The Ranker Blog

Register now: Kaufman Comp! NYC!! Posner!!! Q&A

2010-11-20T08:31:00.000-08:00

5 Questions with the Ranker – Kaufman Securities Law Competition

[As stated below, the registration deadline is December 6.]

Ranker: 1. What are the relatively-unique selling points of your comp? This could be anything from cost, location, stature of judges, to competitive nature, number of LSA points available, etc.

Fordham Law will host the Thirty-Sixth Annual Kaufman Memorial Securities Law Competition (www.law.fordham.edu/kaufman) in the heart of New York City, the mother of securities law. The Competition offers teams from around the country the opportunity to test appellate advocacy skills before leading jurists, securities regulators, academics, and practitioners. This year’s esteemed final round panel will feature Judge Brett M. Kavanaugh (D.C. Cir.), Judge Paul J. Kelly, Jr. (10th Cir.), Judge Boyce F. Martin, Jr. (6th Cir.), S.E.C. Commissioner Troy A. Paredes, and Judge Richard A. Posner (7th Cir.).

2. Briefly describe last year's problem. This year's. What did/will participants "get out of" briefing and arguing these problems? How do your problems typically compare to those of other comps?

Last year’s problem focused on a complex class action issue and pleading securities fraud. The competitors got great experience researching, writing about, and arguing an issue that often comes up in securities law practice. This year’s will also be complex, and it will drop on January 21, 2011.

The 2011 Kaufman Competition will take place March 24-27, 2011, at Fordham Law School in New York City. Registration closes on December 6 – so soon! - and is capped at 30 teams. We have just a few spots remaining! The registration form and competition rules are available on the website, www.law.fordham.edu/Kaufman.

4. For each round of argument, be it preliminary or elimination, please identify the stature of judges.

Experienced securities law practitioners in the New York area – attorneys from firms, government, public interest groups, companies, and law clerks – judge the Kaufman preliminary rounds (to participate as a judge or grade briefs, please register at www.law.fordham.edu/kaufmanjudge). A mix of expert securities law professionals and professors will judge the quarterfinal and semifinal rounds. We are honored that Judges Kavanaugh, Kelly, Martin, Posner, and Commissioner Paredes have agreed to serve as our 2011 final round panel.

5. For scoring of any round of argument, does your comp prioritize oral advocacy or brief-writing -- that is, please disclose whether at any point, your comp weighs one more than the other, e.g. 60/40 rather than 50/50. If so, why?

Preliminary Rounds are weighted 50% brief, 50% oral advocacy; quarterfinal rounds are weighted 25% brief, 75% oral advocacy; the semifinal and final rounds are weighed 100% oral advocacy.

If you have any questions regarding the 2011 Kaufman Competition, please contact Gabriel Gillett, Kaufman Editor, at the Fordham Moot Court office -- 2126366882 -- or via email at KaufmanMC@law.fordham.edu.

Let's talk about Vis.

2010-10-04T17:58:00.000-07:00

The Ranker sits down with Stetson's outgoing moot court historian, Kristen Chittenden, to talk about her argument in favor of awarding points to moot court programs that place teams near the top of Vis:

The Willem C. Vis competition hosts moot court teams from around the world. The participants are required to write two briefs for the competition. Claimant's briefs are submitted first. Students are then required to submit a Respondent's brief. The Respondent's brief is in response to a Claimant's brief they receive from one of the other participating schools. Students then travel to either Hong Kong or Vienna to participate in the oral argument rounds.

Reasons to include it in moot court rankings:

1. The Vis competition is nearly identical to the Jessup competition, which is used in the moot court ranking systems. Both Vis and Jessup competitions require Claimant's and Respondent's briefs, and both competitions have oral argument rounds. Both competitions hand out awards for best team, best oralist, and best briefs.

2. The Vis competition requires both brief writing and oral argument skills, which are the skills involved in moot court competitions. The briefs submitted for this competition are written in the style of a moot court brief; they involve a fact section and an argument section. The issues in the brief involve not only procedural issues of arbitration, but substantive CISG issues as well. The teams are also required to participate in oral argument rounds. The rounds include preliminary rounds and elimination rounds.

