I'm fresh back from the Robert F. Wagner National Labor and Employment Law Moot Court Competition in New York, where I coached a team of aspiring young advocates from the University of Memphis Cecil C. Humphreys School of Law. The team — Emily Blaiss (2L), James Jones (3L), and Andrew Pate (2L) — never ceased to amaze me in how quickly they were improving. A week before we left I really thought that we didn't have much of a chance. But after the first day in New York, we had a real shot to win — or so I thought.
You see, this year's team was disqualified, not because of something they did, but because of a decision I made. It's really disheartening after all the hard work they put in to have it stripped away for such a trivial reason. For some perspective, you should know that in our second round, the opposing team's coach and alternate team members were using hand signals to encourage their advocates to slow down, speed up, not to address an argument, elaborate more on an argument, etc. Because we thought their conduct was, at the very least, questionable, we reported the activity to the powers that be — not because we thought we had lost (we didn't), but because it wasn't very "sportsmanlike," if that term translates properly to this context. The Wagner Co-Chairs took what I thought to be an appropriate action in "considering" the activity when calculating the scores and announcing that such coaching was strictly forbidden and would result in disqualification if it happened again.
So what was so great a taboo that we were eliminated without a warning? Perhaps an ethical breach or some other morally questionable conduct? Maybe we gave hand signals after turning someone else in for the same thing? No, our big sin was my decision to cut someone from orals. That's it. Never mind that all three team members participated in writing the brief, and all three team members practiced their oral arguments until about a week and a half before we left for New York when I decided to trim the advocates down to two. None of this mattered to the Wagner Co-Chairs: "strict liability," they said.
To be sure, they seemed nice enough while they disqualified us, saying that they had no choice. It wasn't till I got back to Memphis when I discovered that the rules do give them discretion:
1. The competition chairs have the sole discretion to assess penalties or to disqualify teams for any failure to abide by any of the rules.
2. The competition chairs have the sole discretion to interpret and amend these rules.
Hmm... I sure wish I would have been able to find this at the time (it was buried in the back of the rules), if for no other reason than to keep them from hiding behind "strict liability." I knew it said something like this, but in the stress of the moment, I couldn't find it.
Now I'm no fan of dwelling in the past, other than to take from it what you can and move on. But there's something cathartic about venting. And there's something very troubling about being disqualified from a competition in embarrassing fashion, letting everyone's imagination wander about the reasons for your exit. This is especially so when the disqualification had everything to do with a technicality, and nothing to do with an ethical or moral lapse. Telling everyone to gather in a large auditorium at 6:00 so that the competition can announce who advances, then unceremoniously calling one of the forty-six teams out of the gathered crowd — not once, but twice — attracts more than a little unwanted attention. If there was really no room for discussion, just announce who advanced and then address the issue AFTER everyone leaves. That would have been much less embarrassing and would have allowed the team to maintain the dignity that they rightfully deserved.
And deserve it, they did. Our school has a great reputation in moot court, not only in the Wagner Competition — which we have won several times — but also in the ABA Appellate Advocacy Competition, the National Moot Court Competition, and many others. This year's Wagner Team was riding the shoulders of the teams that have gone before them, and in all fairness, they were bearing that reputation well.
The team had placed 12th out of 46 teams heading into the elimination rounds, and the only reason we were not higher was the brief. We were undefeated and poised to advance deep into the tourney. The three preliminary rounds were against the toughest competition I have ever seen at that stage, yet we competed well and were undefeated. The first round was solid, but the next two rounds were something special.
In the second round, I witnessed one of the top 15 best oral arguments I've ever heard — and after judging many competitions, participating in several competitions, and listening to and watching hours upon hours of oral argument, I've seen quite a few. In Round 2, Ms. Emily Blaiss delivered far beyond what I thought she was capable of. And I don't mean to say that she hadn't been good up to that point, she'd been very good. But there's a level of oral advocacy that separates good advocates from the very best, a certain
je ne sais quoi, if you will. Such an advocate transcends forensics and knowledge and embodies an eagerness and ease of conversation that belies the setting. In that round, Ms. Blaiss found
it.
Round 3 was James's turn. Had we all not just seen Emily's argument the previous round, I would easily have said that James's argument, too, was one of the best I've ever seen in person. He spoke with such ease, clarity, confidence, and responsiveness that the judges were uniformly impressed, as were his opponents. After the round, they lauded their praises on the team. At the awards ceremony, the team from the third round, who ended up advancing as the 16 seed and had to face off against the number 1 seed, told me something that I greatly appreciate. They said that our team appeared to be much better than the team that eliminated them. That came not only from the team members, but from their coach, who made a special effort to seek us out.
All in all, I'm still trying to determine whether it's worse to lose or to be eliminated without ever tasting defeat. Of the former I can say that I have a visceral reaction to losing, much akin to watching someone kick my dog — i.e. I first get mad, then tend to the wounds. But I don't know if anything feels worse than this. To know that your team was peaking at just the right time and doing so in spectacular fashion is some consolation, but not enough.
Of this one thing, though, I am quite sure: We are undefeated in my mind, and I'd match our team up against any of those that remained in the competition.
