MORE THOUGHTS ON EATS 2015 FROM AJ BELLIDO DE LUNA

1.       We are fortunate to have a place where coaches from all over the country can come together and break bread. The closer we are, the better likelihood that we can work things out on the road when we are in the heat of battle. It provides perspective and a reminder that we are all in this business to help train others. That is a mighty responsibility. We are fortunate that Charlie Rose and Stetson provides the space for us to engage with each other. A special thanks to Peggy Gordon and the folks behind the scenes that make things happens.

2.       I mentioned that Joe Lester shared with me the web site created by Jeff Brooks down at LSU for all Mock Trial Tourneys around the country. Here is the website again. I am sure Jeff would be happy to get any updates to help keep the list fresh.  Thanks Jeff for putting this together.

http://advocacy.law.lsu.edu/resources/list-of-national-trial-advocacy-competitions/

See you all on the road. I miss you already.

--A.J. Bellido de Luna

Suparna Malempati on The EATS Experience

Suparna Malempati is an Associate Professor of Law and the Director of Advocacy Programs at Atlanta's John Marshall Law School. She is also a regular contributor to the Advocacy Teaching Blog. The following blog post is about her recent experience at the Educating Advocacy Teachers (EATS) conference this past May.

In May, St. Petersburg, Florida, is gorgeous – sunny but not too hot, a slight breeze blowing occasionally, the air becoming cooler in the evenings – perfect weather. And Stetson University College of Law is a lovely school with absolutely beautiful courtrooms. Add to the mix, Charlie Rose, a self-described “bear of a man” (actually, I would say more of a charming teddy bear, although I have never been in his classroom). Charlie is a tried and true advocate. He also has an uncanny ability to bring people together and create an atmosphere of collegiality, cooperation, and inspiration.

More on Mock Trial Collaborations . . . .

This post is from Eric Knuppel, a San Francisco attorney who coaches mock trial teams at Golden Gate University School of Law

Friday, October 18, 2013 – San Francisco, CA

A few weekends ago, I had the privilege to be part of one of the most fantastic mock trial competition experiences I’ve had as a mock trial coach and former competitor. Why?  Because it wasn’t a mock trial “competition” - at least, not a traditional one anyway.

Instead, our law school participated in a mock trial collaboration or event created by the creative advocacy directors at three different law schools.  I didn’t ask many questions in the beginning and coached my team up in the typical way.  On a weekend day, I then witnessed a three-school, four-team, creativity-infused event that stretched far beyond the bounds of typical mock trial.  The format was a round-robin of four trials – including voir dire - before full juries followed by a dinner, reception, and awards.  Ballots from evaluators and jurors determined the winners.

Schedule and Registration Link for Educating Advocates:Teaching Advocacy Skills 2013

Dear Colleagues:

I wanted to share the list of presentation topics & presenters for EATS this year. We have a great deal to talk about, and many folks are coming to share. As always, it will be a collaborative sharing environment where the attendees talk as much, if not more, than the presenters. Here is the list:

Courtroom Communications Lawyers Often Get Wrong

 Ms. Lara Dolnik

21st Century Advocacy Scholarship

Prof. Meghan Chaney

Prof. Gwen Stern

Prof. Megan Canty

Ethics & Competitions: Where We Have Been, Where We Are, and Where We Should Go

 Hon. David Erickson   

 Prof. Bobbi Flowers    

 Prof. Edward Ohlbaum          

 Prof. Susan Poehls    

 Prof. Jay Leach           

Teaching Advocacy in an Overseas Environment

 Petr Vaněček

 Prof. Michaël Da Lozzo

 Prof. John Burke

 Prof. Graeme Blank

 Prof. Peter Hoffman

Using Acclaim in Your Advocacy Programs

 Aksel Gungor, Acclaim Software

Lifetime Achievement Award

Professor Susan Poehls

Developing a Superior Advocacy

Teaching Methodology

&

Managing An Advocacy Program

 Dean Stephen Easton

 Prof. Hugh Selby

 Prof. Lou Fasulo

 Prof. Adam Shlahet

Blending Doctrine & Skills in the Classroom

 Prof. Jay Leach

 Prof. Carey Bricker

 Prof. Chris Behan

 Dean Peter Alexander

Creating the 21st Century Law School:

Doctrine, Skills & Service

 Prof. Bobbi Flowers

 Prof. Wes Porter

 Prof. Nancy Schulz

Developing & Filming Teaching Scenarios

 Prof. Rafe Foreman

 Prof. Chris Behan

 Prof. A.J. Bellido de Luna

 Prof. Michele Joiner

 Prof. Lou Fasulo

 Prof. Adam Shlalhet

Teaching in the Moment: Developing Your Critiquing Methodology

 Ms. Gillian More

 Mr. Jude Bourque

 Hon. Robert McGahey

On Paper v. In person

 Mr. Joshua Karton

As you can see the group who has committed to teaching at EATS this year is incredible. We hope that you will join us, and bring a friend. If you have any questions about the conference, or just want to visit you can reach me by email - crose@law.stetson.edu. 

