2020 Competition Questions

 

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QUESTION:  I have been looking at what other moot court competitions are doing due to COVID-19, and some of them are considering and/or doing a virtual oral argument.  Would that be a possibility that Capital would consider?

ANSWER:  We did briefly consider the idea of virtual arguments.  Given that we had only 10-days’ notice that the competition was cancelled, we determined that we did not have enough time to organize this kind of competition and judging.  There would be so much to do to get 12 sets of cameras, video screens, microphones, and electronic communication systems to get scores sent to our analyst, that we would not get it done right with the time we had.

However, our nation is getting a wake-up call;  it may be that virtual communication is the future of litigation.  That being the case, we are considering contingency plans for next year’s competition.

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UPDATED 3/11/2020: QUESTION:  I see that the Governor of Ohio issued a state of emergency last night. Could you please let me know the status of the family law competition that is happening in Ohio next weekend on the 20th?

ANSWER:  I regret to let you know that Capital University has cancelled the National Moot Court Competition in Child Welfare and Adoption Law, scheduled for next weekend.

On recommendation of state officials, Capital University has decided to suspend in-residence classes and cancel all University-sponsored events until at least March 31. The cancellation includes the National Moot Court Competition in Child Welfare and Adoption Law. Please note that there are still no confirmed cases of COVID-19 on Capital campuses or in Franklin County. However, in consultation with state and local officials, Capital University is acting proactively to reduce risk and help promote mitigation.

The health and well-being of the competitors and participants in the National Moot Court Competition is of the upmost priority. I recognize how much you and the students have prepared for this competition and what it means to them. So please know, this was not an easy decision.

The Moot Court is an annual event. We will hold the event next March. Thank you for your understanding and patience. We hope that you and your communities stay safe and healthy during this difficult time.

FYLaw will offer two options for reimbursement of registration fees. We can provide a full refund now, or we can apply your fees toward the competition registration for next year.  Please let us know how you would like us to handle your reimbursement and if you need additional documentation confirming the cancellation of the competition for you to use to facilitate reimbursements for travel expenses associated with participating in the competition by emailing mootcourt@law.capital.edu.

Thank you for your patience and your understanding.

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QUESTION:  After perusing the briefs, it is unclear to me what is the correct name is for the Respondent in the matter of In re G.H. If you could clarify this for me, I would greatly appreciate it. 

ANSWER:  The answer to your question represents foundational understanding for an attorney.  We presume that the skill-set of students competing in this Moot Court would include determination of the Respondent.  I trust you and your team will be able to ascertain the answer. However, as you have brought to my attention a possible issue, I will review the entries to determine if there is a pattern of misunderstanding that we should address at the time of the competition.

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QUESTION: I am asking you to reconsider the answer to the question you received and posted in the FAQs section.  That question and answer are copied below:

QUESTION: Oral Argument Practices. I am not seeing anything in the rules that prohibits two teams from practicing oral arguments together. May two teams practice together or is that prohibited by the rules (it's possible I missed a rule or an e-mail explaining that)?

ANSWER:  Article Three 1. states that a team must consist of two or three law students attending the same ABA-accredited law school…and 3. Team members must be identified, and their names must be submitted to CULS.  Team members may not be substituted, except for good cause…

Article Ten limits assistance that a team may receive to faculty members or the team coach.

Therefore, a team is a two or three person entity from the same Law School. If a Law School fields two teams, the teams are separate entities and are not allowed to work together or discuss their preparation or share work product in any way.  This would put multi-team schools at a distinct advantage over single teams schools because the teams would potentially consist of more than the allotted 2 or 3 members prescribed in Article 3. Teams should maintain their autonomy in all facets of the competition and not work together in any fashion whether they are from the same or different Law Schools.

I ask you to reconsider for a number of reasons.  First, your answer seems inconsistent with the rules.  The answer about oral argument practice is based on Article Ten, section 1, which addresses assistance on the brief.  On the other hand, section 2 of Article Ten states, “After the brief is filed, participants may receive assistance in the preparation for oral argument.”  That section contains no express limits or qualifications regarding assistance.

Second, your answer that, “Article Ten limits assistance that a team may receive to faculty members or the team coach,” leads to the conclusion that no team could practice with “guest judges” unless those guest judges were members of the faculty.  This is inconsistent not only with what other moot court competitions allow, but with the actual practice of law.  I know of no attorney or firm that would rely on only the individuals who prepared the brief to prepare for oral arguments in an important appellate case.  Indeed, the important cases often have a cadre of attorneys involved in brief preparation and the attorney will often practice his or her oral argument before others not listed on the brief.  We often get requests from appellate attorneys for a panel of faculty and students to moot their cases before.