3. This competition does not fall under any other law school activity, and the points should be awarded under the moot court ranking system. As stated above, the competition involves both briefs and oral advocacy. Although the problem involves procedural arbitration issues, the format for the problem is not in the typical arbitration competition style. ADR teams do not submit briefs. The written advocacy skills required for brief submission fall under the moot court category.

Additionally, ADR arbitration competitions also typically involve witnesses and evidence. There are no witnesses or evidence admitted in the Vis competition. The oral arguments consist of two-member teams that present legal arguments in front of a three person panel. The participants present arguments that last for fifteen minutes on each side (Claimant and Respondent) and involve rebuttal and surrebuttal. The participants also take questions from the panel. This is more in the style of moot court than ADR.

The competition is not a trial team competition either. There are no opening or closing statements and no direct or cross examinations. Since the competition most closely resembles the format of a moot court competition and since there is no other law school activity that the competition falls under, the points for the competition should be awarded under the moot court ranking system.

1. what makes you term the teams hosted, "moot court teams"

As a former Vis East participant, I interacted with many of the competitors (i.e. competitors from Harvard, Georgetown, Loyola LA, Fordham, Florida Coastal, UF, etc.) The competitors from the teams all told me they were members of their school's moot court program.

Even Wikipedia considers it a moot court competition. http://en.wikipedia.org/wiki/Willem_C._Vis_Moot [Ranker's note: the Wiki reference was indeed a joke.]

2. worldwide competition actually makes Vis less desirable for a NCAA-like ranking of my own that focuses on head-to-head among American law schools

The competition includes a number of U.S. law schools. The numbers fluctuate, though this year’s Vis East had 19 American teams, and Vis Vienna had 51. You can find more information about the exact school names and other countries at:
7th Vis East: http://www.cisgmoot.org/7thVisDocs/7th_Vis_East_Teams_2010.xls
17th Vis Vienna: http://www.cisg.law.pace.edu/cisg/moot/participants17.html

3. in making the case for Vis resembling appellate advocacy, would a team's submission of two briefs -- one on each side -- be a point in favor of Vis?

Briefs are the form of written advocacy submitted in moot court competitions. The inclusion of two briefs - one on each side - is exactly like the Jessup competition, which is included in your ranking system.

4. Where certain programs already complain that a moot court program's rank will depend in large part on its funding -- which is actually a stupid talking point on their part because it argues against incentivizing law schools to increase funding for moot court -- should we include results from a competition that requires expensive travel to Hong Kong or Vienna, perhaps disadvantaging already-strapped programs?

The Vis competition does require international travel. However, the majority, if not all, moot court competitions include travel. In addition, it gives moot court teams the opportunity to think out of the box regarding funding. For example, there are several teams at the competition that get funding from private corporate sponsorship.

If the expense argument is included in your ranking system, then the argument could be made that other U.S. competitions, which require teams to travel from one coast to the other or travel to multiple regional competitions, should not be included.

5. Jessup has six superregionals of 24 teams each, for a total of 144 teams from U.S. law schools competing without the necessity of springing for costly international travel; by these measures, please explain if "The Vis competition is nearly identical to the Jessup competition which is used in the moot court ranking systems."

While Vis does not have regional qualification competitions, the number of teams competing is substantial - Vienna has over 200 teams, and the HK competition has approx. 70 teams. (See above re: travel cost argument).

6. Your argument that Vis and Jessup are nearly identical was supported by your following observations: "Both Vis and Jessup competitions require Claimant's and Respondent's briefs, and both competitions have oral argument rounds. Both competitions hand out awards for best team, best oralist, and best briefs." To clarify, Jessup requires two briefs per team?

Yes

With Vis, does any particular round find all advocates' oral arguments consisting exclusively of a significant period of uninterrupted time presenting an argument while answering disruptive questioning from a panel of judges?

Yes. Vis requires a total of 15 minutes for each side.

And Jessup is exactly like this?

I believe Jessup requires 30 minutes for each side.

Is likening Vis to Jessup, which apparently is atypical of most moot court competitions, a supportive argument?

Yes, because you include Jessup in your ranking system.

