Thursday, May 8, 2014

Who Should Teach Appellate Advocacy?

Sometimes I wonder about this question.  After all, there seems to be several approaches.  While many would agree that primarily doctrinal professor generally are not best suited for the task, either due to a lack of interest or lack of expertise or a combination of both, what about the other camps?  Should it be taught by a clinician?  An adjunct?  A legal writing professor?  Which type of professor would be best?

Clinical professors, focus on experiential learning, and appellate advocacy does fit the bill.  This is especially true when thinking about preparing students for oral argument.  The experience preparing for an presenting an oral argument before a panel of (mock or real) judges is an invaluable academic experience.  Clinical professors with legal backgrounds doing appellate advocacy work are assets in this capacity.  

But preparing for oral argument is only a portion of the course.  In some instances, such as at my law school, the oral argument portion is only 1/3rd of the course, with the other 2/3rds being focused on writing both an appellate and an appellee brief.  And best practices for writing briefs falls squarely within the wheelhouse of legal writing professors.  Many of the legal writing professors I know also have some law practice experience, but is it plausible to assume they have some experience making oral presentations in court, and especially in appellate courtrooms?  These professors are excellent writers, but are they skilled oralists as well?  I am sure it is a case-by-case scenario.    

And then we have adjunct professors.  While in some ways an adjunct seems the perfect fit, in other ways I question it.  A lawyer immersed in appellate advocacy would be a wonderful resource for students.  Thinking logically, it might be best to learn from someone presently doing the work, from both a brief writing and oral argument capacity.  However, as a former adjunct myself, one challenge is always availability for students after class.  Law practices are demanding, and appellate advocacy students can be some of the most time-demanding students.  A lot of hand-holding takes place when considering individual conferences to discuss drafts submitted for both briefs, meetings to discuss grades on final drafts submitted, and even more meetings and conferences to prepare the students for the nerve-racking oral arguments.  Do adjuncts have the time to devote to this?  If they do not, the student experience will surely suffer.

Perhaps more importantly, will (or should) adjuncts stay true to the stylistic best practices of briefs?  It is easy to learn the shortcuts in brief writing that specific courts and judges will allow once you have been practicing for awhile.  It is easy to pass these tricks and tips off to students either consciously or subconsciously.  But not knowing whether the student will be practicing in the same jurisdiction upon graduation might hamper the student, because an allowable shortcut in one jurisdiction (i.e. no need for formal a formal introduction during oral argument, or no need to file an appendix or table of authorities outlined which page each case cited appears in the brief), might become a death knell to the brief or oral argument in another.

I see pros and cons to each approach.  Inevitably this brings me back to my question:  who should teach appellate advocacy?  

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

Appellate Advocacy, Law School | Permalink

Comments

I submit the answer is simple—practicing attorneys.

I need to first preface my coming unorganized rant with this: I find this blog useful. I am the firm’s “appellate specialist.” That’s all that I do. I sit in my office, stare out the window, and write briefs all day. Then, every so often, I jump on a plane, train, or car and go before a panel of judges to argue. This blog often has useful articles or tips I pass along to our law-clerks, which the firm utilizes year ‘round and our litigation attorneys in my weekly writing tip. Thus, kudos to the folks here.

I remain frustrated, however, with—and pardon my French—Ivory Tower academics with little to no practice experience teaching students how to write briefs and/or argue cases. I don’t mean to impute ill will, but I’d be curious how many cases the author for this article has briefed and argued before appellate judges. How many did you win?

When we interview upper-level students intermittently I sometimes ask if they've ever been taught syllogistic reasoning. “Huh?” Or, “what does legal style mean to you?” “What?” As an anecdote I recently had one clerk tell me his Moot Court coach called his brief, “too progressive,” and strongly advocated against a syllogistic deep issue question presented. But she overlooked the statistics legal-writing paragons like Bryan Garner have put together showing the majority of SCOTUS cert. petitions and merit briefs utilize those formats. I looked at this woman’s CV and low and behold—little to no appellate practice experience. Listen, I get it, she teaches and audience is key. I told this kid that if it works for the competition you do what you have to do to win—we all know audience is most important. And I understand first years are just learning a new way of thinking. I get that.

But law schools continue to seriously lag and perpetually teach conservative legal sacred-cows law practice seems determined to not tip. It’s sickening and frustrating and I propose it does the students a disservice when they do become practice ready. Like computers in the past, legal writing professors today find themselves outdated; full-time professors remain full of academic gluttony and scant practical insight; and clinicians stuck in the mire between two worlds. Only actual appellate attorneys can teach the skills necessary to stand out from the middling pack.

I can appreciate the concerns with jurisdiction. But it seems to present two weaknesses: (1) most students at regional schools won’t move outside their jurisdictions if they even pass the bar and find jobs. See generally Argument for Another Time.; and (2) I’ve worked with appellate attorneys all over the country and practice tips remain universal especially when it comes to writing briefs. I can, however, appreciate time constraints. But truthfully, in my law school experience adjuncts invited students to their offices for conversations and always made themselves available. The bottom line is if a person wants to make time for X—they will. The premise is no different for full-time faculty.

Legal education is at an apex right now and the question is how will it progress. Will it stagnate and continue to teach an army of legal writers who utilize underlining and fear contractions? Or will we move forward, push for more readable papers and logical, mathematical, thinking? Back to the ancient days of apprenticeship—practicing appellate attorneys can truly help students become better advocates.

Anyway, it’s time to get off my soapbox.

Signed,
Appellate Specialist

Posted by: Appellate Specialist | May 8, 2014 7:15:35 AM

Thanks for the very thorough and thought-provoking response. For my law school at least, jurisdiction is a big deal because given its location our students come almost equally from 5 different states (VA, WV, NC, KY, TN). As for this author, while I am certain my appellate practice experience pales in comparison to yours, I have written and argued quite a few cases before state and federal courts, even winning a few along the way.

Posted by: Kendall Isaac | May 9, 2014 8:13:02 AM

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