When you ask the Moore Advocates what they did over the weekend, prepare for a story as exciting as their trial competitions.
On a late January afternoon inside the Queens County courthouse, four New York State court officers slowly pace near the metal detectors. The building is sleepy today; after all, it’s a Sunday. However, if you ascend the back stairs past the American justice–themed mid-century mural and enter Courtroom 27, you will encounter a flurry of activity from wide-awake law students. The seats are full and all eyes are on an adrenaline-fueled, point-by-counterpoint word wrangle. It’s the final day of the weekend-long Texas Young Lawyers Association trial advocacy regional competition, and Fordham’s Brendan Moore Trial Advocates are hoping for another victory in the regional semifinal.
The fictional case before them is Fortenberry v. Thompson. The defendant is Thomas “T-Bone” Thompson, a barbecue-restaurant magnate whose federally funded Pilot-Activated Lighting (PAL) System failed to illuminate when Zeke Fortenberry’s single-engine Piper Cygnet ran out of fuel during a flight from Missouri to Dallas.
In the courtroom, a member of NYU Law’s Trial Advocacy Society is attempting to shred the defense’s expert witness with metaphor-rich oratory highlighting the negligence of Thompson. After his closing salvo, the NYU student returns to the bench, looking as if he has just sunk a three-pointer at the buzzer.
The game isn’t over though. Fordham Law’s Robert Iodice ’16, a member of one of the two Brendan Moore Trial Advocacy teams at this competition, has his own play to make. Assigned the defense in this semifinal round—and just two wins away from advancing to the national competition—Iodice is in a difficult position. Does he vilify the deceased in his client’s interests, or blame the manufacturer of a 50-year-old airplane for the inadvertent death of an experienced pilot? Neither appears promising. Iodice posts up and shoots.
“When a pilot wants to make a flight, he has to look at his calculations, and every reasonable pilot knows that when you’re facing a headwind, you’re swimming upstream,” he states. “The opposing counsel wants you to put all the eggs in my client’s basket for the responsibility of Zeke Fortenberry’s life. But eggs are fragile, like life. Shouldn’t he have put some of those eggs in his own basket?” Iodice pivots and walks backward, his eyes trained on the jury.
Iodice’s calculated statement marks the culmination of three months of work on the mock trial problem given by the TYLA: a lawsuit brought by Fortenberry’s widow seeking monetary damages from “T-Bone” Thompson for her husband’s fatal crash.
By early January, the two teams of Moore advocates, Team A, consisting of Iodice and partner Daniel Rosenblum ’16, and Team B, Sarah McAteer ’16 and Johnny Johnsen ’16, knew both sides of the case backward and forward, but competition weekend still serves as a locus of nerves and anxious energy.
“Students who are able to think on their feet will thrive the most at these competitions,” says McAteer. “Oftentimes the team you go against will do something that you never thought of or expected a team to try. It is very rare that you come across a team who is unprepared. TYLA is particularly competitive. We want our competitors to feel as prepared as they can be, to be confident in the case they’re trying, and to try a case as an actual practicing attorney would. If they can do that, any success in terms of a win is icing on the cake.”
Such is the philosophy of the Brendan Moore Trial Advocates, a group of select Fordham Law students who learn case theory, fact analysis, problem solving, and rules of evidence with the goal of preparing them to become trial attorneys. The brainchild of alumnus Thomas A. Moore ’72, a prominent plaintiff’s personal injury and medical malpractice attorney in Manhattan, the Moore Advocates compete in the name of Moore’s late brother, “a true advocate and a gifted trial attorney,” Moore said when the Brendan Moore Trial Advocacy Center opened in 1995.
Almost since its inception, the Moore Advocacy team has brought home golden cups, crystal plaques, and other awards from trial advocacy challenges across the country: the ABA National Criminal Justice Trial Advocacy Competition, the Lone Star Classic Trial Competition, the Capitol City Challenge Trial Competition, the ABA Regional Arbitration Competition, and the Texas Young Lawyers Trial Competition, to name just a few. Led by Professor James Kainen, a former assistant U.S. attorney for the Southern District who has worked with the trial teams and taught Evidence and Property at Fordham since 1989, the Moore Advocates are coached by as many as 24 Moore alumni each semester, including the TYLA team coaches Adam Shlahet ’02, a special assistant attorney general for the State of New York, and Jeffrey Briem ’05, a civil trial attorney at a small firm in Westchester. This year, the Moores won the National Civil Mock Trial Competition sponsored by Florida State University College of Law and the Queens County District Attorney Mock Trial Competition (for which McAteer and Johnsen were on the winning team).