While Vis seems to be like most other moot court competitions in that it presents awards for things like good oral or written advocacy, this is not unique to moot court -- I'm guessing mock trial and even arbitration competitions also give out these consolation prizes.

It is my understanding that oral advocacy is rewarded in most competitions. However, best BRIEF awards are unique to moot court.

7a. Beyond the existence of fact and argument sections, and of oral arguments, please discuss the form and substance of the written and oral arguments, i.e. how closely they mimic those of real-world appellate advocacy.

The written briefs use the IRAC method and argue legal interpretation of the law. The oral advocacy arguments are also similar to real-world appellate advocacy in that they argue legal interpretation.

7b. You reference that the issues in the brief involve procedural issues of arbitration. This is a strike against including the competition, and could be a very big strike indeed; so a discussion is in order as to what's required in a brief with respect to discussion of procedural issues of arbitration. How else does Vis relate to arbitration?

Similar to arguing procedural issues in any types of appellate advocacy, the rules of procedure applicable to Vis are procedural arbitration issues. The arguments included in the briefs involve the legal interpretation of these arbitration procedures.

7c. You reference CISG as if it's a good thing. Since I don't recall that in law school (or moot court) I ran across this at all, I should simply state that I didn't encounter it enough for it to sink in, unlike the UCC. (Brief internet research reveals "The CISG is the United Nations Convention on Contracts for the International Sale of Goods, the uniform international sales law of countries that account for three-quarters of all world trade." Sounds substantive. Of course the presence of substantive issues does not differentiate Vis from mock trial or arbitration competitions.)

The CISG is primarily used in private international law. Similar to the United Nations documents used in the Jessup competition, which deals with public international law, the CISG governs private international contracts. Substantive legal issues are dealt with in any competition (i.e. moot court, ADR, Trial Team). However, the difference in moot court competitions is that appellate advocacy focuses on arguing the legal interpretation of the law.

7d. The existence of preliminary and elimination rounds doesn't make it more like moot court, and less like other competitions I don't count -- at least in any significant respect.

I agree.

8. Stating that ADR competitions don't require briefs, might make Vis less like an arbitration comp. But does this in itself warrant inclusion as a moot court comp?

It does not in and of itself warrant inclusion in the moot court competition category, but it is a strong indication that the competition is more like a moot court competition and less like an ADR competition.

Do mock trial comps require written arguments?

Written arguments (i.e. motions in limine, etc.) are not briefs. Appellate advocacy is distinguished by the type of written submission required: the brief.

Here are my preliminary thoughts on this Vis thing:

Historian Chittenden invokes the name of Jessup quite often. Arguing something (Vis) is like an exception (Jessup) - as distinct from the rule - is a risky advocacy technique. It selects one narrow path to the destination - that is, the thing you're advocating on behalf of better be as compelling as the thing that justified creation of the exception. Might as well focus on how Vis is like every other moot court comp.
Wisely, Historian Chittenden also argues this. Vis is like most moot court comps: Both in writing, and through verbal jousting, students argue law and policy, instead of fact.
It could even be superior to most comps in certain respects, e.g. argument, or at least writing, on both sides of the issue.
The fact that a lot of American teams participate is cool, but not dispositive. (A number of American teams compete in trial ad too; it doesn't excuse that particular activity.)

Thomas Tang sits down with the Ranker!

2010-08-01T13:33:00.002-07:00

5 Questions with the Ranker -- Thomas Tang

[As stated below, the registration deadline is in September.]

Ranker: 1. What are the relatively-unique selling points of your comp? This could be anything from cost, location, stature of judges, to competitive nature, number of LSA points available, etc.

Our competition is geared to issued that affect the Asian American community.

2. Briefly describe last year's problem. This year's. What did/will participants "get out of" briefing and arguing these problems? How do your problems typically compare to those of other comps?

This year's problem has just been released on our web site thomastang.org.

3. What time of year does your comp take place? When is registration? How many non-sponsor, non-international teams actually paid, submitted briefs and argued at last year's comp. (If yours is a two-stage competition, e.g. regionals and national/international, please break-down answers to the foregoing three sub-questions by stage.) Recognizing that schools are now competing for LSA points, are you committed to promptly providing the Ranker with number of non-sponsor, non-international teams, as well as the school names of the winner, finalist and semifinalists? Please briefly research and identify competitions that are typically at the same time of year (give or take a few weeks). Relative merits of your comp v. theirs?

