The Shining Jewel of Colossal Ignorance

The moot court season was about the opposite of last school year, with a couple exceptions. Instead of crapping out the brief in one night and getting in one practice argument with Berman, this year we did numerous practice arguments (thanks to everyone who helped with those BTW) and spent a lot of time on the brief. Instead of having one of the worst weekends of my law school career, this past weekend was one of the best. In both competitions I had to miss things I would not normally miss under any circumstances (Kelley’s Birthday and Barrister’s Ball last year, OSU v. UM this year). However, the more things change the more they stay the same…at least for the team I was on.

Both Team Scarlet (Lee, Tom, myself) and Team Gray (Holly, Justin, Erik) did an absolute ton of practice arguments the past three weeks to get ready, and I think we all finally were confident and ready to go. Our team decided to ride up together Friday evening to the Regional competition in Cleveland, and there were plenty of laughs on the ride up. I do not recall what context Tom gave for this comment, but the funniest thing said on the ride up was something getting called “The Shining Jewel of Crowning Ignorance.” Little did we know that this would be the theme for the weekend (we changed Crowning to Colossal over time, but the meaning is the same…the dumbest things you can think of fit into this theme). The ride to Cleveland flew by which is remarkable given how boring that drive can be at night. We checked into the Hampton and had a Team Scarlet pow-wow for a couple hours to finalize our argument outlines and answers to tough questions. There were quite a few 2nd Amendment issues they discussed (which my lack of knowledge allowed me to chime in what were probably not very helpful comments), and a couple in my preemption issue. Looking at how the other competitor briefs dealt with my toughest issue, we decided on an answer but had to laugh at how bad the Petitioner briefs were on that point. Headed to bed around 12:30, with the Hawaii football game in the background.

If you watch college football, you will understand this bit. If not, then you’ll figure it out. Every week in college football, ESPN nominates a handful of plays to be the Pontiac Game Changing Performance of the week…so in that mold, I present the Shining Jewel of Colossal Ignorance of the weekend award. There are quite a few nominees, but the first came on Friday night while we were discussing these tougher issues. A local TV station in Cleveland (channel 5 I think) has the cheesiest newscast in the world. One of the two anchors had on some colorful suspenders and every few minutes the newscast would cut to a wide-angle view of the anchors, then do a fast zoom in right up to the anchors, where they would say something dramatic. This is perhaps the worst TV news strategy I’ve ever seen, and apparently those comedy movies making fun of the fast zoom were grounded in fact! So the ridiculous TV news in Cleveland is the first nominee for Shining Jewel of Colossal Ignorance.

Surprisingly I slept well (Lee not so much I hear), but I still shot out of bed at 7 AM due to excitement/nervousness over the competition. As it was OSU-UM Saturday, I wore the closest thing to Scarlet and Gray that Beazley would allow (scarlet tie, white shirt, black suit). I also threw in the Teddy Ginn Jr. jersey and a Buckeye necklace for later. Plus it is always good to have the lucky Buckeye gear. Met the teammates for the complimentary breakfast in the hotel and the six of us with Beazley made our way to the Cleveland Justice Center. Let’s just say the building is dated, much like the hallways in Moritz. 23 stories of courtrooms, so they must be churning through a lot of litigation in Cleveland. We received our brief orientation from the competition director (who wore plum-colored shoes, as Holly pointed out) and our courtroom assignments for the two preliminary rounds. We decided to have Beazley watch Team Gray’s morning round and then our afternoon round. There was enough pressure on Lee who was arguing first in the morning argument, so we did not need Beazley there if that added any pressure.

So we go up to the courtroom a few minutes early and meet our opponents from Case Western (the host of the competition). There is also just one judge, an older gentlemen. Around the time of argument, the bailiff decided to go see where our other judge is, as every courtroom was to have two. The competition directors could not contact the other judge, so the bailiff came back to explain the situation. This is what she said: “Since our second judge could not be contacted and we cannot slow the competition, what we will do is proceed with just one judge and adjust your scores accordingly.” The four of us arguing all probably wanted to ask what adjustment of scores meant, but Lee was the first to speak up and ask the bailiff. The bailiff says, “we will take the score from this judge and double it, and then we will divide your overall score by 2 to find your average.” At this point she realized just how stupid that was, so she qualifies it by saying “it’s kind of like just taking the one score as the average.” No, that would not be kind of like the one judge score, THAT IS the one judge score! We were stifling the giggles on this one. This adjustment of scores (doubling the score and then dividing by 2 to find the average) is the second nominee for Shining Jewel of Colossal Ignorance.

