Thursday, October 12, 2017
With the return of autumn and the Supreme Court to session, appellate tweets and listservs turn to . . . did I really see a conversation about citation? Why do attorneys give so much credibility to a book developed and maintained by student law review editors who in the 16th edition accidentally tried to change the substance of precedential value by announcing that every citation needed a signal? (See this article by Dean Darby Dickerson for a discussion about that weird story).
Professor Susie Salmon wants you to know that “perfect citation” isn’t really a beautiful unicorn, and that questing for it has expensive downsides. Her article, Shedding the Uniform: Beyond a Uniform System of Citation to a More Efficient Fit, published last year in the Marquette Law Review, looks at the history of the citation fetish (her turn of phrase, not mine!), the rise of the Bluebook dominance, and the lack of uniformity that actually exists in the legal world. She adroitly observes that teaching and living by “perfect Bluebooking” leads to frivolous classroom and billable hours that would be better spent on richer analysis and representation. Instead, she argues, rationality should prevail. Citation, as she reminds us, exists for three purposes: a finding tool for cited authority, a signal about the weight and vintage of the authority, and credit for the author of the authority. These goals can be met with any system that provides these things with accuracy, brevity, and clarity.
Professor Salmon’s article takes us on an interesting historical tour of citation, beginning with the Roman Justinian texts, through Middle English books, to that fateful 1926 summer, when a clever Harvard 2L first wrote a handbook for his fellow law review classmates and eventually for elite-school law review editors who signed on. The story turns darker in the country’s bicentennial year when the Bluebook editors openly determined to dominate legal citation form. In 1981, the editors finally agreed to acknowledge a difference between law reviews and practitioner documents, but did very little to develop that part of the book until faced with competition by the University of Chicago’s Maroonbook and a challenge by practitioners and law professor themselves—the ALWD Citation Manual/Guide.
And, the fetish of uniformity is expensive. Law professors who choose to spend hours on citation teaching and assessing are taking away from time they could spend teaching more client-centered advocacy skills. Practicing attorneys who devote hours to perfecting citation are costing their clients hundreds or thousands of dollars that might not be justifiable. And, relying on the traditional notions of citation also increase the monopoly that West holds on legal materials, to the detriment of an open-access system of legal information.
Ultimately, Professor Salmon raises excellent points. Uniform citation does not exist. Those very smart law review students who knew the Bluebook backwards and forwards while they were 2L and 3L students very well may be referring to wrong parts of the book when citing inside practitioner documents. And, they might be using a superseded Bluebook, that is, an out-of-date model. There are twenty editions, after all, each with changes. Finally, the existence of local rules in many jurisdictions pose other problems, particularly when the local rules are not widely known or widely available, and have their own internal quirks. Things aren’t likely to get better, because the Bluebook’s continued existence depends on the planned obsolescence of earlier editions. Instead, Professor Salmon recommends what others before her have suggested: public domain citation, development of better apps and programs to check citation form, and flexibility to allow that many formats will satisfy the principles underlying a good citation system.
Sunday, October 1, 2017
Having clerked at the Ninth Circuit and taught appellate and other legal writing for years now, I'm a big fan of the Appellate Advocacy Blog. I'm now delighted to join this outstanding group as a new contributor. In my posts, I plan to focus on my favorite thing: writing. And what better way to start than by talking about the beating heart of any brief. Something that is often neglected by appellate lawyers, and outright excised by trial ones. The introduction.
This is the lynchpin of everything you write as a lawyer. I would wager that whether you win or lose an appeal, or a motion, can more often than not be traced back to your introductions. Let me first convince you that you should be spending way more time on this section of your documents. Then I have some ideas about how to write good ones.
First off, introductions signal to a judge something profound: that the lawyer can help the judge write a better opinion. When you think about it, briefs are just cheat-sheets for a judge to use when writing their own documents. Supreme court and circuit opinions are chock full of phrases and concepts stolen from good lawyers. If you don’t convince the judge that your brief is worth stealing from, chances are they won’t give it a second glance. After all, they have an opinion to write. Lawyers often forget that there is no rule requiring judges to use briefs, or even finish reading them. You must convince the judge that you’re worth paying attention to.
Another way to think about introductions is to see your brief for what it is: a conversation with a judge. It’s a bit odd because your side of the conversation is prerecorded. But make no mistake, it’s a conversation. Your judge is responding to every word in your document. They’re asking questions. They’re arguing back. They’re criticizing. Hopefully, they’re agreeing.
If we take what we know about good conversations and apply it to writing, the importance of introductions becomes obvious. For starters, first impressions are everything when we meet a stranger. They shape how we perceive the speaker, how we gauge their credibility, their intelligence, their trustworthiness, and, ultimately, their competence.