The competition takes place in the Fall. The regional tournaments are in October and the National finals takes place in November at the annual NAPABA convention. The registration deadline is in September. Last year, approximately 70 teams entered in 5 regional competitions. The top 16 teams advanced to the national competition. As in the past, I've provided you with whatever information that you have requested.

4. For each round of argument, be it preliminary or elimination, please identify the stature of judges.

In the regional competitions, the preliminary round judges are local attorneys, most of whom have much trial and appellate experience and who have judged for me many years. The preliminary elimination rounds are judged by local Asian American judges. At the national competition, the preliminary rounds are a mix of state and federal judges as well as seasoned appellate litigators. All the elimination round judges are federal judges. Now that there are Asian American Circuit Court judges, they'll be judging the competition finals.

5. For scoring of any round of argument, does your comp prioritize oral advocacy or brief-writing -- that is, please disclose whether at any point, your comp weighs one more than the other, e.g. 60/40 rather than 50/50. If so, why?

Scoring is based on a system where each speaker composes 1/3 of the team score and the brief is 1/3 of the team score.

5 Questions with the Ranker (Competitions)

2010-04-26T18:59:00.000-07:00

The first of what I'm guessing will be, over the years, Q&As with many if not all of the moot court comps -- called "5 Questions with the Ranker (Competitions)." (There will also be "10 Questions for Top 10 Programs.")

No better way to promote your comp than to provide the info everyone cares about:

First up: Veterans Law comp! Registration open now! Details and registration are available at www.vlaac.org.

1. What are the relatively-unique selling points of your comp? This could be anything from cost, location, stature of judges, to competitive nature, number of LSA points available, etc.

Selling points for the VLAAC: (a) Last year's semi-finals and finals were held in the [United States Court of Appeals for Veterans Claims'] courtroom and the finals were judged by an actual panel of the CAVC. Hard to get much more real than that. (b) A lot of effort is put into making the problem record as realistic as possible, down to the fonts and formatting used in each document. If you actually work on a veterans case after participating in the VLAAC, the documents and decisions should look exactly like those you saw in the problem materials.

2. Briefly describe last year's problem. This year's. What did/will participants "get out of" briefing and arguing these problems? How do your problems typically compare to those of other comps?

This year's problem will be announced in July. However, the problem will be designed to be accessible to law students with no prior experience in veterans law. This is the summary of the 2009 problem from the Bar Association's website:

The 2009 VLAAC problem was Shinseki v. Joseph set before the U.S. Supreme Court. In the fact pattern, Army corporal Gerald I. Joseph suffered acute liver failure while participating in a drinking game at a deployment party when alcohol consumption aggravated a previously undiagnosed liver disease. During treatment, Cpl. Joseph refused a recently approved drug on religious grounds because it is derived from the livers of genetically engineered pigs. After being medically discharged when his liver transplant was not fully successful, Mr. Joseph was denied benefits because his condition was due to his reckless misuse of alcohol and his willful refusal of recommended medical treatment. The issues presented were:

1. Does 38 U.S.C. § 105(a) bar disability compensation where the consumption of a substantial amount of alcohol aggravates a pre-existing condition unknown to the veteran?

2. Does the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb, et. seq., prohibit the Department of Veterans Affairs from denying benefits where the veteran's disability was caused or exacerbated by his refusal to accept medical treatment on religious grounds?

3. What time of year does your comp take place? When is registration? How many non-sponsor, non-international teams actually paid, submitted briefs and argued at last year's comp. (If yours is a two-stage competition, e.g. regionals and national/international, please break-down answers to the foregoing three sub-questions by stage.) Recognizing that schools are now competing for LSA points, are you committed to promptly providing the Ranker with number of non-sponsor, non-international teams, as well as the school names of the winner, finalist and semifinalists? Please briefly research and identify competitions that are typically at the same time of year (give or take a few weeks). Relative merits of your comp v. theirs?