Third, in my experience, most moot court competitions that allow the entry of two teams do not prohibit those teams from practicing their oral arguments together.  The ABA National Appellate Advocacy Competition (NAAC), one of the major competitions, has a rule similar to your rule regarding assistance (see Article 21).  NAAC does not, however, limit joint practices.  The NAAC rules are available at:  https://abaforlawstudents.com/wp-content/uploads/2019/09/2019-2020-ABA-NAAC-Rules.pdf

I am guessing that the NAAC administrators recognize that there is little, if any, advantage for schools that field two teams that practice together over schools that have only one, particularly if every school is allowed to use outside attorneys and former moot court students as “guest judges.”   In other words, allowing outside judges levels the playing field.  It may even be the case that schools that register only one team enjoy an advantage because they are likely to find more volunteers to guest-judge one team than a coach who seeks volunteers to guest-judge two teams.

Finally, you may want to reconsider because of the potential impact on your competition.  Speaking only for myself, had I understood your rules to preclude joint practices, we almost certainly would have registered only one team or opted for a competition where we could register two teams that would be able to practice together so that we could provide a moot court experience for more students.  This is a good competition which provides a valuable educational experience, but running two separate practices is more of a time commitment than I can give, and I suspect that others may see it the same way.

ANSWER: As for my answer regarding two teams practicing oral arguments together:  You have read my reply regarding who can coach too strictly.  I meant my answer that you referenced to relate only to the support a team could receive when writing their brief.  The Moot Court rules do not prohibit guest judges evaluating and advising competitors practicing their oral arguments.

As for teams from the same school practicing together:  We have maintained the prohibition against two teams from the same school practicing together as far back as our archives go, at least the last eight of the fifteen years of the competition.  We developed that rule to maintain homogeneity among the competitors’ preparation advantages.  Reiterating what my colleague wrote in the reply: Since the rules define a team as 2 or 3 competitors, it could give an advantage (or at least the appearance of one) to dual teams from one school if their combined efforts resulted in 4 to 6 competitors who practice with each other, commiserate, brainstorm arguments, share research, and offer feedback, to a degree that solo-team schools would not have.  Each team should maintain autonomy.  It would be unexpected and unreasonable for two teams from different schools to combine efforts, so schools sending multiple teams should abide by the same restriction.

At this stage of the game, and having already changed the rules in one significant way, I won’t change the rules yet again in the way that you have asked.  However, I will do some research on the NAAC website that you’ve referenced, and I will ask coaches about this aspect of the rules during the competition in March.

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 QUESTION: Page five of the appellate court opinion indicates that indigent parents receive counsel when the state initiates the adoption. Page six further indicates that there is a Capitania statute that affords appointed counsel to an indigent parent when the State pursues abuse, neglect, and dependency proceedings, when the parent faces termination of parental rights.

Is there a separate Capitania statute that was not provided to us that expressly gives the right to counsel in State abuse, neglect, and dependency proceedings? Or should we conclude from the ambiguous language of Title 400-322-Right to Counsel that there is an absolute right to counsel in State abuse, neglect, and dependency proceedings?

ANSWER: I have received more-than-one inquiry about the Capitania statutes provided for the competition, as they relate to references made in the Court’s decision and the parties’ arguments. 

I believe the Court’s decision as it was presented in the competition materials, is confusing when referenced to the Capitania Statutes as they were presented.

While the competition focuses on competitors’ ability to argue, this confusion seems distracting to competitors, so much so that it has the potential to de-focus the competition.  I would rather see competitors working to improve their skills as advocates, than attempt to discern how they and other teams handled the ambiguity of the script.

Thus, I have revised the Capitania statute to clarify the statute on which the State of Capitania relies in its arguments. The updated document is located under the name CAPITANIA STATUTES AND RULES on the Moot Court Problem 2020 website.

As this is an 11th hour change, I also have decided to allow an extra week for competitors to submit their initial briefs.  You may submit your briefs at any time, but the deadline is now extended to Friday, February 7, 2020.  All other aspects of the rules regarding submission, including the times on that day by which the briefs must be filed, remain unchanged.

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QUESTION: We had a clarification question regarding some of the language in the appellate decision.

The court states:

"Additionally, we are unaware of any governing statute or rule that provides indigent parents with the right to appointed counsel in adoption proceedings between private parties. We recognize that Capitania Code allows for the appointment of counsel in most juvenile court proceedings. However, no similar statute authorizes the appointment of counsel in probate court proceedings, in general, or in adoption proceedings, in particular. "

400-322, which is the Right to Counsel provision makes no such distinction, and there is nothing in the title that says private parties or probate proceedings are excluded-- so it seems that 400-322 should apply to all of the title, and then apply to adoptions across the board-- which is not what the court says.