See you in May!  Your first step is to register online by going to: http://www.law.stetson.edu/conferences/eats/  

Charlie

In Vino Veritas: A Dispatch from the City by the Bay

In Vino Veritas: A Dispatch from the City by the Bay

If you declined your invitation to attend the inaugural Professor Bernie Segal Criminal Mock Trial Competition (In Vino Veritas) in San Francisco, you missed out. It has been an amazing experience so far. As I write this, I am sitting in a courtroom listening to the second of two superb opening statements in this morning's trial.

My students want to come back every year. Some of them are willing to defer graduation so they can compete here again. A couple may just deliberately miss their flight tomorrow.

So why is this such a good competition? The answer is simple: Wes Porter and his amazing colleagues, students and competition staff. Wes, as many of you know, is the director of the litigation center at Golden Gate University School of Law. He started this competition in honor of the late Bernie Segal, a trial and teaching legend who was a long time faculty member at GGU.

Here are a few features of this competition that I think are noteworthy:

1) The Case File. I will confess that the problem created uncertainty and frustration as we were preparing for the competition, but in execution, it worked well, and I am now a fan of the approach. It was a criminal trial, and Wes wrote the problem with two government witnesses and three defense witnesses. The defense could only call two of the witnesses at trial, and they did not have to disclose which two until after the prosecution had rested.

The different defense witness combinations essentially created three separate cases. This kept the prosecutors honest because they could not game the file for advantage, not knowing in advance what might happen on the defense case.

Also, Wes, a former prosecutor, wrote realistic characters. All were flawed and vulnerable on cross, and none knew enough about the events (a bank robbery) to carry the case on their own. There were no deposition transcripts--just inadmissible sworn or unsworn statements of dubious independent value. No experts, and no cops. Maddening to prep for, but fun to watch in execution.

2) The Scoring. Wes included two scoring innovations in this file that I thought were very helpful. The first was that each competitor had to receive a different score. Thus, no ballots with tie scores based on performance. The second was mandatory 1 point reductions for every instance of an advocate promising something on opening that was not delivered during the trial, and every instance of facts not in evidence on closing. This prevented prosecutors from trying to preemptively argue the defense case for fear they might be wrong. And it kept people from lying about the trial on close. I loved the scoring, frankly, and would love to see other competitions adopt similar ballots.

3) The Teams. If you've followed this blog at all, you know of the many efforts being made to improve the ethics, professionalism and civility at competitions. Wes reached out to a network of like-minded coaches, who brought teams that play by the rules. I didn't hear of any cheating allegations. I know most of the coaches at this tournament, and it was great to know in every single round we had that cheating, ethics or professionalism would not be issues to deal with. There are many advocacy styles that fit solidly within the rules. My teams, for instance, competed against two East Coast teams that were considerably more aggressive than the teams we usually encounter in the Midwest (competing against them was, for us staid Midwesterners, much like participating in post-Thanksgiving dinner political conversations with the family of my Philly-born-and-bred wife). But that is style, not substance. We saw nothing of the behavior that has made the reform movement necessary.

As a sidenote, to my good friend A.J. Bellido de Luna of Maryland: we will face each other again at a competition in the future. Next time, we will not get steamrolled!

4) The Social Events. Last night's reception was one of the best professional receptions I've ever attended. Tomorrow, the final round will be held in Sonoma. All teams will be bused there and given the opportunity to tour California wine country.

5) San Francisco. Of this, nothing more need be said. What a wonderful city and setting for a competition such as this one.

When the invitation comes next year, jump on it. You'll be glad you did.


Christopher W. Behan
Associate Professor of Law
Southern Illinois University School of Law

(618) 453-8722

Saluki v. Kangaroo Cage Match a Success

A few hours ago we finished the experimental competition between mock trial teams from the SIU and UMKC schools of law.  As you may recall from my earlier post, this competition featured jury trials from voir dire to verdict, with jurors drawn from the local community, presided over by state court trial judges.  Afterwards, the teams shared a meal and spent some time together socially.

The competition exceeded my expectations.  I thought I'd follow up my earlier post with some comments and feedback about the competition.  I'm aware of the possibility that I might be suffering from a huge case of confirmation bias, so I welcome debate, comments and questions on this topic.  Please use the comment feature of the blog to do this so others can read them.  If you are receiving the blog via email, click the hyperlink at the bottom of your email.  This will take you directly to the blog entry itself, where you can easily add comments.

