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.

A New Genre of Mock Trial Competitions: A Guest Commentary

Suparna Malempati, Director of Advocacy Programs at Atlanta's John Marshall Law School, contributed the following guest commentary about a recent small-scale interschool mock trial competition. I've blogged about this new style of competition (link here) in the past, and so have others (links here, here and here). The bottom line is that you can provide a superior competitive advocacy teaching experience for your students, free from the things that make many large-scale regional or national competitions unpleasant, if you find a couple of like-minded trial directors at other schools and plan your own competition.

A new genre of mock trial competitions has begun, and I am fortunate to be a part.  My mock trial team recently attended a wonderful competition hosted by the Southern Illinois University Law School.  This competition was the result of a unique collaboration between SIU, Northern Illinois University, and Atlanta’s John Marshall Law School.  Interschool mock trial competitions are a growing trend, one which provides great experience and fun.

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.

A League of Your Own: The User’s Guide to Small-Scale Interschool Trial Competitions

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.

The Show-Me Challenge Voir Dire and Opening Statement Competition: A Coach's Report

A.J. Bellido de Luna coaches trial teams at the University of Maryland Francis King Carey School of Law, where he is also the managing director of clinics. His team made it to the final round of the inaugural Show-Me Challenge Voir Dire and Opening Statement Competition, hosted by the University of Missouri at Kansas City School of Law.

Here is AJ's account of the competition.

The Inaugural National Voir Dire Invitational Show Me Challenge, hosted by the University of Missouri Kansas City took place the weekend of April 12. UMKC’s Director of Advocacy, Rafe Foreman and his army of volunteers made sure that this first time competition was going to be a first class event. From all of the comments I heard throughout the tournament, they exceeded all expectations.

The Dogfight: NIU Huskies Square Off Against SIU Salukis in Dual-Meet Jury Trial Competition

On March 23, the Northern Illinois University College of Law hosted the Southern Illinois University School of Law in the inaugural dual-meet jury trial competition between the two schools. The competition followed a format similar to the one used between SIU and UMKC last fall (blog posts about that competition are available here, here, and here): a jury trial from voir dire to verdict, with the jury decision, rather than score sheets, determining the winner.

This is a jointly-written blog post by Dave Taylor, NIU’s Trial Advocacy Director, and me. Dave’s segment is first, followed by mine.

Burning Time: Jodi Arias Trial Cross-Examination

I've  been following the Jodi Arias capital murder trial with some interest for the past few weeks, particularly the defense strategy of exploring in lurid and uncorroborated detail the sordid sexual history between Arias and the man she killed, her former lover Travis Alexander. I may write about this at some point, but that's not why I'm writing today.

I'm watching a live-feed stream of the cross-examination, and I've come to the conclusion that Jodi Arias may once have been a trial team witness for an ethically challenged law school mock trial team. The prosecutor is impeaching her with prior inconsistent statements right now, but for every statement so far, he's had to refresh her recollection. She took about 5 minutes to read to herself a few pages of a journal entry she wrote and about which she testified on direct examination. Then, she claimed not to remember her direct examination testimony, so the prosecutor provided a transcript, which, as I write this, she has now been reading silently to herself for over 5 minutes. In the middle of all this was a sidebar conference to discuss how much of the transcript she would read silently to herself to refresh her recollection about "pop rocks and tootsie pops."

Reminds me of a few trial competitions I've been to, although of course there are no actual time limits in the Arias trial so she can burn all the time she wants.

If, by any chance, you know someone who likes to coach their trial teams to burn their opponents' time as a strategy, they could do no better than to watch Ms. Arias in maddeningly slow real time, pretending to forget, and reading to herself excruciatingly slowly. As I say, watching her, I would swear she'd been coached by one of the great mock trial masters of the art. If her life is spared in this trial, perhaps she could serve as a competition consultant to teams that use this particular strategy.

We're now at about 15 minutes to get an answer to ONE QUESTION. I greatly admire the patience of the prosecutor at this point. Most mock trial competition attorneys would have melted down completely at this point.

An Article Worth Sharing on Mock Trial Competitions

In September, Chicago Lawyer magazine published an excellent article on mock trial competitions. A friend just sent the article to me this week. I looked it up online and decided to post a link to it. The article is entitled, "The Toughness and the Joy that Permeates Mock Trial Competition." Judge Dave Erickson, whom many of you know both from his stellar mock trial coaching career and his words of wisdom at EATS every year, is quoted extensively in the article.

