The Ranker v. The Bench Brief

The Ranker sits down with The Bench Brief Blog's Director/Professor Robert Sherwin, fresh off Texas Tech's placement of two teams in the final four at ABA NAAC's Brooklyn regional, and just before being crowned something like runner-up to South Texas in LSA's soon-to-be-finalized Ranking Season 2009:

Before becoming Director of Advocacy Programs at Texas Tech, you held the same position at Texas Wesleyan. For 2007 and 2008, Texas Wesleyan was top tier, holding the 10th and 14th spots in LSA's ranking of moot court programs. In 2009, it was 115th. How did this coincide with your departure?

The drop in ranking didn’t coincide with me leaving. Texas Wesleyan had some truly outstanding moot court teams during the 2008-09 academic year (my first year here at Texas Tech) that just ran into some bad luck at competitions. That’s why I’ve been critical of your ranking system in the past – it’s so heavily reliant on competition results, and when you have a program as small as TWU’s (which only enters a handful of competitions each year), a lost coin flip here and a renegade judging panel there can be the difference between a top-20 ranking and not being ranked at all.

In contrast to Texas Wesleyan's stunning drop of a hundred or so places, Texas Tech rocketed from 41st in 2008, when you joined, to 2nd place in 2009. Now you placed two teams in the final four of the Brooklyn regional of the competitive 2010 ABA NAAC: Was your budget increased?

No. One of the reasons I was hired was to bring some direction to our “program” that was really just a conglomeration of teams. My predecessor, the legendary Don Hunt (who was my law school moot court coach), coached a few teams a year, and then we had a number of other teams being coached by various faculty members, adjunct professors, and student coaches. So Tech was spending a lot of money sending teams everywhere, but there was no real direction as to how that money was being spent and the development of talent. We’re not spending any more money than we were before, but the difference is that it’s all being spent by me instead of different people who aren’t coordinating that spending among themselves.

What competitions did you add or skip, and why?

Honestly, I can’t remember what competitions Tech was doing before I got here that we’re not doing now. Two tournaments I know I’ve added are the Pepperdine National Entertainment Law Moot Court Competition and the Pace National Environmental Law Moot Court Competition. Pepperdine is a really well-run competition that is in an area of law I know something about (I practiced in the area of Copyright Law and also teach Entertainment Law here at the law school), and my Texas Wesleyan teams had a lot of success there – in fact, that was the first national championship we won, back in 2006. We followed it up with a second-place finish in 2007. So that was definitely a tournament we were going to enter when I started at Tech. And I’m happy to say we’ve continued to do well in it – we won it in 2008 and finished second in 2009. As far as Pace goes, my wife – who also teaches at the law school – was an environmental law attorney and has been bugging me for years to let her take a team. I was never able to make it work within my system because I like to operate my teams semester-by-semester, and Pace spans the spring and the fall (the brief is due before Thanksgiving, while the oral rounds aren’t until February). This last fall, we were able to find a way to make it work, so we entered it. We also were able to secure a generous grant from the Environmental Law Section of the Texas Bar, so that helped with funding. It’s incredibly well-run, so we’ll continue to go back.

How are students selected to compete at interschool competitions? Is there an intramural competition?

No, I select my students each semester through an open-tryout. I don’t particularly care whether a student has won the intraschool competition, because there are politics and luck that factor in. I’ll certainly use those competitions to “scout” for talent, but ultimately, I and my assistant coaches decide which students are going to be on which teams.

How important is brief-writing relative to verbal advocacy in selecting students in general, in connection with a particular competition?

Well, I do things a bit differently than most other programs. I usually assign each team one designated brief writer and two designated oralists. So, I hold oralist tryouts, where students come in and argue a case before me and my assistant coaches, and brief writer tryouts, where students submit persuasive writing samples.

Your most talented teams are sent to which three or four competitions?

I make no secret that my best team will attend the National Moot Court Competition in the fall and the ABA National Appellate Advocacy Competition in the spring. Beyond that, I just try to match student personalities and arguing styles with each other and send them to locations where I think they’ll succeed. For example, if I were sending a team to the Gibbons Criminal Procedure Competition at Seton Hall, I’d make sure to send two aggressive advocates, because a lot of the judges there are criminal attorneys who tend to like that style. But those same two advocates probably wouldn’t be well-suited for the Duberstein Bankruptcy Moot Court Competition, for example.