Our competition will be Oct. 16-17, 2010. We selected the fall in part because it seems that few other competitions are held at that time. Last year, we had 13 teams for the invitation-only event to celebrate the Court's 20th anniversary. This year we have open registration for the first time. Registration opened on April 20 and will continue to May 24 unless we fill our 20 spots before then. We are happy to provide the results to the Ranker. Last year, Stetson defeated George Washington in the finals. The other two semi-finalists were Howard and GW's other team.

4. For each round of argument, be it preliminary or elimination, please identify the stature of judges.

Last year, the briefs and each preliminary round were judged by one VA attorney, one court attorney, and one experienced private/non-profit veterans law practitioner. The semi-finals were judged by a judge of the CAVC, the president of the CAVC Bar Association, and the Deputy Assistant General Counsel from VA (one of VA's most senior litigators at the court). The finals were judged by a full panel of the CAVC. We hope to have a similar set up this year.

5. For scoring of any round of argument, does your comp prioritize oral advocacy or brief-writing -- that is, please disclose whether at any point, your comp weighs one more than the other, e.g. 60/40 rather than 50/50. If so, why?

In last year's VLAAC, the brief was worth 40% and each of the two preliminary arguments were worth 30%. I expect that will be the same this year. We wanted the brief to be significant, but not overwhelming and this seemed like a good balance.

What goes into writing the perfect problem?

2010-04-11T18:54:00.000-07:00

The Ranker wants to know: What goes into writing the perfect moot court problem? The Ranker questions Veterans Law comp's James Ridgway. Turns out, we're dealing with a problem-writer who's had substantial appellate experience. Who benefits from this know-how? You! You can register April 20th for Veterans Law! (http://www.vlaac.org)

What goes into drafting the perfect moot court problem? What are the considerations and concerns you're weighing/addressing? What's especially difficult in doing so? What's the goal in general? With a subject-matter comp?

James Ridgway weighs-in:

To answer your questions, in my view, drafting the perfect moot court problem requires making it accessible, substantial, and balanced. I think that when you are drafting a problem for a specialized area, there is a little more that goes into finding a problem that is accessible, but the principles are the same.

First, to make a problem accessible, you have to make sure it doesn't wade down in to the minutia that only an experienced practitioner can appreciate. I think you want to look for issues that have an aspect that law students will find familiar. For example, the 2009 VLAAC problem involves a soldier that suffers liver failure after drinking an excessive amount of alcohol during a drinking game at his unit's after-hours, deployment party. The issue of personal responsibility for alcohol use comes up in first-year criminal law and torts classes, so the problem was a chance to see how a familiar and thorny issue plays out once you add in the specific provisions and policy considerations behind veterans law. A good problem usually involves a fact pattern where there are important policies that are in tension. When you are dealing with a highly specialized area of law, you must make sure that students can relate to the policies involved and it often helps to have the policies of the specialized area in tension with more general policy considerations that students encounter in class. You can't expect students to immediately grasp the policy issues in a specialized area so you have to be especially sensitive that the opinions below in the problem and the materials give enough guidance and source material.

Making the problem accessible also involves developing a fact pattern that students can relate to. I don't think you need a Law-and-Order, ripped-from-the-headlines storyline, but it should be something that grabs students' attention and makes them think even before they start reading the cases involved. For example, the second part of the 2009 VLAAC question raised the issue of whether compensation benefits are available when a disability is caused in part by a soldier's refusal to consent to a recommended drug treatment on religious grounds because it was derived from pork products. While the facts are imaginary, they are plausible and echo problems students have heard about. Furthermore, you don't need to know anything about the law involved to start thinking about the potential policy issues involved. In writing facts, it also helps to have a number of relevant facts, so that there are several variables to adjust when considering hypothetical questions for oral argument.

Second, the perfect problem needs to be substantial. A problem is not just one issue for each team member, each issue has to break down into several issues of varying importance. Two of the key skills of being an advocate are organizing and prioritizing. You don't want a problem to be too overwhelming, but I think you want competitors to have to make decisions in brief writing and oral argument about what they want to focus on and how they make a narrative out of the materials. Each issue is going to have a couple of key points that both sides will have to address, but I think a problem should provide some optional points that give the competitors choices about what to address in detail and what order to organize points. I also like to throw in a few small points that competitors should be able to recognize are simply not worth investing time in. Advocacy is also about recognizing which battles you should be avoiding. Winning a case is not about winning every point.