• Voir Dire.  Although one of my favorite parts of a trial is voir dire, I've shied away from teaching it in my trial classes, largely because of perceived resource deficiencies and a lack of time.  Based on my experience in this competition, I'm going to change that.  I taught my trial teams a  a crash course in voir dire on Tuesday.  They practiced it on Wednesday before some live panels of law students.  They refined their voir dire questions on their own in preparation for trial.  Both the SIU and UMKC students conducted effective voir dire.  The jury panels opened up and talked to the attorneys, creating connections for both sides.  It was interesting to watch different jurors respond to the questions and the attorneys and gratifying to see the attorneys pick up on nods, smiles and body language cues.  To be sure, there were differing skill levels for voir dire; some of the students did it better than others.  But overall, the voir dire seemed to pave the way for both sides to discuss important themes, concepts and issues with the jurors in a real give and take.  (As an aside, I actually had jury duty this summer and watched voir dire for several panels of juries.  All of these students, from both schools, did a better job on voir dire than what I saw in this summer's trials, which was, by the way consistent with my past experience.  Most attorneys don't do voir dire well.)  We did a couple of things in the interests of time and preserving the feelings of our volunteer jurors.  The attorneys were not allowed any peremptory challenges.  They were allowed to make challenges for cause, but if granted, the juror would be allowed to sit for trial and only told before deliberations they had been selected as alternates.  As it happened, the judges did not grant any challenges for cause, on the grounds that the attorneys did not sufficiently develop the bias or inadequacy of the jurors to sit.  From what I saw, both from my own students and Rafe's, this was a fair comment from the judges.  Our attorneys hit all the right themes and got the jurors talking, but they did not obtain enough evidence on the record of any bias or infirmity of the jurors.  To improve voir dire next time, I would do a few things differently.  First, I would increase the size of the panels (we used 6-person juries).  Second, I would permit a peremptory for each side, because in at least two of the trials I saw, both sides correctly instinctively identified jurors that would be dangerous for their case but could not get them stricken for cause and had no peremptory to fall back on.  Third, I would permit actual challenges for cause and dismissals.  I think that volunteer jurors would understand this if advised of it in the beginning.  Fourth, I would allow more time for voir dire.  We gave 20 minutes per side.  I think a half-hour, or even an hour, would be better.  

• Time Limitations.  When I originally decided to use this competition format, my idea was that we would use a larger case file with more than two witnesses per side.  I figured we would have voir dire and opening statements in the morning, take a lunch break, and then try the rest of the case in the afternoon.  Instead, Rafe and I decided to try a morning trial and an afternoon trial.  This necessitated using a smaller case file, as well as imposing an overall time limit for the trial, including a hard time limit for jury deliberations.  While this permitted us to involve more students, there was a cost to the realism element of the trial.  Next time, I'd like to try a full-day trial.

• Professionalism and Ethics.  As I expected, no problems here.  First, Rafe and I both drilled into our students that they would behave professionally.  This included the No-Jackass rule (I've written about it before here) for witnesses and attorneys.  Second, as I suspected, the jury was a moderating influence.  One of the UMKC students told me after the trial, "There were several times I could have objected, and if I was trying to get points, I would have.  But then I thought about how it would sound in front of a jury, and I bit my tongue."  This was a successful strategy for him and perhaps a contributing factor to his successful verdict in the case.  By the time trial started, these attorneys had a relationship with the jury, and I don't think they wanted to jeopardize it.  We did not have a competition committee.  There were no protests.  This does not mean the students were always happy with their opponents, especially those playing witnesses.   But they had to figure out a way to work through these issues without whining or jeopardizing themselves in front of the jury.  From what I could see, they all managed to do this.

• The Verdicts.  We tried a civil case, including comparative fault and damages.  The students had to negotiate and stipulate to the damages instructions and the verdict forms.  The case was tried four times today, with each school presenting two plaintiff's cases and two defense cases.  Here are the results:

Trial 1.  Verdict for the defense.  0% fault for defendant.  (UMKC won)

Trial 2.  Split liability.  Defendant 70% at fault for defendant, plaintiff 30% at fault.  $750K in damages.  (SIU won)

Trial 3.  Verdict for defense.  0% fault for defendant.  (SIU won)

Trial 4.  Split liability.  Defendant 20% at fault, plaintiff 80% at fault.  $50K in damages (SIU won)

This type of verdict spread would drive a competition director at a large regional competition insane.  But it was perfect for what Rafe and I were trying to accomplish.  It was fascinating to see the facts and themes that led to the differing verdicts.  The students were able to talk to jurors and find out what worked and what did not.  We learned that in one trial (one of the defense verdicts), one juror was able to sway all the others to vote against the plaintiff, even though they had all wanted to vote for the plaintiff.  We also learned that the attorneys' instincts about the jurors that ought to be stricken was absolutely correct, and they were able to take away a powerful lesson about voir dire and developing challenges for cause.

I want to emphasize something that I think is very important here.  I don't think our format would work for a large tournament.  Furthermore, if the object is to judge advocacy skills in isolation of their actual persuasive effects with a real jury (as seems to be the case in most competition score sheets), this format would not work.  I am not faulting the large competitions here.  What Rafe and I did was different.  It has different goals.  I happen to like what we did better than the typical trial competition, but it is not the same thing as a typical trial competition.

