TBA Law Blog

Posted by: Stacey Shrader Joslin on Feb 14, 2014

The following questions have been posed to the Tennessee Bar Association Young Lawyers Division Mock Trial Committee regarding the 2014 mock trial case and rules. Answers are provided below as a service to all mock trial participants. Additional questions should be submitted to Mock Trial Chair Josh Dougan at josh@thedouganfirm.com.


1. Use of Audio Clips During Closing
Q. During closing argument, may an attorney who is not presenting a team's closing assist in the use of technology to play the audio versions of the songs at issue, either in part or in whole?

A. The rules do not prohibit such assistance from an attorney actually participating in that round of the competition. Tactical decisions are left to the team's discretion subject to the applicable rules of the competition and rules of evidence. Permission is also subject, however, to the discretion of the presiding judge.

2. Title of "He's My Still Loving You"
Q. The song "He's My Still Loving You" is sometimes referred to as "He's My Still Missing You" in the case materials. Is this intentional?

A. Stipulation No. 11, found on page 8 of the 2014 problem, contains a typographical error. The song title should read, "He's My Still Loving You." As to all other concerns regarding this issue, the problem should be construed as intentionally drafted, with inconsistencies to be considered as part of the problem's complexity.

3. Gender of Jordan Evergreen
Q. Does the masculine pronoun in the title of "He's My Still Loving You"
indicate that Jordan Evergreen's character should be played by a person of a particular gender?

A. No. As noted in the case materials, all witness parts may be played by participants of any gender. The committee believes it is consistent with real-world practice that a female might write a song from a male's perspective, and vice versa.


1. Use of Common Knowledge Facts
Q. What outside research, if any, may an expert witness conduct? For example, because one expert states that the word "blue" is uncommon, may that expert be cross-examined by referring to other songs that contain the word "blue"?

A. If the expert has opined that blue is an uncommon word, then the door has been opened for cross examination on that issue. Extrinsic evidence, however, is not admissible to support any claims to the contrary. The extent to which one chooses to pursue this line of questioning is up to each team, keeping in mind that certain lines of questioning may result in an objection that the testimony being elicited is outside the scope of the mock trial universe, or in a decision by the scorers to deduct points for eliciting testimony outside the mock trial universe. In other words, there is no rule against the research or asking about the research, but there is a risk that pursuing such a strategy could result in the deduction of points.


1. Use of Middle School Time Keepers
Q. We are working on finding time keepers. We have two 7th graders who would love to do it. Do time keepers have to be in high school, too?

A. The committee believes that the decision to allow middle-school students to serve as unofficial timekeepers at a district competition rests with the district coordinator. If the district coordinator chooses to waive Rule 13, he or she may do so as long as the waiver applies to all teams. Rule 13 will be strictly enforced, however, at the state competition.


1. Illustrative Aids and Exhibits
Q. Mock Trial Rule 18 provides in pertinent part "No illustrative aids of any kind may be used, unless provided in the case packet. Pointers, markers, etc. are not 'illustrative aids.'" Stipulation 2 states, "No props may be used. Teams may use markers, pens, pointers, or sticky notes to assist in the presentation of witness testimony concerning an exhibit." Since markers can be used, is it permissible for a student attorney to mark, write or draw on a white board while delivering opening or closing? Also, is it permissible for a student attorney to mark, write or draw on an exhibit while delivering closing?

A. In answering this question, it is important to differentiate between "illustrative aids" and exhibits. A white board would be an illustrative aid, and, thus, would not be allowed. As far as exhibits are concerned, they should not be introduced in opening. If, during closing, the attorneys wish to mark upon an admitted exhibit for demonstrative purposes, then a decision on that would fall under the discretion of the presiding judge of the round.

2. Use of a Particular Witness or Piece of Evidence
Q. I do not understand the expected use or benefit of a witness or of a particular item of evidence. Can the committee explain how teams are supposed to use a certain witness and/or certain piece of evidence?

A. The problem was intentionally crafted with character complexities meant to challenge participants. While the committee has set the parameters for the substance and form of the program, it is up to each team to develop its own strategy for the execution of the materials. Thus, the committee cannot offer any guidance on specific approaches.


1. Availability of Score Sheets
Q. At the state tournament, why are scores not made available between rounds?

A. The Mock Trial Committee is often asked why it does not release scores during the state competition. There are three reasons for the committee's position on this issue: time, resources, and competition integrity.

Time: One of the most common concerns regarding the state tournament is the "down" time between rounds. The committee members work as fast and accurately as possible while power-matching after each round to determine the next round's pairings. This means double-checking scores and ballots for superlatives and occasionally calling scorers or presiding judges for clarifications. The committee then power-matches teams and assigns new scorers and presiding judges, all of which requires checking conflicts. To release scores between rounds would add substantial time to the period between rounds; the committee wishes to avoid this obstruction.

Resources: The committee's resources are not limitless. During the course of the tournament, the committee is limited to the use of the equipment that it can bring with it. The committee does not have access to photocopiers during the tournament. Without the capability to photocopy scores, distribution mid-round would be close to impossible. Moreover, adding such a task would require more volunteers to oversee the process -- again, a resource that is not limitless.

Integrity of the Competition: The state tournament uses power matching as a mechanism to ensure the integrity of the competitive spirit. Power matching helps the most skilled teams rise to the top and prevents weaker teams from advancing due to luck of the draw. However, the heart of our competition is to promote the value of our advocacy-based legal system and instill a respect for and greater understanding of the rule of law. We want every team to give its best effort during every round. If teams knew that they had been statistically eliminated from a competition, there is the potential for less than full-spirited effort. As lawyers, we owe our clients zealous advocacy regardless of the stage of the proceedings or the likelihood of success.The committee feels it is our duty to ensure that the competition reflects this standard.

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