I was an appellate prosecutor in Chicago for a number of years. I probably briefed 75-80 cases while I was there and argued 40-50 of them. I have a lot of experience with how fast 15 minutes can go by and I think the problem should force you to decide what your focus is and how best to articulate your big-picture view of the case rather than trying to cover everything. You need to be able to field any issue that gets thrown at you, but you have to assume that you'll only get to talk about a minority of the points and you want to get out your core theory regardless of which specific points the bench steers you toward. You also get more variety in arguments if there is more to cover than there is time to discuss. I also think you should feel a little cramped for space on the brief. You should be able to do a close analysis of the few cases you think are key, but you shouldn't have space to get into the details of all of them. You should be forced to decide what merits a sentence versus what merits a paragraph or a full page.

Finally, a good problem requires testing and feedback. You don't want to invest too much effort in any stage without getting feedback. If you get too attached to an idea, it can be hard to hear that your problem isn't balanced. Before I wrote anything for the 2009 problem, I pitched the general idea to several experienced practitioners. I quickly discovered that the core of a good idea was there, but most people thought it was too one sided. As I developed it, I kept showing pieces to people to get their impression. I even outlined the problem for some friends that do not practice in veterans law to see what kind of reactions the problem got from those unfamiliar with the area.

In the end, I had two VA attorneys, two veterans advocates, and a member of the Court's central legal staff who had no involvement in the development review the rough draft and prepare outlines of how they would argue the case. I was pretty pleased when the attorneys from the different sides disagreed which side was favored by which issue and what were the best strategies for approaching the case. However, their feed back made clear a few facts that needed to be tweaked or clarified and a some cases that really improved the closed library. Even if you do all this, I think it is still important to get feed back from the competitors. We got a great response from the students involved, but after reading their anonymous comments, there are still some additional changes I would make if anyone were to try to use the problem as an assignment in an appellate advocacy class. Problem writing is an acquired skill too, and I think you can't get closer to writing the perfect problem without admitting that you always have room for improvement.

The Ranker v. The Bench Brief

2010-03-12T20:59:00.000-08:00

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.

Craven 2009 Co-Chair Takes on Host Schools Entering Teams

2009-12-17T05:04:00.001-08:00

Jeff Lewis, UNC Law ‘09, was the Co-Chair of the 2009 J. Braxton Craven Jr. Moot Court Competition. Here, he tackles the issue of host schools entering teams in their own competitions:

"As preparations for the 2010 J. Braxton Craven Jr. Memorial Moot Court Competition at the University of North Carolina School of Law are ramping up, it’s a good time to share some insight that I was able to gain as the co-chair of the 2009 Craven Competition. Specifically, addressing the debate on whether it’s appropriate to allow teams from the host school to compete in their own moot court competitions.

Last year, my co-chair, Sarah Oettinger, and I came under intense internal pressure to hold open one or two spots to allow teams from UNC Law to compete in the Craven Competition. Discussions became rather heated and caused division within UNC’s moot court teams and their members. The reasons given to us were allowing UNC teams valuable practice time in preparation for their upcoming competitions, giving non-competing team members the chance to compete, and raising the profile of the Craven Competition internally at UNC. In the course of discussions with the 2008 Craven Competition co-chairs, the 2009 Craven Committee, and our faculty advisor, Professor Elizabeth Gibson, we addressed the fact that there were too many issues to overcome to allow UNC teams to compete in the Craven Competition. While some of those problems could be classified as merely logistic in nature, they still would need to be addressed.

Scarcity of Spots: The defending winner from the 2007 Craven Competition, Regent University, was unable to defend their title due to the open spots for the 2008 Craven Competition filling up within minutes of registration opening on a first-come, first-served basis. While steps have since been implemented to allow the defending champions to return and defend their title, we recognize that we are fortunate to have a popular competition. UNC, as any host school should, takes great pride in the number of teams that compete annually in the Craven Competition, and the respect that teams show the host school by wishing to compete should not be taken lightly by reducing the number of available spots for the host’s own personal gain.