For another, our ability to follow a conversation usually depends on how well the speaker frames the topic and organizes their thoughts at a high level. If the speaker launches into the details without giving some context, the listener is quickly lost.
And think about how quickly you tune out someone who drones on and on in a conversation without ever getting to the point. Same here. Many busy judges are skimming readers, which means that they might not read much past the introduction. Particularly if you bore or confuse them.
Cognitive science also has a lot to say about introductions. This science sheds light on how readers process the things they read. And it leaves no doubt that your introduction is crucial. Take the concept of priming. Readers are more likely to believe a point that they were well primed for earlier in a document (such as in the introduction). Or take the concept of chaining, which tells us that the way you organize and present your points influences whether your reader will believe you. The self-consistency and self-observation principles suggest that if you sell your judge in the introduction, they will subconsciously see everything that comes after in a better light. And the concept of fluency suggests that the readability of your introduction plays a role in whether your reader’s more skeptical modes of thinking are triggered—or whether, instead, your reader will be persuaded. Each of these cognitive science principles agree: good introductions are a key component of good legal writing.
And perhaps most important, a good introduction forces you to distill your understanding of complex issues into simple prose. After all, until you can explain the key points of your document in a short, clean introduction, you don’t understand them as deeply as you need to. Put in the work to write a phenomenal introduction and you might actually say something clear enough to stick in a judge’s mind.
Hopefully I’ve convinced you introductions are important. Now let’s talk about some concrete ways to put these principles into practice.
- Make your reader like you. Dozens of studies across disciplines agree that if your reader likes you, you are much more likely to persuade them. There are a few simple tactics here. Make yourself credible by conceding small issues. And when a legal or factual question is a tough one, say so. Your judge will already be struggling, so you might as well be sympathetic. Thinking through simple ways to help your reader is also great--such as using clear roadmaps and summaries. Another fantastic trick is to directly dialogue with your reader (Justice Kagan does this all the time). Use an occasional hypothetical or “you” language to create a personal connection. Finally, use some common-sense social skills. For example, no one likes people who are overly dramatic. No one likes a tattle-tale who complains about trifling things (like the other side making some clerical mistake). No one likes a complainer who turns small problems into big ones. Just remember: if you say something in a document that would be annoying in the outside world--writing it down makes you no less annoying.
- Show off. The introduction is also your chance to show your reader that you are an elite lawyer who has the chops to help the judge write a better opinion. To create that image, your writing style must be impeccable. Typos are not an option: if your introduction’s sloppy, your reader will assume the rest of your document is too. Beyond that, this is the time to show off your writing skill. Analyze every word, every sentence, every way that you can arrange the syntax--in other words, every possible writing choice you have. Science tells us that, aside from the content, legal readers are influenced by the quality of a lawyer’s writing style.
- Tantalize. No one wants to read boring writing. Making your writing easy to read is great, making it interesting is a whole other level. Use concrete examples, a couple saucy facts, pithy phrasing, and all the wordsmithing you can muster to make your introduction fun to read. This will increase your chances of getting a reader to forge on to the body.
- Think about the stories your reader knows. We humans love stories. Everything we see, hear, or read we turn into a story. And that counts for legal writing, too. You can use this psychological insight to improve your introductions. Think about your case and the document you are writing, and imagine how it will fit in with the stories your reader is likely to know. If your motion advocates for an exception to the battery rule, incorporate the exception into an existing narrative about the battery rules your reader knows: “Battery normally requires that a defendant actually touch the plaintiff, but if the defendant causes something else to contact the victim, that counts, too, because the plaintiff suffers the same harm and the defendant is just as blameworthy.” Explain the familiar story and then explain how your part fits into the narrative.
- Emphasize what you add to the story. Keeping this narrative point in mind, don’t dwell on the mundane stories your reader already knows. Blandly reciting the basic elements of battery in your intro isn’t helpful. Emphasize what is tough or interesting about your case and the law you advocate for. In other words, focus on what you add to the story. Frankly, this goes for the body of your legal documents as well; spending a lot of time on dry, undisputable black-letter law isn’t helpful. Keep your eye trained on the prize: persuading your reader of the nuances that matter in your case.
- Embrace the bad. Embrace the bad facts and bad law and put them into context. So many advocates run from the hard parts of their case, preferring to discuss (at length) the facts and law that support them. But this is the worst possible strategy. Your judge is going to sit down and write an opinion. Either tell them how to deal with the bad stuff so that they can write an opinion with you on the winning end--or ignore it and leave them to their imagination.
