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  • A Response To Sanctions

    Hi,

    This is Elizabeth Bays. I’ve been lurking on Perjuries since I was in high school, but Yale Mock Trial has a general rule about not making public statements, so all program members stayed quiet throughout this whole process. However, given the very public nature of the final and the fact that we know that our actions and the perception of our actions can affect others in the community, I want to briefly give you all an explanation of why we did what we did at Nationals and why I thought, and still think, it was okay. I have always believed that transparency about what the AMTA rules actually mean and how they are applied is important. One of the things I learned throughout this sanction process is that we have had a very, very different interpretation of the rules from at least some members of the AMTA board. I hope that by making this public, we can ensure that nobody else interprets the rules the way we did and gets sanctioned too. I can’t tell you specifically why the Board chose to sanction us as harshly as they did or what specifically we did that broke the rules, because I still don’t understand, and there is information I still don’t have. But I will give you as much of the story as I can.

    I will say before we start that I am saying all of this as an alum of the program, not a current member. This is not an official statement from Yale Mock Trial—I don’t know if they plan to make one to begin with. If you have questions or concerns about it, feel free to PM me at this account, but please leave the rest of the Yale Mock Trial program alone. This is, as I’m sure you can guess, a rough time for all of us. I also want to say that I’m sure there are some of you out there who, even after reading our explanation, will disagree with me. I respect that. I respect that this issue will probably be one where reasonable people can disagree. But in the coming weeks, I would ask that you do so with respect for what our program is going through. Should any of you feel the need to place the blame on the program for what happened, place it on me and not on anyone else on the team or in Yale’s program. I was the most senior member of that team. I wrote most of the contested scripts. I told my team that what we were doing was okay. I still believe it was.

    I am attaching two documents to this post. The first is a redacted portion of Yale’s initial response to AMTA’s first sanction inquiry. I have redacted it to protect the identity of the individuals who filed the initial complaints against us, as AMTA asked us to keep the details of those initial complaints confidential. I have also removed sections that openly discuss personal details of members of our program and personal things said by the complainants. The second document is a copy of my appeal. The only changes I’ve made to this document involve removing a couple of paragraphs that share personal information about other (non-Yale) teams and removing a portion that discusses a sanction that AMTA chose not to apply after the appeal.

    In order to give some context for these two documents for those who don’t know how the sanctions process works, I will let you know what happened procedurally from our perspective. On the Monday night after Nationals, our president received a notice from AMTA that a complaint for sanctions was filed against us. The program was given 72 hours to respond, which we did. That response is the first document. We then received a list of follow-up questions from AMTA on the Friday after Nationals. We were given about seven hours to respond, which we did. We then waited for four weeks before we heard anything back.

    In the first week of May, our presidents received a letter from AMTA notifying us that we had been sanctioned. That letter contained AMTA’s reasoning for doing so. I believed, and still believe, that their reasoning in this letter was flawed. I cannot make that letter public, because AMTA has told us that it is confidential and cannot be shared. If AMTA would be amenable to my posting all or part of it, I will do so when I hear from AMTA. But, in essence, it laid out four places where they say we cheated. The set of sanctions in that letter was the same as the published ones, with the exception that the fourth sanction originally applied to our whole program (not just to the members of this year’s Nationals team). The Yale Mock Trial program appealed only the fourth sanction. I individually appealed all of the sanctions. I believed, and still believe, that all four sanctions are unwarranted and are founded on faulty logic. I explained AMTA’s logic in my appeal and explained why I believed that it was wrong.

    The new program president received a letter at 7 a.m. this morning saying that we (both the Yale program and me individually) had been sanctioned. The letter did not contain any more information or further explanation than the one that was released publicly and did not address any of the specifics of what we said in our appeal. So if you have questions about the final decision by AMTA, I'm afraid I won't be of much help to you because even after reading the letter, I still have questions left unanswered.

    The attached documents come out to over 40 pages, so I will summarize the contained arguments here. AMTA claims we invented four times.
    1. On Sullivan, when the witness said that the men “made a beeline” for the dairy aisle.
      1. This is an instance where an omission from a witness’ affidavit supports a reasonable inference about something not happening. Sullivan notes in his affidavit that he included all relevant details about what happened. He knows the men are relevant and makes that very clear. He doesn’t describe the men going anywhere else besides the dairy aisle, despite clearly being able to see the whole store. Therefore, it is a reasonable inference that they didn’t go anywhere else. So, they went directly. Our Sullivan used the word “beeline” to convey that they went directly.
    2. On Rivers, when the witness said that Rivers gave Anderson “a little push.”
      1. There are, according to the affidavit, a lot of things that could be classified as little pushes. Rivers calls Anderson and pushes her to do it several times, he offers her money in the contract, etc. Rivers only testified that there had been some sort of push, not that it was any specific push. That’s in the affidavit, so it’s not invention. Did we imply something more? Did we hope the jury would infer something more? Yes, of course we did. But, is implication barred according to the rules? No.
    3. On Rivers, when the witness said, “Of course I said that. I didn’t want to get sued.”
      1. I understand where this might have been confusing. But, in the second sentence, the person playing Rivers was not trying to say that he only put the line in his affidavit because he didn’t want to get sued. He had just been asked about a line regarding what he would have done if he knew about the specific wording of Anderson’s post. He was explaining why he would have said what the line said he would have said—i.e., he would have told Anderson not to make the post, because he didn’t want to get sued.
    4. On Rivers, when asked “If you had known about this lie you would have told her not to” and “You would agree with me that had the defendant told you of this post before you made it, you would have told her not to do it,” Rivers said “no.”
      1. The actual line in the affidavit is materially different. It says, “If I had known what Anderson was going to say, I would have told Anderson not to do it.” In our mind (both now, and, importantly, while our Rivers was testifying), the actual line is materially different from the questions that were asked. There is a difference between knowing of a post in general (or knowing that a lie is going to be told in general) and knowing exactly the words that are going to be used. In particular, we believed that the reason Rivers had a problem with the specific wording of the post was because the hashtag #drinkrealdairy exposed the Dairy Farmers of Midlands to liability. So, if he had only known about the post in general, or if he had only known it would include the lie about Empowermilk having lead, he wouldn’t have had a problem. He only had a problem with “what Anderson was going to say.” I will note that there is really clear evidence that Joe (Rivers) and I were thinking about the case this way during the trial (so, it’s not just something I came up to defend this sanctions complaint). I argued it in my objection to the impeachment while the trial was still going on, so before the original sanction had even been filed. When Rhodes’ crossing attorney misquoted the affidavit in a way that we believed was materially different from the affidavit, our Rivers said “no.” That is not against the rules. We did not, as AMTA claims, “expressly disclaim specific facts contained in the affidavit,” we disclaimed facts that were similar to those in that affidavit, but not actually in it. As to the claim that our behavior left no remedy, that is just false. If the crossing attorney had simply quoted the affidavit word-for-word, Rivers would have said “yes.” The remedy was to impeach with the actual words from the affidavit.