Shlahet, who participated in mock trial while growing up in Bergen County, New Jersey, and was hooked in law school, says that, to be a Moore Advocate, a student must be willing to step into the spotlight.
“It’s no surprise that many of our best have performance backgrounds. You need to be comfortable in your own skin and be able to connect with your audience on an emotional level,” he says. “You also need the intelligence to keep a multitude of issues, legal and factual, in mind while you listen and react extemporaneously. It takes tremendous focus, awareness, and understanding.”
The most essential characteristic, according to Shlahet, is heart. To him, the perfect Moore Advocates care about learning, doing the best job possible, and helping their teammates do the best job possible. “They care enough to not simply repeat the arguments their coaches suggest but to internalize, take responsibility, and own the arguments.”
The State of Play
As a winter rain beats against the windows of Diamond Court Reporting across from the Queens courthouse, a cadre of coaches from all the New York teams gathers to discuss the latest competition hiccup: a bye round, due to the sudden withdrawal of Cardozo Law’s Team B. The team that receives the bye automatically wins the round but does not receive any points, which are crucial for determining the outcome of tiebreakers. Fordham’s McAteer and Johnsen draw the bye in the second round, thereby bumping them up a round, but robbing them of an opportunity to gain necessary points to edge ahead of close opponents in later rounds.
Shlahet grudgingly accepts the bye. He and Briem keep neutral faces as they lead their teams to court.
Just after 5 p.m. on Friday, as the last real attorneys in Queens bid adieu to their clients, McAteer and Johnsen of Team B begin opening arguments for their plaintiff, Madelyn Fortenberry, with the goal of convincing three contest judges, including an attorney presiding as a trial judge, that their trial skills are superior to the other competing teams’—and, for today, that a preponderance of the evidence points to Thomas “T-Bone” Thompson’s negligence as the cause of death of Fortenberry’s husband.
“Alone in the dark. On August 18, 2013, Zeke Fortenberry is alone in the dark, flying a plane 3,000 feet in the air, 50 miles from his destination, when his engine stops,” McAteer states.
Shlahet sits in the public seats. After Team B begins arguments, he isn’t allowed to have contact, make a face, or even look in a certain direction, lest he pick up a charge of coaching, a violation of competition rules. What he does do is text intently with Briem, who has Team A upstairs on the side of the defense.
When Johnsen almost loses his motion to include a key piece of evidence—an email from Thompson to his ranch manager titled “Runway Expenses and More Runway Expenses”—Shlahet sucks in his breath. At the end of the round, he acknowledges that Fordham’s opponents, Brooklyn Law School, “put up some very good arguments.”
Meanwhile the presiding judge critiques the performances, calling out Johnsen for turning his back on the jury and criticizing both teams for missing objections and “tell[ing]the jury what to do.”
Shlahet winces and texts to Briem, “I don’t like these comments.”
The judge does, however, offer some praise to the Fordham team: “You’re more prepared than a lot of people who come to the Queens court and try cases, including prosecutors and criminal attorneys. You were awesomely prepared and very effective.”
Although they don’t yet know the results, Shlahet, Briem, and both teams leave the courthouse Friday night feeling confident in their prospects.
The Price of Victory
While some programs select their best four students and send them to every competition, Fordham Law is committed to offering the mock trial experience to as many students as possible. The dramatic growth of the Brendan Moore Trial Advocacy program reflects just how many students want to take advantage of the opportunity. A good trial advocacy program, however, requires a substantial investment; with each team needing savvy trial attorneys (who coach and drill for virtually nothing), well-designed exhibits, round-trip flights, hotel stays, and entry fees, the costs quickly add up.
“The amount of resources that a school dedicates to its trial program is a function of what its students are looking for. If the students are overwhelmingly looking for jobs at white-shoe law firms or in academia, or for staff positions, trial advocacy is of less interest—but not necessarily less use—to that particular student body,” Briem says during a reception hosted by St. John’s University, while waiting for the announcement of the advancing teams.