- Roadmap smartly. We often hear the advice that you should roadmap your arguments. And it’s good advice. But roadmapping isn’t just about giving your reader a laundry list of every possible thing you will discuss in your document; it’s also about giving them a sense of what matters. So if there are a couple issues that are sure throw-aways, tell your reader. Then tell them about the issues that matter and how those important issues fit with eachother: “Personal jurisdiction is not meaningfully disputed here, but subject matter jurisdiction is—and there is none. But even if there is subject matter jurisdiction, the contact element of the battery claim is not adequately pleaded so the complaint must be dismissed anyway.”
- Include the entire elevator pitch. Sometimes lawyers don't include their best stuff in their introductions, preferring to hold back some for the body. Maybe they want to tease the judge with some juicy details without putting all the pieces together yet. This is a horrible strategy. Judges, like most readers these days, are busy. Let's be honest, sometimes they can't do much more than skim. If you don't make your key points in your introduction, you may never get the chance. Even if your judge makes it through the details, when they return to your brief to write their opinion or for an oral argument, it's even more likely they won't make it past the intro. So make your introduction a full elevator pitch for your document: all the key law and key facts you need to win. And if you manage to actually persuade your judge on some points at the outset, cognitive science tells us that it will be much harder for them to change their mind later when they get into the weeds.
I am delighted to be selected as a contributor for the Appellate Advocacy Blog. If you have questions or comments (or just want to chat about writing), please email me at: email@example.com. You can also visit my website at www.writinglikealawyer.com
Monday, March 13, 2017
Last week, on International Women's Day, the Legal Writing Institute (LWI) and the Association of Legal Writing Directors (ALWD) announced the "Full Citizenship Project for All Law Faculty" campaign. According to the press release, the project is "aimed at correcting gender and related disparities among U.S. law faculty." The press release explains:
As law faculty status and salaries decrease, the percentage of women faculty increases. Based on available data, roughly—and only—36 percent of tenured or tenure track faculty are female, whereas 63 percent of clinical faculty and 70 percent of legal writing faculty are female. This disparity is due to faculty teaching in skills-based areas often being denied the opportunity to earn the same security of position and academic freedom that traditional law faculty enjoy. Yet security of position and academic freedom are needed for a robust classroom and innovative teaching in all areas of law.
The press release has been featured on the blog for the Society of American Law Teachers (SALT) and on Prof. Paul Caron's TaxProf Blog. Additionally, a Law.com article discusses the project and features a nice supporting quote from Denise Roy, the co-president of SALT. Finally, for a more personal perspective, a clinical professor has written about her experiences in academia here.
Monday, August 1, 2016
The Southeastern Association of Law Schools 2016 Conference kicks off on Wednesday, August 3, in Amelia Island, Florida. As always, Prof. Russell Weaver from the University of Louisville Brandeis School of Law has put together an excellent program.
There are several panels that may interest readers of this blog, including:
- A discussion group on Equality & Identity in a Post-Scalia World (Wednesday, Aug. 3)
- A discussion group on Justice Thomas after 25 years on the bench (Wednesday, Aug. 3)
- Supreme Court Update: Business, Administrative, Securities, Tax, and Employment Issues (Thursday, Aug. 4)
- Supreme Court Update: Individual Rights (Thursday, Aug. 4)
- The Scalia Legacy (Friday, Aug. 5)
- Understanding the Effects of Judicial Selection on State Courts (Saturday, Aug. 6)
- The First Amendment and the Changing Supreme Court (Sunday, Aug. 7)
I will be on a panel on Monday, August 8, called "The Road to Scholarship as Seen by Newer Professors," which was organized by Prof. Suzanne Rowe from University of Oregon School of Law. This panel is designed to offer advice to newer law professors on what to do (and of course what not to do) to establish a good scholarly agenda. SEALS typically offers great programming for new law professors and for those thinking about entering academia.
I encourage all those attending to check out the full program here.
Special recognition to Prof. Tim Zinnecker at Campbell for the most creatively named panel: "God created the world out of nothing in six days; I'm only the academic dean."
Monday, October 20, 2014
For those of you working on developing an appellate brief problem for this academic year, take a look at City of Los Angeles v. Patel. The U.S. Supreme Court just granted the petition for writ of certiorari today, and it has the trappings of a good problem for two reasons. First, the two issues, one jurisdictional and the other substantive, are well-separated. Second, it involves an intriguing question about Fourth Amendment protection of hotel guest registries. I could see a fun and interesting pop-culture problem developing out of these issues.
When creating good appellate brief problems, it can sometimes be difficult to manage the ripeness factor. You want to choose a current issue, but not one that will necessarily be resolved before your students complete the assignment. You also want to be careful about creating a problem where your students will have easy access to professionally-written briefs. These potential pitfalls can easily be avoided, though, by creative fact development.