• Timeframe for Competition Prep.  After Rafe and I agreed on the case file, we gave the students exactly two weeks with it to prepare for trial.  I think this ought to be the standard even for larger competitions.  Why?  Because two weeks puts a greater emphasis on case analysis and actual trial skills, and much less emphasis on the scripts and theater-like preparation involved in current trial competitions.  There is enough time to prepare a case, but there is not enough time to write and rehearse a performance.  Now, does this mean that all the students walked up to the podium and woodenly read to the jury from their legal pads?  Absolutely not.  The quality of advocacy was superb.  All advocates from both schools did their openings, closings and witness examinations without notes.  I train my students to work that way whenever possible, and it seems to me that Rafe does as well.  They worked like dogs for two weeks to get ready, primarily on their own.  I served as a judge for one round of trials and worked with them on voir dire, but otherwise, they were left to their own devices.  And they did well.  One of the UMKC students gave a particularly good opening statement.  I knew him from a study abroad program in Ireland I taught a couple of years ago, and we talked after the trial about his opening.  He wrote it the morning of trial after thinking about what he wanted to change about his old opening on the drive from Kansas City to Carbondale.  Haven't we all had the experience of doing some of our very best work under time pressure, without a team of coaches to edit or write it for us?

• The Dinner Afterward.  All I can say is this: if you like homemade barbecue and soul food, come to Carbondale.  I'll take you to Mo Wallace BBQ.  Then you'll know what a wonderful meal we all shared together afterward, complete with a short awards ceremony and comments from the coaches.  We had ribs, catfish sliders, fried chicken, pulled pork, potato salad, cole slaw, baked beans, collard greens and cherry cake. Plus, we all left as friends and colleagues, having shared both a competition and a meal together.    You can't find a better ending to a trial competition.  

Michaelle Tobin, a teaching fellow at UMKC who helped coach these teams, has promised a blog post about the competition next week.  Stay tuned!  In the meantime, I'd like to do another of these in the spring.  If you're within about a 6-8 hour driving radius of Carbondale and are interested, give me a call.  We can work out a dual meet at either your place or ours.  And I'd love to hear about other people trying this format or variations of this. Maybe we could start a league!

Day 2: EATS 2012

It is a beautiful afternoon in Gulfport.  Day two of the 2012 Educating Advocates conference is nearly over, and what a great day it has been.  This is the premier advocacy teaching conference in the country for a reason: advocacy teaching seems to attract some of the most interesting and creative people you'll ever meet.  I always find this conference energizing, and I'm grateful for the opportunity to attend and participate.  I leave with new ideas for improving my classes, eager for the chance to try new things with my students.

As I write this, Joshua Karton, the high priest/shaman of teaching advocates to become human beings, is working his magic with this year's group of new attendees.  In another room, a group of conference veterans has just finished identifying a number of common advocacy teaching problems (and suggested solutions) that will become problem-solving vignettes for the entire conference tomorrow.

A few highlights from today's presentations.

1.  Trial Competitions.  The morning began with an all-star panel on the topic of Eddie Ohlbaum's Model Rules of Conduct for Mock Trial Competitions (MRMT).  The panel consisted of Bobbi Flowers (Stetson), Eddie Ohlbaum (Temple), Jay Leach (McGeorge), Lee Coppock (Stetson) and Dave Erickson (Chicago-Kent).  All of the panelists have coached championship teams and thus brought a tremendous amount of credibility to the discussion.  This was not, in other words, a collection of perennial losers grousing about the general unfairness of life (I offered to moderate such a panel, but Charlie felt the credibility of his conference, and perhaps his law school, would suffer if I did so, and so he rather sensibly declined; also, Hugh and I had already participated in panels, and the other person we would have brought on the panel could not get funding to attend the conference).  All of the panelists coach teams to win ethically and have experienced considerable success doing so.  And all of them have seen the good, the bad, and the ugly in trial competitions.

The MRMT, which have been the subject of several blog entries and comments in the past (available here and here), were used in a number of competitions this past year (I am going to ask Eddie's permission to post these rules in the Documentary Resources page on this blog).  The panel reported on the rules and led a lively discussion of cheating, whether the rules are necessary, what other types of rules might work, the role of competition committees and protests, and other similar topics.

Eddie memorably summed up the need  for a 30-page code: "We have 30 pages of rules because there are at least 60 pages of ways to cheat at a trial competition."  Eddie identified a laundry list of ways to cheat in a Powerpoint presentation.  I will not post it here because of the possibility that it contains methods that some villainous coaches or nefarious students may not have thought of; there is no sense handing ammunition to an enemy.

