Eileen Gerrish, Director Law, Youth & Citizenship Program
PH: 518-486-1748 FAX: 518-486-1571 egerrish@nysba.org
TO: County Coordinators, Mock Trial Coaches, Attorney Advisors and Judges
Date: February 29, 2008
RE: Mock Trial Case Questions
1) Prior to 2005, there was a rule that stated that all witnesses, except the defendant, were sequestered during trial. However, it has since been removed. Can you please ask the Committee to send out a clarification regarding this issue.
RESPONSE: In regard to the sequestration matter, the LYC committee considered this issue several years ago and concluded that sequestering witnesses in a mock trial competition was unnecessary and counterproductive. Our emphasis has long been that the mock trial experience be viewed more as an educational opportunity rather than strictly a competition. Excluding student witnesses from the courtroom would deprive those students of the full educational opportunity. They would not get to see how the other team performs, how the attorneys conduct cross-examinations and try to move exhibits into evidence, how the attorneys handle objections, how the judge rules on objections, how other witnesses conduct themselves under cross examination, how the attorneys handle themselves during openings and closings, etc. Besides, each witness is aware of the other witnesses' expected testimony because of the written affidavits. So, excluding anyone from the courtroom would counterproductive and defeat the real purpose of the mock trial competition. No witness is to be excluded.
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From: Rebecca Varno, Program Manager Law, Youth & Citizenship Program
518-486-5760 (FAX) 518-486-1571 rvarno@nysba.org
TO: County Coordinators, Mock Trial Coaches, Attorney Advisors and Judges
Date: January 24, 2008
RE: Mock Trial 2008 Case Questions
1) Can we define negligence?
RESPONSE: Negligence is the "failure to exercise the standard of care
that a
reasonably prudent person would have exercised in a similar situation." Black's
Law
Dictionary 1056 (7th ed. 1999).
2) Losing arm and/or leg do not match in case—page 44 and 13. Which one is
it, or
both?
RESPONSE: Paragraph 13 on page 44 of Kerry Knowall’s affidavit states
"the
stroke caused problems with his/her short-term memory and left her/him without
the
use of his/her left arm and leg."
3) Business records vs. CSI lab reports—need clarification
RESPONSE: Please insert this paragraph as Rule 404 in your booklets:
"A judge may admit a memorandum, report, record or data compilation
concerning an event or act, provided (1)that the record was made at or near the
time of the act by a person with knowledge, (2)that the record is kept in the
regular course of business, (3)that it was the regular course of business to
make
such record and (4)that the record was not made exclusively in contemplation of
litigation. The rationale for this exception is that this type of evidence is
particularly reliable because of the regularity with which business records are
kept, their use and importance in the business and the incentive of employees to
keep accurate records or risk being reprimanded by the employer."
4) Ryan’s statement appears to include hearsay and invention of facts.
RESPONSE: Please see the reminder for judges and teams at the end of this memo.
5) It says that Ryan Strongarm ran professionally and was paid prize money.
Wouldn't this disqualify him from the Olympics? We thought professional runners
could not compete in the Olympics. We thought the Olympics were for amateurs.
RESPONSE: The first Olympics to officially accept professional athletes was
1988
in selected sports and 1992 in the remainder.
6) Did Fran Know all have one stroke or two, and when? Para. 5 of Kerry
Knowall's
affidavit states that they had to leave the party on June 8 "because Fran had a
stroke
a few months ago and couldn't drive anymore because his/her stroke left him/her
Without the use of his/her left arm and leg. It also took a toll on his/her
short-term
memory." Is it fair to assume that means Fran had a stroke a few months prior to
June 8? In Para. 13 Kerry says that Fran "had another stroke Labor Day weekend
in
2007" but then goes on to list the same problems caused by that stroke.
RESPONSE: Please make the following substitution to Paragraph 5 of Kerry
Knowall’s affidavit:
"We had to leave then because Fran had a stroke in April of 2007 and s/he
ouldn’t drive anymore because his/her stroke left him/her without the use of
his/her left arm and leg. It also took a toll on his/her short term memory."
7) It is clear from all of the materials that the collision which is the
subject of this
case occurred after midnight, on June 9, 2007. That is what is indicated in
paragraphs 8 & 9 of the complaint (pages 38-39 of the materials). However,
paragraphs 5, 6 & 7 refer to June 8, 2007. The date stated in paragraph 7 in
particular is clearly inconsistent with the date stated in paragraphs 8 & 9. It
would
seem as though a correction should be made, changing the date in paragraphs 5, 6
&
7 to June 9, 2007.
RESPONSE: The events leading up to the accident started on Friday, June
8th in
the evening. That is why we have the reference to June 8th in the complaint. In
paragraph #7 of the complaint, we use the phrase "on or about", which would
include
the time period of the accident, to wit: sometime after midnight on June 9th.
There is
no requirement that we set forth the exact time of the accident in the
complaint. (I
don't believe a "correction" need to be made at this time. However, I will ask
the
Mock Trial Subcommittee to take a look at the issue you have raised.)
8) Does the "CASE SUMMARY" on pages 32-36 constitute the "statement of facts
or
stipulated facts" referred to in paragraph 11-b on page 8? If not, there
wouldn't
appear to be any "statement of facts or stipulated facts" in this case and thus
no need
for the aforementioned rule at 11-b.
RESPONSE: In all of the prior mock trial cases, we referred to our "case
summary"
as "Statement of Stipulated Fact." The parties, however, were never legally
bound by
what was set forth in that statement. To avoid the confusion, this year we
decided to
call what is essentially a "bench memo" a "Case Summary" and make it clear that
the
parties are not bound by the "memo", nor should use it at trial.
We still need 11-b because there are times when we will have significant facts
that
will need to be stipulated. 11-b will probably be changed to replace "statement
of
facts" with "case summary."
9) Does stipulation #2 on page 36 mean that Exhibits 1-5 are to be admitted
into
evidence even if the party offering them does not establish that they fall into
one of
the delineated hearsay exceptions? (I am asking this question because this issue
became a point of contention here last year).
RESPONSE: In order for an exhibit (or statement) to be admitted into
evidence, the
item must withstand all of the mock trial evidentiary objections that the other
party
makes. One of the real purposes of Stipulation #2 is to prevent a party from
challenging an exhibit based on the ground that is not an "original'. Also, the
stipulation makes it clear that a proper foundation has to be laid before the
court will
allow an exhibit into evidence.
REMINDER FOR JUDGES AND TEAMS:
For the last few years, we have received numerous letters and complaints
about Rules
701 and 702 "Invention of Facts." We have attempted to make a clarification to
this
rule which you will find included in this packet of materials. However, we
wanted to
make it clear that inventing of facts is not permitted during the Mock Trial
Competition. If we continue to hear complaints, specifically regarding schools
who
use this method as a strategy in their case preparation, we may be forced to
allow a
point penalty be given by judges when this tactic is observed, pointed out and
backed by
supporting evidence by the opposing team.