When creating a problem from a recent cert. grant, the first step is to outline the issue(s) you want to use. Next, you should identify how the split(s) have come down. Once you have broken apart the pending case, you have a good framework for rebuilding a problem that has sufficient legal similarities without too much factual similarity. The students can then find many relevant legal sources for solving the problem, but they won't be able to just pull legal arguments out of professionally-written briefs because the facts will be too nuanced for the legal analysis to hold up verbatim in the simulated setting. Additionally, when the facts are sufficiently distinct from the original problem, the issue you have created may still be ripe or resolvable even if the Supreme Court rules on the actual case before the end of the semester.
Though problem-creation can seem like an intimidating challenge, it is a highly rewarding aspect of our work as law professors. Have fun as you create a packet that will be enjoyable and interesting for both you and the students. Be inspired.
Wednesday, September 17, 2014
This is the kind of basic advocacy blunder that is hard to believe, but it's being reported that BP's counsel fiddled with the formatting to file an over-length brief without permission.While this happened in federal district court, it's a fundamental advocacy issue worth reporting here. In a filing related to the Deepwater Horizon oil rig spill in 2010, BP's counsel tried to slip one past Eastern District of Louisiana Judge Carl Barbier. He was not fooled or amused.
After noting that it had already allowed BP to file a brief ten pages longer than the usual twenty-five-page limit, the Court explained:
"BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages. The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here. Any future briefs using similar tactics will be struck."
Judge Barbier was far more generous than I would have been. Still, even without a harsh penalty, this will make good material for my appellate advcocacy class lesson on ethos in a few weeks. For a company that wants to be viewed as one that follows the rules and cares about details, this kind of angle-shooting by its counsel seems counter-productive.
A former clerk for Judge Barbier, Alabama Law Professor Montré Carodine, reads between the lines to suggest: "The subtext seems to be Judge Barbier saying, 'Look, every time I give you an inch you take a mile, and I'm tired of it,'" (as quoted in the NPR piece on the matter). I'm not sure what evidence exists to show repeated offenses, but fiddling with the formatting after being allowed to increase your brief by 40% does seem to be the kind of presumptious greed Carodine's idiom suggests.
I wonder how often this occurs. Does it slip past judges with any frequency? Is there any creditable explanation for changing the formating? Any one want to defend the practice?
Hat tip to reader Maryanne Heidemann
Wednesday, September 3, 2014
There is an interesting post today at Legal Research & Writing Pro Blog about how judges read appellate materials in the ever-expanding age of electronic resources. As the post notes, as federal courts and an increasing number of state courts have moved to electronic filing, judges have also moved toward reading materials, including briefs, on electronic devices such as laptops and iPads.
The post notes that changes in how judges are reading briefs -- from paper to electronic -- comes with a potential for real differences in impact. There are studies suggesting that readers tend to skim electronic materials more than they do paper materials, but also that active engagement with the electronic material can substantially improve comprehension.
As the post suggests, there are also some potential new advantages to the prevalence of electronic resources in appellate practice. Citations can be hyperlinked to research sources so that judges can quickly and effectively jump right to the authority; similarly, annotations to the appellate record can be hyperlinked to the relevant part of the record in jurisdictions that have invested in the necessary software. An April post on Cite Blog included thoughts about those kinds of hyperlinks.
A couple of years ago I presented at a symposium at Washburn Law School where there was a presentation from an attorney who did a great deal of practice in various federal courts across the country. He talked about embedding digital information in briefs, including hyperlinks to video excerpts from video depositions, hyperlinks to exhibits, etc., in addition to the more conventional hyperlinks that could appear to authorities. It certainly seems that the continuing development of digital practice would point to a future with vast opportunity to connect the appellate materials in profound ways.
For some additional thoughts, see a post from back in January over at Volokh Conspiracy, with additional discussion in the comments.
Thoughts? Is the increased use of digital resources by courts impacting the way you present arguments in your appellate briefs? Have you seen this as a good development, or one with significant pitfalls? And is legal education keeping up with these kinds of trends? Share your thoughts in the comments!
September 3, 2014 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, State Appeals Courts, Web/Tech | Permalink | Comments (1)
Monday, September 1, 2014
Professor Coleen Barger was recently named as the Ben J. Altheimer Distinguished Professor of Law at the University of Arkansas at Little Rock William H. Bowen School of Law. Readers of this blog may know Colleen as a founding member of the peer-edited Journal of Appellate Practice and Process. Colleen has served continuously as the Journal’s Developments Editor since its inaugural volume in 1998.
Coleen is also the author of the newly revised ALWD Guide to Legal Citation (5th ed. 2014). She has served the legal writing community in many other capacities over the last two decades, providing hard work, leadership, and support. Colleagues at UALR report that she has repeatedly won school excellence awards for both her teaching and service.
Congratulations on the much deserved honor, Colleen!