Are there subject-matter organizations, e.g. environmental and international, who are responsible for sending students to corresponding competitions and are given budgets of their own for moot court competitions?

Yes and no. Any organization at our law school is free to send a team to any competition that our Advocacy Programs don’t enter. But that’s not to say they have to, or that they have a budget for it. Just this past year, our Sports and Entertainment Law Society really wanted to attend the Mardi Gras moot court competition at Tulane. It wasn’t on my slate of competitions, so I told them they were free to raise funds on their own and choose their own team, and they did. In one other instance, we have a particular professor who likes to attend the Braxton Craven moot court competition at UNC. He funds that team out of his own professorship, and as a result, I don’t participate in the selection of that team.

Can anyone at TTU represent TTU at interschool moot court comps, or is there a internal separation of the wheat from the chaff?

Yes – anyone can represent Tech in an interschool competition. Our Advocacy Programs fund teams to compete in the competitions of my choosing. If we have other students – perhaps those who don’t make those teams or organizations that have an interest in a particular area of law – that want to attend a competition for which I’ve decided not to field a team, then I tell them they’re free to go on their own. That wasn’t the case at Texas Wesleyan – they didn’t want “unlicensed” teams going out and perhaps embarrassing the law school’s advocacy programs. To some extent, I understood that. But frankly, these competitions are, first and foremost, educational opportunities. I don’t think it’s fair to tell a group of students that they can’t got to a competition if they themselves have secured the funding for it. Will they “embarrass” Texas Tech? I doubt it. But even if they do, I’ve got enough other great teams out there that I’m not real concerned about one or two teams here and there not measuring up.

Any thoughts on what I've termed your "shameless promotion" of Houston's so-called tournament of champions?

I don’t see how you can identify it as shameless, or even promotion. I’ve merely written that I think the Moot Court National Championship is a good idea (consistent with the NITA Mock Trial Tournament of Champions) and is a well-run tournament. I think their system of categorizing different moot court competitions has more merit than your initial scheme of just subtracting your team’s finish from the number of teams in the competition, and I support the fact that they give credit for brief and oralist awards. That said, I think the changes you’ve made to your system – in particular, giving double points for the ABA NAAC and National Moot Court Competition – has helped tremendously to give your system more credibility.

Why do you support this when brief and oralist scores are already incorporated into a team's advancement? Does the fact that you combine specialists (brief writer, advocates), rather than select generalists, positively affect this support where an advocate has a greater likelihood to be the best in the room (and win a best advocate award), when there's one less "advocate" to compete against (when arguing alongside the brief-writer specialist)? (Or perhaps I'm wrong in my assumption that all comps force the possibility of the brief-writer arguing, or the presumption that your "specialists" formula is applied across competitions.)

As for the first part of your question, I'll agree that brief and oralist scores may be incorporated into whether a team advances -- i.e., "breaks" from the preliminary rounds to the elimination rounds. I don't agree, however, that they always (or even often) play a large role in what you give points for -- semifinal finishes or higher. Many competitions (NAAC and Pace, for example) don't even count the brief score past the preliminary rounds. And oralist awards are typically given for scores accumulated in the preliminary rounds -- not the semis or finals (check out this posts for proof with respect to NAAC (http://www.thebenchbrief.com/2009/02/ruminations-on-data-from-last-years.html). So, much of the time, the teams winning brief and oralist awards are not the same teams achieving semifinal or higher finishes. But that issue aside, I just feel like when you win a distinction like Best Brief or Best Oralist, that ought to be awarded with points. Granted, not as many points as a win or top finish, but points nevertheless. If we accept your opinion, competitions ought to just scrap oralist and brief awards altogether, and just say, "well, that will be reflected in whoever wins..." I'm afraid I don't understand the second part of your question.

Do you see any problem with, while running a moot court program, also discussing in a favorable light -- with your media outlet, The Bench Brief blog -- the tournament that purports to crown the champion of the moot court world?

Not at all. First, I don’t consider my blog to be a “media outlet.” Yes, it’s a medium, and yes, it’s an “outlet” for my thoughts, but I’ve never said it’s anything other than my own blog, and I’ve never shied away from freely expressing my opinions on it. The Houston tournament and its associated rankings don’t have any discretionary elements, so it’s not like I can influence Texas Tech’s position by giving them favorable treatment on my blog.