“Schools with a diverse set of job prospects or a service culture, however, have strong trial programs. Fordham really has the best of both worlds: Many students from Fordham are going on to jobs in top firms around the country, and the experience with the Moores may be the only experience they ever have with trials,” he says. For others who are seeking a career in government as a district attorney, public defender, or counsel for a municipality, the trial program is the best place to get the experience those employers look for, Briem adds.
On Saturday, Briem occupies the coaches’ corner as Rosenblum and Iodice again take the plaintiff’s side against a team from Cornell Law School. Briem at times rises from his chair and exits the room to keep his composure. Although clearly better prepared than the Cornell team, Rosenblum and
Iodice lose an advantage after a spate of objections are ruled in Cornell’s favor. Despite this setback, Fordham wins the round.
After the round, Iodice, who is trying his first civil case, waxes a bit philosophical about the questionable judicial calls.
“The most successful students have in the back of their minds the saying ‘Everything that happens is good for your case,’” he says. “That way, even if the judge is overruling your objections or you think you are losing the jury at certain points, you stay mentally focused and put on the case you prepared.”
Johnsen, a Long Island native who will become an assistant district attorney for New York County when he graduates from Fordham, is equally diplomatic in the face of defeat. At the St. John’s reception, following the good news that Rosenblum has won third place for his summation during the preliminary rounds (out of 54 delivered), the organizers announce the semifinalists: Fordham’s Team A has made it—but Team B has not.
Having won the last trial competition they entered last fall, McAteer and Johnsen did have high hopes for the TYLA tournament, but they took the bad news in stride.
“In the round Sarah and I lost against Brooklyn, we definitely made stronger evidentiary arguments, but in that two-hour window, they succeeded in coming across as more relatable,” Johnsen says. “Maybe we had first-round jitters. Maybe it was because the jurors were mostly defense attorneys and we were the plaintiff. We thought we could have done better but still thought we would win the round.
“Nonetheless, at the end of the day, this is all about learning to be a great trial attorney; you cannot teach practical experience like that in a classroom. You must learn by doing.”
Doing and Learning
As many as 40 Fordham Law students join the Moore Advocate roster every year, with a guarantee of a competition experience, either in an interschool competition or an advanced intraschool competition, such as the William M. Tendy Federal Criminal Trial Advocacy Competition that Fordham runs each April.
“We are looking at ways now to integrate our regular trial advocacy classes with the Brendan Moore Competition program so all the students who show their dedication by entering the intraschool competition have an opportunity to have a competition experience and become a Brendan Moore Advocate,” Kainen says. “It’s a mistake to value winning over learning, but we acknowledge that competition can be a great experience and is a big part of why the students take it so seriously and work so hard.”
Rosenblum, Iodice, Johnsen, and McAteer are four such competitors. A Moore since September 2015, Rosenblum was chosen to compete in the ABA Labor and Employment Competition the following month and then TYLA with Iodice, who has competed four times, including at the Florida National Trial Advocacy Tournament, where he won best cross examination.
“I think the kind of student who thrives at these competitions is the kind who’s as happy to see her partner do well as to do well herself, who’s willing to appreciate his opposing counsel’s performance, and who treats competition as something fun rather than concerning himself with one-upmanship,” Rosenblum says.
“You can always tell the difference between someone who appreciates the challenge for its own sake and someone who’s just looking for a certificate to hang on the wall.”
Not Winning, but Not Losing
Despite their best efforts, Rosenblum and Iodice do not advance to the TYLA finals to take home the regional trophy for Fordham. Surrounded by Moore teammates who have come out to watch the veteran Moores’ last competition (all of the TYLA challengers graduate in May), Rosenblum and Iodice shake hands with the NYU team and walk out into the Queens sunshine with plans to meet up with Johnsen and McAteer to decompress later that afternoon.
“It feels great to win, but in these competitions, more often than not, you lose. That’s what happens when you have 20 teams but only one winner. It’s also what happens in real life: every great trial lawyer knows what it’s like to lose,” Shlahet says. “We prepare our students to win the case. Because, after law school, that’s all that matters. In these competitions it’s extremely subjective. We’re not trying the case before a jury of 12 regular folk but rather three practicing attorneys with their own preferences and biases.
“We win our fair share of trophies, but much more important is we produce fantastic young trial lawyers who are ready to win real cases.”