Sunday, August 24, 2014
As Mauro pointed out, what makes this particular amicus brief potentially noteworthy is not any particular argument it advances on behalf of either party in the case, nor is it the underlying issues of the case itself. What makes this particular amicus brief potentially noteworthy is that it may be the first amicus brief ever submitted to the Supreme Court by a law firm on behalf of no client and in support of neither side. Instead, Goldstein authored and submitted the brief to test the waters concerning the utility of the bar providing assistance to the Court in unconventional ways, rather than simply as an advocate for a particular party or outcome in the case.
The case, M&G Polymers USA v. Tackett, involves health-care coverage for retirees and whether such coverage continues indefinitely when the underlying collective bargaining agreement governing the benefits is silent on the issue. In his amicus brief, Goldstein sought to provide the Court with data that he believed might not be presented by the parties or more traditional amici, including the results of a survey he conducted of collective bargaining agreements and different provisions reviewed by lower courts in similar cases.
Mauro quoted Goldstein as stating that "he didn't 'attempt to give the court any advice at all. It's just a bunch of data. I don't care who wins this case.'" Goldstein indicated that he felt the data he was providing might not be fully presented by the parties or more traditional amici with an interest in having the Court resolve the case one way or the other, but the data could be very useful to the Court in providing a workable rule.
Amicus Curiae is Latin for "friend of the court." The term has come to reflect briefs filed by a person or group who is not a party to the lawsuit, but has a strong interest in the resolution of the controversy presented by the case. As Goldstein noted in Mauro's article, however, sometimes amici are not truly acting as a friend of the court and, instead, "[t]hey have an ax to grind, a dog in the fight." Goldstein highlighted the uniqueness of his amicus brief in this case in the brief's opening paragraph, where he called it a "rare true 'amicus' brief" that was submitted "with no agenda or desire to direct the outcome of the case."
This caught my eye this weekend as I was preparing to teach a new batch of 2L students about appellate practice and advocacy at Creighton School of Law. In my view, to be a successful appellate advocate it is crucial to always keep in mind that your primary goal is to help the court find a way to rule in favor of your client. That overarching focus underlies the importance of thorough research, of thoughtful organization, of painstaking editing, and, really, all aspects of presenting the appellate brief and argument. If you can present the court with a well-thought "map" of exactly how the court could rule in your favor and explain its reasoning in a subsequent opinion, supported by authority and sound analysis, you are in a far better position than if you are simply urging an outcome that the court might find worthwhile but difficult or impossible to support in an opinion.
Amicus briefs can often serve those same purposes and assist the court. As Goldstein noted, however, most amicus briefs may be submitted as "friends of the court" and provide assistance, but ultimately are assisting the court to rule a particular way. What makes this brief by Goldstein unusual is that it may truly provide meaningful assistance to the Court in a broader sense and without an eye to helping either side succeed.
It will be worth watching to see how the Court treats this kind of brief and, then, watching to see whether anyone else jumps on the bandwagon to author similar briefs in the future. As Mauro's article noted, there may not be a clammoring of already busy attorneys to sit down and author briefs just to help the Court and not to further the interests of an actual client.
Goldstein's Amicus Brief in M&G Polymers USA, LLC v. Tackett. Hat Tip to Howard Bashman at How Appealing who reported the Mauro article last week. Tony Mauro's National Law Journal article, also available via Google News.
August 24, 2014 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (0)
Monday, May 12, 2014
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?
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.
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?
Sunday, April 6, 2014
Congratulations to the following teams for doing well in recent 2014 competitions. The students deserve a lot of praise for taking extra time to hone their oral and written advocacy skills. Their coaches also deserve a lot of kudos for taking the time to work with the students, often simply for the love of it and without any compensation or praise.
Elon University Billings, Exum & Frye National Constitutional Law Competitions
Champion: Southwestern Law School
Runner-up: Florida Coastal School of Law
Best Briefs: Petitioner - Regent University, Respondent - Southwestern
Best Oral Advocate: Kathy Spurlock, Florida Coastal
Albany Law School Gabrielli National Family Law Competition
Champion: University of Mississippi School of Law
Runner-up: Seton Hall School of Law
Best Brief: Seton Hall
Best Oral Advocate: Shannon Daugherty - Brooklyn Law School
National Native American Law Student Association Moot Court Competition
Champion: William & Mitchell
Runner-up: University of Hawaii
Best Brief: William & Mitchell
Best Oral Advocate: Andy Casey - University of Oklahoma
Capital University National Child Welare & Adoption Moot Court Competition
Champion: Florida Coastal School of Law
Runner-up: Loyola University Chicago School of Law
Best Brief: Loyola University Chicago
Best Oral Advocate: Jordan Griffin - Charlotte School of Law
St John's University Duberstein Bankruptcy Moot Court Competition
Champion: Georgia State University College of Law
Runner-up: Mississippi College School of Law
Best Brief: University of Memphis School of Law
Best Oral Advocate: Jennifer D'Augustinis - Florida Coastal School of Law
Tuesday, March 25, 2014
Perhaps NYLS should rename their competition the NKU Labor and Employment Law Moot Court Competition. After all, their law school has been nothing short of dominant. 2014 proved no exception as the team once again outperformed 45 other teams to claim the Wagner national championship on Sunday March 23, 2014. You can hear the final round argument here. This year the teams tackled a very challenging and timely problem dealing with whether unpaid interns should really be deemed employees pursuant to the Fair Labor Standards Act (FLSA) and thus paid wages, and also whether the interns should be allowed to band together as both a class action under state law and a collective action under the FLSA.
