Felder v. KC Air Is Broken, and AMTA Is Running Out of Time to Fix It.

We need to talk about case balance. It’s been on our radar since GAMTI, at least, when the balance showed a 69% (nice) overall bias for P and a 63% bias in round three. In the December stats memo, AMTA’s own committee suggested the P bias wouldn’t go away. But flash forward to GCF, the flagship invite of the season, and we’re looking at a 57% overall P bias and a 67% P bias in round three. That’s strikingly uneven. And keep in mind, these are the top teams in the country—if they haven’t figured out how to run effective defense theories against good competition, nobody has.

And then, regionals. In the back of our heads was the hope that the bias only really existed for top teams, and that for the majority of the AMTA community the case was so technical that it would balance out. Most P benches, we hoped, would struggle to exploit the weaknesses in the D fact patterns. Well, based on week one and two numbers, that inference was so unreasonable it was practically egregious. Overall, the week one regionals had a 56% overall P bias, with round three displaying particularly blatant imbalance, at a 62% bias for the plaintiff. Seven days later, at the week two sites, the same 56% bias remained, with eerily similar 64% in round three. To put that in context: there is only one case in the past decade that at ORCS even came close to that amount of bias (It’s Winter v. TBD, and we’ll link a memo with details at the bottom). Felder v. KC Air is just not a balanced case.

The frustrating part is that AMTA had a chance to make case changes to correct for this bias, but some of the changes are even more devastating for the defense. The Koller podcast transcript, knee-capping the most popular theory from the fall (RIP fragments engine failure), the extra space for Felder inventions at the airfield—none of that screams “we want to make defense easier.” And yes, the case writers have said a lot of those changes are designed to make calls and theories more diverse: honestly, we don’t care. The effect of them all is that defenses have been on the back foot—from individual crosses, all the way up to fundamental issues in the case’s structure.

Those structural issues were in place before December changes came out—and they all have to do with the way the Felder v. KC Air Writers designed this case from the very beginning. We’re used to writing off P bias early on in the fall because as the season progresses, the defense gets stronger: they figure out new, creative, alternative theories to throw at the jury and they find the flaws in the seemingly impenetrable P fact pattern. But this case is different: not only does the defense need to figure out how to attack the P case, they often need to pick one of the affirmative defenses and build their own. But the really egregious problem is that so many D theories can be weaponized against the defense because of their foreseeability to the defendant: P Fullertin, P engine, P fireworks—we’ve played against all of them this season. For once, the plaintiff has the opportunity to play an even wilder wildcard than the defense, and never mind the clusterfuck that ensues if both sides are arguing Fullertin crashed the plane. Add to that the devastating facts in plaintiff crosses—between bias and expert weaknesses—and you’ve got one heck of a headache for D.

Look, every year case changes come out, and every year defense attorneys argue they’re too harsh. But most of the time, the complaining defense attorneys are wrong. We know a lot of people who love this case like their child—who love the crazy theories and the flip-ability of affirmative defenses and the depo witness inventions that so-and-so was having an affair with Ari. But the balance issues have gotten to the point where none of that matters more than this simple fact: mock trial only works as an activity when both sides have a more-or-less even chance of winning, and we’re not sure that’s true this year. AMTA has one more shot to bring it in for a landing and fix this puppy before it’s all over. Cases are remembered in part by their fairness, and given what we’ve seen so far, Felder v. KC Air’s legacy is very much still up in the air.

xoxo,
mossip girl


Note: why all this talk of R3?
We know AMTA looks specifically at R3 balance results because they are least affected by challenges or random pairings. In R3, the teams are ordered based on record without side constraints, and then sides are determined by a coin toss, so R3 tends to match teams up most evenly before assigning sides.

Nationals vs. ORCS balance memo (Winter v. TBD ORCS balance page 3): https://www.collegemocktrial.org/2009-2021%20NCT%20Case%20Balance%20Memo.pdf

Here's my hot take on case balance this year, as someone who's been competing the past four seasons, both with the NCT and main season cases.

I think basically, you're entirely right in your description of the current state of affairs. Felder vs. Koller Campbell Air is unbalanced in a way that appears to be structural. The defense has legitimately too much to deal with in terms of responsiveness, and that seems to be something that it's unlikely for AMTA to actually be able to change in time for ORCS. My guess is we're going to get a band-aid solution of AMTA removing some of the P evidence they dropped in the first batch of case changes, and the problem won't really resolve itself enough to make a meaningful difference. The problem is here, unlike other years, what needs to change for ORCS isn't the balance of facts--its the way the case is set up to be played. I don't think there's much to be done about that at this point.

With that said--I do have to say that I kind of don't mind. The past three cases I've played: State v. Ryder, Petrillo v. Martini, and State v. Sutcliffe, have all been painfully copy-paste. The longer I've been in AMTA the more I've realized that they're all sort of the same set of tropes strung together--an eyewitness with intentionally vague language about how they may or may not have seen something, a defense expert with a bias problem and three lines about something being unlikely, a witness with great facts but an alcohol credibility cross, a defendant with a lot of bad-sounding hearsay. They're boring, they get old by November, and they don't really require much creativity to be played well.

