Thursday, January 18, 2018
Appellate attorneys must choose not only the right arguments, but also the right moment for the argument. By that, I mean the right time in the world, and the right time in the brief. The idea of opportune moments draws upon a less-taught rhetorical concept, that of kairos.
In Greek myth, two spirits represented different aspects of time: Chronos and Kairos. Chronos, often depicted as an aged man, was the spirit representing the sequential and linear passage of time. Kairos, the spirit of opportune moments—of possibilities—is shown as a young man, floating on air in a circuitous path.  His wings and the long hair growing only out of his face and not on the top or back of his head, symbolizes the need for people to seize him as he approaches, but not after he passed by. In his whirling travel patterns, Kairos—unlike Chronos—may come around again. Thus, the concept of kairos in rhetoric centers on the “opportune moment.” It is the difference between “being in the right time and place” versus the idea that people cannot go backwards in time.
The “opportune moment” concept of kairos has been part of rhetoric since the time of Aristotle, who took the view that the moment in time in which an argument was delivered dictated the type of rhetorical devices that would be most effective. The sophists took a different view: Kairos is something to be manipulated by the presenter as part of adapting the audience’s interpretation of the current situation. Kairos assists in molding the persuasive message the speaker is communicating. Modern rhetoricians hold a middle view—that a presenter must be inventive and fluid because there can never be more than a contingent management of a present opportunity.
The Greek word kairos and its translation “opportune moment” embody two distinct concepts communicated through metaphors. The first concept, the derivation of the “right moment” half of the definition, is temporal. Greek mythology concentrated the spirit on the temporal. That is, the right time in the history of the world. For lawyers, that is important to know when making a policy argument. Is this the right moment in the trajectory of chronological time to make a particular policy argument. Will it persuade? Appellate attorneys who write civil rights and other impact-topic briefs will immediately understand what I am talking about. There is a right moment in history to make an argument. Some of the most important cases decided by the U.S. Supreme Court depended on the timing of the case—the kairos.
In an article about creating kairos at the Supreme Court, and published in the Journal of Appellate Practice and Process, Professor Linda Berger has written about the idea of kairos and suggests that temporal metaphors are still useful, because they help explain why today’s dissent in an opinion may become tomorrow’s majority decision. In her analysis, she demonstrates that what may look like a missed or lost opportunity to persuade may still have an impact. A snagged thread in the fabric of the law, which, at an opportune later time, can be pulled to unravel the existing fabric of the legal sky when the opportune moment comes around again.
But, the second half of the kairos definition—the opportunity—deals with the spatial. To seize the opportunity at the right time requires one to communicate in the right place and under the right circumstances. Rhetoricians commonly use visualizations of the penetrable openings needed for both the successful passage of the arrows of archery through loopholes in solid walls, and the productive shuttles of weaving through the warp yarns in fabric, as a way to describe the spatial aspect of kairos. Modern rhetoric takes these metaphors and elaborates, defining kairos as “a passing instant when an opening appears which must be driven through with force if success is to be achieved.”The idea is one of force and power.
For appellate attorneys, this represents the “where” an argument is placed in the internal whole of the document. The kairos of the legal writing. That depends, of course, on the overall narrative structure of the argument, the positions of emphasis in the beginnings and closings of sections and paragraphs, and the lasting imagery the writer wants the readers to walk away remembering. It is, as Professor Scott Fraley has noted in his Primer on Essential Classical Rhetoric for Practicing Attorneys, the idea that the writer understands the right moments “at which particular facts or arguments are inserted into the argument or presentation of the case.” He calls kairos, “the art of knowing when . . . to make the winning argument.” In other words, the strategic advocate spends time thinking about the persuasion of time.