I recall intimations you were thinking about starting a ranking. After Houston invited its inaugural coterie of ner-do-wells (a la DePaul), pursuant to a methodology that incorporated recognition of brief and oralist awards, you held-off on the ranking front. Were you "in the room" during the methodology decisions? Did Houston's methodology affect your decision not to start a ranking?

No, and in fact, I had no idea that Houston had even launched a ranking system until months after it had apparently gone live. Indeed, you'll recall that one of my criticisms of Houston's competition is that it hasn't been well advertised (http://www.thebenchbrief.com/2008/12/uh-moot-court-national-championship.html). I think they should have done something like Baylor with the "Top Gun" mock trial competition -- send a postcard out to every professor at every law school and trumpet the hell out of it. And to be sure, I don't think Houston's system is perfect, and I've said as much. I just think it's a bit better than yours. I still think that a proper ranking system ought to have a reputational, voting aspect to it (like the AP or Coaches polls in college sports). Otherwise, when you base your system solely on competition finishes (which both you AND Houston do), the rankings are prone to huge swings year to year. As for my own ranking system, I just haven't had the time. I'm bad enough in timely updating my blog -- developing my own ranking system is just way too far down my list of things I need to do.

Are you -- an alum and advocacy director of Texas Tech, and former advocacy director of Texas Wesleyan -- and your media outlet, the Bench Brief blog, in cahoots Houston to take on the long-time king of the moot court world, South Texas?

I hadn’t even met Jim Lawrence (Houston’s director) in person until this past January at their tournament. I can’t possibly imagine what we could be “in cahoots” about. Listen -- South Texas is an awesome program, and the people who run it – Dean Gerald Treece and Rob Galloway – are incredible moot court coaches. I have nothing but the ultimate amount of respect for them and their students.

What is South Texas doing right? Can they be beat in a ranking that awards points for top finishes in a given year?

South Texas fields a highly competitive team in every moot court tournament they enter. They write excellent briefs. Their oralists are bright, smooth, and meticulously prepared. When each one of your teams is excellent, you have a greater-than-zero chance of doing well (and thus “earning points”) in every competition. When you enter three times as many competitions as anyone else, it stands to reason that you’re going to be able to accumulate more points than other programs, particularly when all of your teams are that good. And that’s not any kind of criticism of South Texas – it’s a criticism of any ranking program (and Houston’s is just as guilty of it) that consists solely of points awarded for competition finishes. It unfairly favors the schools that have the resources (i.e., larger student bodies or alumni support) to enter more competitions. When you’re a smaller school – like Texas Wesleyan – and you only enter a handful of tournaments, you’ve got to do well in every single one of them to break the top ten. Some years that might happen, while in other years you may fall a bit short.

Do you not support the incentivization of increased "resources" for moot court programs?

Of course I do. I obviously believe very strongly in the educational value of law school advocacy programs (it's what I do for a living, after all). But at the same time, a school's budget (the size of its "pie," so to speak) is oftentimes directly proportional to the size of its student body. The more students, the more tuition dollars it can potentially bring in. So, a school with 1,200 students can attend twice the number of competitions that a school with 600 students can attend, and yet spend no greater percentage of its overall budget. When you attend twice the number of competitions, you have twice as much opportunity to earn points. So, yes, I think schools should spend more on advocacy programs and go to more competitions. But that's much easier to do for larger schools than it is smaller schools.

Given all the problems we have noted about the Houston so-called tournament of champions -- my criticisms at http://therankerblog.blogspot.com/2010/02/vanilla-ice-houston-fun.html -- how can anyone take them seriously?

Well, as far as I can tell, you have two criticisms of Houston: 1) They’re “bad at moot court,” and therefore, shouldn’t be ranking moot court programs; and 2) schools you consider to be top programs choose not to go to their tournament. As for your first criticism, I can tell you that Houston is not “bad at moot court.” Their state moot court team this past summer beat my eventual championship team orally, both in the prelims and in the semi-finals, and had it not been for our number one brief, they (and not us) would probably be the reigning state champs. Same thing happened at the Illinois Appellate Lawyers competition this fall – they beat my team orally in the semi-finals, and we only won because of the brief. They also finished as finalists at Pace. So I absolutely disagree with you that they’re “bad” at moot court. In the past few years, I’ve faced some outstanding Houston teams.

Which Pace comp/year are you referring to? Regarding [P]ace Enviro, from 2003 through 2010, they have not finished as Finalists there. (Even website results for Pace ICC, which lists as far back as 2005, reflect no such result.) Other Pace comps are arbitration and essay.