    I want to end this with a few final notes to specific people. To AMTA students as a whole: first, thank you. I’m graduating, so I can now look back and say that the AMTA community has been one of the best things in my life over the last four years. Second, be careful. I went into the NCT believing that everything we did was above board. I still believe that, and will probably always believe that. But that’s not what matters. What matters in the long run, if you don’t want to get sanctioned, is whether AMTA thinks what you did is above board—and if they disagree with you, you run the risk of sanctions, regardless of your intent. If you think there are places where the rules aren’t clear, or you just have questions for AMTA, ask now. Don’t wait until the middle of a sanctions investigation like I did. AMTA won’t know what isn’t clear to students unless students ask and unless students tell them.

    To the AMTA board: regardless of what you believe about the specifics of this case, there needs to be a discussion about both the invention rule and the sanctions process. First, students have been saying on this forum for years now that Rule 8.9 is unclear. As I said in my appeal, a lot of what happened in this case comes from a mismatch between my understanding of the rules and yours. And I am not alone. I mentioned, in my appeal, the coaches and students that I talked to who disagreed about this issue. But you need look no further than the multiple Perjuries threads regarding this sanction and every other sanction for the last few years to see that you have disagreements among students and coaches alike about how the rules should be interpreted. You acknowledge in your public letter, regarding this specific case, that there still seems to be confusion in the community about Rule 8.9. If that is the case, then it is imperative that the rules get clarified and sorted out. Perhaps I’m an idealist, but I find it hard to believe that, in the last few years, four different teams have just suddenly decided to flout the rules and run the risk of sanctions. The number of sanctions recently is a sign that the rules—or, more specifically, the board’s most recent interpretations of the rules—are not clear. The solution is to clarify them, not to sanction anyone who interprets things differently.

    Second, about the sanctions process: perhaps others have had different experiences with the sanction process itself, but both of the times I have been through it, it has been opaque, mystifying, and damaging to the academic and personal lives of everyone involved. Both times, we have found ourselves in positions where we have been required to produce detailed explanations in less than 24 hours. Both times, this has occurred in the busiest time of the semester, and both times I have put off academic requirements to try to respond in full. Both times, our responses have been met with weeks’ worth of radio silence from the board. Meanwhile, I have never been given any clarity on what the burden of proof is in cases like these, or how the board will evaluate our intentions in cases where they disagree with us about the rules. Students have often raised questions on this forum about how the board goes about considering these issues. I even submitted a letter to the board last summer asking for things to be clarified. It’s too late to change what happened for us, but in the interest of fairness going forward, I think there needs to be serious discussion, both on the board and with the rest of the community, about how the rules should be interpreted and about how sanctions should be handled so that everyone is on the same page.

    To the students and coaches from other programs who have helped me in recent weeks, by talking with me about rules interpretation, by reassuring me that my program will get through this, or just by being there when I was an emotional wreck: thank you. You didn’t have to do that. Although I am, and will always be, affiliated with a different program, I will never forget the ways you were willing to help me.

    Finally, to the AMTA board members who read this forum: Some of you are wonderful people. Some of you are people who deserve every bit of the respect and admiration this community gives you and more. Some of you I have gotten to know, and you have treated me with nothing but respect. I hope that I have earned it. Some of you have been kind in times when you didn’t have to be. For that I thank you. Some of you are a role model for all of us. Regardless of how you voted a few days ago, I want to thank you for giving me the four years I had in AMTA.


    The Documents can be viewed at the following link:

    https://drive.google.com/drive/folde...ag?usp=sharing

  • #2
    I disagree strongly with your interpretation of the rules but I agree strongly in your assertion that reasonable minds can differ. The specific moments of the trial have obviously been litigated to death at this point, but there are a few things worth noting on how I think 8.9 needs to be viewed going forward.

    First, I think the memorandum that AMTA has released in the past couple of years are very critical to understanding where rule 8.9 is today. Specifically this quote:

    "For example, if an affidavit said, 'it had been raining all day and it was obvious that Andy had been caught in the rain,' it would be a reasonable inference that Andy's hair, person, and clothing were wet and that Andy's makeup was smeared. It would likely not be a reasonable inference from that line in the affidavit that the witness saw Andy holding an umbrella."