Show-Me Challenge

Got this in the mail this week from Rafe Foreman at UMKC. It's a voir dire/opening statement tournament, the only one of its kind in the nation. I highly recommend signing up for it. If you haven't been to Kansas City in the spring, you're missing out. Your students will love the location and the competition.

Here's the link to the competition webpage: http://law.umkc.edu/show-me-challenge.asp

“Scrimmage” – I hardly think so! IT’S TRIAL BABY!

"Real" Trial competition: For two years now I have had the privilege of meeting with the outstanding faculty and attendees at the Stetson School of Law, EATS program. During one of the lunches there, Chris Behan and I were talking about creating a Voir dire competition. Many others were there and contributed to this conversation but Chris and I agreed to "make it happen." Yes it was very difficult to get off the ground. Football, trial teams and classes were just some of the busy fall filled conflicts that attempted to intervene at every opportunity to halt our efforts. We switched who would host at least three times. The point is that nothing worth having comes easy. Then there was the sign up for the teams. First there was overwhelming interest and by three days before the competition, attrition set in due largely to fear in my opinion. But we fielded two teams of four and off they went to Carbondale. I personally do not subscribe nor shop at the store, "Excuses R Us." Therefore I do not accept discount or gift cards for that store from others. We found eight students who were willing to have a real trial experience and they did! We are thrilled. Here is our take on the wonderful weekend in Southern Illinois.

1)      We all wanted a "real" trial competition. So Chris and I decided whoever gets the verdict wins. NO points, no score sheet, no judges, just a jury and a verdict. REAL!

a.      My comments: I loved that there was no score sheet and no set of criteria to "coach" the team toward. Instead, there were real people and real connections and relationships. For the first time as a trainer of a competition I felt as though I were "really" training something worthwhile and significant not false and pretend. This seemed real to me. We focused on Voir dire and what issued the jury would struggle with and how to identify those in ourselves instead of whether the judge will like this or that. It was so refreshing and realistic that I am a bit grumpy today, going back to my mock trial teams and being ever aware of the score sheet. Last year I did not coach my teams towards any score sheet, and I think I am done with doing so. I am more interested in real advocacy and if the judge's cannot appreciate nor understand it, then so be it. Perhaps we won't win the championship but we will win at trial. How can it be productive to teach students that there is so much difference in mock trial and real trial? I have said a million times, now in a real trial we wouldn't do this or you would do that. I am done with those distinctions. It is either advocacy or not. If judges are too old fashioned and set in their ways that they cannot see that persuasion is an art, and then they will not appreciate our art. But we are going to be artists!

2)      We also wanted the "real" components of the trial. Pretrial conference, pleadings, jury instructions, witness lists, exhibit lists and negotiations with opposing counsel. Therefore the teams were required to conference call each other, exchange exhibits, witness lists and hammer out the jury charge ALL IN ADVANCE of the competition. This was significant and effective. We only gave the teams 14 days to prepare, from seeing the problem for the first time to trial. I recommend that we cut that down to 10 days. On our end the extra four days were spent whining and complaining that it was not enough time. Once inside ten days they finally got to work. So as you can see, I am trying to eliminate the whining.

a.      My comments: My teams would come to me and say, "they want this or that in the jury instructions." My answer was always, "work it out, that's what you have to do in real life." In fact I am embarrassed about how little I did to coach or help these teams. I instead used my time to focus them on problem solving and working together and with their opponent. Compromise was finally reached about midnight as I understand it. I was happy for them, which was the first major victory of this competition. They figured something out, together, by themselves! Wow. I wrote it down!

Coaching: First let me say that Michaelle and I were so busy that we did not have more than two "appearances" with the teams. The one that I focused on was the Voir dire. I had them conduct a Voir dire while I watched and critiqued them. I did nothing to help them with their witnesses, opening or closing. If a student came to me I assisted them, but I did not have nor organize any practices for them. It was their responsibility and they were in charge. I acted like a senior partner, who was available as a resource but not directly involved in the case. I felt like this was success or victory number 2. Sure, I could have coached them up and presented them for victory, but that was not the goal. Instead, I was preparing them to be real trial lawyers who have to figure things out on the fly and on their own. I was a resource, for example, they asked questions about the jury charge, the procedure, and the rules of evidence. I eagerly answered questions, but did not have an agenda nor teach them. I do all of those things in class, they were all in my Trial Ad 2 course. So I did not find it necessary to repeat these classroom instructions and drills in this competition. I am proud to say that it felt very nice to have them being forced to work things out. Sure, I will suffer some criticism, "he didn't help us, he didn't coach us, and we could have won if he would have…."  YAK. I do not shop at Excuses R Us.

