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  • #31
    Originally posted by OffOnCross View Post

    I think you're too charitable in stating Yale's position. My recollection of the shopping cart invention is that the witness said the men did not get a shopping cart, not just that he didn't see it. Same goes for the beeline---he stated affirmatively that they beelined to the dairy aisle, not that he didn't see them anywhere but the dairy aisle. So Yale's position isn't just that a silent affidavit allows the witness to deny seeing the thing happen, it is that the silent affidavit allows the witness absolutely to deny that the thing happened at all. That's a much weaker claim, but it is the one they are making.

    And I keep bringing up the shopping cart because I'm not sure that the beeline was the only omission invention that AMTA found. That may be what OP focused on, but AMTA's announcement refers to "multiple inventions across multiple witnesses." Obviously that is too vague to be useful, but it sounds to me like that means more inventions than the handful discussed by OP, all but one of which came on Rivers.
    I agree with you. I was simply using the language from the Bays appeal that she used herself.

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    • #32
      Originally posted by happygolucky View Post
      I have gone to law school, and maybe someone who knows even more can correct me, but the reasonable person is usually the standard we use in torts to determine the scope of the duty of the defendant: the defendant has a duty to act as a reasonable person would have acted under similar circumstances.

      Originally posted by happygolucky View Post

      So thats likely the reasonable person AMTA has in mind here when we are asking if what inferences a reasonable person would draw from particular facts in an affidavit. Your point about Kosack is basically right: it is a hard question, thats why courts give those questions to juries. And here, AMTA is the jury: AMTA decided that a reasonable person wouldn't infer the facts that Yale provided during the final round. We can't really define the circumstances beyond "someone who has read the affidavit." So the question really is: if a reasonable person read the affidavit, would they infer X fact? And AMTA has decided no, clearly suggesting that Yale's position that: "if the affidavit fails to mention something happened after the witness has been specifically told to include everything relevant that happened, then the witness can deny that they saw it happen" is not correct.
      I think that's my concern here. AMTA says "a reasonable person." Normally in the law, the defendant has to act how a reasonable person would act "under the circumstances." So a jury has to know all the circumstances before they decide how the defendant should have acted. In the Kosack case, for example, the jury couldn't fairly decide how Alex Grace should act until they heard testimony about what Kosack told Grace. But AMTA provides no circumstances for this reasonable person. You assume in your post that the reasonable person has just read the affidavit and that's all in terms of circumstances. But that's not clear from the rule. I'll admit that I have always assumed that the reasonable person that AMTA was referring to was one who really knew the case (knew it well enough to find the little details and easter eggs that the case writers leave) and had really thought about it. That pushes the standard closer to the one I referred to above where the reasonable person is one who hasn't just read the affidavit once or twice but has had stuff pointed out. But all of that is a matter of the reasonable person's circumstances, not of whether they are a reasonable person or whether they are behaving like a reasonable person (just like what Alex Grace had been told is a matter of Grace's circumstances).

      As for the claim that AMTA decided something, clearly that much is true. They did decide. But if AMTA decided something based on a standard that a lot of people didn't know, it makes a huge difference in what sanctions are appropriate. What concerns me here is that, if we are to believe Bays on the facts, Bays had told AMTA the year before that she interpreted the rule to mean that it was a reasonable inference that "if the affidavit fails to mention something happened after the witness has been specifically told to include everything relevant that happened, then the witness can deny that they saw it happen." If you listen to her podcast episode she also said that her belief was that you could take a bunch of facts think really hard about them and see what is implied. She asserts that AMTA never told her that was wrong, and they found last year that Yale didn't break the rules. If AMTA knew Yale believed that, didn't correct them, and then sanctioned them this hard, I'm really worried. That's why I'm so concerned about whether this reasonable person standard has a solid ground meaning that Yale could have gone on. And it sounds like it doesn't.

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      • #33
        With invention of fact and reasonable inferences, no one is bringing up the distinction of material or not. When talking about what a witness might leave out of an affidavit, they will leave out a whole bunch of immaterial facts. If they don't, each affidavit would be a book (and ridiculous to boot). Any fact elicited through a witness on the stand during trial has to be relevant or else it should be objectionable and stricken. So anything not included in the "I included all relevant information" affidavit that is asked about on direct and used to support a case theory is material. And certainly no reasonable person would say that they would leave out relevant information in their affidavit if they were told to include all relevant information. So that is your egregious invention of a material fact. So I fail to see how a person can argue that just because an affidavit does not speak to a particular fact or that the testimony elicited on direct does not contradict an affidavit that it is totally ok to base your case theory on that. The wiggle room for inferences and inventions revolves around either 1)creating character in a witness or 2)waffling on statements that are intentionally ambiguous in the affidavit. The first example leads to characters with accents from other countries and colorful personal background tidbits that are not actually relevant to the case at hand and would not be used to support a case theory (or else those facts would become material). And the second is the interpretation built into the case that the authors want students to use in a creative way allowing for the "spin" factor, such as "I am sure that is what I saw, but I am not 100% positive." But an invention/interference not included in the affidavit that is relevant to the case theory is inherently material and therefore unfair to use in a closed case universe.

        When analyzing what Yale did, it appears they took an accumulation of little omissions and inferences of a witness' affidavit (like the "push" inference) and combined them together to make the entire basis of their case theory. Any one infraction alone might not look that material or significant (or that unreasonable), especially the way that Bays breaks them down out of context of the trial and her theory of the case. But presenting them together with all the heavily inferred information elicited from witnesses on direct to form a clear theory for the jury is definitely cheating by creating material facts. They might have analyzed each individual planned action, question, response, and suggested inference in a vacuum to say that nothing crossed the line of the AMTA invention rule. But claiming that the case theory they presented in its entirety was fair really strains credibility and is disingenuous. That theory would not have any legs had they not manipulated testimony of their own witnesses and actual facts as relayed in those affidavits or created facts whole cloth based on unreasonably inferring that a witness would omit facts that directly support the case theory in their affidavit. And this goes far and beyond the "spin" that is attributed to handling facts in a real case. And claiming that any one particular action taken by Yale would not suffice to prove a rule violation is asking people to ignore the forest for each individual tree. Yeah, a tree by itself is not a forest. But as you accumulate those trees, you cannot deny the forest.

        While I applaud teams that form creative legal theories, they cannot be creative with facts to support creative legal theories. The theory has to have a basis in the case materials through witness affidavits and evidence. In real life you could do more investigating/discovery to see if facts for your theory exist or to look for facts to disprove the other party's theory. But this is a closed case universe, meaning all discovery is done and there is no more material evidence or facts to gather. If you have to alter, manipulate, infer, and appear to recant all the facts you need to support your legal theory, then you are unethical as a lawyer and as a mock trial competitor. Any one of Yale's actions alone or in a vacuum might have been an honest mistake or a misunderstanding. But they intended to present the theory that required all the liberties they took with the case material as a whole. And as a whole that was unfair.


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        • #34
          Originally posted by ImproperCharacter View Post
          And now that they have been sanctioned, Bays is not apologetic.
          She literally writes "I am sorry" three separate times in her appeal letter.

          On another note, does this surprise anyone? She's made it clear that she doesn't buy AMTA's line of thinking, so what would have made her see errors in her ways?

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          • #35
            To paraphrase an AMTA Board Member, I've seen some real shitshows in my day- but this sanction process was by far the shittiest of shitshows.
            things are really heating up in the lawyer impersonation fandom

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