As it turns out, the second judge was running late and made it just in time to sit for our argument. For those of you who don’t know moot court, the judges are grading you on your style and form and how you react under pressure of questions in an appellate argument. Their relatively subjective scores are added to you team brief score (60/40 percent) to find out which team wins the round. The more judges you have, the better it is. This is because one judge may grade you down unfairly for something, and fewer judges means fewer questions and a “cold court,” which is tougher than responding to questions of a “hot court.” We were happy to have the extra judge. Before getting into the argument, let me illuminate the issues we covered. Petitioner was the State of Old York, who passed a handgun restriction law that was challenged on Second Amendment right to bear arms grounds as well as federal preemption under the Federal Aviation Administration Authorization Act (which stops states from regulating motor carriers). The Respondents are Sun Longone, a guy who is asserting his second amendment right to bear arms…and York Loading Company, a package delivery service like UPS or FedEx who lost profits due to needing to comply with Old York’s Law. So those are the sides, and clearly the Second Amendment is a sexier issue than preemption. There’s also a lot more research of historical cases on the 2nd Amendment, so that’s why both OSU teams set two team members to write and argue for that issue, and one team member who wrote the preemption part of the brief and argued both sides at competition.

Our first argument was Petitioner side against Case Western, where Lee does 2nd Amendment and I argue preemption. Lee argued very well despite a fairly cold court, with one bump in the ride. At one point the older justice asked Lee to distinguish this case from McGee v. Connecticut. I’m sure Lee’s face must have shown absolute devastation at not knowing the case, but he just rolled with it and told the court he was not familiar with that case and moved on. Later in the argument Lee was talking about the most recent Supreme Court case Miller from 1939, and the judge asked if Lee would disregard the case because it is so old, and Lee disagreed with that sentiment, which led the older justice to say “As someone who happens to be 68 years old, I’m happy to see that you don’t think old opinions should be discarded.” My argument was one of my best ones I had done for that side of preemption. The only struggles were when the older justice brought up the parts of the State Law challenged under the 2nd Amendment (but not under preemption for some reason) and forced me to explain to him why those State law provisions not at issue were not preempted. I explained those were not at issue and tried to give a substantive answer for his question, at which point the justice tells me to stop and he calls the bailiff up to the bar to ask the bailiff something. He then asks me to proceed and I continue, trying to forget about this line of questioning. Near the end of my argument the younger justice asked me if the criminal liability on delivery drivers is a heavy burden and I said no…then he repeated the question in a menacing tone, so I realized my error and explained that it was a heavy burden, but that did not make the state law automatically preempted. The opposing team then went, and each of them did well. The 2nd amendment guy was asked by the older justice, “are you a member of a militia?” and when the guy said no, the justice asked “why not?” The guy actually had a quick-witted response saying he was registered for selective service but not yet called. Later in the argument the guy was arguing that the State Law was not a restriction on handguns but an outright prohibition, and the older justice asked “Didn’t prohibition end back in the 1920’s?” The girl doing preemption also did well, but she spoke so fast it was hard to follow her points. At one point in the argument, the older justice said “Now hold on a minute honey, what evidence do you have in the record for significant economic effect?” Yeah that’s a little demeaning, but she rolled with it and went on. Lee gave a great rebuttal, including answering a question about preemption which was his biggest fear about rebuttal.