    This example is problematic for several reasons, but I think the core focus is that the facts of 1) It had been raining all day; and 2) It was obvious Andy had been caught in the rain; are not sufficient to make the logical leap to 3) Andy was holding an umbrella. This logical leap doesn't cover much distance, which suggests that AMTA intends for witnesses to be severely limited by the facts in the affidavit. The inventions by Sullivan span a greater gap between testimony and affidavit than the example AMTA has already given to be a violation of the rules.

    Further, the language from the memo, some of which has been used before, is also important in understanding where rule 8.9 likely lies today.

    "'conclusion[s] that a reasonable person would draw from a particular fact or set of facts contained in the affidavit.' See Rule 8.9(c)(ii). AMTA notes that a reasonable inference is not a conclusion that a person could draw from an affidavit, but a conclusion that a reasonable person would draw."

    There are a couple of things here worth looking at. One is what the "reasonable person" standard means. A reasonable person, without any further clarification, is not a mock trial competitor. Its certainly not someone that went to Yale, or to Rhodes. A reasonable person is a normal, ordinary person. This likely means that they're someone who is middle aged, someone who is unfamiliar with the legal system, and someone who has attended little to no college. In this context I think the could/would distinction makes a little more sense. If you told a reasonable person to look for every possible detail that's not included in an affidavit, its possible that they could come up with the fact that the two men in the grocery store weren't said to have gone anywhere other than the milk aisle. If you just told a reasonable person to read the affidavit, and then asked them if the two men went straight to and only to the milk aisle, their answer would likely be "I'm not sure." If you asked the same reasonable person after reading the affidavit if the two men were wearing clothes, they would likely say "yes." Both questions call on the reasonable person to provide information that's not explicitly in the affidavit. The first question is something a reasonable person could draw given proper instruction and a significant amount of time with the affidavit. The second question in something a reasonable person would draw simply by reading the affidavit and using common sense. Its likely that you, I, or frankly anyone on perjuries would draw a much larger set of inferences on first read of an affidavit. But we're not the measure of the reasonable person standard, we must place ourselves in the mind of another to understand what is and isn't reasonable.

    Another thing I think is worth looking at is how Rule 9.8 applies to the approach you all used in both coming up with the case theory, and "conforming" that theory to the rules. Rule 9.8 specifically disallows hyper-technical readings and arguments. Though brilliant in concept, the word for word parsing and the search for what isn't in an affidavit is a classic case of a hyper-technical reading. The arguments regarding River's impeachment, both the objection argument in round and the arguments against these sanctions, is another case of arguing a hyper-technical interpretation of the rules, the language of the attorney, and the language of the witness. I think this ruling makes clear that AMTA wants competitors to take the case materials as they come.

    The hyper-technical issue also feeds into some broader issues relating to rules 1.4-1.7. Under a very narrow, hyper-technical post-round view of what happened, many of the actions taken can be made to appear within the scope of the rules on paper. But the actual effect of the strategy deployed in round is to clearly subvert and undermine the effectiveness of rules designed to keep cases in a factually closed universe. We tell children, for good reason, to judge others not on what they say, but what they do. If we look at what you all have said on paper, its possible to conclude no violation. But if we look at what's more important, what you actually did in the round, the total effect of what you did was clearly a violation. Rules 1.4-1.7 exist to support not only the letter of the rules, which you all have parsed to the most extreme of degrees, but also to support the broader spirit of the rules, which you seem to have ignored. Looking at the case strategy more broadly instead of in individual parts, it becomes clearer that the strategy itself is a violation of the obligations to fair play and good faith that 1.4-1.7 impose. Using a case strategy designed around convincing the jury that your own witness has committed perjury is not fair play.

    While not written in the rules, AMTA is right to point out how using this kind of strategy is to lose sight of the educational goals of this activity. If you were to prepare a witness to effectually perjure himself on the stand in real practice, you would quickly be exiled from the legal profession. This is because the bar has long recognized this strategy to be unethical. Our activity is supposed to be about two sides taking an even set of facts and determining which side is better able to advocate. Instead, this strategy takes the focus away from advocacy and puts the focus onto finding hyper-technical readings which open loopholes to new, unfair facts. In a more colloquial sense, this approach to mock trial loses sight of the forest in favor of the veins on the leaves.

    I cannot agree with you more that the rules involving improper inventions are not clear enough. This needs to be fixed. I also have zero doubt in my mind that your program didn't and doesn't believe this to be a violation of the rules. But I do think you had a duty to know, based on AMTA's memorandum so far, that this strategy was at best tap dancing on the line of the rules as they exist, and that you ran a significant risk that others would not interpret the rules in the same way.

    My biggest concern after reading your message is the lack of due process that you received. If what you have described is the full extent of how this process played out between AMTA and Yale, then there is a serious problem. Given the severity of the sanctions, the time constraints that you were given to respond seem absurd, especially coming amid finals. The lack of opportunity to directly speak to the board making this decision seems wrong. I think you should have had an opportunity to offer input from those outside your program too. Most importantly, the simple lack of communication about how the process was being managed and what the timetable was is alarming. You deserved better. This is another example of the black hole that is the AMTA board decision making process that you have rightfully complained of before.