 Some of this entry relies on language I wrote in an article on a different topic. Ruth Anne Robbins, Three 3Ls, Kairos, and the Civil Right to Counsel in Domestic Violence Cases, 2015 Mich. L. Rev. 1359 (2015). For the background on Kairos and kairos, I rely on these works: Carolyn R. Miller, Kairos in the Rhetoric of Science, in A Rhetoric of Doing: Essays on Written Discourse in Honor of James L. Kinneavy 310, 312–13 (Stephen P. Witte, Neil Nakadate & Roger D. Cherry eds., 1992); James Kinneavy & Catherine Eskin, Kairos in Aristotle’s Rhetoric, 17 Written Comm. 432, 436–38 (2000); and Eric Charles White, Kaironomia: on the Will-to-Invent 13–15 (1987).
 Francesco Salviati, Kairos (1552-1554) (fresco); picture courtesy of Wikimedia Commons, https://commons.wikimedia.org/wiki/File%3AFrancesco_Salviati_005-contrast-detail.jpg
Thursday, January 4, 2018
Extra! Extra! In a Post-Facts World, Facts Still Matter!
Yesterday, Slate published an important cover story written by Daniel Engber, LOL, Something Matters, in which he assures readers that facts still have power. In it, he outlines and reviews some of the scientific studies, old and new, that have analyzed the effects of presenting facts to counter false beliefs. There’s good news in the most recent studies. Facts do have an effect on debunking false information or myths.
The new science supporting the importance of factual persuasion, ironically has its own factual persuading to do. People who know a little bit about the science of managing adverse material typically rely on a small sample-size study conducted by Brendan Nyhan and Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions. Two years prior to its actualy publication, the study was written up in mass-consumption media as part of the 2008 election fever. The stories tended to make dire predictions that fact-checking news stories would end up rallying people to become more firmly entrenched in their beliefs in the falsehoods. This phenomenon was termed the “backfire” or “boomerang” effect. Oxford Dictionaries selected “post-facts” as the 2016 word of the year, based in part on these studies.
Graduate students at different universities became interested in the Nyhan-Riefler paper, and attempted to replicate them, to no avail. The new studies were 103 times larger than the studies done by Nyhan and Riefler. One set of graduate students used over 10,000 test-subjects and another graduate student group used almost 4,000. The data tended to show the opposite: none of the conditions resulted in any evidence that people adhered to their views when presented with facts that showed the opposite was true. Rather, the studies showed that the test-subjects were more likely to adapt their views to better fit the facts.
Rather than challenge the new science, essentially debunking theirs, the original scientists, Nyhan and Riefler collaborated with one of the other sets of researchers to conduct new studies. The foursome posted a 60-page article in the summer of 2017, The Effect of Information on Factual Beliefs and Candidate Favorability,  concluding that people are willing to update factual beliefs when presented with “counter-attitudinal informaton.” However, they further concluded that updated factual beliefs might have only minimal effects on attitudes towards a political candidate. The very creators of the backfire/boomerang effect have questioned—some might say debunked—their own previous work. And the Slate article has set out to help publicize the new studies. Facts still matter.
So, what does the appellate lawyer take from all of this? Well, two things. First: the new studies give credence to the idea that the better way to manage adverse material is to disclose and refute it, rather than ignore it. Kathy Stanchi, a Professor of Law at Temple University has advised this in her germinal article, Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy. As cited in Professor Stanchi’s article, other scientists have suggested ways to confront adverse material—to immediately refute it when mentioned.
Second, the wise appellate lawyer, turns to one of the resources that Daniel Engber cited in the Slate article, John Cook and Stephan Lewandowsky, The Debunking Handbook, available for free download (7 pages). The handbook offers an “Anatomy of an effective debunking” on page 6. The last of the advisory elements is to present information graphically, so I will end this blog post with a chart.
Elements, per handbook
Explanation in handbook
Refute by emphasizing the key facts. This will create a gap in the knowledge of the audience—a hole where the falsities used to take up space
This isn’t said in the text of the handbook, but the examples do mention a need for the key facts to present as a cohesive, alternative narrative.
Before mentioning the myth or falsehood, provide textual or visual cues that upcoming information is false
In legal writing-ese, this advice suggests that the writer mention the myth only after presenting the true facts. That gives the truth the position of emphasis in a subsection or paragraph.
Any gaps left by the debunking needs to be filled. Achieve this by providing an alternative causal explanation for why the myth is wrong (and perhaps why the falsities spread).