Once the argument was over, we left the room to let the judges deliberate and Tom and Lee were freaking out about the Connecticut case he cited. We go back into the room and receive commentary from the judges. The older guy then told us he fucked with each of us to see how we perform under pressure. Nice. So the McGee v Connecticut case was completely made up, he called the bailiff during my argument to disrupt me, he asked the militia questions to mess with the Case guy, and he said “honey” to see how the Case girl would react. He preached from the bench that judges who are demeaning to women still exist today and they need to be reported because that language is unacceptable. I can see wanting to teach a point in a classroom, but this is an advocacy competition and messing with people like that seems awful. I presume he wouldn’t interrupt a black competitor with the N-word, so this guy was something else. The critiques were about even. Lee was criticized for starting a little shaky before the court asked questions. I was criticized for wearing a red tie (no reason given) and smiling too much (I got that same comment last year in competition and Lee thinks it is because I naturally smile a little when I talk to people, not because I’m going out of my way to smile…I just don’t get it but I cannot seem to control it). The second judge also said that I got the short straw of the four arguments to make and did a nice job overcoming that. The comments were similar on the other side, but the girl got absolutely blasted for speaking way too fast. We figured that with those comments that it was a close argument but we probably won narrowly. Still, the result came back from the bailiff for respondents (Case Western) and we had to walk back to lunch with an 0-1 record. Beazley and Team Gray came out with a win, so at least we had one win and one loss. Still, this older justice fucking with each competitor is clearly the third nominee for Shining Jewel of Colossal Ignorance.

During lunch we went over to a hotel bar across the street and watched the first quarter of the OSU-UM game. We stayed until OSU scored a touchdown early in the second quarter to go up 7-3. It looked like it was going to be a good game, but we had to go argue. C’est la vie.

Onto the afternoon session, which now has Tom and I arguing for Respondents against a team from Detroit Mercy. Beazley and Lee settled down in the background, and we had a couple judges again this time. Detroit Mercy got up there and had some serious problems. The court was relatively hot, and the 2nd amendment guy on Detroit kept conceding points to the court and struggling with questions. With 3 minutes left in the argument, the court explicitly asked why he was conceding so much away? How could he win if he conceded these points? He had no answer for that. The Detroit preemption girl got up there and was clearly a little shaky in responding to questions and getting back on track in her argument. She at least did not concede so much, but she also used cases that were only in my preemption brief (no other team used these cases to make the points she made) and fell into traps of relying on a presidential signing statement and the federal handgun act. Considering that I wrote that brief and knew exactly how to kill those points from 3 weeks of practice, I was ready to rebut all those points in my argument. Tom gave a very good argument, certainly one of his best that I’ve seen. Then I got up there and gave what we thought was a good argument, hammering all of opposing counsel’s faults while making my affirmative case for preemption. The Detroit team waived rebuttal, which is a huge opportunity lost for extra points at the end. Needless to say, our solid arguments and their terrible ones led to a conclusion that Beazley and the three of us all thought we would win for sure. We go back into the room and get criticism from the judges. Nothing terribly unfair here, but they did slam the Detroit guy for conceding his case away. Oh and one more very interesting comment for me: this judge said I got the short straw of the four arguments, but did well with it. Sound familiar? Apparently I’m really good at playing the victim, since I got the “short straw” of the arguments on BOTH SIDES OF THE SAME ISSUE! Unbelievable. The bailiff came back with the verdict, and handed the folded piece of paper to the judges. When the judges opened the verdict, the one I was watching was visibly taken aback or shocked. They read: petitioner wins. We couldn’t believe it (and apparently the judges couldn’t either), but we wished Detroit good luck and went to sulk in the hotel bar across the street. We got to watch the last 7 minutes of the OSU 14-3 victory and that combined with a couple beers helped ease the sting and shock of going 0-2 in arguments. Team Gray also lost their second round so we had one team who did not know if they were going to make Sunday’s quarterfinals and another already eliminated. Despite thinking our brief was one of the top 5-6 out of 18 teams, we concluded that we must have not gotten a good brief score and it brought us down.