What they learned- All learned something. All participated and all were taught the value of preparation. Sadly, some were confronted with the realization that you cannot "fake your way" through trial. Some were also bluntly reminded that they are not "all that." Good lessons. But the real learning occurs more slowly, like the making of a fine wine. I have had sips of this sweet and powerful elixir all week. One student told me, "I see what you mean; you win the case in Voir dire." Why I asked the student? His response was that it was in Voir dire that we focus the jury on what is to come and prepare them and explore their feelings on the issues that will be presented. He learned about bias, as he would have struck some of the jurors for cause because of their bias. He learned how powerful bias is and how it works to affect our judgment and impartiality.

Another student explained that the trial was in hand. But it was lost because "we fell apart." He told me that their theme evaporated before his very eyes. He was shocked that all they prepared seemed to leave when they finished opening. The pressure of the court, the jury and the situation caused them to abandon their game plan and to merely try things off the cuff. These things did not work and were in his words a "disaster." He learned a valuable lesson that will never be forgotten. He also learned a lot about team work. His insights were outstanding as to working with a co-counsel and being on the "same page." 

Other students were overwhelmed by the realization that four teams had the same facts, the same witnesses and the same everything else and yet there were so many different themes, presentations, styles and results. I could not think of a better way to explain that advocacy matters than this lesson. HOW you present your case and yourself make all the difference. They learned this and experienced it for themselves. This lesson may have been the most valuable, but time will tell.

What I learned- I knew for a long time that we need to get students real experiences. That is what experiential learning is all about. But the extent and the power of this setting is a power factor that I had not considered. This raised the intensity of the learning to the power of ten. Sure I have members who are disappointed, not in the experience but in their personal performance. Sure I have team members who are blaming me, the jury, the judge and whatever else is available. The truth is however, that in class this week I had something more real and more personal to discuss than ever before. No longer was it my trial experience that I was talking about, it was THEIRS. YOU cannot imagine how that translates into opportunities for learning and retention of the learning like never before. I am excited and anxious to do this again.

I also learned – I need to use my trial team members as "consultants" for these teams. Chris did this and my teams were quite envious of this fact. Genius idea. Watch one, do one, teach one is the theme there. I frankly, did not have the time to invest in coaching these teams four hours per day. But my other teams, my alternates, my shadow teams certainly did but I failed to include them. I will make a note for next time and not overlook this outstanding resource. I also learned that the beautiful certificates that Chris did, framed and personalized were a very appreciated and added motivation. The teams who earned these can be proud and those who did not want another chance. This makes me smile.

For the future – I believe for the future I will assign people to assist the trial team. Paralegal, associates and senior partners. I also believe that I will give them more guidance on the trial notebook and the theme work. The teams that carried their theme through the entire trial and had the jury repeating their theme to them at the end of the trial were winners. No surprise to anyone there. The teams who failed in this simple task did not win the verdict, but they were winners in the game of learning. These teams will not ever take the framing, focus and theming of a case for granted again.

I agree with all of the comments that Chris made on his blog. What I want to add in closing is to add my support for these things and not restate them. I must however, report that Michaelle tells me that the courtesy, the professionalism, and the food were the best ever! I understand that the food for the dinner was catered in and they ate it at the law school. The dinner together is a very important part of this and I am so grateful and appreciative for Chris's efforts during this entire thing. I am also very thankful for Michaelle, without whom this would not have occurred.

