a combination of verdict, comparative fault and total
damages to determine the winner. In my view, this worked well. The second
competition involved a criminal case, and we used a straight jury verdict to
determine the winner. The third competition was a civil case in which attorney
evaluators scored the trial and the winner was determined by a combination of
evaluator ballots and scoring. The jury verdict in that case was for bragging
rights only.
Even when attorney evaluators are used, I feel it’s important
for the scoring system to include the jury’s verdict somehow. I would suggest
something similar to the rules used in UMKC’s show-me challenge, where there
are 15 scoring ballots in a round, 8 of which belong to the jury and the
remainder to attorney evaluators and judges.
Flexibility
The final principle of the small-scale interschool
competition is flexibility. Unlike a large-scale traditional competition, there
is plenty of room for trial directors to modify case file facts to create a
better trial, tweak the scoring system, add additional elements such as pretrial
settlement conferences, and so forth.
Flexibility lets you decide whether to have one trial or multiple rounds with a championship round. It lets you decide whether to participate with one other school or multiple schools. As I write this article, I am involved in planning two competitions for the fall. At this stage, it appears that each competition will involve three schools. We're all working together to figure out the best way to organize the competition.
The principle of flexibility is also important for students.
They must learn to make compromises with opponents prior to trial as they
negotiate jury instructions and verdict forms. They must also learn to deal
with juror responses that may require them to alter trial strategies at the
last minute. These are good lessons for budding young attorneys to learn.
Putting a
Competition Together
With the guiding principles in mind, it’s easy to set up a
competition. Here are few things to keep in mind:
1. Find a like-minded trial director at another school. This
is important. If there’s a school in your region that is notorious for
unprofessional behavior and cheating at trial competitions, you don’t have to
include them in your competition plans. Instead, find a friend who shares your
philosophy of trial competitions and plan the competition together.
2. Pick a good case file. NITA case files are great. So are the case files you may already be using in your classes. You could also write your own case file or modify a file
you’ve used in the past.
3. Write a good pretrial order. This should be a joint
production of the trial directors. It can be amended as necessary to take care
of unexpected factual issues that arise during the preparation process.
4. Get some awards. Everyone likes awards, and ending the
competition with awards is a nice touch. In our dual-meet competition with the
University of Illinois, their trial director, Steve Beckett, gave out three
awards: overall winning team (this is a traveling trophy), best advocate from
SIU, best advocate from University of Illinois. The students loved it.
5. Have fun.
6. Report back to this blog and its readers about your trial.
7. Schedule more competitions in the future!
Please feel free to contact me if you questions about starting a competition on your own. I would be happy to help in any way I can.
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