To say that this was a lively discussion would be to mingle cliche with understatement.  The panel and the audience were fully engaged, with all sides of the issues (other than the pro-cheating crowd; no one ever defended that position) zealously advocated and debated.  I think it is fair to sum up the session as follows: (1) we all agree there is a problem with cheating and unethical behavior going unpunished or even rewarded at trial competitions; (2) there are a variety of approaches to solving the problem, including better competition files,  the MRMT, positive incentives, negative incentives, naming and shaming cheaters, competition bans for cheaters, stronger competition protest committees and effective protest procedures, and the like; (3) in practice, the MRMT have worked remarkably well and have been fine-tuned to reflect the experiences and feedback from the competitions; (4) other approaches, especially better case files such as the one used in South Texas's competition this year, have also worked; and (5) the increased attention to this issue is making a difference.

2.  Technology in Advocacy Teaching.  The second panel of the conference devoted to this topic, this one was moderated by Hugh Selby (Australian National University) and included Tom Stewart (St. Louis University), Lou Fasulo (Pace) and the Honorable Robert McGahey (Denver judiciary, University of Denver Sturm College of Law).  Tom Stewart began with a presentation about teaching evidence using a law firm model and treating the students as associates in his firm (with Tom as senior partner, of course) rather than the traditional student-professor relationship.  Tom has obtained a fellowship to design and teach this course using an experimental classroom at St. Louis University.  The classroom is designed to facilitate a different model of teaching and includes some absolutely amazing technology and equipment.  The heart of the course, though, is Tom's course design, which is truly innovative and about which I am sure we will hear more in future blog posts from Tom.

Lou discussed innovative uses of technology at Pace.  The first was permitting students to record their best performances on SD cards, with those performances graded.  In other words, the student could refine, retape, record and redo the assignment until satisfied with their performance, in much the same way students are permitted (and encouraged) to rewrite papers.  This best performance would then be graded.  This is a different model than the typical advocacy model, which grades a particular performance at a set time, regardless of whether that is the student's best work.  Taking advantage of some new video equipment at the school, Lou now gives his students the opportunity to conduct live, real-time critiques of their peers in the courtroom.  The courtroom performance is fed to a monitor in the jury room.  As the advocate in the courtroom is performing, Lou leads his students in a critique of the performance.  They cannot be seen or heard by the advocate in the courtroom.  Lou also has begun encouraging his far-flung student body to practice their advocacy performances with each other outside the courtroom through the use of Skype, Google Plus, and other technologies.

Bob McGahey gave a judicial perspective on technology and exhibits in the courtroom.  Like Michelle Joiner in yesterday's panel, he emphasized the importance of the fundamentals, not only to cover for technology failures, but also to ensure the best and most effective use of technology.

3.  Exhibit View.  There's a new trial software suite, Exhibit View, that includes a traditional PC software suite as well as an IPad app.  Bill Roach of exhibit view gave a presentation on the software.  Bill is going to write a blog post on the software (and his views of the conference) in the next few days, so I will say only that this looks like a great piece of software.  I'm going to obtain it, use it and teach it to my students.  It's intuitive, easy and affordable.  The company's website is www.exhibitview.net.  Visit the site; I'm confident you'll be impressed with the software.  I'm particularly excited about the IPad app.

Until tomorrow, all the best from Florida!

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

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):

Eddie:

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.

Learners as Leaders: Some Thoughts on Building a Competitive Mock Trial Program

Some readers of this blog might find themselves in a position or situation similar to mine: building a competition trial advocacy program from the ground up. Two years ago, my dean gave me the responsibility of directing our school's mock trial competition teams. I was excited by the opportunity, but remarkably ignorant of the scope of the task ahead of me. Although I had substantial trial experience and had taught trial advocacy for many years, I had never even attended a mock trial competition.

So I am learning how to coach a trial team the hard way, in the unforgiving crucible of a trial competition. It is a painful thing to watch a team lose a round, not because they are untalented, but because of something I overlooked as a coach or did not know enough to prepare them to face at competition. For example, in all my years as a prosecutor and defense attorney, including many cross-examinations of hostile witnesses, I never once faced a witness who had perfect recall on direct examination but total amnesia on cross-examination; but in competition, I learned the hard way that some teams coach their witnesses to act this way. I carry a notebook with me and pay careful attention to what successful, ethical teams are doing. I have learned quite a bit from facing well-prepared teams that do everything right and win while still taking the high road ethically. That's how I want my teams to be, and I learn so much about coaching just by watching these teams perform. I also pay attention to the unscrupulous tactics used by some teams so I can prepare my students to fairly and honorably meet the challenge. I won't name those schools here, but there are a few of them in our region, and I now know enough to give my teams a scouting report that at least lets them know they are about to encounter opponents who will make a mockery of all we've tried to teach our students about professionalism, ethics, collegiality and fair dealing.

On top of my inexperience as a coach our school does not have a strong mock trial tradition. Our appellate moot court teams have traditionally been competitive both on a regional and national level. Students write briefs and make appellate arguments their first year of law school and can try out for the moot court team the fall of their second year (as part of an extremely rigorous advanced appellate advocacy course). The moot court program is well-funded and well-organized; some of our faculty members have coached teams in the same competitions for several years running.

