Cross-Ex Flex Time in Jurassic Park: An Idea Whose Time Has Come

Stefan Bauschard, Boston College & Timothy M. O'Donnell, Mary Washington College

2001 - WMD Policy : Limited Use or Useless Limits?

INTRODUCTION

Change is nothing new to competitive activities. In professional sports, the rules and formats governing these competitive exhibitions are constantly being modified, tweaked, and changed in rather substantial ways. For example, during the 2001-2002 season, the National Basketball Association will permit the zone defence for the first time in decades - a change that many believe will make the games more exciting.

For the past several years, the format for a competitive policy debate has remained static. The last substantial format changes to occur were in speaker times in the late eighties and early nineties. In college debate, the format was changed from 10-3-5 to 9-3-6, and in high school debate, the rebuttals were extended by one minute when the National Forensics League agreed to go from an 8-3-4 format to an 8-3-5 format.

In this essay, we propose changes to the current format and practice of cross-examination after the second negative constructive because we believe that it is out of step with contemporary debate practice. We suggest ways in which current practices could be reformed, offer rationales for such changes, present answers to possible objections to these changes, and consider alternative proposals.

It is our firm belief that cross-examination is one of the most valuable, yet least utilized elements of policy debate. As part of a larger project of rehabilitating the role of cross-examination in policy debate, we propose that cross-examination be permitted after the first negative rebuttal. Prior to the advent of plan-focused debate, in the days when the first negative speaker advanced arguments against the case and the second negative debater presented arguments against the plan, it made sense to distinguish the 1NR from the 2NC. However, in contemporary debate practice, the negative block is viewed as "one speech" in which the two negative debaters divide up the labor of extending, explaining, and developing arguments advanced in the 1NC. For example, the 2NC might extend some case arguments and a counterplan, while the 1NR extends the net benefit to the counterplan (a disadvantage). Since this is the case, and the 1NR functions no differently than the 2NC, we believe that the affirmative ought to have the opportunity to cross-examine the 1NR.

Our proposal is simple. The affirmative should have the option of using some or all of the three minutes of cross-examination which currently follows the 2NC to ask questions of either negative speaker. In this respect, the affirmative team would have three minutes of flexible CX time (hereafter referred to as CX flex time) to be used after either of the two speeches which constitute the negative block. For example, the affirmative could choose to use one minute of their CX flex time to ask the 2NC questions and reserve the balance of their time for asking the 1NR questions.

RATIONALE FOR A CROSS-EXAMINATION OF THE 1NR

There are a number of different reasons to consider extending the cross-examination period to include the 1NR. The first centers on providing an opportunity for the affirmative to cross-examine "new" arguments that are made in the 1NR. These new arguments may take a number of forms, including new evidence presented to reinforce existing arguments, new evidence read to fill in holes where evidence is missing, new reasons used to defend old arguments, new links read to disadvantages, new arguments made in response to new 2AC add-on advantages, or simply arguments that have not been made in the debate by the negative prior to this time.

While most everyone would agree that "brand new" arguments in the 1NR, such as those that fit into the last category, are illegitimate and not even deserving of a cross-examination, it is difficult to determine precisely what constitutes a new argument. For example, if the 1NC reads a card that he or she claims says that Russia will not give up its bioweapons production, and the 2AC responds by saying that the evidence is too old (let's pretend that it was written in the 1980s), most judges would consider it legitimate for the 1NR to respond to that 2AC answer by reading a piece of evidence from the year 2000 that makes the same claim. Most judges, including ourselves, would consider that to be a legitimate "extension" of a 1NC argument.

Although this argument is not "new" by most standards, it does introduce a new piece of evidence into the debate that the affirmative may wish to examine. While it is possible for the affirmative to ask the 1NR for the piece of evidence after his or her speech, it would be valuable to include the judge in the discussion of the particular piece of evidence. Perhaps the piece of evidence is poorly qualified or includes a number of important qualifications that could be revealed in the cross-examination.