Obviously, NKU advocates are coached well to astutely answer the challenging questions from this year and past years. How dominant is NKU at the Wagner competition? Check out this list of accomplishments:
- 2014 National Champions, Best Preliminary Round Team
- 2013 Best Brief
- 2012 Best Brief
- 2010 National Champions, Best Final-Round Oralist, 3rd Best Petitioner Brief
- 2009 National Finalists
- 2008 National Champion, Best Final-Round Oralist, Best Brief, Best Preliminary Round Team
- 2007 National Finalists, Best Brief
- 2006 National Quarter-Finalists, Best Brief, Best Preliminary Round Team
- 2005 National Finalists, Best Final-Round Oralist
- 2004 National Quarter-Finalists
This year, NKU defeated South Texas College of Law, a team that has also been successful lately. South Texas is the National Runner-Up for two consecutive years, and also won the best final round oral advocate award for 2014 and a best brief and best preliminary round team award for 2013.
Now for a bit of shameless self-promotion: the Appalachian School of Law team that I coach also performed very well, advancing to the quarter-finals and winning an award for best octo-finalist team.
Friday, March 14, 2014
Uncertainty. Second-guessing. This week I have (once again) watched it unfold. While this situation involves a team preparing for a moot court competition next week, the scenario is certainly apropos to anyone in this preparation situation.
Best practices dictate that it is important to "vet" your argument in front of valued sources. By letting them hear your argument, it is surmised that you will get good feedback on what to include and remove from it - thus coming away with a pristine presentation worthy of Supreme Court Justice admiration. But sometimes I cannot help but wonder if this process does just as much harm as it does good.
Let's take my moot court team for example.
The team has just completed its 15th oral argument practice session. The first 8 or 9 sessions involved just the team working with me as coach. Together, we analyzed the issues and talked ad nauseam about appropriate responses to anticipated complex questions. This process seemed to have formulated what we thought was a solid argument with few, if any, holes. But then we invited in guest judges (a mixture of law professors, practitioners, and law students who have taken course(s) in the subject matter) to observe the practices, ask questions, and offer feedback.
Let the uncertainty begin.
I was told once that opinions are like a$$holes, everyone has one. This is true. It is especially true in the legal profession where we are paid to have, and share, our opinions. What happened was inevitable. The first group of judges didn't like the introductory remarks and thought that the argument on behalf of the plaintiffs was too over the top. It was too much to paint the corporation as a greedy overlord bent on destruction of the weak. Ok, this made some sense, so the advocates tweaked the argument.
In came the next set of judges. "Where is the passion?" They wanted to know. Their opinion was that the corporation's motive was suspect and the plaintiff needs to exploit this issue before the Court. "You mean paint them as the evil greedy corporation determined to screw the masses?" "Yes."
Now it is time to re-work the argument again. Or is it?
Last night, a few more practices in and only 5 days away from travelling to the competition, yet another guest judge offered suggests to "tweak" the argument. Of course, these suggestions ran counter to what prior judges mentioned. The problem at this point becomes whether it is wise to once again re-work the argument so close to "game time." The goal right now should be perfecting the current road-map, not mapping out a new path.
What are you supposed to do with advice?
It is time for me to share with the team another bit of wisdom shared with me long ago. If you are walking down the street and someone tells you that you have a tail, ignore the person. If a second person also says you have a tail, you should start to wonder. If a third person tells you that you have a tell, you should turn around and look because you probably do have a tail!
The moral to that story is to take advice with a grain of salt until it merits serious consideration. I do believe in getting feedback on oral argument before going "live." However, if one person disagrees with the chosen path, it might be best to chalk it up as a difference of opinion not warranting a change in the argument. But if more than one person doesn't like the approach, the advocate should be much more inclined to change it. After all, two or three brains are smarter than one, and the advocate should not let ego get in the way of excellent advocacy.
I hope the students preparing for oral argument hear and receive this message loud and clear.
