The students argued before a three-judge panel headed by Chief Judge Christine M. Durham ’71 of the Utah Supreme Court, Judge Carolyn B. Kuhl ’77 of the California Superior Court, and Ernest A Young, Duke’s Alston & Bird Professor of Law. Young sat in as a replacement for Justice Don R. Willett ’92 of the Texas Supreme Court, who was unable to attend after his flight from Texas was cancelled.
The case pitted two data-mining companies against the state of New Hampshire.
Representing the data-mining companies, Perez and Baucom argued against a New Hampshire law prohibiting the licensing of patient prescription histories for commercial purposes.
“This case is about a law that restricts the communication of truthful information,” Baucom told the judges.
Nelson and Rawson, arguing for the state, said the law was narrowly constructed, and did not violate any protection of free speech.
The complexity of the case was obvious as the students negotiated a series of complex questions involving free speech generally, protected commercial speech specifically, and the standing and interests of the data mining companies as compared to the pharmacies from which they obtained their data, and the pharmaceutical companies that purchase the data in order to target physicians for sales.
“The case is ‘squirrelly’ in the sense that it has a lot of moving pieces and they trade off and interact in complicated ways,” Young said after the judges announced their decision. He praised the way the students maneuvered through the complex set of issues, occasionally ceding a point in order to make another.
“Let me tell you that you are on the way to becoming very fine lawyers,” said Durham. “And you are already better than a certain percentage of the people I see. I compliment you on your poise, your preparation, and the degree to which you handled a pretty hot bench today.”
Durham was referring to the frequent and pointed questioning that the student advocates faced from the judges.
After the competition, Nelson acknowledged the difficulty of trying to maintain a clear line of argument while being peppered with questions.
“Writing an appellate brief on an unfamiliar issue is difficult enough by itself; having legal scholars bombard you with questions about that issue takes the experience to an entirely different level,” he said, calling Thursday night “certainly intimidating but also educational.”
Rawson said Thursday night’s trial wasn’t the only difficult part of the competition. “We saw a lot of gifted advocates this year, and every round was a challenge,” he said.
Young, who has been working with the students in the competition all year, complimented the finalists on the “evolution of their argument and skills.”
“All of you displayed a pretty good degree of nimbleness,” Durham said. “You all got nailed, but we thought Mr. Rawson got nailed the least.”
The judges also complimented Perez for her forceful rebuttal.
“That was an instance of a lawyer standing up and saying, ‘Here’s what I want to do, and why,’” Durham said. “As a judge who listens to a lot of oral argument, I really appreciate a lawyer who tells me what he or she wants to do, and why. Professor Young observed that he tries to teach students that if you do that, you’ve got a fighting chance of the court sitting back and letting you do it rather than derailing you right out of the chute.”
Perez said she learned about “confidence and clarity” from Professor Michael Tigar in her Appellate Practice seminar.
Kuhl said the teams submitted well-written briefs to the panel, and emphasized the importance of writing skills.
“It is so important that you take every opportunity to improve your written advocacy,” she said. “The written advocacy we see is less good over time. Even from some of the finest law firms we see sentence fragments or typos, and the small things really do matter… because it’s your credibility with the court.”
Dean David F. Levi also extolled the skills of the finalists, calling them “the tip of the spear.”
“There were many others who fell along the way, but who performed admirably,” Levi said.
Initiated in 1963 by Deans E.R. Latty and J.D. Johnston, the Dean’s Cup competition is student-organized and hosted by the Moot Court Board. Students compete in pairs, initially arguing through two preliminary rounds. The eight best teams, based on their preliminary round oral argument scores, qualify for the quarterfinals, which are conducted in a round-robin format.
Participants who reach the quarterfinals are required to draft a full, 30-page brief.