Most judges would not consider evidence that is read to reinforce an existing, previously evidenced argument, to be new. Some judges, however, may consider evidence read to support previous arguments-where no evidence was read previously-to be new. For example, imagine that the 1NC does not read the evidence that says that political capital is important to securing the President's political agenda. If the 2AC points out that the evidence is missing, is it a "new" argument when the 1NR presents the evidence? Some judges may consider that a "new" argument, but most would not. In fact, it is quite common for disadvantages to be narrowly developed in the 1NC, with the holes filled-in in later speeches. In this situation, it seems reasonable for the affirmative to be able to cross-examine the 1NR both to test the evidence that was read and to explore remaining holes in the argument.

In addition to filling in holes, the 1NR may make new arguments that support existing arguments. Take the Russian bioweapons example given above. Imagine that the 1NC makes the argument that Russia will not give-up its bioweapons. To support this argument, the 1NR makes the following arguments: a) Russian President Putin has stated he is against giving up the weapons; b) the Russian military is opposed to giving them up; and c) Russia has made this pledge in the past, but has not lived up to it. None of these arguments have been previously made in the debate by the negative, but are these arguments "new?" Most judges would say no.

"New" links that are read toward disadvantages in the 1NR further push the envelope of what is an "extension" and what is a "new" argument, but reading these new links is certainly defensible and is becoming a more frequent feature of policy debate. For example, imagine a debate in which the affirmative argues that the United States should pledge never to be the first country to use nuclear weapons in a conflict (No First Use (NFU)). In the 1NC, the negative presents a politics disadvantage with a link that claims "Congress opposes nuclear weapons reductions." When the 2AC responds to the link by arguing that their plan does not advocate reducing nuclear weapons, but simply not using them first, should the 1NR be able to read additional evidence that claims a) Congress opposes NFU; b) Congress opposes any limitations on nuclear weapons; and c) NFU proposals will cause partisan conflict? Are these arguments new? The arguments sound somewhat new, but how is this situation any different from reading that missing internal link (political capital) card on the politics disadvantage? Since these arguments are, at the very least, not clearly new, it seems reasonable that the affirmative should be able to cross-examine the negative on these arguments. The affirmative should be able to inquire as to why the 1NR thinks the arguments are not "new."

It seems reasonable that in some instances, the negative clearly should be permitted to make new arguments. If the 2AC runs a new add-on advantage or reads some additional solvency evidence for parts of the plan that the first affirmative didn't have time to get to, the 1NR should be able to answer these arguments, since this is the first negative's first available opportunity to answer the arguments. Given that the negative is making arguments for the first time in the debate, shouldn't the affirmative get to cross-examine these arguments?

In other instances, negatives make arguments that are clearly "new." For example, if the 1NC didn't make any answers to a particular advantage, and the 1NR decides to answer it, then these arguments would be clearly new and all the 1AR would really need to say for almost any judge is that the answers were new. There is really no need to allocate cross-examination time to address these particular arguments.

In some instances, it is legitimate for the negative to make new arguments in the 1NR. In other instances, it is clearly not. In most cases, however, determining how new an argument is, and the legitimacy of that "new" argument, is very difficult. Given this large gray area, it is important that the affirmative should be able to cross-examine the 1NR regarding these arguments. And, at the very least, it seems reasonable that the affirmative should be able to inquire as to why the arguments are not new or why the new arguments are legitimate.

It is important to keep in mind that we would never want the negative to avoid making a single "new" argument in the first rebuttal. If the 2NR is not going to make a single "new" argument, then why should the 1NR speak in the first place? Certainly, we want the negative to do more than simply repeat everything that was in the 1NC. "New" arguments in the 1NR are inevitable and even encouraged. The affirmative should have a chance to cross-examine those arguments.

One of the main reasons that contemporary 1NRs make "new" arguments is that the argumentative organization of the debate has changed since the locations of cross-examinations originally were determined. Long, long ago, when the debate dinosaurs roamed the earth, the 1NC did not present all of the major arguments. Instead, the 1NC and the 2NC each made their own new arguments (usually, the 1NC attacked the advantages and the 2NC made "plan" attacks such as plan-meet-needs and disadvantages). Since these arguments were presented for the first time in the debate, it only made sense that these were the two speeches that were cross-examined. The nature of the 2NC has changed, however, to the point where the 2NC's arguments are usually not any "newer" than the 1NR arguments - like the 1NR, the 2NC is usually just extending and defending existing 1NC arguments. Since there is a cross-examination of the 2NC, it makes sense that there should be a cross-examination of a speech that is not functionally different - the 1NR.

