Thursday, May 8, 2014
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?