Saturday, February 20, 2010

More Moot Controversy - Team Withdraws After Arguing the "Wrong Side" of the Question

As some of you know and have pointed out, there has been another bout of Moot Court controversy following that whole "we'll tell your employers if you don't complete your tryout" thing. The Law Weekly reports:

In this year’s Lile Moot Court semifinals, which will take place on Saturday, February 20, only one of the two rounds will consist of two teams arguing against each other to make it to the finals. The other round will be an exhibition, consisting of third-year quarterfinalists Megan Lacy and Christine Mandell, who did not advance to the semifinals, arguing against third-years Nick Nelson and Fiona McCarthy, who have been granted a bye and advanced to the final round. Third-years Lanora Pettit and Casey Lee, the team which Nelson and McCarthy were slated to faced on Saturday, withdrew from the competition last week.

The circumstances leading up to the exhibition round were mired in confusion and controversy. Pettit and Lee chose to withdraw after being informed by the Lile Moot Court Board that, in addressing the second issue, Pettit had written the “wrong” side of the question. The question presented was “[w]hether a challenged sentencing departure is reviewed independently from the reasonableness of the sentence as a whole.” Pettit and Lee, who were representing the government, were told in their materials that “the United States seeks review of the sentence as a whole, rather than reviewing the departure separately,” but argued instead for independent review.

In order not to penalize Nelson and McCarthy, the Board informed both teams via email that they would include a letter to the judge, “explaining how sides were assigned and that part II of [Pettit and Lee]’s brief did not comply with our assignment. It will be clear that [McCarty and Nelson]’s brief does comply with our intended assignment.”

. . .

Feeling that they were being treated unfairly, Pettit and Lee chose to withdraw from the competition, rather than participate in what they believed would be a futile oral argument.

Read more.

The Law Weekly did a pretty good job (indeed, the full article has some pretty choice quotations from both the head of the Lile board and the one of the withdrawing team members), so we don't have to much to add, except that we hope that the arguments today - such as they were - went well for all involved, and congratulate those who advance.

[EDIT] Here's how one commenter described the the oral arguments:

During their comments, the judges from the morning arguments said something like "for issue 2, we were all really confused as to why the competitors were assigned to argue the sides they did." They thought that in the real world, on that issue, the appellant would have made the argument the appellee was assigned to make, and vice versa.

All three made the point at the very beginning, and then one or two judges made the same point AGAIN later.
[EDIT #2 - Editor's Note]: I've had to delete a few of the comments because they contained excessive ad hominem attacks / were excessively vitriolic. If you have a point to make, you can make it without engaging in (crude) ad hominem attacks. Additionally, for reasons discussed earlier, if you are going to make a claim that is unverifiable, damaging, and includes someone's google-able name, I may take it down, because I believe the harm in publishing such things on UVA Law Blog outweighs whatever the benefits might be. Just my personal take, given the goals of this site and the positions of the editors; other sites may have different editorial policies, and you are free to visit them as well. Feel free to email me / comment if you have questions - thanks.

Related:
Withdrawal Taints Lile Semifinals [Law Weekly]

Previously:
The Honor Code, Lile Moot Court, and Above the Law

82 comments:

Anonymous said...

Will you or Law Weekly be following up this story based on the judges' comments in the arguments today?

Anonymous said...

What were the judges' comments in the arguments today?

Also, as a whole, the Moot Court board has been very disappointing this year. For such an important competition, should the school faculty play a larger role in ensuring the event is handled better in the future?

Anonymous said...

'The Moot Court board has been very disappointing this year' looks like the understatement of the year.

What a disaster this process has been. That being said, I'm not sure if 'more faculty!1!!1' would really help...

Anonymous said...

What did the judges say today?

Anonymous said...

During their comments, the judges from the morning arguments said something like "for issue 2, we were all really confused as to why the competitors were assigned to argue the sides they did." They thought that in the real world, on that issue, the appellant would have made the argument the appellee was assigned to make, and vice versa.

All three made the point at the very beginning, and then one or two judges made the same point AGAIN later.

