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Excerpted From: Todd A. Berger, Problematic Problems: The Case Against Mock Trial Problems Involving Racist Speech, 94 Temple Law Review Online 1 (2022) (74 Footnotes) (Full Document)

ToddABergerOn September 5, 2021, I sent a racially insensitive fact pattern to the teams participating in the Syracuse National Trial Competition (SNTC). I did not write the fact pattern. However, I was responsible for distributing the pattern to the competing teams. Protests, team threats to withdraw from the competition, and student-advocates' refusals to participate started immediately thereafter and persisted for several days. Recognizing the hurt caused by the pattern and its negative impact on the competition, I made the decision to withdraw the pattern and replace it with a different problem five days later.

Over the course of those five days--and the weeks and months that followed--I spent a great deal of time asking myself the following question: Is there pedagogical value to trial competition problems featuring characters who use racist speech? And if so, do the potential harms resulting from the use of racist speech outweigh the value associated with such fact patterns?

Notably, mock trial problems used in other relatively recent competitions have likewise featured bigoted characters using derogatory speech regarding sensitive issues of personal identification, including race. Whether it is appropriate for trial competition problems to address controversial societal issues has emerged as an important topic of discussion within the national trial advocacy community.

Students will be justifiably offended when racist language is used in a trial competition problem because race is both a deeply personal issue and one that implicates broader societal questions related to fairness and equality. Recognizing such and drawing on my own experiences with the Syracuse fact pattern, as well as conversations with others in the trial advocacy community, this Essay posits that the potential harms caused by patterns using racist language outweigh whatever assumed benefits they might bring to the student advocacy experience.

To be clear, I am not per se opposed to trial competition problems that involve questions related to race. Certainly, the issue of race exists in the real world and law students--who will one day become lawyers--must practice there. Consequently, trial competition problems need not be hermetically sealed off from the world itself or otherwise exist in an idealized setting that bears little resemblance to the one in which cases are tried. Further, an absolute rule mandating race-neutral trial competition problems risks minimizing the importance of an issue that many students of color may view as central in their own lives.

Nevertheless, to what extent it is appropriate for trial problems to incorporate themes related to race more generally and how that task can be best accomplished are considerations beyond the scope of this Essay. Indeed, those precise questions are best suited for thorough exploration in future works. Rather, this Essay addresses the narrower issue of using racist speech in mock trial problems.

In doing so, this Essay proceeds in two Sections. Section I describes the 2021 SNTC problem in greater detail, as well as the circumstances leading up to its eventual withdrawal. Section II argues that racist speech should be eliminated from trial competition fact patterns. The primary purpose of a mock trial competition is to train students to be persuasive courtroom advocates. Because that goal can be accomplished with fact patterns that do not involve race-related, derogatory statements, trial competition problems should not use racially offensive language.

[. . .]

Law school mock trial competitions should reflect the value of educational inclusivity. Fact patterns using racist speech may require that students repeat racist statements or otherwise endure racist insults. Consequently, because such fact patterns dampen student participation and harm student learning, they are indeed anti-inclusive and inequitable. As such, fact patterns using racist language have little place in mock trial competitions.

It should be acknowledged that trial problems in which racist characters make racist statements may have some educational benefit. However, such benefits are significantly outweighed by competing considerations that impact the student learning experience. As such, these supposed benefits do not justify the anti-inclusive consequences of fact patterns using racist language.

Indeed, as noted by Professor Alvaro Bellido de Luna, mock trial problems can help students learn to be excellent advocates without having to say racist things or be subjected to racist content. Hence, trial problems featuring racist speech are simply unnecessary and counterproductive. As Professor Bellido de Luna put it, “just give me a good murder case.”

Professor of Law and Director of Advocacy Programs at Syracuse University College of Law.

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