2020 Competition Questions

 

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.