Seemed like a slap in the face to the Moot Court Board, especially in light of Lilegate.

Anonymous said...

Wow. This is ludicrous.

On the upside, thanks to the widely publicized shortcomings of this year's Board, some of the rumors floating around the school-- which identified Pettit & Lee as careless sources of unfortunate embarrassment-- never really took off, because people seemed to know whom to give the benefit of the doubt.

If I were on the Board and cared about the competition, I would do everything possible to help improve its reputation-- symbolic gestures can often help here (hint, hint).

Now let's get drunk.

Anonymous said...

10:21 - no fucking way. Does that mean they basically endorsed what Pettit & Lee suggested / dropped out over?

Unbelievable...

Anonymous said...

Worst moot court board of all time.

Anonymous said...

Also, headline for this post should be changed. That's clearly not what happened.

Anonymous said...

11:46, amen. This board is awful.

Anonymous said...

The moot court board is filled with wanna be academic types who are overcompensating for (a) not being on law review and (b) lucking into a job with a craptastic firm.

They should all resign immediately.

Anonymous said...

I don't know if they should ALL resign. But I would be really surprised if leadership (Chief Justice and Chancellor), and any of those directly involved in researching and putting together the materials in question did not step down soon. And notify their employers, of course.

Anonymous said...

Good point 2:15. Is the moot court board going to report that they made a fiasco of this year's competition, or should WE report that to their employers for them?

Anonymous said...
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Anonymous said...

I will immediately step down as chief justice and member of the moot court board. Please contact my employer to make sure I have removed all references to my membership on the moot court board from my resume.

Anonymous said...

I echo the demands for 1) heads on moot court board to roll and 2) any of their prospective employers to be contacted.

Anonymous said...
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J. Crew Model said...

Rule 12(f) -

Please articulate your reasons for deleting 8:56's comment. I thought the comment was relevant, well stated, and if true, very informative.

Anonymous said...

I think it's because 8:56 used names, and even if they're publicly available and linked to it's against UVA Law Blog policy (since it adds to the google record).

Anonymous said...

Wait, wait. Please help me here.

They were on the right side of the issue (6 out of 6 judges agreed)and right on the ethics: A lawyer may not advance an argument adverse to his own client's interests in order to seek his own personal gain. How is this Lee and Pettit's fault?

Oh, and how will the judges award the prize for the best brief when the only one that got it right has withdrawn? What is the "best" argument when you are ordered to subvert your client's interests?

It is sad that competitors (including substituting quarter finalists) got their feelings hurt. It was not their fault.

Earth to Lile Board: You are the authors of this catastrophe. Man up. Apologize and step aside.

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Anonymous said...

The moot court board clearly looks incompetent here. However, the rules are pretty clear about which argument you are supposed to be making. Obviously whoever argued the side in controversy in the other matchup did not have the same misunderstanding as the team that dropped out. Even if the argument they were asked to make was dumb, the rules say that is what they have to argue. Maybe a dumb rule, but the moot court board is not completely to blame here. Have to give some credit to the competitors who did things the right way.

Anonymous said...

12:03 seems to be the only person to get it right here. Even if there are stronger arguments to be made, it's MOOT COURT. It's a game, and they were told what arguments to make. The other team didn't botch it up. The competitors keep wanting to frame it as "Who was right about the law?" when the Board hasn't even had an opinion on that. The question is who can follow simple directions, and one team couldn't.

Anonymous said...

Just where exactly do you find the "dumb rule"? Where does it say that it supercedes the one that says that teams are free to choose the argument that is in the best interests of their client?

Nope. The competitors are not to blame. Not the ones who intuitively understood (past experience being their guide) that this Lile Board wanted them to follow the unwritten "dumb" rule. Neither were the ones who tried unsuccessfully to clarify the Board's intent, followed the prime rule of advocacy(i.e., argue IN FAVOR of your client's interest) and probably never imagined the Lile Board would want them to be this "dumb."

Note to whoever runs the Lile in the future: If you want the competitors to be dumb, come right out and say so.