    I also struggle knowing that some of the practices you have been harshly punished for have been deployed before to no punishment by other top programs. This is obviously unfair. If the strategies punished here are violations, then these strategies should be policed everywhere, not only in the final round. But the lengthy and murky process which you have suffered through highlights the impossibility of AMTA dealing with these violations at a larger scale. If this is going to be seriously policed, then AMTA needs to significantly reform the system used to deal with it. Perhaps we should finally have an unfair extrapolation objection, or perhaps we should give tournament reps unilateral power to impose limited sanctions like loss of ballots or score adjustments for these violations.

    Ultimately, I think you are an unbelievably great competitor who made an honest mistake. Your case theory and the strategy you used to create it are unmistakably brilliant but are also a violation of the rules. Your experience is unlike anything that any other competitor has been through, and I genuinely thank you for sharing it. I hope that you continue to share it with a younger generation of students who might be so blessed as to have you be their coach. For your program and the others effected, I hope that the AMTA community welcomes them back without animus. I'm sure we'll be seeing you all back at the NCT and in the mix for another title soon.
    Last edited by Per The Jury; June 4th, 2019, 10:46 AM.

    Comment


    • #3
      I have to say, while I credit your claim that you did what you did in good faith, and I have my doubts about the ways Rule 8.9 is being applied and enforced, I do think your arguments in your letter, especially regarding the recantation, strain the English language and defy common sense.

      From the Rivers CX, as transcribed in your letter:

      "A: You just told us that you asked the defendant to lie. Flip to page 3. Look at line 85. At the begin.. at the end of that line follow along silently as I read aloud: “If I had known what Anderson was going to say I would have told Anderson not to do it.” I read that correctly, didn’t I?
      W: Of course I said that. I didn’t want us to get sued too."

      [later]

      "A: You understand that could have penalties for yourself, right?
      W: Yes, why would I lie to you? I didn’t want to be here, they made me come here, why would I lie to you? It’s you that I don’t want to sue me.
      A: In fact Mr. Rivers, exactly, you’re concerned that Empowermilk might sue your organization, right?
      W: Yes. Yes.
      A: So, I need you to answer my question. You would agree with me that had the defendant told you of this post before she made it, you would have told her not to do it, yes or no? I need an answer to my question, Mr. Rivers.
      W: No."
      Your argument seems to boil down to this: "Our interpretation of this line was that Rivers was totally fine with Ms. Anderson making a post disparaging Almond Power. However, he was not fine with the specific language of the post she ended up using."

      I don't agree that this was conveyed in the context of the witness' answers. To me, the factual difference between these two lines:

      "[H]ad [Anderson] told you of this post before [Anderson] made it, you would have told her not to do it" - paraphrase by CA
      "If I had known what Anderson was going to say I would have told Anderson not to do it" - Affidavit
      is essentially zero. Denying a fact from the affidavit is still denying the affidavit. You can argue that the witness was okay with certain versions of the post, but notably, the witness offers this clarification zero times in entire exchange on cross examination. In fact, he (probably intentionally) suggests the opposite: "Yes, I... I... I... I yes we made her say it." You note that you argued that there was no contradiction between the content of the affidavit and the witness' statement in the round, but even the presiding judge appeared to disagree at the time, asking "Why isn’t that an inconsistency?" and overruling your objection.

      Regarding the much discussed: "I didn't want to get sued too" line, you argue:

      Put simply, there are two ways this language can be understood, paraphrased here below:
      1. “Of course I said that. [This was a lie I included in my affidavit because] I didn’t want to get sued, too” or;
      2. “Of course I said that. [The reason that “I would have told Anderson not to do it” is because] I didn’t want to get sued, too!”
      You claim the witness intended to convey they second interpretation, but I find this hard to credit because the structure of the actual statement strongly implies the first understanding as a common sense matter of language. When asked about a specific thing the witness had previously stated, the witness is explaining the statement by saying "of course I said that" and then offering a motivation for fabricating that statement. The overall implication is clearly that the witness fabricated the statement.

      Again, I credit your claim that you thought you had a plausible interpretation of the facts when you planned this case. But I feel that it was pretty clear that, under the standards from the 2018 Sanction Memos and 2019 Guidance Memo, this kind of thing was likely to get you in trouble. AMTA articulated the standard for an improper invention earlier this year: "As the Committee interprets the AMTA Rules, a fact can be entirely consistent with a witness’s affidavit and even make a fair bit of sense given the facts in the affidavit and yet it is possible that the specific fact is not reasonably inferred from the facts stated in the affidavit. The question is whether a reasonable person as an objective observer reading the affidavit would infer that the fact in question logically flows from the affidavit." Under this standard, a plausible interpretation isn't good enough anymore.

      I started another thread about how this standard is a fairly strict one, and also a fairly new one. But when reading your letter, I think the best argument in your defense is that you intended to make your witness more congruent with the affidavit than he actually ended up being.

      After speaking with Elizabeth, she tells us that she saw the looks on people’s faces, recognized that Joe had not explained himself as clearly as intended, and realized what impression the cross had given the AMTA representatives and spectators. By that point, it was too late to change what had happened on cross.
      I truly feel badly for you and your team which is no doubt very talented. I do think that you should have known this was likely to be an issue, but that you genuinely believed it was okay to do. But I also think this exactly the sort of close-to-the-line interpretation of the case materials that AMTA is trying to prevent with the 2/19 memo, and that what was actually said in the round did in fact amount to a recantation of the affidavit.