Houston was a finalist at your darling Pace this year (http://www.pace.edu/page.cfm?doc_id=35577)

Seriously? You're hanging your hat on the fact that at small moot court competitions, they orally beat your teams, which are admittedly not among the best you send? Oh, and the fact you've seen outstanding Houston teams in your time?

Yes, seriously. But first, let me be clear: Just because I send my very best team to the NMCC and ABA NAAC doesn't mean that I don't send incredible teams to other tournaments. My philosophy is that I don't send a team to a tournament unless I think they're good enough to win it. So I don't think it's fair to imply that I'm sending "scrub" teams to tournaments, or that any team other than my NMCC or NAAC squad is "not among the best I send." And with respect to the state tournament I referenced, every school sends its top teams (we can because it's in the middle of the summer). My team this past summer featured a national champion from the 2009 Entertainment Law competition and a national quarterfinalist at NAAC. And Houston beat those two advocates in both rounds.I see with my own eyes that Houston -- like most of the law schools in our state -- has a very competitive moot court program. They are most definitely not "bad at moot court."

But that issue aside, why do you have to be “good” at moot court to operate a mathematical ranking system? You yourself started your ranking system while you were still in law school, for heavens sake. I wouldn’t call you a “moot court expert,” but you’ve come up with a ranking system that mathematically ranks teams. So has Houston. Why would whether they’re “good” or “bad” at moot court make that mathematical system any less legitimate?

Your mathematical argument is nice, but pertains only to their invites. At some point, there are people supposedly expert at judging the relative excellence of moot court teams, who assign winners and losers along the way toward crowning the so-called "best of the best." So their tournament does imply some ability to recognize moot court greatness. How can they do this when suck at moot court? (I on the other hand, though fine enough at moot court, merely aggregate other judges' rankings.)

Please -- you speak as if the students on the UH Moot Court Board are doing all the judging. The judges at the Moot Court National Championship are like the judges at any other moot court competition in the country. They're local attorneys and judges, who may or may not have any connection to UH Law Center. Houston isn't deciding who wins, in the same way that the ABA and New York City Bar Association aren't deciding who wins the NAAC or the NMCC.

As for your second criticism [of Houston, that schools you consider to be top programs choose not to go to their tournament], you’re assuming that some schools don’t go because they don’t take it seriously. As an advocacy director, I think that’s a faulty assumption. My decision to attend or not attend a competition is based on numerous factors, including my budget and my ability to field a competitive team. Part of the difficulty of Houston – and it’s a criticism I’ve already voiced both on my blog and to Jim Lawrence personally – is the timing. The brief is due the weekend after Thanksgiving (ugh) and the competition is the weekend before the national finals of the National Moot Court Competition. That made it very difficult for me to find the right combination of advocates, given the timing. And many schools have pre-standing commitments to certain competitions that they can’t break (maybe due to a professor who has ties to a competition), which means there’s no money left to go to Houston. Maybe they’d just rather go to a location that will be more fun for their students, like Malibu or New Orleans or New York. I just don’t think you can say it’s a result of the fact that people don’t think it’s a legitimate tournament. As I’ve said, the four teams I saw there were better than most of the teams we saw at the national finals of the NMCC. I think that’s pretty telling of how seriously people take it.

Well this is a great defense of Houston, but it argues the motives for schools' choosing not to attend, when you've acknowledged, as one of my "criticisms of Houston," that "schools [I] consider to be top programs choose not to go to their tournament." The critcism of Houston -- rather than an evaluation of the best programs' motivations for not attending -- is that it pretends to crown a "best of the best," when the best programs aren't competing. Instead of WUSTL, Hastings or GULC, it's Detroit Mercy versus...(drumroll)...DePaul. Any defense of Houston's pretension they're crowning the "best of the best" rather than the "best of who showed up"?

Sure -- if 10 of the top 16 programs passed, I'd probably agree with you. But when three or four don't go, I don't think it's fair to hold that against all the other great programs that do. South Texas was there. We were there. Chicago-Kent, LSU, Seton Hall, Loyola-Chicago, and John Marshall were all there. Russia made a decision not to attend the 1984 Summer Olympics. Go tell Mary Lou Retton she wasn't the best gymnast in the world that year, or that her gold medal is tainted by the fact that the Russians weren't there to compete as well.