Anonymous said...

Give our shared experiences this academic year, I don't think many people will be taking the Board's side on this.

Anonymous said...

12:03 & 12:24:

This is the problem with Moot Court administrators. They hide behind the rules as a shield from blame, when the real issue is their utter failures of discretion.

There is absolutely no excuse for not understanding the material well enough to appropriately assign the right side of the issues to the competitors. How could they not expect it NOT to generate confusion to basically instruct one team to argue a side that's worse for its client-- especially when the issue in question emanates from the case law and not the materials specifically given to the competitors (ie, when, from the competitors' point of the view, the possibility of an administrative mistake is high)? And if they were too incompetent to anticipate such confusion, what's their excuse for failing to clarify the issue after being asked to?

Note here that I'm conceding to you that the rules are in fact clear about which side to argue.

Bottom line is this:

The rules didn't dictate that the Board negligently put together a hypothetical scenario that relied upon a fundamental misunderstanding of the case law at issue. That was just an exercise of the Board's incompetence-- and by far the biggest embarrassment for the school emanating from this whole "scandal." Note that for a team to withdraw simply in response to this failure would be completely legitimate, for at this point, the Board had already made a mockery of the competition.

The rules didn't dictate that, in the case of an obvious mistake by the Board in assembling materials, the Board was to respond to questions by failing to respond at all, for the "good of the competition." That was just poor judgment-- a poor exercise of discretion that the Board clearly had.

The rules didn't dictate that the Board, in response to an event clearly unforeseen by the rules and clearly created by its own shortcomings, write a letter to the judges and prejudice the competitors that proved more competent than they.

Anonymous said...

@ 12:03 and 12:24

The issue was not clear and the Board declined to clarify it when requested. All four semifinal teams interpreted the issue slight differently.

Anonymous said...

Thanks for ruining the chances of UVA students ever getting hired as clerks with the judges who were chosen to judge the competition. It seems like the Moot Court Board is actually TRYING to keep UVA students from getting jobs this year.

Justice Cardozo said...

TITC headline:

Moot court board ensnares real judges in actual controversy

TITC headline for 2011:

University Traffic Appeals Committee agrees to judge 82nd Lile competition

Anonymous said...

Will somebody please pass the clue basket to the Lile Board? They clearly don't have one.

Anonymous said...

12:03 here: My point was not that the Moot Court Board should not have the finger pointed at them. My point is that the team that dropped out is not blameless here. The blameless parties are those that followed the rules, submitted their briefs as instructed, and poured hours into preparing their oral argument. They did nothing wrong, yet their accomplishments and successes are going to be tainted by this "scandal". As someone with friends on each side of this issue, I think there is plenty of blame to go around.

Anonymous said...

Lile Moot Court Board = FAIL

Anonymous said...

Don't professors help prepare and ultimately review each moot court problem?

Anonymous said...

I'm not a UVA law student, just someone who has been following this on facebook...

Regardless of who is right or wrong, don't you think all this whining and finger pointing is the reason everyone hates lawyers?

Anonymous said...

@5:01 - Sure. But the desire to do so is probably what attracted us all to law school.

Anonymous said...

I am not on the board, but I don't understand why the board is at all in the wrong.

The board is not contesting that the case law could be argued either way by the one party (note: it doesn't take a Law Review editor to figure out case law) - indeed where some of the federal judges were from the other side is argued then the one the Board assigned to the one team. The board is simply saying that the team DID NOT READ THE MEMO that clearly explained what side to argue.

Yes the memo isn't binding, but read the VLW article again - the materials SAID WHICH SIDE TO ARGUE.

It was the competitors' mistake and then they refused to meet with the board to come up with a good solution.

Anonymous said...

10 bucks says 5:47is on the board.

Anonymous said...

Yeah, and like all the other posts weren't by CL, who fanatically upates his FB with this drivel every 10 minutes?

Anonymous said...

Why does the Moot Court Board hate UVA law students so much?

Anonymous said...