 Why I think this format is so helpful for students:  My story – I tried a case in Texas in a county of 350 residents. They summoned 130 for the jury venire Panel. That was 1/3^rd of the county. This county, King County, has no grocery story, no bank, no hotel and no place to stay. It is the headquarters of the 6666 Ranch and everyone in the county either works for the ranch, government or school. You have to drive 90 miles one way to get to a hotel. During the two week trial, the lawyers, the jurors, the judge and court staff were fed down the street at the school gymnasium. The defense team sat together, the plaintiffs together and the jury and judge at a separate place. It was buffet style; we took turns going through the line each day. The REAL trial happened in that gym. The four seniors of Guthrie high school and their mothers cooked the lunch for us each day. They served it with a smile and treated us as if this was the biggest thing to ever happen in the county, and it was!  I frankly hated the defense counsel in the case. I did not speak to them, ever. But something changed us all in that gymnasium. We began to see a side of each other that we had never seen before. We witnessed the humanity of it all. After the verdict the jurors, judges and defense lawyers all remained together at the courthouse. There were no winners or losers but just a group of people who suffered through this trial together, who ate, prayed and communicated with one another. I was shocked; the verdict was the largest in county history. I would have thought the defense teams would be mad and leave. They stayed and talked with the jury afterwards and said our goodbyes. The case was appealed and finally resolved by settlement. But never again did I have a negative thought for those defense attorneys, the court or the jury. Instead I had a greater appreciation of their role, our community and the struggle for justice. It is not us and them, it is Just US.

Michaelle's comments:   There is not much to add as I agree with Rafe.  This was an amazing experience for the students, but also for me as well.   Being able to listen to the jurors' feedback after the trials was so much more beneficial than my experience of chasing after them as they rush to leave the courthouse after trial.  That the students have this experience now will no doubt help them in their future trial careers.  Thank you so very much to Chris Behan and all the students at SIU for an enlightening and enjoyable weekend!

--Rafe Foreman and Michaelle Tobin

University of Missouri at Kansas City School of Law

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!

Egyptian Dogs and Kangaroos: SIU and UMKC Trial Competition Experiment

Dear Colleagues,

Rafe Foreman and I are conducting an experimental trial competition between our two schools this weekend.  He's bringing two teams of student advocates from the University of Missouri at Kansas City School of Law to compete against my students from the Southern Illinois University School of Law.  Editor's note: The SIU mascot, the Saluki, is an Egyptian hunting dog.  The UMKC mascot is a kangaroo.

We'll meet at the Williamson County Courthouse in Marion, Illinois, just a few miles from the university.  The students are going to try a civil tort case from voir dire to verdict using a jury of ordinary people from our community.  The trials will be presided over by actual state court trial judges from here in Illinois.  The winner is the team that gets the verdict and/or the highest damages award.  Each four-person team will try the case twice--once in the morning and once in the afternoon.  When the trials are over, the two teams will meet for dinner to discuss the trials and get to know each other socially.

While recognizing that no mock trial can ever duplicate the realism of an actual jury trial, we've tried to strike a balance between reality and the artificial hothouse world of mock trial competitions.  For instance, we modified a case file that we've both used before with our students.  We created a joint pretrial order that is binding on the students and judges and includes time limits, professionalism and behavioral expectations, and evidentiary stipulations.  We've supplied prefatory and final jury instructions on the issue of liability.  We provide a basic framework for voir dire modeled on Illinois trial practice, with a couple of changes: there are no peremptory challenges, and since we have volunteer jurors, if a juror is stricken for cause, that juror will still sit for trial but will be told just before deliberations that he or she was selected as an alternate and can deliberate but not vote.

We gave the students the case file exactly two weeks before trial.  We figured this would duplicate the pressures of preparing while still trying to carry on a practice much more realistically than the two months' lead time that occurs with most trial competitions.  There isn't time for the students to put on a dog-and-pony show with over-rehearsed speeches and advocacy parlor tricks such as what we often see at trial competitions.  They have time to conduct case analysis and get ready for the trial.  To add some pressure, with three days left until the competition, we required each team to contact its opponent and negotiate stipulated jury instructions on damages and a verdict form.  And by the way, we provided stipulated out-of-pocket economic damages in the pretrial order, but no witnesses or stipulations on non-economic damages.  The students have had to research and prepare for how to argue damages on their own.

Students can talk to their coaches during trial breaks, just as they could with a senior partner or supervisory attorney during a real trial.  If they invoke the rule on witnesses, the witnesses will actually have to leave the courtroom.  

From a teaching perspective, this has been an enlightening and gratifying experience.  We're preparing our students to try an actual jury case under time pressure.  We don't have to coach them to watch out for certain types of dirty tricks, competition stunts, or pitfalls that exist primarily in the mock competition world.  For instance, in several years of trying cases in the Army and observing trials in multiple state court jurisdictions, I never once saw witness or attorney behavior as egregious as the first team I coached against in a trial competition.  Jim Gailey tells me that he teaches his students the rules of knife-fighting in a mock trial so they'll be prepared to survive what virtually no one actually gets away with in a real courtroom.  It's wonderful to not feel I have to spend my time preparing for that.