Our trial teams, in contrast, received fewer resources and have faced structural and curricular barriers that prevented them from reaching their potential. There is no first-year trial advocacy experience to compare with the first-year appellate briefs and arguments. Furthermore, the mandatory prerequisites for participating on trial team ensured that for the most part, only students in their final semester of law school would be eligible to compete; students had to take, in lockstep order, evidence (a 2L class), then trial advocacy (a 3L class). Thus, even though my predecessors had talented students on their teams, their lack of experience often proved to be their undoing at competitions, particularly when facing experienced opponents from schools with strong mock trial traditions. Basically, every year the program had to start over from scratch—not a recipe for sustained excellence and success.

With the assistance of a pair of associate deans and the support of my colleagues on the faculty, we've been able to remove the structural and curricular impediments to trial team success. We hold a closing argument competition that is open to first-year students, and students are now able to participate on our mock trial teams beginning in their second year of law school. This coming fall, our trial team will have returning members for the first time in many years. I think this will make a great difference in building the future success of our team.

We held our third annual closing argument competition this past week. The competition serves two primary purposes: (1) to increase enthusiasm for and interest in our trial advocacy program; and (2) to identify talented students to join the trial team.

Here's why I'm excited: The quality of the closing arguments was the best yet, even though the majority of the competitors were first-year students with no trial advocacy training or experience. Case analysis, use of theory and theme, organization, evidentiary inferences, use of jury instructions, eye contact, voice, pacing, use of notes—across the board, competitors demonstrated strong skills in these areas.

I believe their high performance was the direct result of coaching and mentoring by current members of the trial team. We started offering our trial team members as mentors in last spring's competition, and there was a noticeable difference in the performance of students who used mentors last year compared to those who did not. In fact, most of the members of our current team were mentored last year. This year, nearly every competitor requested mentoring and coaching from the current trial team.

I believe this bodes well for the future. We're building a foundation based not just on classroom instruction, but on student learners-turned teachers. The students now have enough experience and skill to start training their successors. The student mentors, all of whom have participated in interschool competitions, know what to demand of their mentees in terms of performance. When our competition cycle starts next year, we will begin at a higher level than years past, and those students will demand even more from next year's crop of mentees. Since the students are the ones who compete, it makes sense that they should take a leadership role in helping to prepare the next generation.

In addition to that, I now have the luxury of former trial team members who live in the area, know what the program expectations are, and are willing to help guide and coach our competition teams. I look forward to working with them in the years ahead to build a successful—and competitive—program.

Building a competitive program from the ground up means taking some hard knocks from the school of experience. It also requires a solid foundation built on student leadership and learners-turned-teachers.

Mock Trial Competitions 2: increasing their Instruction Value

From Cheryl Wattley, Associate Professor of Law and Director of Clinical Programs at the University of Oklahoma College of Law. The second in a 2-part series on trial competitions.

One of the presumed benefits of mock trial competition is the fact that law students learn the trial process by doing. But, in our society, competitions exist for the purpose of elevation and promotion. We have watched the growth of the young girl beauty pageants, the spread of peewee football and little league baseball. We encourage competition and demand success. The proverbial soccer mom is less a parody and more frequently a neighbor.

Within the legal academy and profession, there is a similar drive and struggle to vie for position. LSAT scores, GPAs, law school and firm rankings, all act to create a framework that encourages an aggressive competitive spirit. With today's legal professional market, there is even greater pressure for personal achievement and accomplishments to distinguish one's self from other graduates. And, if the truth be told, most advocacy professors are former trial attorneys for whom the passion for winning was a life blood that carried them through many hours of trial. How then, in the structure of such competitions, can we assure the students' active engagement in the learning process while maximizing opportunities for success at the competition? Once again, it seems to me, that the balancing of valuable instruction with the desire to win can often collide.

We all recognize that improvement and a certain level of accomplishment can only occur with repetition and experience. However, for some law schools such as mine, many mock trial participants have not had a trial advocacy course. Students may enter competitions recognizing the learning value but they always approach them with the competitor drive to do well. The challenge is for the mock trial coach to take such a student and instruct them as to the fundamentals of the trial process while at the same time preparing them for a level of competition. But how, as a practical matter, do you do that?

From an instructional perspective, you want the student to labor through the creation of the witness examination; to edit it repeatedly and identify the significance of word choices; and feel the impact upon the rhythm of the testimony. You want them to learn the art of looping and the benefit of blocking and headlines. You want them to see how to integrate the doctrinal evidence course that they may have taken into their witness' questions. And, you want to take the time to record presentations and have students review them with you because seeing is one of the greatest teachers. For those of us who teach trial advocacy courses, we are challenged to teach these things in the one semester time frame. That challenge is only magnified when the preparation time is compressed; the academic credit value is lessened; and the "grade" will be your placement at the competition.