They don't hate all law students, they are just jealous that they were eliminated from the competition and failed to make law review, so they form a big circlejerk to give themselves the illusion that they are doing something prestigious while getting in the way of the best students.

Anonymous said...

@5:47
It sounds like they did approach the board.

If memo says "argue position x," but position x is nowhere to be found in the record and actually undermines client's case, the possibility of mistake seems pretty high. For a competitor, upon discovery, asking for clarification is the right step. Refusing to clarify is the wrong response.

This is to say nothing of the absolute incompetence of forcing one side to argue a worse position. That's not how you foster rigor and fair evaluation in a moot court competition.

Do you get it now? The rules and what was said in the memo need not inform the debate over whether the Moot Court Board screwed up. This can't be that hard to understand.

Anonymous said...

"The rules and what was said in the memo need not inform the debate over whether the Moot Court Board screwed up."

Um...what? The memo that the board wrote, that ANSWERS the question that the team did not understand is not important?

Anonymous said...

Re-read 7:20

Anonymous said...

I lobby for an asterisk...

Rule 12 (f) said...

I deleted 8.56's comment because, while it made a point that might have had relevancy / merit on the issue, it also contained several ad hominem attacks against an one of the individuals named in the article, the likes of which I have repeatedly refused to host on my site.

Unfortunately, my blogging platform (blogger) does not allow me to easily edit comments; I can only delete them or not delete them. I welcome the 8.56 commenter to restate his/her views in away that is not an unnecessary ad hominem attack.

Pardon the delay, I have been traveling.

Anonymous said...

the moot court board fucked up here but the only legitimately angry people should be the two disqualified semifinalists.

but a bunch of you want to bootstrap your bratty grievances for the whole "inform your employers abt your dropping out" thing. don't really understand why that was all that controversial.

maybe some of you dishonest entitled losers could explain to me why you should be allowed to make fraudulent representations on your resumes?

Disentitled Loser said...

@ 8:42:

Listing moot court on your resume is not fraudulent misrepresentation because it does not induce employers to act in reliance.

Thanks, thanks, but seriously now...

The board has sparked two episodes of bad publicity for the school at large, which is--even if only marginally--bad for everyone. I'm not foaming at the mouth about it, but I do wish these folks would tone it down in the future.

Anonymous said...

Anyone on the board in charge of writing the problem and the memo screwed up, big time. To essentially get called out for forcing the competitors to take a confusing stance is indisputable evidence of that. I hope that they learned a valuable lesson, but because of the enormous egos involved, they in all likelihood did not.

However, people need to keep in mind that the team who dropped out could have done the classy thing for the other teams and stayed in the competition. It sounds like they might have advanced considering the stance the judges took during the semi finals. Regardless, they would have gotten a great experience arguing in front of federal judges. That probably means nothing to Law Review, brilliant, top Vault firm people at the top of the class, but it would mean a lot to any of the rest of us peons. Instead of taking the high road, in a situation in which they were clearly right, they took out anger on innocent people like the team who subbed in for them.

Neither the moot court board nor the ex-competitors have clean hands in this situation, so every side needs to acknowledge their part, get over their egos, and stop pointing fingers.

Anonymous said...

We all understand that this debacle is probably going to make it to Abovethelaw on Monday...

Anonymous said...

I completely agree with 9:18. Quitting might be a good way to get attention to your side of the controversy, but you end up screwing a lot of innocent people in the process. In the end, all this will blow over, there will be two names added to the list of winners of the Lile competition on the wall of Slaughter hall, and the quitters will go on to accomplish a lot in the legal world but will never be remembered for their participation (or lack thereof) in this competition. Seems like a bunch of hoopla over stuff that doesn't really matter in the grand scheme of things. But hey, what would a top ten law school be without some kind of moderately publicized student protest over the meaning of a memo? We should be protesting more important things, like crappy expensive food in the Sidley Austin Cafe.

Anonymous said...

@ 9:18, 11:21:

Expect over the next week to see more facts that make the competitors' decision seem more reasonable. The moot court board apparently sought to impose much greater restrictions on the team than an instruction to the judges. I don't know firsthand the full list of proposed penalties, but they evidently were far harsher than the one that the LW reported.