Although our main rationale for this proposal centers on the importance of allowing the affirmative to cross-examine new arguments made in the 1NR, an additional rationale centers on preventing the negative from always hiding their weaker arguments in the 1NR due to a lack of cross-examination of the speech. This is a wise tactic that has increased in popularity in recent years. For example, a 1NR extending a poorly-evidenced politics disadvantage may sound nice because people are used to hearing the politics disadvantage extended and may even expect that certain evidence already has been presented. Upon cross-examination, however, the weaknesses in the argument may become quite evident. When weaknesses in arguments are exposed in the cross-examination, the 1AR simply can reference those weaknesses, without making a detailed explanation of the problem with the argument. This will save the 1AR time, and since it is often difficult for the 1AR to cover the entire block, this is likely to make for a much better, and more comprehensible 1AR.

While it is true that the affirmative gets to cross-examine any 1NR argument when that argument is initially presented in the 1NC, this cross-examination is really an insufficient opportunity for a couple of reasons. First, the position is not at its final stage of development by the negative, and therefore questions such as "where's the card that says X" are not that useful. This type of question after the 1NR would be incredibly useful, however. Second, in modern debate, the negative usually presents a number of off-case arguments. Sometimes more than half of these are not even extended in the block (2NC/1NR). Permitting a cross-examination of the 1NR enables the affirmative to spend more time on arguments that are actually likely to end up in the 2NR.

ANSWERS TO LIKELY OBJECTIONS

We recognize that any reform, no matter how small, will be met with objection, fear, and perhaps even hostility. In the following section, we answer the most common objections to our proposal.

First, some will say that this proposal will make debates longer. We don't believe that it will because the three-minute cap remains in place. Our proposal adds no additional time for cross-examination - it only divides up the current three-minute allotment.

Second, others will say that this will increase the burden on judges because they will be charged with keeping track of the CX flex time. We do not find this argument persuasive. Judges already are tasked with keeping track of cross-examination time, as well as prep time. Recording the remaining CX flex time after the affirmative finishes questioning the 2NC does not seem to be a tremendous burden.

Third, there are still others who will say that our proposal is either unconventional and ought to be rejected, or even worse, so radical that it should be feared. We don't really have much of an answer to those voices who are so blinded by convention that they don't wish to see our activity improved. We admit that this proposal ought to be initiated on an experimental basis so that the debate community will have an opportunity to inventory its advantages and disadvantages.

Fourth, some will say that our proposal legitimizes CX of the 1AR. That is to say, reciprocity demands that since the affirmative has the opportunity to ask the 1NR questions about the new evidence and arguments presented in the 1NR, the negative ought to have the opportunity to ask the 1AR questions about its new arguments and evidence. We have several answers to this. First, we believe that there is no functional difference between the 2NC and the 1NR. They are both speeches which extend and develop different negative positions. Second, we believe that there is a fundamental difference between communal assumptions about what is permitted in the 1NR and the 1AR. New arguments in the 1NR (e.g., new links to a disadvantage) are widely permitted-if not encouraged-while new 1AR arguments are usually rejected. Third, this argument isn't an argument against CX flex time. Rather, it is a reason why CX flex time ought to follow all speeches accept for the last two rebuttals.

A final objection to our proposal is that it would legitimize any number of new arguments in the 1NR, including new counterplans, disadvantages, and topicality and case arguments. One of the 1AR's best rationales for why new arguments should not be permitted is that there is no opportunity to cross-examine the 1NR on these arguments. Since our proposal would give the affirmative an opportunity cross-examine the 1NR, it would seem that the 1AR's best defense against new 1NR arguments would be eliminated and the negative would be free to present a variety of new arguments.