For all the flaws Felder v. Koller Campbell has (and believe me, there are a lot of them), they've also required me and my team to put more thought into the structure of witness directs and the strategy behind our theory than we ever have before. It's been a way more fun case to play. I'm not exaggerating when I say literally every trial I've seen I've watched a team do something new and out-of-the-box. This is what AMTA cases should look like--and I think it's possible that next season they could do something very similar while keeping the dysfunction that Koller Campbell had in mind to prevent the same problems. For a first iteration of a new kind of case that enables more creativity than anything that at least I have seen AMTA do before, I'm okay with it being flawed--especially if it means that the good parts of this case become something other competitors can go on to expect every season. So as someone who could very much go on to get fucked over by this absolutely ridiculous P bias at ORCS in a month or so, this is my defense of Koller Campbell Air. I think it's fundamentally flawed and unlikely to be fixed, but a stepping stone in what hopefully is a trend for AMTA cases.

I think what shocks me the most about this is how drastic the change was in favor of P from the mid-year balance memo. Going from only 0.8% P bias in Round 3 to a now over 60% P win rate in Round 3 is crazy.

Obviously we can in hindsight say that AMTA should have seen this coming. But I honestly would not have expected this drastic of a change after reading the case changes back in December (changes that I honestly thought favored Defense overall)

If I had to guess, I wonder if this shift may be due to the number of Defense teams running Assumption of Risk now compared to the fall. Just from what I've personally seen it appears to be the most popular theory right now usurping engine failure in the fall. I will say that while at first glance of the case packet assumption of risk feels like the most legally compelling theory, it may just not play well in actual trial do to how victim blamey it is. I also wonder if Defense teams giving up an expert for this theory (since neither Heisman or Moore really correlate to Ass. Risk) is further skewing things to P, as Hubbard and Savchenko are both point machines and without an expert it may be harder for Defense teams to catch up.

I think I'll also restate my earlier theory that forcing the Defense to use Affirmative Defenses has a major impact on case balance, unlike other alternate defense theories in previous years where D had no actual burden to prove it. If I had to make a suggestion for ORCS changes, it would be to add more evidence or nerf P evidence to better allow defense teams to simply argue that Reese isn't negligent, without feeling forced to prove an affirmative defense to actually have a chance at trial.

This case is fascinating to me because it seems to fly in the face of all of the logic of previous AMTA cases. Because on paper, I honestly think Harper Martini and Dakota Sutcliffe are far more liable/guilty than Reese Campbell is just based on the facts. Regardless of whether AMTA can figure out the balance issues for ORCS, I think future case committees can learn alot from this year.

Finally I just want to say that aside from the balance issues, I absolutely adore this case. It's legally complex with alot of its arguments not clearly spelled out to you. I love that you really have to dig into exhibits like the NTSB report or the Pilot Handbook and discover your own arguments. I also love the sheer variety of theories this year. While Assumption of Risk appears to be the most popular theory right now I'm still seeing plenty of engine failure and stroke theories. I definitely echo that every round of this case feels unique, and I really want AMTA to continue this style of variety in case theories rather than freaking out over the balance stats and going back to the same style of fact patterns we saw in Martini and Sutcliffe (two cases which while balanced, I thought were super dull to actually run)

Souper_Soups wrote:I think what shocks me the most about this is how drastic the change was in favor of P from the mid-year balance memo. Going from only 0.8% P bias in Round 3 to a now over 60% P win rate in Round 3 is crazy.

Obviously we can in hindsight say that AMTA should have seen this coming. But I honestly would not have expected this drastic of a change after reading the case changes back in December (changes that I honestly thought favored Defense overall)

If I had to guess, I wonder if this shift may be due to the number of Defense teams running Assumption of Risk now compared to the fall. Just from what I've personally seen it appears to be the most popular theory right now usurping engine failure in the fall. I will say that while at first glance of the case packet assumption of risk feels like the most legally compelling theory,  it may just not play well in actual trial do to how victim blamey it is. I also wonder if Defense teams giving up an expert for this theory (since neither Heisman or Moore really correlate to Ass. Risk) is further skewing things to P, as Hubbard and Savchenko are both point machines and without an expert it may be harder for Defense teams to catch up.

I think I'll also restate my earlier theory that forcing the Defense to use Affirmative Defenses has a major impact on case balance, unlike other alternate defense theories in previous years where D had no actual burden to prove it. If I had to make a suggestion for ORCS changes, it would be to add more evidence or nerf P evidence to better allow defense teams to simply argue that Reese isn't negligent, without feeling forced to prove an affirmative defense to actually have a chance at trial.

This case is fascinating to me because it seems to fly in the face of all of the logic of previous AMTA cases. Because on paper, I honestly think Harper Martini and Dakota Sutcliffe are far more liable/guilty than Reese Campbell is just based on the facts. Regardless of whether AMTA can figure out the balance issues for ORCS, I think future case committees can learn alot from this year.