We went back to the hotel and got ready for the House of Blues banquet. I had thrown on my Ginn jersey and Buckeyes over my white dress shirt and scarlet tie, and it looked so good that I decided to not change into something else for the banquet (other than switching suit pants for jeans). The dress shirt and tie under a jersey is not quite sweater vest, but it does remind you of Tressel according to my teammates. The banquet took it’s sweet time, and no open bar like last year’s competition…so it was just interesting conversation with Beazley and all the OSU people. The ribs at House of Blues were very good, and I was happy I got them after seeing how awful the chicken and noodles dish ended up. The cornbread was the highlight of the meal though. A Case Western professor gave a speech about how to lose an appeal which was sometimes funny but not really. At least he was brief in his remarks, so the competition director could get to announcing the quarterfinals. The Best Brief award was also given out first, and guess who got best brief…of course it was the Case team that beat us in the first round! Both teams we faced made the quarterfinals, and thankfully so did Team Gray from OSU. Holly won the double-coin toss (more on that later) and picked Respondent side so they would be on-brief for the Sunday morning quarterfinals.

Now this double-coin flip procedure. To decide in every round who does which argument, the competition director gets a representative from both teams and has one of them call a first coin flip. Whoever wins the first coin flip calls a second coin flip. The winner of the second coin flip gets to pick which side they want to argue. This statistically makes no sense whatsoever, as the coin flip is fair and 50/50 every time you do it. I’m guessing one year in the past something happened during a coin flip…and the losing team said the coin flip was unfair because they were not able to call it or whatnot. So instead of arbitrarily picking one team to call the coin toss, they use a coin toss to decide who gets the right to call. There’s one problem…they still have to arbitrarily pick who calls the first coin toss! Not only is there no statistical difference in the double coin flip, it has the exact same arbitrariness as before! The double-coin flip procedure by its very nature is the fourth nominee for Shining Jewel of Colossal Ignorance.

Both teams hung out in Lee and Tom’s hotel room after the banquet, kicking back with a couple beers (not so much for Team Gray) and lively discussion. It was fun to reconnect a little with Justin and Erik who were in my 1L section and to get to know Tom, Lee, and Holly even better. My two teammates had not read the infamous blog entry about my other moot court competition, so some good Brian stories went around with all the other law school stuff. There of course were more “Shining Jewel” comments and other inside jokes that I will spare the readers. We’ll just say it was a good time. Tom’s wife dropped by the hotel, and she and Team Scarlet went out to the Cleveland Panini’s bar while Team Gray went to study and get a good night’s sleep. At the bar we watched a couple of good football games (WVU-Cincy, Oklahoma-Texas Tech) and talked all things moot court, law school, and Buckeyes. The bar in Cleveland had the most eclectic crowd I’ve ever seen. People of all ages and walks of life, as well as all races were in the bar at one time. There were a couple people getting jiggy or interpretive dancing to the music behind us, and there were some professional-looking people having a quiet drink a few tables down. The drunkest guy in the bar and the drunkest girl were making out near us at the bar (nasty) and when she walked away we noticed this guy was pimpin with his fly open on his jeans. He was sitting in such a way to show it off to the whole world that he is just too cool to zip his fly. That guy also makes it in as the fifth nominee for Shining Jewel of Colossal Ignorance.

Woke up Sunday morning, went down to grab a quick breakfast and ride over to the courthouse to watch and support Team Gray in their quarterfinals. What was funny about this round was that Team Gray ran into the same problem that we did on day 1, that being there were only 2 judges when there were supposed to be 3 for each quarterfinal. The third judge was called and said he forgot. Nice. So the competition director comes up to explain the situation, and said the teams could decide to go ahead with only two judges or that the competition director would be the third judge because she was the only person qualified. The teams decided quickly to add her as the third judge, which she was stunned about because she did not expect them to take her up on the offer. After delaying a bit more to get some score sheets for herself, the competition director sat down and was the third judge. Don’t offer something you are not willing to give! Both teams in the quarterfinals did a nice job, and the court was relatively hot which helps. Holly and Justin gave really good arguments in my opinion. There was one judge who asked very probing questions and tough questions to each competitor, and was by far the best judge in the entire competition that I saw. The arguments were pretty close in this round and it was really too close to call. The verdict came in: Respondents (OSU) wins.