Anonymous said...

So basically had the withdrawn team stayed in they would've won because the judges agreed with them and would've blown off the Board.

Go quitters.

Anonymous said...

According to the Law Weekly article, the semi-final round problem stated: "the United States seeks review of the sentence as a whole, rather than reviewing the departure separately."

For the teams that read it, that was a very direct instruction from the board as to which side the government should argue.

One team missed that statement.

Having missed the clear statement in the problem, the team went to the case law for some direction. The team made a reasonable (and, according to the judges, very intuitive) interpretation of the case law. That interpretation led them to argue opposite from what the board instructed and intended.

Who is most at fault?

Anonymous said...

9:33 states things pretty clearly. Regardless of who is most at fault, I can tell you who isn't a fault: the three teams that did things as prescribed by the rules and problem packet.

While the Board probably deserves the majority of the blame here. the withdrawing team should get its fair share. From my understanding the assignment of arguments was pretty clearly stated in the problem packet (even if those assignments contrast with the case law). When you miss something that obvious, and disadvantage everybody who adhered to the rules of the competition as a result, you cannot expect there to be no consequences.

Anonymous said...

On Above the Law now.

http://abovethelaw.com/2010/02/lile_moot_court_board_embarras.php#more

Anonymous said...

9:33:

First, a problem with your reasoning: you take an assumption of blame by P&L as a full-scale exoneration of the Board. But it's not.

Here, again, is a non-exhaustive list of people who are at fault and responsible for running a particularly poor and unfortunately embarrassing competition:

(1) The people who designed the problem. Forcing a team to argue a weak position for their client unfairly biases the competition. Moreover, the bias is created in a manner so backhanded that is unlikely to be corrected by all judges. This says nothing of how working in an improper reading of case law reflects poorly on the competition as an institution, as well as the law school.

(2) The people who did not promptly clarify an issue unaddressed by the rules. The "rule" you stated is not easily interpreted as a directive to each side to argue a particular way. It can be read to be a statement of fact constitutive of the fictitious scenario serving as the backdrop, subject to change from this point forward based on how competitors choose to defend their clients.

Even if the interpretation of were clear, the competitors were within their rights to complain, and even withdraw, for the reasons spelled out in point (1)-- especially after the board decided to *further* bias the judging against them by sending that letter to the judges.

If you want to add points (3) and (4) to argue that C&L are also blameworthy in some respect, go ahead. But it in no way changes the validity of (1) and (2) above, and for those mistakes the Board must hold itself accountable.

Anonymous said...

I agree completely with 12:48, but believe C&L deserve a lot more blame than they are getting. They really put their competitors in a bind, not because of their approach to the issue and argument, but because of their backing out of the competition. They have created a scene that could have been handled discreetly and have done so at the expense of those who have worked hard to compete in one of the most prestigious moot court competitions in the country, and what do they have to show for it? A law weekly article and some face time on ATL.

Anonymous said...

Do you suppose either P or L wanted all this grief in the paper and the blogs? Think they lighly blew off over a year of hard work? And perhaps wanted to embarass and pizzoff any number of their friends? Come back into the real world.

Anonymous said...

Seriously, who keeps tipping these things to ATL?

Anonymous said...

1:26:

Really? It must have been with great clairvoyance that they accurately foresaw the progression of news of their withdrawal reaching ATL an entire 6 days in advance.

And clearly must have been the only possible motivation for their actions, right?

Anonymous said...

Come on people, you don't think they could have predicted that dropping out of a moot court competition at a top 10 law school as a form of protesting the decision of the moot court would make it on ATL? You guys don't read ATL much, do you?

Anonymous said...

Or may don't drop out and then make pompous, elitist quotes to VLW that only make yourself look like more of a douche. I wish I had voted for us in that ATL contest now.

Anonymous said...

pretty sure the guy who runs this pathetic blog is the one who feeds this stuff to ATL

Anonymous said...

"vault 5" firm? am i supposed to be impressed? other than wachtell, color me not so.