Tuesday, March 4, 2014
Over at our sister blog Legal Skills Prof Blog, they have a post about prepping for oral argument. This is especially timely for the countless teams preparing for spring semester moot court competitions. Check it out here.
Sunday, February 23, 2014
Wednesday, January 29, 2014
Last night I observed an excellent presentation on rubrics and student assessments from Gonzaga law professor Sandra Simpson. While the last thing that I expected to get from her presentation was fodder for a blog post, about half-way through her presentation she provided an example of a rubric that could be shared with students in order to help them see what a good answer would entail. To my surprise and excitement, the rubric she provided was for a good question presented. My mind raced back to all of the nice posts on "questions presented" and "issue statements" that my fellow bloggers have been sharing recently. As such, I couldn't wait to share Professor Simpson's example with the masses. The rubric is as follows:
- The question presented is framed with the issue and facts in such a way as to elicit an answer which is favorable to our client
- The questions appear in the order they are argued
- The question contains the law - general area and the civil rule
- The question contains the standard on summary judgment
- The question contains a core question that connects the law to the facts
- The question contains the material facts needed for the motion
What do you think?
To read more of her work on rubrics and student assessments, check out her article available on Heinonline: Riding the Carousel: Making Assessment a Learning Loop through Continuous Use of Grading Rubrics," 6 Canadian Legal Education Annual Review 35 (2011)
Sunday, January 26, 2014
This is when it gets fun...and intense. As soon as the brief has been submitted to the competition chair, most teams immediately begin practicing their oral argument. The practices are usually conducted daily (sometimes even twice a day) for the entire 2-3 week period leading up to the competition travel date. This process usually begins with committing key portions of the brief submitted to memory, and then repeatedly tweaking it through Q&A sessions with the coach(es) until the argument is as close to perfect as it is going to get, and also far enough away from the initial draft that it will not be delivered in a robotic and memorized fashion.
The process is repeated as the advocates also have to learn the off-brief (or opposite) argument as well, due to the fact that competitions require the advocates to argue on both sides of the issue during the preliminary rounds. While some students cringe at the thought of this because they have usually grown to appreciate the side of the argument that corresponds with the brief they submitted, I see this as one of the most invaluable parts of the moot court experience. After all, once they leave the "moot" world and enter into practice, a lawyer should not have tunnel vision and only analyze and dissect the argument in a light favorable to his/her client. A good lawyer spends almost the equivalent amount of time assessing the opposing argument. This exercise helps the good lawyer deal with the holes in his/her case more effectively when dealing with motion practice and oral advocacy before the court.
Focusing back on the issue presented in this blog post, many schools prepare students for oral argument by using a faculty coach who leads the students through the entire practice process, perhaps bringing in other faculty, students, alums and other practitioners to periodically play the role of guest judge. While conventional wisdom suggests that the students should practice before as many practitioners and professors versed in the relevant area of law as much as possible, it is equally important to have the students practice a few times before novice judges unfamiliar with the law.
Don't Forget the Simple Concepts
For example, one year I spent a lot of time getting my students up-to-speed on the law in preparation for the Wagner labor and employment law competition. While I had them prepared to deal with virtually any question asked, I had not stopped to think about the simple questions. During the competition, one of the judges asked one of my students what the plaintiff/petitioner wanted. The student recognized this was a remedies question, but since the fact-pattern didn't provide a copy of the complaint or discuss what the terminated employee sought for relief, I neglected to go over such a simple premise with the students. Of course, the student's lack of experience working for corporations also meant it was not possible to easily to come up with an answer off-the-cuff. But the student tried, responding that the client sought reinstatement. The client "might" have wanted this, but what the student did not think about and the judge further inquired about (with a less than adequate response), was that important pot of gold called back wages and perhaps front pay. The money didn't cross the student's mind, only the loss of the job - because the job loss - and legal issues surrounding it - was all we focused on in practice. It was my fault. I was thinking too high-level in practices and didn't bring in the novice judges to ask the simple yet important questions that a novice judge at the competition might want to know.
On a final note, one thing that I have been seeing more of is students totally committing their arguments to memory. Indeed, at the competition they approach the podium with no folder containing the road map and a cheat-sheet to help them if they get caught with a question they were not 100% prepared to answer. In a competition format, this is very impressive to the judges when the student successfully responds to all the questions without looking down once. While this certainly is better than the student that takes too much material to the podium and mostly reads to the judges between questions, I wonder if this is preparing them for the realities of practice. While I see this memorization technique yearly at competitions, I have not seen this the non-moot court world. Even skilled advocates who know the argument inside and out still approach the podium with their folder of materials and are unafraid to periodically look down to find a key point that needs stressed before the court. I have not required this level of memorization of my students, thinking it is better to make sure they know 90+% of it (and certainly have the introduction and conclusion committed to memory, because it can be fatal when an advocate does not start or finish strong), and they can save the other 10% of their brain focusing on other law school courses during the moot court practice daily grind. However, sometimes I wonder if I should join the world of rote memorization. After all, while I do not think real judges expect this (but check out this post from Prof. Cleveland on reading to the court) , it seems to really impress moot court judges.