While this argument is persuasive, we do not believe that it is insurmountable. First, we believe that the prospect of an escalation of new 1NR arguments is overblown because communal norms of what constitutes "good debate" will prevent such practices. This already happens with the 2NC as evidenced by the infrequency with which 2NCs present new arguments. In fact, we believe that our proposal would be the last gasp for the rare 2NC that presents eight minutes of new arguments-a practice which we do not endorse for pedagogical and strategic reasons. The central reason why the 2NC is permitted to present new arguments is to claim that he or she is giving a "constructive" speech. Our proposal exposes the arbitrary distinctions between the 2NC and the 1NR, while establishing the negative block as a chunk of time during the debate in which the negative extends and develops arguments initiated in the 1NC. Furthermore, in a world in which the affirmative exchanges its plan prior to the debate-a now commonly accepted community practice-we see no reason why the 1NC should not be prepared to lay out all of the negative's offensive and defensive arguments for the debate.

Second, negative debaters have little strategic incentive to hold back a slew of new arguments until the 1NR for at least two reasons. First, the negative block is the one and only opportunity for the negative team to develop its story. Our experience judging debates leads us to acknowledge that in most cases, arguments that go undeveloped in the block, rarely factor into the judge's decision. This means that there simply is not time in the 2NR to add the explanatory depth to new arguments presented in the block to turn them into round winning arguments. It can't happen in the 2NR because the negative is too busy answering 1AR arguments, dispensing with offensive positions that they are not going for, and framing the remaining arguments into a coherent rationale for a negative ballot. Second, the affirmatives' opportunity to offer a rejoinder to new arguments presented in the block usually presents them an opportunity to quickly and easily straight-turn arguments which places the 2NR in sever jeopardy. Simply put, it is not strategically wise for the negative to advance many types of new arguments in the block.

A third answer to the objection that cross-examination following the 1NR would give the 1NR an opportunity to make new arguments is that it is not exactly clear what constitutes a "new" argument. Although we have discussed this point earlier, it merits further interrogation here. Is a new disadvantage a new argument? Probably. Is a new link to a disadvantage a new argument? Maybe. Is a new disadvantage linked off of one of the 2AC's responses a new argument? Maybe. But then again, why is it not just like any other response to an affirmative argument? Is new evidence which contains new warrants or backing for the initial claim a new argument? Maybe not. Or how about when the negative explains the three warrants contained in the piece of evidence presented incomprehensibly in the 1NC. Is that a new argument? Our point here is that what constitutes a new argument is not always clear. And more often than not, most judges try not to get involved in making hair-splitting determinations. In fact, as we have mentioned, the ambiguity surrounding the definition of what counts as a new argument is what leads us to believe that CX flex time is the appropriate remedy to this otherwise thorny issue.

ALTERNATIVE PROPOSALS

A central rationale for this proposal has focused on the importance of allowing the affirmative to cross-examine "new" arguments that are made by the 1NR. All of the arguments that have been made as to why new arguments are not always "new" arguments can be made with respect to arguments that are made in the 1AR, as well.

While it is possible to resist the expansion of the cross-examination to the 1AR on the grounds that the 1AR is functionally distinct from the 2AC in a way that the 1NR is not distinct from the 2NC, there is arguably little reason to resist cross-examination of the 1AR. Negatives may want to cross-examine the 1AR to examine new evidence that was read, to ask how a particular argument was a legitimate extension of a 2AC argument, to ask where an argument was answered "above," or to examine new arguments made in response to new 2NC arguments. Cross-examination of the 1AR is a reasonable corollary to this proposal, but for the weary who may support cross-examination of the 1NR, but not the 1AR, these two can be distinguished on the grounds that the 1AR is different from the 2AC in a way that the 1NR is not different from the 2NC.

If cross-examination of the 1AR is to be permitted, it is probably best that debaters are simply given a "pool" of cross-examination time that they can use at any point in the debate prior to the last two rebuttals. Under this proposal, each team simply would simply have six minutes of cross-examination time to direct questions at any given speech or speeches. Teams could divide the time in any way they chose.

This "pool" of cross-examination time could be expanded to include not only the six total minutes of cross-examination time, but also the total amount of preparation and cross-examination time. This total amount of time is usually 16 minutes (ten minutes prep time, plus six minutes cross-examination time), but that may vary depending on where you debate. We know, for example, that in some regions, debaters only receive five minutes of prep time.