So how does a mock trial coach work with a competitor who has not had a trial course? Is there a point at which you abandon the traditional instructional method of having the student write, perform, edit, re-perform, revise, re-perform to have the coach become actively engaged in the scripting of a witness examination? Do we abandon the lessons that are learned by doing and have the coach provide the phrases and the words, hoping that an explanation will sufficiently substitute? Is there a point at which a witness examination is no longer the student's work product but rather the coach's words?

Similar questions arise with the other components of the trial. What if the coach defines the theory of the case and the various strategies to focus immediately upon the witness examination and arguments? What if the coach provides the theme for the opening statement rather than having a student grapple with the challenge of creating one? What if the coach writes the opening statement and closing argument? At what point does a zealous coach impede learning yet promote success at a competition? Are there tools that could be created to assist a coach with respect to both teaching and successful competing?

It seems to me that one such tool would be the recording of the final rounds of competitions.

Those recordings could be used to create a digital library resource that could be accessed by students to give them the opportunity to see a competition. Because it is the final round, the quality of the student presentations should be worthy of viewing. Having the case materials available to the students for them to review prior to watching the presentation will give them some insight as to the identification of issues, development of themes, and selection of exhibits. There may be some proprietary interest that would be impacted by the sharing of such recordings but it would seem that the prominence and stature of the competitions could be enhanced by publication of their rounds. Obviously, this would require a law school or some entity to assume responsibility for the site and arrangements for access would be needed, but I believe that the potential benefits would justify the cost.

 

Mock Trial Competitions 1: Competing Objectives

Cheryl Wattley is an associate professor of law and director of clinical programs at the University of Oklahoma College of Law. This is the first of two pieces she has submitted about the mock trial process.

As I watch my mock trial competition team enter the room for their beginning round, I am moved to reflect upon this experience that we call "mock trial". So, drawing from my clinical classes, this is my "journal" of the experience, thinking about the broader picture.

A recent posting lauding the skills that can be taught through the preparation for mock trials found me generally in agreement. There can be little dispute that there is no substitute for working through case analysis, preparation and conduct of witness examinations, and drafting of opening statements and closing arguments. Students invariably gain knowledge and insight from those experiences alone. Similarly, the opportunity to engage in trial activities with students who are strangers, who are not known, provides an element that cannot be duplicated in a single law school.

Even the stress and anxiety that the competitors feel is a valuable growth experience. But, even with those givens, I find myself wondering how we might maximize the instructional component of competitions.

I have worked with students in a variety mock trial competitions including those sponsored by professional organizations, law schools, and student organizations. The rules of the competitions vary. For some competitions, there are stipulated exhibits removing the need for evidentiary foundations. For others, creation of material facts is not only permitted, but the absence of any consequence tacitly encourages such imagination, a virtual equivalent to encouraging perjury. Impeachment by omission may be prohibited. Re-cross examination, which is not provided by the rules of evidence and exists only within the discretion of a trial judge, may be made an integral part of the witness examination, creating an expectation that it is a routine component of a trial.

These variables present me with a fundamental conundrum: because I believe preparation for competitions is an opportunity to work with students in the development of skills and techniques that they will actually use in court in the representation of their clients, do I teach to the "real world" or do I prepare the students for a competition? Which do my obligations as a professor dictate that I pursue? I firmly believe that law professors are fiduciaries, charged with the responsibility of using our best efforts to prepare students for the practice of law. At the same time, I realize that I have an obligation to my academic institution to actively work towards the building and maintenance of reputation and presence. Clearly, success at competitions has become one symbol of a law school's stature and a well used tool for promotion.

An experience at a well regarded, invitation only, competition illustrates my conflict. The case revolved around evidence gathered during a police interview. The problem described a scene where the defendant was sitting at a table, across from the interrogator, being asked questions. Much of the case revolved around the defendant's demeanor and understanding of the interrogation process. For the closing argument, one competitor dragged a chair from behind the counsel table and set it a few feet in front of the jury box. He delivered his closing argument seated in that chair to evoke images of the defendant. That presentation was received with great enthusiasm and compliments by the judges who awarded scores reflecting their endorsement of the presentation.

Putting aside my thoughts as to whether the expected articulate, persuasive closing argument would reflect the anxiety and apprehension of the defendant, it is the "drama" of that action that gives me the greatest pause. Most of the judges in the courtrooms in which I practiced would have asked me if I had lost the ability to use my legs if I sought to speak from a chair. If I had dared to be so bold as to move the furniture, my creativity would have been crushed as arrogance and insolence.

At another competition, again involving a criminal problem, one of the witnesses was testifying pursuant to a plea bargain. The problem very pointedly did not provide any sentencing information, allowing the argument that the witness was testifying with the hope of receiving a benefit. One team had the witness testify that she had already been sentenced and received a 10 year sentence with no opportunity for reduction, an outrageously high sentence for the amount of drugs involved. But this testimony made it impossible to argue that she was expecting a benefit. Because the competition did not have a grievance procedure for the creation of material facts, there was no scoring penalty for this fabrication. My students' performance invariably suffered because witness credibility was an essential component of their defense case and it was effectively gutted by this manufactured testimony.