This isn’t said in the text of the handbook, but the examples do mention a need for alternative explanation to present as a cohesive, alternative narrative. In other words, story persuades. Stories are organizational scaffolds that present information as cause à effect
Core facts should be displayed graphically, if possible.
For lawyers, the legal reasoning may also be presented with infographics. But, not all infographics are useful infographics--some are merely decorative and others might be off-point. The writer must always balance the usefulness with the impact on persuasion. For more on this, see Steve Johansen and Ruth Anne Robbins, Art-icuating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, 20 Legal Writing 57 (2015).
 32 Political Behavior, 303 (2010). The study used 130 undergraduate students at a Catholic university. These students were split among four different modules. Id. at 312.
 Brendan Nyhan, Ethan Porter, Jason Reifler, and Thomas Wood, Taking Corrections Literally but not Seriously? The Effect of Information on Factual Beliefs and Candidate Favorability (June 29, 2017), available on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995128 (last accessed January 3, 2018).
 60 Rutgers L. Rev. 381 (2008).
 Id. at 390–92.
January 4, 2018 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)
Thursday, December 7, 2017
Professor Ken Chestek at the University of Wyoming College of Law has created two different empirical studies about persuasion and narrative, using judges as the test subject. For that rarity alone, his scholarship stands out as important for lawyers to read. In his most recent article, Fear and Loathing in Persuasive Writing, he asked the question of whether the “negativity bias,” known to psychologists, works with judges as well as it works with voters. The answer is the standard one you would expect from a lawyer, “it depends.” That the answer isn’t a definitive “no way,” should give us pause as advocates. Our intuitive answer that we naturally graviate towards the positive turns out to be the opposite of how our brains work. Rather, as Chestek writes, “we have a natural inclination to attend to and process negative stimuli.” Scientists posit that we retain negative information longer because the brain processes it more thoroughly—perhaps as a necessary adaption in evolution to keeping ourselves alive. He reviews the science of negativity and implications for lawyers in greater detail in another recent article, Of Reptiles and Velcro: The brain’s “negativity bias” and Persuasion
In his eighteen-month empirical study with 163 judicial readers, Chestek used a series of nine appellate brief preliminary statements to test the power of positive versus negative themes in a simulated case file. Four were positive, four were negative, and one was neutral. By themes, Chestek references George Lakoff’s formuation of “deep frames,” an idea Chestek wrote about in his other empirical study about judges and the persuasive power of story (You can read a snippet of George Lakoff’s framing concepts here).
Ultimately, Chestek’s concludes that the results don’t provide bright-line answers, but instead point towards complexity. Positive themes seem to focus the judges’ attention on the state of the governing law whereas negative themes focus their attention more on the nuances of the facts. He also found that negative themes work better for a David facing Goliath rather than vice versa.
This phenomenon has significant implications for written legal advoacy, starting with theme selection. That strategy should factor in the strength of the legal position or the facts. Second, the negativity bias might lead an advocate to phrase policy arguments in terms of avoiding bad outcomes instead of promoting good outcomes, since the judge may process the negative statement more thoroughly. And, finally, the negativity bias suggests that it is critically important to understand the negative facts of your client’s case and the ways they can or cannot be managed.
 For more on the persuasiveness of Preliminary Statements, see Steve Johansen’s article, Coming Attractions: An Essay on Movie Trailers and Preliminary Statements, and Maureen Johnson’s article, You Had Me at Hello: Examining the Impact of Powerful Introductory Emotional Hooks Set Forth in Appellate Briefs Filed in Recent Hotly Contested U.S. Supreme Court Decisions.
 Base photograph by Kenneth D. Chestek—photography is one of his hobbies.