Upon further review, we found the small difference between the ORC and the Capitania code which may explain that.

Capitania:

"A child, the child’s parents or custodian, or any other person in loco parentis of the child is entitled to representation by legal counsel at all stages of the proceedings under this chapter or Capitania Code. If, as an indigent person, a party is unable to employ counsel, the party is entitled to have counsel provided for the person. If a party appears without counsel, the court shall ascertain whether the party knows of the party’s right to counsel and of the party’s right to be provided with counsel if the party is an indigent person."

ORC:

"A child, the child's parents or custodian, or any other person in loco parentis of the child is entitled to representation by legal counsel at all stages of the proceedings under this chapter or Chapter 2152. of the Revised Code. If, as an indigent person, a party is unable to employ counsel, the party is entitled to have counsel provided for the person pursuant to Chapter 120. of the Revised Code except in civil matters in which the juvenile court is exercising jurisdiction pursuant to division (A)(2), (3), (9), (10), (11), (12), or (13); (B)(2), (3), (4), (5), or (6); (C); (D); or (F)(1) or (2) of section 2151.23 of the Revised Code. If a party appears without counsel, the court shall ascertain whether the party knows of the party's right to counsel and of the party's right to be provided with counsel if the party is an indigent person."

This deletion makes it read as if every person gets a right to counsel, whereas, in Ohio it is clear there are matters where it does not apply. We wanted to check that this deletion was intentional.

 

ANSWER: The language of the decision and the appellate decision was designed to challenge thinking.  The language of the law is designed to serve the competition, and shouldn’t be compared with other statutes for clarification.

One side of this question may be easier to argue, but competitors should be prepared to argue both sides.  Competitors are judged on their persuasiveness and ability to argue;  they are not judged based on whether their side of the argument is more likely to win.

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QUESTION: Oral Argument Practices. I am not seeing anything in the rules that prohibits two teams from practicing oral arguments together. May two teams practice together or is that prohibited by the rules (it's possible I missed a rule or an e-mail explaining that)? 

ANSWER:  Article Three 1. states that a team must consist of two or three law students attending the same ABA-accredited law school…and 3. Team members must be identified, and their names must be submitted to CULS.  Team members may not be substituted, except for good cause…

Article Ten limits assistance that a team may receive to faculty members or the team coach.

Therefore, a team is a two or three person entity from the same Law School. If a Law School fields two teams, the teams are separate entities and are not allowed to work together or discuss their preparation or share work product in any way.  This would put multi-team schools at a distinct advantage over single teams schools because the teams would potentially consist of more than the allotted 2 or 3 members prescribed in Article 3. Teams should maintain their autonomy in all facets of the competition and not work together in any fashion whether they are from the same or different Law Schools.

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QUESTION: Article 10, number 1. One of the rules regarding assistance states, among other things, that "a team may receive limited assistance from faculty members or the team coach in the preparation of its brief. Permissible assistance is limited to (a) discussion of the issues with the students and (b) oral comments on the drafts of the brief, addressing stylistic and grammatical concerns and legal analysis. Editing, writing or rewriting of any of the text of the brief by anyone other than the team members, however, is not permitted." 

How do you define "oral comments" and what are the limitations on what feedback coaches are actually allowed to give? For example, does this rule permit a coach to verbally give specific critiques on the brief to the team members (i.e. "this argument doesn't make sense" or "fix the citation on page 16")? 

ANSWER:  Regarding Article 10, number 1: the goal of this restriction is to promote law students to hone their skills in persuasive legal writing.  That is, the competition expects that what the students submit will be their work, and that coaching attorneys and learned faculty will not be the authors or co-authors of the papers.

This still gives a lot of latitude to faculty/staff/volunteers who provide students with feedback on their work.  The competition encourages mentorship and guidance, to allow students to develop the skills they will need in practice.  However, as with any skill, the mentorship should encourage a student to determine how to improve their work in order to reflect confidence, persuasiveness, and professionalism, rather than give them a script to reproduce.  The two examples you suggest, “This argument doesn’t make sense” or “Fix the citation on page 16” would be within the spirit of the rule.  Something more directive, though, such as “That’s not a good argument; you should try this one…” or “In the citation on page sixteen, you need to put a space after the comma after the edition number” would be going too far.  Similarly, offering a student several examples of good writing to review and refer to would be more in line with the intent of the competition than handing the student one example and saying, “Make your paper look like this.”

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If you have any questions or need further explanation, please contact us at mootcourt@law.capital.edu.

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