Thursday, March 5, 2020

ARTICLE: Pa. Supreme Court Has Yet to Move on Mock Trial Program Rule Change

What are they waiting for?

Below is a copy of my article that came out earlier this week in the Pennsylvania Law Weekly entitled "Pa. Supreme Court Has Yet to Move on Mock Trial Program Rule Change."

Lest it is not clear from the article itself, this is an article I wrote for the Pennsylvania Law Weekly and not in any way on behalf of the Pennsylania Bar Association or the PBA's Young Lawyer's Division.  Those entities had nothing to do with the writing of this article and did not contribute in any way to it.

Pa. Supreme Court Has Yet to Move on Mock Trial Program Rule Change

By Daniel E. Cummins | March 3, 2020

Daniel E. Cummins of Cummins Law

A year has passed since the Pennsylvania Bar Association issued its report and recommendation to the Pennsylvania Supreme Court requesting consideration of a proposed rule change to allow for limited continuing legal education (CLE) and continuing judicial education (CJE) credits for participation in the mock trial program run by the young lawyers’ division of the Pennsylvania Bar Association. The hope of some affiliated with the mock trial competition was that the Supreme Court would act promptly on an easy decision with respect to the PBA’s recommendation and that the court would allow for the requested change to the CLE and CJE rules to allow for such credits.

Unfortunately, 12 months have now passed and another mock trial competition has already begun in the state. Yet, the judicially active Supreme Court has been uncharacteristically judicially inactive with its hands apparently tied by red tape such that the court seems powerless to simply say yes and approve the proposed rule change that seems to be a no-brainer on all fronts. As a result, high school students and college students who have worked hard on the mock trial problem all around the commonwealth of Pennsylvania face another year of nearly empty jury boxes for almost all of their competitions.

It appears that the Supreme Court referred the PBA’s recommendation in favor of CLE credits for mock trial participation, which was approved unanimously in the PBA on behalf of the entire Pennsylvania Bar Association, to the Continuing Legal Education Board of the Pennsylvania Supreme Court. The Continuing Legal Education Board, which consists of 10 members, rejected the recommendation in October 2019. There has been no further action since.

For full disclosure purposes, it is noted that the author of this article is also one of the authors of the report adopted by the Pennsylvania Bar Association and a longtime supporter of, and participant in, the high school mock trial competition, and he is not writing this article on behalf of the bar association.

The goal of the PBA’s report and recommendation for the simple rule change was to fill the jury boxes with CLE credit-seeking attorneys so that all of those high school and college kids who work so hard can present their case to a full jury each time they compete. The hope is that the court will find a way to cut through the red tape and that has held up the process for a year now and allow for this rule change.

A Great Program That Can be Made Better

The mock trial competition run by the young lawyers’ division of the Pennsylvania Bar Association is considered to be one of the largest in the United States. It is a great program, if not the best offered by the PBA, and benefits high school students all across the state of Pennsylvania. With nearly 300 high school teams participating in the program in Pennsylvania and with each team having, on average, 14 students on the team, there are nearly 4,000 kids across the commonwealth who put hours and hours of their time into the competition. Many students also participate in mock trial at the college level.

The mock trial competition allows these thousands of high school student teams from across the commonwealth to play the roles of attorneys and witnesses in civil or criminal trial settings before a judge and a panel of jurors who score the competing teams. Lawyers volunteer to assist students as attorney advisers, as judges to preside over the trials and as the jurors who score the competing teams.

Prevailing teams advance through district trials competitions, onto regional trials, and finally to a March Madness-like state finals tournament in Harrisburg. The high school team winning the state competition then goes onto compete in the national mock trial competition.

As noted, these dedicated high school students involved in the competition spend hours and hours preparing for each trial. Some of these students will someday become members of the Pennsylvania Bar Association.

A Need for ‘Jurors’

The greatest need for bar member involvement in the mock trial competition is with respect to attorneys serving as jurors for the trials. Lawyers serving as jurors evaluate and score the competing teams as opposed to rendering any verdict on the merits of the case. Jurors are continually needed to score the many trials at the district, regional and state levels of the competition.

In past years, the competition has struggled at times to have any more than several jurors sitting in a 14-seat jury box at all levels of the competition. Even at the state mock trial championships every year, several of the last few trials were completed with only three jurors in the box, which is an embarrassingly poor showing by a bar consisting of thousands of members. Imagine how many more attorneys would show up if they knew they could earn a CLE credit for helping out the competition by serving as a juror.