Budgetary Concerns: Free entry into the Craven Competition for one or two UNC teams ran the risk of pushing us into the red from a budgetary standpoint. While other competitions may have sponsorships to help defray costs, the Craven Competition operates entirely on the registration fees of competing teams. By giving away one or two spots, the Craven Competition would have operated at a loss. To offset this loss, we would be forced to raise registration fees for non-UNC teams, teams that already incur expenses in registering, traveling, and attending our banquet. Again, the honor afforded us by having so many law schools want to travel from across the country to Chapel Hill should not be taken lightly by having those competitors subsidize our teams.

“Raising the Profile” of the Competition: We also did not think that internally “raising the profile” of the Craven Competition was a valid reason to allow UNC teams to compete. Law professors and administrative staff assist us greatly by going above and beyond their normal duties to judge the competition. From the standpoint of the student body, UNC makes use of 1L’s as marshals to drum up interest in trying out for UNC’s Holderness Moot Court teams at the beginning of their 2L year. Second- and third-year members of teams assist with judging, grading of briefs, and other tasks with which we need much-appreciated assistance. By asking those people to compete as well takes away resources that those running a competition greatly need and does nothing to really raise the profile of any moot court competition outside of the universe of those law students already involved with moot court and the faculty and staff that are already heavily involved in the process.

Outside of the logistical issues that Sarah and I identified, there are much more significant reasons to not allow a host school to enter its own teams into a moot court competition it is hosting. As purely anecdotal evidence, I can say that one school’s team discussed this problem with us. They attended a competition at another law school and competed against the host school’s team in a semi-final round. Despite having a brief that was scored higher and having two team members arguing who each finished in the top ten of the competition, they ended up losing to the host school in that round, leading to a belief that the competition was unfair. The school in question now has a policy against entering any competition in which the host school allows its own teams to compete. The two biggest issues confronting a law school when making this choice are the possibility of bias and the mere perception of bias.

Possibility of bias: The briefs that teams are required to submit for the Craven Competition are graded by members of UNC’s moot court teams. Furthermore, third-year members of those teams, as well as professors and staff from UNC, serve as judges for the early rounds of the tournament. The chance for friendship and collegiality to overwhelm a judge or brief grader can easily present itself, and a few points can make a large difference in determining seeding or advancement of teams through the brackets. While there may be no overt thought process that the host school’s team will have their arguments or briefs scored so as to allow them to win, the fact remains that anything less than strictly unbiased grading can unfairly skew the results.

Any moot court competition needs to take great pains in eliminating these possibilities. In all competitions, judges should, and do, disqualify themselves from judging teams on which they know an advisor or competitor. With a competition that is generally run completely by the students on the host school’s moot court team, the possibility can not be entirely eliminated unless one thing is done – barring the host school from competing entirely.

Perception of bias: This is probably the biggest reason for excluding a host school’s teams from competing. By shadowing the 2008 co-chairs and serving as co-chair in 2009, I learned that the one thing teams competing in moot court tournaments consistently demand and deservedly expect is the chance to succeed or fail on their own merits. Teams will simply not enter a competition that they feel is unfair. Whether or not that feeling is based in fact is irrelevant. Even if the competition was conducted in a completely unbiased fashion and the host school’s team won, the loss of goodwill that would arise is not worth the risk.

The trend towards teams not entering competitions in which there is a perception of bias is likely to grow stronger as financial resources become tighter. Moot court teams will not utilize their limited financial resources to send their members to competitions that they feel may be conducted unfairly. The allocation of teams’ budgets will be used to provide their teams with a fair chance at success in competition.

We have hosted teams from schools all over the country, teams that provide UNC Law with a great amount of pride and honor in consistently attending the J. Braxton Craven Jr. Moot Court Competition. The Craven Competition was created to honor the memory of a great jurist and a person who worked hard to benefit his fellow man. Since then, the competition has remained true to those ideals of honor and, as such, entitles those teams that compete to a positive experience and a fair chance at success.

For any school that is hosting a moot court competition, the honor of having other law schools want to come to your university to compete is not something to be taken lightly. That honor given to you should not be trivialized by allowing your own teams to compete."