Monday, May 12, 2014

How Should We Teach Appellate Advocacy?

Last week I blogged about who should teach appellate advocacy.  A commenter on the post led me to think a little more about the topic and, more specifically, how we should be teaching appellate advocacy.  The commenter referenced his concern regarding new associates who have no knowledge about syllogistic  (deductive) reasoning.  While this is certainly, or at least should be, a staple of legal education, should we expect appellate advocacy professors to teach this or should this be left to the first year learning extrapolated from legal writing/process classes?  While some modicum can certainly be taught in appellate advocacy, I believe the vast majority of teaching relative to this way of thinking and writing should be left with the legal writing curriculum and not the advanced appellate advocacy courses.  

On a related note, since appellate advocacy is not a bar course and relieves the professor of the need to teach with an eye towards a future substantive examination, should appellate advocacy professors be more concerned about teaching appellate advocacy skills for law practice readiness or should the teaching be geared towards moot court readiness?  Is there really a difference?  I am not sure there is a major difference.

While some might posit that moot court is merely a glorified beauty pageant, students do learn valuable skills.  They learn about decorum before the bench, effectively dealing with both hostile and docile judges, professionalism in dealing with opposing counsel, and most importantly they gain additional experience writing a brief and arguing on both sides of the issue - a task that prevents getting tunnel vision and keeping an eye towards seeing both the strengths and weaknesses of both sides of the issue(s).  Yes it is a little odd that moot court neatly provides two issues so that two advocates can argue on each side (I have argued many appeals in the real world and I have never been exposed to a tag-team approach to oral advocacy), but beyond that it seems to me that the learning extrapolated and the similarities between moot court and real appellate advocacy outweighs the differences.  

I also believe students are better served being taught from the perspective of advocacy before appellate courts rather than the Supreme Court.  After all, many practitioners will eventually argue before either a state or federal appellate court, whereas very few get the glory of arguing before the highest court in their state or this country.  Lastly, although it is preferable that professors err on the side of focusing their teaching on getting students prepared for the real-world practice of appellate advocacy, students taught more from a 'lets prepare to win at moot court' angle should not be severely disadvantaged.  

What do you think?

*** UPDATE***

In response to a commenter, I am posting a link to Judge Kozinski's article.  He does not have a favorable opinion of moot court.  For your viewing pleasure or horror (video production value is not one of my strengths), I am also posting a video blog (vlog) I did early last year which, in part, takes issue with Judge Kozinski's view.

 

http://lawprofessors.typepad.com/appellate_advocacy/2014/05/how-should-we-teach-appellate-advocacy.html

Appellate Advocacy, Appellate Practice, Law School | Permalink

Comments

I teach Appellate Advocacy for the Moot Court students at St. John's. It's one of my favorite classes to teach. Before I joined the St. John's faculty, I was an appellate prosecutor in the Bronx DA's Office.

I wrestle a lot with many of the questions you pose, and I don't think there are any easy answers. I try as much as possible to compare and contrast "real world" litigation with the somewhat artificial world of moot court. (For more on the latter, check out Judge Kozinski's law review article a few years ago where he really took moot court competitions to task.) I assign complete briefs for students to read -- ones from great advocates like Kathleen Sullivan, John Roberts (before he was Chief Justice Roberts), Walter Dellinger, and others. I also have them read winning moot court briefs from competitions.

I struggle the most with coming up with problems. It's straightforward to write Supreme Court style, two issue problems that raise pure legal issues, unlike the fact-intensive appeals that I used to handle as a prosecutor, the records of which often spanned thousands of pages. I think the former are also easier for students to work with.

Posted by: Larry Cunningham | May 12, 2014 3:26:26 PM

Thanks for your comments. One of my most enjoyable experiences is also preparing students for moot court. At my school, taking appellate advocacy is a prerequisite for moot court participation. Therefore, the students are extra motivated to learn and perform well in the class since the class is essentially an audition as well as a substantive learning mechanism.

I am familiar with Judge Kozinski's article, which I will add to the bottom of my post for viewers to read. I disagree with a number of his assertions.

Posted by: Kendall Isaac | May 13, 2014 5:34:59 AM

I agree with much of what Kozinski writes. But, as usual, you post great content and excellent questions.

Posted by: Appellate Specialist | May 13, 2014 6:57:51 AM

Sorry, but Kozinski is right.

If I had a semester to teach students how to win appeals, my course would look something like this:

- 60 percent writing
- 30 percent record-mastery, issue-spotting, & issue-selection
- 5 percent mechanics (appellate rules, court rules, etc), and
- 5 percent oral advocacy.

And that would be terrible preparation for moot court. The fun part isn't the important part.

I enjoy your blog, keep up the good work.

Posted by: Matthew Stiegler | May 16, 2014 12:23:20 PM

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