An Excellent Learning Experience

In addition to being a truly rewarding experience by helping others, participation in mock trial will also actually serve to help attorneys improve their litigation skills and courtroom presence by observing a simulated trial from the entirely different perspective of sitting in a jury box.

Seeing a trial play out while sitting in a jury box is a whole new and enlightening experience in and of itself. Watching two student-attorneys argue an objection back and forth and interacting with the judge on the argument, or following along with a direct or cross-examination, may educate practicing attorneys on what works and what does not work. Seeing a great opening statement, or a forceful closing argument, both of which are limited to five minutes in length, from the jury box will also give attorneys sitting as jurors a new perspective for the presentation of their own openings and closings in a real trial. Moreover, seeing and realizing that an entire case can be argued in a five-minute summation is enlightening for attorneys in and of itself.

Surely much more is actively learned by an attorney participating in a mock trial as a juror and seeing a trial play out in front of him, than an attorney earning CLE credits by passively sitting through a long video playback of a prior CLE seminar on a TV while doing work or reading a newspaper for hours at a time.

CLE Credits

It is well known that CLE credits have been approved for many types of courses and activities.

CLE credits are currently even allowed for courses that have nothing to do with the law or learning any updates on the law, or practice tips. For example, CLE credits have been approved for a CLE course titled “Balancing Work and Wellness” at which attendees can secure CLE credits simply by engaging in bike riding and yoga.

More recently, a CLE-approved course titled “CLE@The Gym 2020,” at which attendees can earn two hours of CLE credits while participating in one hour of exercise at the gym, and presumably other instructions on exercising. If attorneys are permitted to earn CLE credits in this regard, then surely they should be allowed to earn credits by way of their active participation in the mock trial program and learning from watching a trial play out with strict compliance to court procedures and evidentiary rules.

Last year, the movement for CLE credits for mock trial participation was put on the back burner by the Pennsylvania Bar Association to allow for rule changes to allow for CLE credits for pro bono work to move forward and be approved. Now that CLE credits have been approved for pro bono participation and now that over a year has passed, the hope is that the court will approve the rule changes, as recommended by the PBA, to allow for CLE and CJE credits to be earned by attorneys and judges who assist with the mock trial competition.

By approving this rule change, Pennsylvania could then join other states such as New York, New Jersey, Delaware, Florida, Georgia, Tennessee, Indiana, Kentucky, Minnesota, Oregon and Washington, all of which allow their attorneys and judges who participate in mock trial programs to earn CLE and CJE credits.

To the extent the apparent red tape holding up this approval somehow involves the loss of money (i.e., the placement of monetary concerns over the ability to help high school and college kids and to improve the reputation of lawyers as contributors to the community), then the attorneys seeking such CLE credits could be simply required to fill out the standard CLE credit request forms and send in the required check of only $4.50 per credit.

Hopefully, the Supreme Court might have the power to be able to cut through the red tape and allow for and approve the amendment of the rules pertaining to CLE and CJE credits proposed and recommended by the PBA as soon as possible. The hope was to have the rule change in place even in time for the 2019-2020 mock trial competition so that high school and college students all across the commonwealth can begin to present their cases to jury boxes full of credit-seeking attorneys along with a real judge up on the bench.

Are You Willing to Help?

While we wait for the Supreme Court to finally act on this easy decision, attorneys and judges across the commonwealth are encouraged to please give a couple of hours to participate in the mock trial competition. You won’t regret this rewarding experience.

By participating in the mock trial competition, you may even improve your own litigation skills by witnessing a trial from the different perspective of a jury box. You may be surprised how different the courtroom looks from the box. The experience can help you to see how jurors might view your case in the future.

At the same time, you will be providing your expertise, feedback and encouragement to young individuals for the betterment of the bar association’s mock trial competition.

In the end, your participation will ultimately show the potential future members of the bar, as well as the courtroom of family members who come to watch their children compete, that the members of the Pennsylvania Bar Association are a welcoming and collegial group of individuals dedicated to the practice of law and committed to mentoring the next generation of lawyers. The Supreme Court can add to that good will by approving the rule change and allow for CLE credits and CJE credits for participation in mock trial competitions. What are they waiting for?

Daniel E. Cummins is a partner in the Scranton law firm of Cummins Law where he focuses his practice in the defense of automobile and trucking accident, premises liability, and products liability litigation matters.  Cummins is also active as an Attorney Advisor for the Abington Heights High School mock trial team.

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