Sunday, January 19, 2014
Last week I pondered the best way to select advocates for moot court teams. Today I would like to look at dealing with the research and writing component of the process.
Most moot court teams consist of two advocates, although a few competitions allow for three advocates per team and even fewer allow for a separate brief writer to be assigned to each respective team. Assuming that a separate brief writer is not allowed by the competition rules (because with a brief writer, I assume this person would be charged with the entire brief writing process and would share the researching duties with the oral advocates), what is the best way to divide the responsibilities between the team members? I must admit that I have bounced between methods with no real idea which is preferable.
The first method that I have used when having a two-person team is to assign each team member one of the issues (most moot court competitions have two distinct issues in the problem). Each team member is responsible for researching his/her own issue and writing the portion of the brief on that issue. Once both advocates have written their sections, they would then collaborate to infuse the two parts into one succinct and cohesive brief that hopefully will read as if it written by only one person. Admittedly, this blending of two parts to make it sound like one voice can be difficult to accomplish, especially when the students have vastly different writing styles, grammatical effectiveness, and timeliness in having their respective sections done and ready to undergo the infusion process. For example, if one person is done with his/her draft with a week remaining before the brief is due to the competition but the other student is not done until two days before the deadline, it is almost impossible to properly proofread and join the parts so that they read as if written by one person.
Realizing this problem, I have also explored having one person solely responsible for writing the brief with the other person being responsible for assisting with the research, formatting of the brief (such as the table of contents and authorities), and proofreading the brief. This tends to create two problems, with one bleeding into the other. The first problem is that the brief writer tends to complain that the other student is not adequately assisting (such as not providing substantive research assistance) with the writing process. If this is indeed true, the second problem usually ends up being that the non-brief writer ends up having to play catch-up when it is time to prepare for oral argument. The person writing the brief is usually much more intimately familiar with the facts and the law while the other is much less comfortable with the material due to taking a back seat during the brief writing process. So while this method ensures that the brief reads with one voice, it can cause team friction and impair the oral argument practice sessions due to having to spend extra time getting the non-brief writer up-to-speed on the case.
How have you attacked this problem? Might there be a third or fourth alternative approach?
In the next post, we will explore oral argument practice protocol.
Sunday, January 12, 2014
In the next couple of weeks, hundreds of moot court teams around the world will be receiving fact patterns and engaging in the painstaking task of deciphering the case, researching relevant law, and drafting briefs for submission to the competition. As I await the release of the Wagner fact pattern in order to go over it with my team, I have been contemplating the best way to select moot court teams, the best way to divide the research and brief writing responsibilities for the team, and the best way to attack oral argument preparation. Over the course of the next week I would like to explore each of these steps in the preparation process.
As it relates to picking teams, I am only very familiar with the processes utilized at the school where I graduated and the school where I currently teach. When I was at Capital Law, students competed against each other in order to be selected for a team. More specifically, each competition had a tryout period for students to submit a brief and perform an oral argument before the selection committee (members of the moot court board and the faculty advisor(s)). The best competitors were then selected to compete on the respective teams. Since I have graduated, I hear they now have created a succession-planning process of sorts, where a moot court "fellow" will work with and travel with the team the first year and then has the opportunity to compete on the team or some other team in the subsequent year.
At ASL, we do not have fellows, but we do have student assistant coaches. These are students that perform admirably in oral and/or written advocacy and, with a little extra tutoring and observation of the process, will likely get a chance to actually compete the next year. While this process is similar to the fellows program, what we do that is different is that we mandate that students take AppAd before they can be considered for a team (the same is true for the assistant coaches). At the end of the semester, the students present their oral arguments, and moot court coaches usually observe these arguments in order to see the best advocates and decide, in consultation with the other coaches and the AppAd professors (to ascertain their brief writing skills), which students will receive moot court team invitations. The moot court board plays no role in the selection of advocates.
While our process has created some very competitive teams, there are some schools out there that seem to excel every year in moot court. Stetson Law immediately comes to mind. My understanding is that they have a faculty member who's sole job is to oversee the selection and coaching of the moot court teams. If this is accurate, that is dedication! Some schools let their moot court boards do the team selection and coaching. Some use adjuncts or law firm partners to select and coach the teams instead of full-time faculty, and some even pay their faculty for their time commitment with the selection and coaching process.
There are a lot of different ways to go about selecting competitive teams. I am curious to find out what some other schools are doing. I hope to get feedback from some of the readers.