This bank of preparation and cross-examination is simply referred to as alternate use time (hereafter AUT). This approach has been used for years at the Kentucky collegiate round robin, and last year, it was tried on a tournament-level at the Wake Forest University college debate tournament. This idea, of course, could stand on its own merits. We could have alternative use time even if we did not agree that cross-examination of the 1NR was desirable. But, AUT makes particular sense in the context of this proposal, since the proposal includes, at a minimum, the flexibility for the negative to divide up at least three minutes of their own cross-examination time.

The AUT system has a number of advantages. First, it encourages longer cross-examinations. For example, under this system, the 1AC could cross-examine the 1NC the entire time that the 2AC was preparing his or her speech. The 1NR could cross-examine the 2AC until the 2NC was ready, and the 1NR could be cross-examined until the 1AR was ready.

The second advantage to the AUT proposal is that it allows debaters to avoid frivolous cross-examinations. For example, sometimes debaters will run out of questions but will continue asking rather inane questions ("How was your trip?") in order that their partners could use the rest of the cross-examination time as preparation time. Under the AUT proposal, debaters have the incentive to only ask useful questions because it will always be better to either just prepare or to save the time for questioning the later speeches.

Although the AUT proposal is designed to encourage more productive cross-examinations, experience suggests that a couple of drawbacks accompany it. The first, and most serious drawback, is that oftentimes debaters will not engage in cross-examination (or at least do so only minimally) and instead use all of the time for preparation time. In some debates in which this experiment was tried, the negative spent almost no time cross-examining the 1AC to set up their arguments, instead conserving all of their AUT for preparation for later speeches. This defeats the purpose of proposals of this nature, which is to enhance the cross-examination.

One additional drawback of the AUT proposal is that it can lead to cross-examinations that are really too long. For example, one of the us saw an excellent cross-examination of a 1NC this year that went on for six minutes. The 1AC did such a good job during this cross-examination that it appeared that the negative hardly had an argument left on the flow. The problem was that the 1AC never stopped cross-examining long enough to write out the devastating weaknesses of the negative's positions, which meant that the 2AC did not make any of these excellent arguments and they never made it to the flow.

These are not so much drawbacks to the AUT proposal, as they are cautions. Coaches need to alert debaters to the different struggles that they will face in a world of AUT. In a world of AUT, it is important to not only continue to use time to ask questions, but also to use time to prepare. Debaters need to strike the appropriate balance in each debate. After all, that is the purpose of AUT.

However, we recognize that not all debaters will be able to strike that balance. It may be particularly difficult, for example, for novice debaters. For them, it may be more useful to have defined periods of cross-examination and preparation time. As debaters grow more experienced, however, AUT can be an important tool to encourage debaters to ask appropriate and well-timed questions. To this extent, we hope that experiments, like the one conducted at Wake Forest, will continue.

Given the possible extension of the cross-examination all the way through the 1AR, some may ask why the 2NR and the 2AR should also not be the subject of cross-examination. While this is certainly a reasonable experiment, there are a couple of reasons to avoid pushing the cross-examination into these speeches.

First, it is rare that new evidence is read in either of these speeches. Subsequently, there is little need for evidence to be examined in the presence of the judge. Second, although the line between a new and an old argument is difficult to draw, judges lead more toward exclusion in the latter two rebuttals than they do in the first two rebuttals. Since it is much more difficult to get away with a new argument in the last two rebuttals, there is less of an incentive to make one. Third, this gives each side a closing speech to exercise their rhetorical muscle without a cross-examination.

CONCLUSION

The cross-examination period is an important time in the debate. A well-directed cross-examination can be used to reveal places where important evidence is missing, discover weaknesses in presented evidence, explore potential contradictions within and among arguments, and seek clarification of presented arguments.

Presently, only the constructive speeches in debate are subject to a cross-examination. While this arrangement made sense in the day in which new arguments were only and always made exclusively in the constructive speeches, this continued arrangement makes little sense in a day in which the 2NC and the 1NR are not functionally distinct speeches. Therefore, the reasons that we have cross-examination in debate hold as true for a cross-examination of the 1NR as they do for any other speech.

It is arguable that the expansion of the cross-examination should not be extended only to the 1NR, but also to the 1AR. While we have offered reasons that the 1NR is similar to the 2NC in ways that the 1AR is not similar to the 2AC, we would support an experiment, with a pool of cross-examination time, to extend the cross-examination period to include the 1AR, as well.