Thursday, November 9, 2017
In a recently released Maryland Law Review article entitled Do Muddy Waters Shift Burdens?, Professors Carrie Sperling and Kimberly Holst walk readers through the history of what was supposed to be one of the country’s most progressive laws allowing post-conviction DNA testing for inmates whose cases did not originally involved that type of evidence. Article 64.03 in the Texas Code of Criminal Procedure created a uniform process for inmates to petition courts for testing, asking inmates to show, “a reasonable probability that he or she would not have been prosecuted or convicted if DNA testing had provided exculpatory results.”Criminal attorneys will recognize the “reasonable probability” test as a well-established standard that courts interpret as a probability that sufficiently undermines confidence in the case’s result.
Nevertheless, Texas courts have latched onto a metaphor introduced by the Texas Court of Criminal appeals a few years after the statute was enacted. That court first found ambiguity in the standard despite its years of interpretation in other contexts. Instead, that court held, the standard must be interpreted to require inmates to show, with reasonable probability, that the DNA testing would prove a convicted person’s innocence. The defendant in the case did not meet that burden, but showed only that DNA testing would “merely muddy the waters.” Despite the Texas Legislature returning to the statute to clarify its intent, Professors Sperling and Holst found that courts continue to use the metaphor as a statement of the governing rule of law.
Doctrinal metaphors abound in our case precedents. The most famous are found in evidentiary analysis, “fruit of the poisonous tree,” and in civil procedure, “long-arm” statutes. Many doctrinal metaphors are extremely useful in helping frame our thinking about more abstract principles. But, in the situation spotlighted by these two professors, a doctrinal metaphor might be harmful or even a misstatement of the law. What should a lawyer do in that situation?
The answer lies in part in a separate article, this one published by the Mercer Law Review and republished in a monograph, written by Professor Michael Smith, Levels of Metaphor in Persuasive Writing. In that article, Professor Smith advises attorneys to challenge the metaphor directly, a strategy he calls the Cardozo Attack. Justice (then Judge) Cardozo warned other jurists that creative metaphors involved with corporate law, “piercing the corporate veil,” should be used only very carefully and not to the exclusion of more accurate, albeit literal, language. Professor Smith’s article details two examples of successful attacks on doctrinal metaphors.
Both articles spend some time explaining the cognition of metaphor use, which is reason enough to read these two pieces. Beyond that, the articles offer an important lesson for appellate attorneys. First, we must be aware of the notion that metaphoric language is just that: a comparison of two seemingly incongruent things to help readers form connections. By themselves, doctrinal metaphors do not necessarily form the backbone of substantive law. Second, we should spend time in our lawyering process unpacking these metaphors in the event that they conflict with the actual and governing tests. In the event they do, it is incumbent upon us, as part of our client representation, to address the metaphor itself as part of a persuasive argument chain.
Thursday, October 26, 2017
What is the narrative climax in the Little Red Riding Hood fable? When the wolf eats Little Red. But what is the visual impact moment? The image you think about when you recall the story? That’s
probably different. It’s either an image of a little girl in a red cape, walking through the woods or it’s the moment when Little Red first sees the wolf in Granny’s bed, wearing Granny’s nightclothes. The visual impact moment can be different from the story’s climax.
Jason Eyster writes about visual impact moments in one of my all-time favorite articles in the Applied Legal Storytelling canon. His article, The Lawyer as Artist, in Vol. 14 of the Journal of Legal Writing, explores the use of scene and setting as a persuasive tool for legal writers. This article is creative, and always fresh. It is one that I re-read and think about at least once or twice a year. The idea of the setting isn’t often discussed in the persuasion literature, but, as Eyster argues, can create lingering impressions. The legal writer who takes time during a description to linger on choice details will make the scene “pop” for the reader those visual images will provoke a natural, emotional response. The visual impact scene need not be the climax, but should connect to the case theme. If you can connect it to the theory of the case, all the better.
So, how do you do it? Eyster offers one idea: the obtuse object. That is something unexpected or incongruous with a scene that draws in the reader through a natural curiosity. In one of his examples, an asylum case, the legal writer zeroes in the description of his client, sitting in her former home and eating a pomegranate just before hearing a sinister knock on her door—one that results in her being dragged away by militia in her country. The simple mention of the pomegranate serves to draw the reader into the scene. It evokes the famous Persephone myth of a young woman dragged into hell while her mother tries to have her released. The scene is made all the more emotional for its layers of meaning.