The team immediately went to the semifinal round, which would determine who makes the Top 2 and goes to National competition. Holly lost the double coin flip, but the opponent shockingly chose to be Petitioner, despite that being a harder argument and that put themselves off-brief against the OSU team who would be on-brief. In any event, the team they were facing for nationals was the Detroit Mercy team that Tom and I lost to inexplicably. This was favorable as Holly and Justin have been arguing Respondent side against us for a couple weeks (and our brief’s argument for Petitioner was clearly used by the Detroit team). The Court consisted of 2 real judges and a practitioner, but they were as cold as a cucumber. They asked the Detroit guy one question in 14 minutes of argument! They did not warm up to ask many more questions of the Detroit girl, Holly, or Justin. The problem was that the Detroit team are great oralists, and they delivered an amazing argument for a cold court. This was a polar opposite from what they did against Tom and I (struggled mightily against a hot court). Holly and Justin gave solid arguments, but after the Detroit team beat us so shockingly I just assumed they had a pretty good brief. Detroit had a slightly better argument and so I figured they would knock out the other OSU team. Sure enough, the judges came back with the verdict for Petitioner. We all congratulated Detroit and Lee, Tom, and I left the building immediately. Tom and his wife were riding back together, so Lee and I hopped in his SUV and hit the road.

Just when the weekend seemed over, Lee gets a call right before we stopped for lunch 15 minutes out of Cleveland. It’s the other team. Turns out the after we left and Erik, Justin, and Beazley left, Holly was putting on her boots to leave the building and got stopped on the way out by the competition director. They told Holly a terrible mistake had been made and that OSU had actually won the semifinal round. Holly called Beazley and tracked down Erik, but could not get in contact with Justin (who was the only person who knew the preemption arguments). Beazley waited for Justin at the hotel just in case he went back to get his car out of valet, and she managed to get Justin back to the courthouse just in time to argue with Erik in the finals (Holly lost the double coin toss again and was put on Petitioner side this time). Lee and I obviously did not go back for the finals, but it turns out OSU lost that one. Still, second place in Regionals and a trip to Nationals for OSU, the first time in 7 years. Oh, and messing up the verdict in the most critical round of Regionals…definitely a sixth and final nominee for Shining Jewel of Colossal Ignorance!

Congratulations to Holly, Erik, and Justin. Professor Beazley and Monte Smith both noted that you need good briefs, good arguments, and good luck to do well. Team Scarlet did not have the luck for sure, but I’d rather go out with our best arguments and a good brief as opposed to messing up arguments. We went out with guns blazing, losing to a team who won best brief and a team who lost a nationals berth by a hair. Plus OSU could only send one team to nationals anyway, so as a group of 6 we did exactly what we went to Cleveland to do. This moot court weekend was a great time, made even better by the OSU thrashing of Michigan. I know Holly and the rest of my 5 teammates were terribly worried about what I would write about them (LOL), but other than going 0-2 personally…the weekend was fantastic. Looking forward to helping Team Gray go win OSU some pride at national competition.

Before I put a wrap on this entry for good, there still is one item of unfinished business. We must declare a winner of The Shining Jewel of Colossal Ignorance! To remind you, here were our nominees:

1. The TV newscast in Cleveland, with the suspenders and fast zoom in from a wide angle shot
2. Score adjustment: Taking your score from one judge, doubling it, then dividing that by two to find your average
3. The judge from Team Scarlet’s loss to Case Western who intentionally fucked with each competitor
4. The double-coin flip procedure for determining who argues what side
5. The guy at the bar with the fly wide open, sending a big pimp message to all of Cleveland
6. Announcing the wrong winner of the semifinal round, then crushing the happiness right out of the real loser (Detroit)

The competition is fierce, but there can only be one winner. The TV newscast and guy at the bar just don’t stand up to the rest. The judge from our first round might be a royal prick, but not really ignorant. You could really take your pick from the other nominees, but the winner is…

Petitioner!

…

Wait. There seems to have been a mistake. The winner is Respondent!

That’s right: your Shining Jewel of Colossal Ignorance is announcing the wrong winner of the semifinal round. Way to mess up your most important job at the most important time CWRU, and call into question all your other “decisions” on the weekend. For all that, CWRU gets the crown! Congratulations to them on achieving the Shining Jewel of Colossal Ignorance.