I don't like the artificial nature of mock trial competitions.  The absence of a real jury, in my view, encourages advocacy tactics and gamesmanship that would never work in the real world and would in fact, be counterproductive.  Students learn to do what looks and sounds great to other lawyers, but sometimes don't consider the impact of their choices on lay people.  This is not necessarily so, by the way--I think some of the top teams I've seen would be amazing with a jury--but the artificial tactics are common enough to be a problem--especially with teams that are ethically and behaviorally challenged.

I've always wondered what it would be like in these competitions if we had lay juries and tried a case to verdict.

We're about to find out!  

I'll write more about the competition next week.  

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!

Notes from a Competition

I am sitting on the second floor of the Dirksen Federal Building in Chicago, waiting for my two trial teams to finish getting critiqued after their competition rounds.  We are competing in a regional competition of the ABA Labor and Employment Law Mock Trial Competition. Results will be announced in an hour or so.

I wanted to write this while it is fresh in my mind, and before results have been posted, to ensure that my thinking is not tainted by ballots or verdicts.  I'm proud of my team, but I'm also proud of the teams we faced.  We had some excellent rounds today that were marked not only by good advocacy, but also by a high level of professionalism and civility.

I'd like us to win and advance to the semifinals tomorrow, but if we don't, it will not be because people cheated, made up facts, behaved unethically or acted in an unprofessional manner.

Perhaps some of this is the luck of the draw.  We did not face the same schools we faced last year, and it did not seem as if the teams we faced had been coached to game the rules and behave badly.  Based on past experience, had we competed against one of the usual offenders in our region, I'm reasonably confident that we might have faced some bad behavior.

This competition uses the reasonable inference rule, with impeachment by omission as the remedy for made up facts.  There are also 10 points given in the competition for professionalism and civility.  Today, one of my teams did have to impeach by omission a time or two--and for actual material facts--but the technique worked and neutralized the behavior. In fact, after the round, one of the judges criticized our opponents for making up facts.

So, as much as I like Eddie's model code, I am wondering if it is possible to improve the quality of competitions without having to adopt an entire code.  Are civility points enough?  Can the techniques of impeachment by omission, as well as better control techniques on cross examination, solve the problem on their own, or is more really necessary?

Speaking from my own experience, in the last couple of years, I have been dismayed by some of the behavior (from a minority of schools) that we've encountered at competitions.  But I was just as upset with myself for my failure--as a newcomer to the trial competition world--to anticipate this behavior and prepare my students for it.  I think I've improved my coaching over the last couple of years, and as I've learned in the competition today, there are many more improvements I can make.

Addendum:
The results are in, and we did not advance to the next round.  Only 4 of 20 teams did advance.  Whether it says something about the high quality of our opponents or our own weaknesses as a team (I prefer the former, for obvious reasons), two of our four opponents advanced.  I have no regrets: no anger at the competition, its rules or the other teams.

A Debate and Solution on Tweaking the Model Competition Rules

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

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

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

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

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

Here's what should happen under the current rules:

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

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

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

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

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

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

(From Eddie) Hi Gerry:

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

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

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

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

3. (Jerry) Eddie,

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

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

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

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

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

 

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. 

Model Rules of Conduct for Mock Trial Competitions

From Eddie Ohlbaum, Professor of Law and Director of Trial Advocacy and Clinical Legal Education at Temple University's Beasley School of Law.

Mock trial competitions are primarily teaching and training enterprises, yet professionalism and ethics have become mere slogans which are preached but not always practiced. For some, excellence in advocacy and the drive to win have collided with a commitment to teaching professionalism and ethics as part of the fabric of trial law. For others, perhaps the demand for success, the search for jobs and the thirst for rankings have translated into an aggressive competitive spirit that has often made a casualty of professionalism. These rules seek to rectify the imbalance by ensuring that we are all playing on the same field with the same rules. Existing competition rules have not done the job. They are, too often, murky, ambiguous and overly general. They have often failed to provide concrete answers to the more controversial and recurring questions. Often, these current rules are marginalized as “advisory” and either frequently ignored or arbitrarily and unevenly enforced by well intentioned evaluators who, understandably, resist the opportunity to penalize or sanction violators.