These examples illustrate the conflict that frequently occurs between the artificial reality of mock competitions and the actual practice of law. My colleagues who have coached and attended other competitions frequently share similar stories. So, I am left asking: what do I do in coaching my students? Do I acquiesce to the creative, focusing upon earning the favor of the mock judges? Or do I worry instead about the real judges, the clients, and the profession and concentrate upon acceptable decorum and procedure?

I wonder also what message we send students when we encourage them to engage in conduct that would not be acceptable in "real world" settings. Will the student, having received positive feedback, be eager to engage in such dramatic presentations in a courtroom? What if the student does such a presentation and incurs the wrath of the judge, what responsibility should be borne by the professor who encouraged such presentation? What of the ethical boundaries that are trampled by the manufacturing of testimony? Does such invention make the possible subornation of perjury one step closer and more palatable? Do we create a dynamic where lines that are not always crystal clear can become even more blurred?

Perhaps my thoughts are too bleak, my observations too melodramatic. Perhaps I have overlooked some asterisk marked note that provides a cautionary instruction. Perhaps we are not headed down a path analogous to profit making sports competitions that encourage and engender conduct that values winning above learning.

But if my concerns have merit, then I believe that the law professors who coach these teams should exercise our fiduciary responsibility and send a clear message about the standards and obligations that should direct participation in such programs. Without our students, these competitions would not exist. We, advocacy law professors, could come together in a proclamation, committing ourselves and our schools to participation in these competitions with integrity, professionalism, and mutual respect. Not a new rule or ground for a grievance or an objection to a team but a unified voice adopting an "Advocates Creed". After all, aren't these the very attributes that attorneys are to bring with them to every courtroom?

The No-Jackass Rule: Its Time Has Come for Trial Competitions

I have a very strict rule in my trial advocacy classes. I call it the No-Jackass Rule, and it is featured prominently in my syllabus, class lectures, and grading matrices. The rule applies primarily to students serving as witnesses, and it's simple: when playing a witness role, you can't act like a jackass. A jackass witness is one who attempts to "school" another student advocate by playing an unnecessarily--and almost always unrealistically--belligerent, difficult or intransigent witness.

Student witnesses in my trial advocacy class are instructed to be partisan, in accordance with the behavior of actual witnesses at trial. They have permission, for example, to answer the actual questions asked of them on cross, to spar a bit with opposing counsel, and to give narrative responses if uncontrolled on cross examination. But if they cross the line, they lose points, and if they cross it too far or too often, they can receive a failing grade on a trial or even the class. Since I adopted the rule a few years ago and incorporated it into my grading scheme, I've had remarkably few problems with bellicose witnesses.

We need the rule in mock trial competitions. A few years ago, I attended a conference during which Lee Coppock of Stetson University led a panel discussion on the issue of unprofessional behavior at trial competitions. He proposed a trial competition code of ethics, an excellent proposal that could go a long way towards solving some of the problems with witness behavior at trial competitions. New to the world of mock trial competitions, I was surprised to hear the horror stories that were shared during the discussion.

It seemed inconceivable to me then--and still does, frankly--that anyone entrusted to train young lawyers would encourage them to lie, cheat, dissemble, behave unprofessionally or act uncivilly--all for the purpose of gaining a brief advantage in a trial competition. But it happens. Some teams seem to be coached to violate the no-jackass rule in every possible way.

I believe this is because there is no real penalty associated with doing it. For instance, a common remedy at trial competitions for witnesses who make up facts is to impeach them by omission, using their depositions and other materials. This is supposed to send a signal that the witness is making something up. From what I've seen, judges don't seem to apply meaningful penalties for making facts up. In other words, the victim of this behavior can impeach by omission all day long, and nothing will ever come of it.

A similar problem is posed by witnesses who can remember complex details on direct examination but on cross profess deafness, inability to understand basic English phrases, a total lack of knowledge about their own depositions or sworn statements, and so forth. These problems can be dealt with, but they take time, and lots of it, sometimes leaving a team with little time for their closing arguments. Again, there are no meaningful penalties for this.

There is such a profound difference for everyone at a competition when witnesses play it straight and abide by the rules. I'm new to the world of trial competitions, but I've had the opportunity to see the good, the bad and the ugly in these competitions. Not much positive learning takes place when a team plays ugly. I'm fortunate to know many coaches who will not tolerate unethical or sketchy behavior from their teams, and it shows in competition. They play by the rules, and they still win.

I think that in competitions where the teams provide their own witnesses, the witnesses ought to be scored as well. And the score should be significant enough that a dirty team could get knocked right out of a competition. We ought to adopt a no-jackass rule, and give it some teeth.