Anonymous said...

8:41

This is a good blog, and if you disagree, find a useful way to say it instead of venting with hurtful words.

Honestly, just don't be a jerk. Why is that so hard for so many commenters?

Rule 12 (f) said...

"pretty sure the guy who runs this pathetic blog is the one who feeds this stuff to ATL"

I am pretty sure you are incorrect.

Must feel good to levy insults and speculation behind the cloak of anonymity. Tell you what, if you think the blog is so pathetic, then you are free not read it. Alternatively, if you have suggestions for improvement, you contact me personally (ah8gu), the way someone who is not a coward would do.

Anonymous said...

Rule 12:

I don't think you're the one to tip ATL. It's obvious to me that one of the team-members who dropped out did. Which makes their facebook status truly ironic.

Anonymous said...

8:41 would lose a fight against me.

Anonymous said...

My guess is that AtL editors simply follow this blog on an RSS reader in order to check up on new content that they can also use - especially since they have used content from here before, it's not especially challenging. Could be that no one "tipped" AtL. Not always a conspiracy.

Anonymous said...

9:28, post the status? No names obviously...

Anonymous said...

12:48,

On your point (1): if both teams are assigned to the weaker position, then both teams are disadvantaged in equal measure, putting them on equal or near-equal footing.

On your point (2), it is my understanding that the team that withdrew simply missed the clear instruction of which side to argue. (See @9:33 in this thread.) How can the team argue that the instruction is vague when the team just missed it?

In all of their quotes to the Law Weekly, the team never made what seems to be the only argument that could possibly excuse their error: that they read the clear instruction and chose to ignore it because they believed it wasn't binding. The team has not made this argument because they apparently missed the clear instruction. All of the arguments that they do make seem designed to obscure that fact.

Finally, the team has attempted to characterize this as a case where the moot court board has arbitrarily told them that they could not make certain specific arguments. (See Law Weekly: "they argued they had not violated any of the rules of the competition, which do not restrict competitors to making specific arguments.") That characterization has been embraced by Above the Law ("disallowing a particular argument in a competition about arguing seems asinine to me.") and by our own Dean Mahoney ("I have encouraged the Moot Court board to take steps to prevent any misunderstandings about permissible arguments in the future.").

That characterization is nonsense. In any moot court competition, the teams are ALWAYS assigned to sides of the questions presented. Teams are NEVER bound to specific arguments. But they necessarily are bound to argue their "side" of the problem (to avoid the very sort of chaos that this team's error caused). Here, the board assigned each team to a side of the problem, but the board gave the teams complete latitude as to specific arguments made on either side.

It is absurd to argue that a team should be able to arbitrarily reject the "side" to which it was assigned. If it were permissible, did the team honestly think it would switch sides without informing the board or the other team?

No, this is a case where a team missed a clear instruction but has tried to save face by going on the offensive. Even brilliant law students make mistakes, and the team should own up to this one.

Anonymous said...

sorry about your tiny pink argument bro

Anonymous said...

"Even brilliant law students make mistakes, and the team should own up to this one."

I wasn't aware the Moot Court Board Members were considered brilliant law students? Apparently the judges didn't think so.

Anonymous said...

12:02,

The "brilliant" students I referred to were the ones who withdrew -- not the board.

-9:40

Anonymous said...

SAY IT TO MY FACE

Anonymous said...

ah, a Virginia Slim argument- long, weak and flat out wrong.

on the upside, i think it's official that no one really cares anymore.

Anonymous said...

Trying hard not to care, but... what was the facebook status?

Can't help but be curious about that (especially since it was posted in a public forum anyway).

Anonymous said...

Point of order: why is everyone blaming "The Board" for this when only three members even have the AUTHORITY to make this sort of call? Is this really, say, the Event Chair's fault? Or the Treasurer's?

Anonymous said...

@1:38, give me the names of the three board members responsible and i will direct my disgust accordingly.

Anonymous said...

1:38, nobody knows enough about the Moot Court Board to blame particular people. I'm pretty sure nobody cares about this anymore.