Finally I just want to say that aside from the balance issues, I absolutely adore this case. It's legally complex with alot of its arguments not clearly spelled out to you. I love that you really have to dig into exhibits like the NTSB report or the Pilot Handbook and discover your own arguments. I also love the sheer variety of theories this year. While Assumption of Risk appears to be the most popular theory right now I'm still seeing plenty of engine failure and stroke theories. I definitely echo that every round of this case feels unique, and I really want AMTA to continue this style of variety in case theories rather than freaking out over the balance stats and going back to the same style of fact patterns we saw in Martini and Sutcliffe (two cases which while balanced, I thought were super dull to actually run)

I'm surprised to hear AOR is that popular - I watched two January invitationals and one regional and I still haven't seen one.

DoYouRemember wrote:

Souper_Soups wrote:I think what shocks me the most about this is how drastic the change was in favor of P from the mid-year balance memo. Going from only 0.8% P bias in Round 3 to a now over 60% P win rate in Round 3 is crazy.

Obviously we can in hindsight say that AMTA should have seen this coming. But I honestly would not have expected this drastic of a change after reading the case changes back in December (changes that I honestly thought favored Defense overall)

If I had to guess, I wonder if this shift may be due to the number of Defense teams running Assumption of Risk now compared to the fall. Just from what I've personally seen it appears to be the most popular theory right now usurping engine failure in the fall. I will say that while at first glance of the case packet assumption of risk feels like the most legally compelling theory,  it may just not play well in actual trial do to how victim blamey it is. I also wonder if Defense teams giving up an expert for this theory (since neither Heisman or Moore really correlate to Ass. Risk) is further skewing things to P, as Hubbard and Savchenko are both point machines and without an expert it may be harder for Defense teams to catch up.

I think I'll also restate my earlier theory that forcing the Defense to use Affirmative Defenses has a major impact on case balance, unlike other alternate defense theories in previous years where D had no actual burden to prove it. If I had to make a suggestion for ORCS changes, it would be to add more evidence or nerf P evidence to better allow defense teams to simply argue that Reese isn't negligent, without feeling forced to prove an affirmative defense to actually have a chance at trial.

This case is fascinating to me because it seems to fly in the face of all of the logic of previous AMTA cases. Because on paper, I honestly think Harper Martini and Dakota Sutcliffe are far more liable/guilty than Reese Campbell is just based on the facts. Regardless of whether AMTA can figure out the balance issues for ORCS, I think future case committees can learn alot from this year.

Finally I just want to say that aside from the balance issues, I absolutely adore this case. It's legally complex with alot of its arguments not clearly spelled out to you. I love that you really have to dig into exhibits like the NTSB report or the Pilot Handbook and discover your own arguments. I also love the sheer variety of theories this year. While Assumption of Risk appears to be the most popular theory right now I'm still seeing plenty of engine failure and stroke theories. I definitely echo that every round of this case feels unique, and I really want AMTA to continue this style of variety in case theories rather than freaking out over the balance stats and going back to the same style of fact patterns we saw in Martini and Sutcliffe (two cases which while balanced, I thought were super dull to actually run)

I'm surprised to hear AOR is that popular - I watched two January invitationals and one regional and I still haven't seen one.

Yeah, at the Jan invites nobody was running assumption of risk. Went to the first week of regionals BAM now we've gotta kick our asses into gear for assumption of risk

Souper_Soups wrote:I also wonder if Defense teams giving up an expert for this theory (since neither Heisman or Moore really correlate to Ass. Risk) is further skewing things to P, as Hubbard and Savchenko are both point machines and without an expert it may be harder for Defense teams to catch up.

I do agree that the Assumption of Risk case seems factually compelling in theory and sounds very insensitive in round, which can cause it to backfire for defense teams.  However, I would disagree on the expert issue.  I've now seen/judged four distinct  Assumption of Risk theories during January invites and Regionals, and all of them have involved calling either Moore or Heisman.  I don't want to get into anything super specific, but in every case, teams have been using one of the experts to put information from Exhibit 10 onto the record to show what Morgan Felder was aware of (sometimes information that is tangentially related to the expert's conclusion at best), and they've avoided Kane Software objections by simply never asking the expert to come a conclusion.  In some cases, I would argue, that they've gone so far as to actively misrepresent what the expert was retained to evaluate.  This essentially renders the plaintiff's planned expert cross useless because by the end of the direct, the expert has said little to nothing about engine failure, retinal stroke, etc.  Not sure if these uses of the expert witnesses constitute a rules violation, but it seems shady.  It's unclear whether the case writers are intending to leave this option open to teams or whether it was an oversight on their part not to explicitly prohibit it.  I can't argue with the numbers that suggest a strong P bias, but my observation has been that by this point, 95% of plaintiff teams are running some kind of predictable weather theory.  Even though they're all a little bit different, the same general strategies work for rebutting them.  In contrast, defense theories are becoming more unpredictable, and they can be difficult to rebut, especially when unimpeachable Koller inventions are peppered in.