      Comment


      • #4
        Originally posted by Per The Jury View Post

        First, I think the memorandum that AMTA has released in the past couple of years are very critical to understanding where rule 8.9 is today. Specifically this quote:

        "For example, if an affidavit said, 'it had been raining all day and it was obvious that Andy had been caught in the rain,' it would be a reasonable inference that Andy's hair, person, and clothing were wet and that Andy's makeup was smeared. It would likely not be a reasonable inference from that line in the affidavit that the witness saw Andy holding an umbrella."

        This example is problematic for several reasons, but I think the core focus is that the facts of 1) It had been raining all day; and 2) It was obvious Andy had been caught in the rain; are not sufficient to make the logical leap to 3) Andy was holding an umbrella. This logical leap doesn't cover much distance, which suggests that AMTA intends for witnesses to be severely limited by the facts in the affidavit. The inventions by Sullivan span a greater gap between testimony and affidavit than the example AMTA has already given to be a violation of the rules.

        Further, the language from the memo, some of which has been used before, is also important in understanding where rule 8.9 likely lies today.

        "'conclusion[s] that a reasonable person would draw from a particular fact or set of facts contained in the affidavit.' See Rule 8.9(c)(ii). AMTA notes that a reasonable inference is not a conclusion that a person could draw from an affidavit, but a conclusion that a reasonable person would draw."

        There are a couple of things here worth looking at. One is what the "reasonable person" standard means. A reasonable person, without any further clarification, is not a mock trial competitor. Its certainly not someone that went to Yale, or to Rhodes. A reasonable person is a normal, ordinary person. This likely means that they're someone who is middle aged, someone who is unfamiliar with the legal system, and someone who has attended little to no college. In this context I think the could/would distinction makes a little more sense. If you told a reasonable person to look for every possible detail that's not included in an affidavit, its possible that they could come up with the fact that the two men in the grocery store weren't said to have gone anywhere other than the milk aisle. If you just told a reasonable person to read the affidavit, and then asked them if the two men went straight to and only to the milk aisle, their answer would likely be "I'm not sure." If you asked the same reasonable person after reading the affidavit if the two men were wearing clothes, they would likely say "yes." Both questions call on the reasonable person to provide information that's not explicitly in the affidavit. The first question is something a reasonable person could draw given proper instruction and a significant amount of time with the affidavit. The second question in something a reasonable person would draw simply by reading the affidavit and using common sense. Its likely that you, I, or frankly anyone on perjuries would draw a much larger set of inferences on first read of an affidavit. But we're not the measure of the reasonable person standard, we must place ourselves in the mind of another to understand what is and isn't reasonable.
        I agree with your position on the rules, they are alarmingly vague. I agree with your position on the lack of due process as I understand it from Elizabeth's post, it was exceptionally unfair. I do not, however, agree with your interpretation of a reasonable person. "Reasonable person" is a legal standard. The US Legal System acknowledges NOT your education, intelligence, or alma mater but your ability to follow the law. "The hypothetical reasonable person behaves in a way that is legally appropriate." This definition is from the Nolo legal dictionary which is referenced by the Cornell Information Institute. It does not say that the reasonable person is of average intelligence, average education, average literacy, or any such metric other than strictly their ability to follow the law and behave in a way that is legally appropriate. Their being students at any university does not detract from their ability to be a reasonable person in any way, shape, or form.

        There is clear and important distinction between the “reasonable person” standard and the “ordinary person” standard that we as pedants cannot conflate. A reasonable person behaves logically and rationally. I have seen no evidence that the Yale students aren't reasonable people. We know that a reasonable person would conclude what they concluded, because they are reasonable (i.e. they are logical and can follow the law) and they did conclude what they concluded. There isn’t one single universal thing that all reasonable, law abiding people conclude when seeing a text. Reasonable people aren't bound by their interpretation skills, they're bound by their ability to follow the rules. There are different things that reasonable people conclude- just as many other perfectly reasonable people have disagreed on this very issue. As Elizabeth demonstrated in her post, the testimony logically flows from the affidavit, and she did conclude that it was true. Ergo it is something a reasonable person would conclude.

        Comment


        • #5
          Originally posted by Per The Jury View Post
          Another thing I think is worth looking at is how Rule 9.8 applies to the approach you all used in both coming up with the case theory, and "conforming" that theory to the rules. Rule 9.8 specifically disallows hyper-technical readings and arguments. Though brilliant in concept, the word for word parsing and the search for what isn't in an affidavit is a classic case of a hyper-technical reading. The arguments regarding River's impeachment, both the objection argument in round and the arguments against these sanctions, is another case of arguing a hyper-technical interpretation of the rules, the language of the attorney, and the language of the witness. I think this ruling makes clear that AMTA wants competitors to take the case materials as they come.
          I didn't think rule 9.8 applied to case materials? I thought it applied just to rules? Certainly it says "Rule interpretation standard. These rules are designed to introduce the procedures of law to the participants and to foster professional collegiality in all AMTA activities. Interpretations of the rules should be guided by American legal traditions and common sense. Arguing for hyper-technical interpretations of the rules, especially when designed to embarrass others, is to be avoided. The legal tradition of “harmless error” will apply: when no harm is suffered, there is no error." That certainly seems to me to just be about rules.

          I don't think Yale has a hyper technical reading of the *rules.* I think they just have hyper-technical readings of the affidavits. But I don't think 9.8 bans that. I've seen lots of teams that are coached by AMTA board people use hyper-technical readings of the affidavits where they get super specific. Heck, I think there was even a place in the final where Rhodes did that. So I don't think that could be the board's problem with what Yale did. But IDK, I don't really understand how they are reading the rules either. The whole "could/would" thing makes no sense to me.



          Last edited by The_Quibbler; June 5th, 2019, 10:44 AM.