Rules of professional conduct specifically geared to mock trial competitions are necessary because mock trial scoring is substantially different from real trial evaluations. In mock trial, the facts are artificial and are limited to the four corners of the file. There are often “no facts” or explanations or answers to questions which are raised in the file, either because they are overlooked or purposely omitted by the file drafter. Because there are no explanations for their absence, questions require fact invention. In real trials, the availability or unavailability of evidence is certain. It is offered or not offered. Its unavailability may be explained (often, by “I don’t know,” or “I don’t have that information”). And it may be offered for virtually all relevant facts. In the real trials, proceedings are conducted so that the facts are outcome determinative. In mock trial, evaluators are told to disregard the merits of the case; advancement is based upon advocacy skill. In the real trials, lawyers adapt their conduct to the rules. In mock trial, competitors all too often conform the rules to their conduct. These differences are invariably ignored by the evaluators. The result has been competitions corrupted by unprofessional conduct–cheating–and stained by protests and appeals.

The Model Rules of Conduct for Mock Trial Competitions (MRMT) are intended to provide both guidance for and regulation of the conduct of participants (i.e., advocates, witnesses and coaches) in mock trial tournaments. Like the American Bar Association’s Model Rules of Professional Conduct (MRPC) and other lawyer codes, the MRMT is an attempt at self-regulation. It reaffirms that excellence in trial advocacy and the zeal to win must be guided at all times by professional integrity in the fullest sense of the term. It offers concrete ways to address particular issues so that competitions ensure high standards of ethics and professionalism in tournaments at all times. While advocates are obligated to represent their sides vigorously and passionately in their efforts to win a tournament, they must abide by the demands and restrictions imposed by the rules of the competition, the rules of professional responsibility and the standards of professionalism, just like in the real trial courtrooms. Momentum for codification emerged from two workshops at the following conferences: The University of the Pacific McGeorge School of Law’s, Future Directions in Teaching Ethics Conference (April 14-16, 2011) and Stetson University College of Law’s Educating Advocates: Teaching Advocacy Skills (May 25-27, 2011). The conferences at McGeorge and Stetson made it possible for trial advocacy teachers and trial team coaches to exchange ideas and facilitated the drafting of these rules.

I am delighted to report that Tournament Directors at the following competitions have committed to using the MRMT: Tournament of Champions, National Civil Trial Competition, National Civil Rights Competition, Top Gun Competition, Buffalo-Niagara Trial Competition (modified form). We hope others will follow. Please let me hear from you -- comments, questions, suggestions for change, and whether we may use your name as a mock trial participant (faculty, coach, supervisor, advisor, director, etc.) as a supporter of the MRMT. Contact me at Ohlbaum@temple.edu.

Thanks,

Eddie

Model Rules of Conduct 9-14-11-D7

Capitol City Challenge Hosted by the American University Washington College of Law

The Trial Advocacy Program and Mock Trial Honor Society at the American University Washington College of Law (WCL) hosted the third annual Capitol City Challenge Mock Trial Competition on March 18 – 20, 2010. Eighteen teams from law schools around the nation were selected from a large number of applicants to participate in the trial of a criminal case at the Superior Court of the District of Columbia.

The Competition, which alternates between the use of civil and criminal case files each year, has two distinctive features: (1) the optional use of modern courtroom technology, including document evidence cameras and PowerPoint presentations; and (2) an innovative Challenge Ceremony permitting teams, based on a random draw, to select their first found opponents, but offering the challenged teams the opportunity to select which side of the case to represent.

Ultimately, Fordham Law School's team defeated William & Mary Law School's team in the final round. The "Best Advocate" award in the final round was presented to Benjamin Pred from Fordham. The "Best Prosecution Advocate" award in the preliminary rounds was presented to Brandon Prince from Samford University, Cumberland School of Law, and the "Best Defense Advocate" award in the preliminary rounds was presented to Elizabeth Quirk from the Georgetown University Law Center.

The Washington College of Law Trial Advocacy Program and Mock Trial Honor Society have taken into account the feedback provided by participating schools in the past competition years and is pleased to announce that next year, for the Fourth Annual Capitol City Challenge, there will be an additional 2 rounds. The competition will now consist of three preliminary rounds with a cut to a quarter-final round of eight teams. This will guarantee students another round and enable more teams to advance from the preliminaries.

The Fourth Annual Capitol City Challenge will take place March 29 - April 1, 2012. More information about next year’s Capitol City Challenge will be forthcoming on the competition website at www.wcl.american.edu/go/ccc.