          Comment


          • #6
            Reasonable people aren't bound by their interpretation skills, they're bound by their ability to follow the rules. There are different things that reasonable people conclude- just as many other perfectly reasonable people have disagreed on this very issue. As Elizabeth demonstrated in her post, the testimony logically flows from the affidavit, and she did conclude that it was true. Ergo it is something a reasonable person would conclude.
            I'm sorry, but just no. It was objectively unreasonable. The question isn't whether the Yale students "are reasonable." The question is whether they behaved reasonably at the time. It wasn't reasonable. It was so unreasonable that the air got sucked out of the room when it happened. AMTA reps are on video at the end of the round walking around with stunned expressions on their face as they try to figure out how in the world they're going to handle it. Yale's objection to the impeachment was nonsense. It was a night and day contradiction of the affidavit. The entire direct examination that preceded the impeachment made it even more clear.

            I buy that Yale's competitors may have thought a reasonable person "could" conclude *some* of the things they invented from the materials. But the appeal shows a failure to apply the correct rule, which has been about what a reasonable person "would" conclude for some time now. And that doesn't even get into the parts where the witness explicitly denied the accuracy of his own affidavit in a manner that was clearly planned from the very beginning of the trial given the case theory advanced in opening statements.

            Is it going to be difficult for AMTA to elucidate where the line is on future factual invention disputes? Probably. AMTA leadership has its work cut out for it. I wish them well. But folks, this was not even in the same ballpark as a close call. This was one of the most egregious factual invention situations I've ever seen in a mock trial round.

            I don't agree with the posts above giving Ms. Bays the benefit of the doubt. I'm sorry, but I just can't. At best, this is a situation where Yale should have realized what they were doing was against the rules in a major way that would unfairly impact the trial. At worst, they did know and did it anyway. I expect that teams qualifying for the final round of nationals are familiar with AMTA's prior factual invention sanction rulings, especially when this program already litigated a factual invention complaint just a year before. Such a team is going to be watching AMTA sanction rulings like a hawk.

            And, although I don't think this factored in AMTA's decision at all, remember that Yale actually set AMTA's policy change on factual invention in motion when, just three final rounds beforehand, they completely invented in another final round on live TV that their client was left-handed, in a trial about a baseball bat murder with blood-spatter analysis. Yale has been playing fast and loose with the factual invention strategy for a while now. The idea that they were blissfully unaware of the present state of the rules on factual invention deserves a very strong eye roll. I find it absolutely ridiculous that they were just naive of the line this crossed.

            And I say all of this as someone who is friends with a few people in Yale's program. This was painful to me. I think it's widely agreed that Yale probably would have won this trial had they not done this. It's especially painful to me that they used this calculated, premeditated strategy to gain an advantage by breaking the rules, just one year after their B/C team made inspirational history the year before in 2018's final round. Yale could not have had a higher reputation for sportsmanship after last year's final round, and then they took a huge gamble and threw it away in 2019's final.
            Last edited by Nur Rauch; June 5th, 2019, 11:01 AM.

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            • #7
              Originally posted by DBCooper View Post
              Again, I credit your claim that you thought you had a plausible interpretation of the facts when you planned this case. But I feel that it was pretty clear that, under the standards from the 2018 Sanction Memos and 2019 Guidance Memo, this kind of thing was likely to get you in trouble. AMTA articulated the standard for an improper invention earlier this year: "As the Committee interprets the AMTA Rules, a fact can be entirely consistent with a witness’s affidavit and even make a fair bit of sense given the facts in the affidavit and yet it is possible that the specific fact is not reasonably inferred from the facts stated in the affidavit. The question is whether a reasonable person as an objective observer reading the affidavit would infer that the fact in question logically flows from the affidavit." Under this standard, a plausible interpretation isn't good enough anymore.

              I started another thread about how this standard is a fairly strict one, and also a fairly new one.
              I don’t think this is right. Your quote from CRC memo concerns the interpretation of the reasonable inference standard on direct. But the exchange you’re referencing occurred on cross. As far as I know, AMTA has never tightened the rules on cross beyond be consistent and be responsive. So, in this context, consistency with the affidavit is all that’s required. In this case, if they had “a plausible interpretation of the facts,” that’s all they need, because it’s cross.

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              • #8
                Originally posted by LogicalNitpicker View Post

                I don’t think this is right. Your quote from CRC memo concerns the interpretation of the reasonable inference standard on direct. But the exchange you’re referencing occurred on cross. As far as I know, AMTA has never tightened the rules on cross beyond be consistent and be responsive. So, in this context, consistency with the affidavit is all that’s required. In this case, if they had “a plausible interpretation of the facts,” that’s all they need, because it’s cross.
                It's not plausible that he only wrote the things in his affidavit so he wouldn't get sued. It's clearly a factual invention designed to nullify a valid impeachment. This was done intentionally, and was planned before the trial even started. The explanation given for how he didn't want to get sued for a different portion of the affidavit defies belief.
                Last edited by Nur Rauch; June 5th, 2019, 11:22 AM.

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                • #9
                  Originally posted by Nur Rauch View Post

                  And, although I don't think this factored in AMTA's decision at all, remember that Yale actually set AMTA's policy change on factual invention in motion when, just three final rounds beforehand, they completely invented in another final round on live TV that their client was left-handed, in a trial about a baseball bat murder with blood-spatter analysis. Yale has been playing fast and loose with the factual invention strategy for a while now. The idea that they were blissfully unaware of the present state of the rules on factual invention deserves a very strong eye roll. I find it absolutely ridiculous that they were just naive of the line this crossed.
                  Sinclair's left-handedness was part of the fact pattern, though. So I don't see how that was a complete invention.

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                  • #10
                    I may be mixing up what was invented in that trial then. I recall there was a huge controversy about a factual invention in UVA v. Yale 2016. It is what basically started AMTA down this path of more harshly punishing factual inventions. 2016 was the high-water mark for this strategy.

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                    • #11
                      A few things to respond to, apologies in advance for not figuring out how to format quote responses correctly.

                      "I do not, however, agree with your interpretation of a reasonable person. "Reasonable person" is a legal standard. The US Legal System acknowledges NOT your education, intelligence, or alma mater but your ability to follow the law. "The hypothetical reasonable person behaves in a way that is legally appropriate." This definition is from the Nolo legal dictionary which is referenced by the Cornell Information Institute. It does not say that the reasonable person is of average intelligence, average education, average literacy, or any such metric other than strictly their ability to follow the law and behave in a way that is legally appropriate. Their being students at any university does not detract from their ability to be a reasonable person in any way, shape, or form."

                      First in response to this its important to note that AMTA hasn't defined their definition of a reasonable person. The reasonable person standard and its application can vary depending on context, including the type of law at issue, and the actual claims/defenses of the case. I certainly don't dispute the Nolo dictionary definition but I don't think it fully reflects the meaning of the reasonable person standard as it is commonly used. Black's Law gives a definition that I find a bit more satisfactory.

                      Reasonable Person - "This term refers to an ordinary person who exercises care while avoiding extremes of boldness and carefulness. This term does not apply the same to each as each age group behaves differently."

                      Reasonable Man - "a term used to describe a person who acts with common sense, with a good mental capacity who is stable."

                      Here's the Meriam Webster definition or a reasonable person, an admittedly non-legal source - "a fictional person with an ordinary degree of reason, prudence, care, foresight, or intelligence whose conduct, conclusion, or expectation in relation to a particular circumstance or fact is used as an objective standard by which to measure or determine something (as the existence of negligence)"

                      The reasonable person standard does not mean someone who is exactly average in every quality, I agree with you on this and see how my initial response may be a bit misleading on this. But the reasonable person standard does mean a bit more than someone who is able to follow the law. The reasonable person, as you can see from these definitions, is someone who avoids the extremes of both boldness and carefulness. This means a reasonable person isn't overly reactionary and dramatic, but also is someone who isn't overly cautious, or in this instance, hyper technical. A reasonable person in the mock trial context might read their affidavit several times before testifying to ensure they won't be impeached. A reasonable person wouldn't go onto the stand after only reading the witnesses name, nor would the reasonable person comb through the affidavit on a letter for letter scale to find every possible loophole or implication. Relating it more to the examples I gave, a reasonable person isn't burdened by the inexperience of being too youthful, nor is a reasonable person burdened by the mental challenges of old age. It's someone in the middle, whether that be someone who is 17 or 70. The reasonable person doesn't approach a problem with the intellectual rigor that would be used for a paper published in the Yale Law Review, but they also don't have any mental deficiency. Someone who goes to Yale could absolutely act as a reasonable person would, but if they approach a novel problem with the same intellectualism they would approach a Yale senior thesis with, then they don't act as a reasonable person in that instance.

                      I disagree completely with your statement "There is clear and important distinction between the "reasonable person" standard and the "ordinary person" standard that we as pedants cannot conflate." Ordinary is an adjective that courts and scholars have long used to describe the reasonable person standard.

                      Your statement "We know that a reasonable person would conclude what they concluded, because they are reasonable (i.e. they are logical and can follow the law) and they did conclude what they concluded" is rested on a false premise. Just because a person is generally reasonable doesn't mean they always act as a reasonable person would. When you say "There isn't one single universal thing that all reasonable, law abiding people conclude when seeing a text" I agree, there isn't one single thing a reasonable person might do, there are a range of things a reasonable person might do. In this case I totally agree that Yale students are generally reasonable people. But in this instance, they didn't act within the range of possibilities that a reasonable person might take.



                      "I didn't think rule 9.8 applied to case materials? I thought it applied just to rules?"

                      This is a complicated issue that I thought about for some time. I don't think 9.8 applies directly to interpretations of case materials. For example, I don't think this would ban a hyper-technical reading of case law to a judge. It gets a little murkier when we're talking about how the rules apply to the case materials, which is what we have here. I think in this circumstance, where the rules and case materials are overlapping, 9.8 applies. But this is another instance of a blurry line, and an argument that it doesn't apply to analysis of how rules apply to case materials definitely has merit.


                      I'm glad this thread has sparked conversation, it's important that the AMTA community is able to have public discussion on important issues. I do hope, however, that the conversation will shift away from trying to determine what was going through the Yale competitors minds throughout this incident. We will never know what they were thinking. Instead, I would like to see the conversation focus on how we should interpret the rules, what changes or clarifications should be made to the rules, and what changes need to be made to the violation complaint and sanction process.

                      What changes would you make to the rules on invention to improve things?
                      How should AMTA go about policing this kind of activity (which if you compete at the NCT level you know has been going on by multiple programs for some time)?
                      Last edited by Per The Jury; June 5th, 2019, 01:30 PM.

                      Comment


                      • #12
                        Originally posted by Nur Rauch View Post

                        It's not plausible that he only wrote the things in his affidavit so he wouldn't get sued. It's clearly a factual invention designed to nullify a valid impeachment. This was done intentionally, and was planned before the trial even started. The explanation given for how he didn't want to get sued for a different portion of the affidavit defies belief.
                        Because this was mentioned above I want to clarify something. Nur Rauch isn't alone, many people believe that when Yale's Rivers stated: "We/I didn't want to get sued" what he meant was "We didn't want to get sued, so thats why I lied in my affidavit". If this were the case I would agree that it is an improper invention. And frankly, as someone in the audience at the final round, it was an interpretation that many around me immediately had, but what I thought the witness meant, and was confirmed in Elizabeth Bays' post, was: "I didn't want to get sued, thats why I didn't want her to make that post with that wording (ie. #drinkrealdairy --> thus implicating their company)".

                        A couple things on this. I think that both interpretations are pretty reasonable ways to interpret the statement by the witness in the immediate moment it happened (and I am not trying to compare this to the rule about what a reasonable person would infer, I am simply talking about what we think the witness meant). But lets take a step deeper: I feel that the witness saying I don't want to get sued, thats why I lied in my affidavit, is so blatantly rule breaking that it is pretty clearly not what Yale meant. They aren't dumb, they didn't think having a witness admit to perjuring himself was a good idea. I think it makes more sense that the witness was caught up in the hype of nationals and said something that made sense in his head, but didn't realize that other people may interpret it differently. The fact that this explanation is exactly what Elizabeth wrote leads me to this: we need to stop claiming that the witness meant that the entire affidavit was written "because we didn't want to get sued", it clearly wasn't their case theory, it wasn't what the witness meant, it was an unfortunately vague wording that allowed for this to happen. But from now on, please stop claiming things that aren't true.

                        Comment


                        • #13
                          what I thought the witness meant, and was confirmed in Elizabeth Bays' post, was: "I didn't want to get sued, thats why I didn't want her to make that post with that wording (ie. #drinkrealdairy --> thus implicating their company)".
                          The reason it's not believable is because Rivers had every opportunity to explain that's what he meant, and he didn't. This was a calculated impeachment trap, and that incredibly important point was somehow nowhere in their scripted trap. It would have taken a very simple redirect to explain that the specific word he didn't want get sued for was the hashtag "drinkrealdairy."

                          We've all done impeachment traps. We have all had those adrenaline-rush moments where opposing counsel walks exactly into your trap, where they think they have cornered you, and your witness gets to respond, "You did not read that correctly. Look at the previous/next line, where it shows I am telling the truth." We then reinforced those humiliating moments for the cross-examiner and hammered the final nail in their coffin by getting up on redirect and asking the witness to clearly explain why opposing counsel foolishly overlooked the trap language. And because we all scripted it, the witness had the page and line numbers memorized and proudly pointed to the language in the affidavit that absolved them.

                          That didn't happen here. Not even close. Rivers didn't cite to that language in the affidavit because he was not aware of it. It was not part of the script. It was a script Yale came up with after the fact to justify what happened.

                          The fact that this explanation is exactly what Elizabeth wrote...
                          ...is not a credible reason to believe it.
                          Last edited by Nur Rauch; June 5th, 2019, 06:23 PM.

                          Comment


                          • #14
                            So you are claiming that Elizabeth made this up? Her objection in trial was to the same point, so I don't think that makes sense. Also, I think this is pretty cynical, I don't think Elizabeth was lying when she said that this was what they meant. I also think that he did explain it, you just didn't understand it. Thats not his fault...

                            Comment


                            • #15
                              I also think that he did explain it, you just didn't understand it. Thats not his fault...
                              Q: Mr. Rivers, you never once asked that defendant to lie, did you?
                              A: I don't know how to answer that.
                              Q: You can answer with a yes or a no, Mr. Rivers, did you ever ask that defendant to lie?
                              Q: I need an answer to my question Mr. Rivers
                              A: Yes, I - I - yes, we made her say it.
                              Q: Approaching opposing council
                              [standard impeachment stuff]
                              Q: You just told us you asked the defendant to lie. "If I had known what Anderson was going to say, I would have told Anderson not to do it" - I read that correctly, didn't I?
                              A: Of course I said that! I didn't want us to get sued, too!
                              Q: I read that correctly, didn't I?
                              A: Yes!
                              Objection Argument: (whereupon literally nothing to do with a hashtag is mentioned)
                              Q: If you had known what the defendant would have said, you would have told her not to post it, certainly?
                              A: Why - I'm trying to help you. Why- I don't - Why are you doing this?
                              Q: I need an answer to my question. If you had known that the defendant was going to post this lie, you would have told her not to. You would, wouldn't you?
                              A: No.
                              Q: You understand what it means to lie under oath, don't you?
                              A: Yes.
                              Q: You understand that can have penalties for yourself, right?
                              A: Yes, why would I lie to you? I didn't want to be here. They made me come here. Why would I lie to you? It's you that I don't want to sue ME.
                              Q: In fact, Mr. Rivers, exactly - you're concerned that Empowermilk might sue your organization, right?
                              A: Yes. Yes.
                              Q: So I need you to answer my question. You would agree with me that had the defendant told you of this post before she made it, you would have told her not to do it. Yes or no?
                              Q: I need an answer to my questions, Mr. Rivers.
                              A: No.

                              Hm. Nothing about a hashtag or real dairy from Mr. Rivers. Nothing about a hashtag or real dairy from Ms. Bays in her objection argument either. No redirect whatsoever. I'm not trying to be sarcastic -- what am I missing here?
                              Last edited by Nur Rauch; June 5th, 2019, 08:08 PM.

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