Think about the scene in your client’s case that you hope the judicial panel will likewise remember when they put down the brief. Is it the scene you want? If it’s the same scene your opponent might choose, think of another one. If it is the scene you want, have you chosen some memorable detail to describe—an action, an object, a character, or the setting itself. Describe it with a name, sensory information, its function, its history, or a metaphor. Things like this put joy and art into the job of legal writing.
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.
Monday, March 20, 2017
As a moot court coach, I teach my students to not use disfluencies like "um" or "uh" in their oral arguments. According to Prof. Barbara Gotthelf's article, A Lawyer's Guide to Um, my dislike of these disfluencies is not unique, but it might be wrong. After hearing a moot court judge critique an advocate for her use of "uh" and "um," Prof. Gotthelf "began consulting books on public speaking, including texts written specifically for lawyers, and they all gave the impression that using uh and um might be the single worst thing any speaker could do." Having previously heard from a psycholinguist that "using uh and um was not only 'perfectly normal,' but also helpful in furthering effective communication," Prof. Gotthelf dug even further into the literature and found "a body of scientific literature that supports Dr. Shriberg’s views and demonstrates that, contrary to public perception, uh and um are not only inevitable, but actually useful bits of communication."
Prof. Gotthelf's response to the "um fixation" is expressed in the article, which was published by Legal Communication & Rhetoric: JALWD and is available here. I haven't had a chance to review it in depth, but I look forward to doing so soon (at least in advance of the below event).
In addition to publishing the article, Legal Communication & Rhetoric: JALWD is holding a live Facebook discussion of the article. Below is the announcement that I received regarding the event. I am sure that it will be, uh, a great discussion.
Gearing up for spring oral argument competitions? Join Legal Communication & Rhetoric: JALWD for a live Facebook chat-based discussion of Professor Barbara Gotthelf’s article, The Lawyer’s Guide to Um. This article about disfluencies like “um” and “uh” should be of particular interest to moot court advisors, practitioners, law students, and anyone who teaches oral argument. Should verbal fillers be vilified? Read the article and come weigh in!
The chat will take place on Thursday, April 6 at 3pm Eastern. Professor Jennifer Romig of Emery University School of Law will moderate. To participate in the discussion, join the LC&R Discussion Group here: https://www.facebook.com/groups/304595676586667/. You may join at any time in advance of the chat. When you join, you can check out the archives of our previous discussions.
Professor Gotthelf’s article can be found here on the Journal’s website: http://www.alwd.org/wp-content/uploads/2014/09/01-Gotthelf_Web.pdf
The Group invites participation by lawyers, law professors, professors from communications and other fields, legal professionals, law students, and anyone with an interest in law and legal communication. It is a forum for the free exchange of ideas with civility and mutual respect.
Thursday, May 7, 2015
Of interest on the topic of writing...
First, Bryan Garner has a column on the ABA Online, "First impressions endure, even in brief writing." In it, Garner makes use of social science research and the work of Nobel laureate Daniel Kahneman to support three basic principles regarding good (legal) writing: "(1) little errors in a brief betoken bigger mistakes, (2) less is more, and (3) good briefs demand little physical or mental effort from the reader." While the advice isn't novel, the use of psychology and economic principles to support these ideas may be compelling to some readers.
Second, in a similar vein, "10 top writing tips and the psychology behind them," offers ten discrete pieces of writing advice and discusses why it matters, why we often fail to heed the advice, and how to fix our processes to follow that advice more consistency. The advice is mostly applicable to legal writing and the format, which tries to pull back the curtain on why we make the errors we do, is especially helpful.
Third, some amazing filings: dismissal of a complaint filed in D. Nebraska against "Homosexuals" and a filed in N.D. Georgia, a "Notice to F*ck this Court and Everything It Stands For."
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.
Friday, May 16, 2014
Last week I posted about Savannah High School’s moot court reenactment of the Brown v. Board case. After participating in that event as a judge, I became curious about whether other high schools participated in appellate advocacy training. Of course, high school debate and mock trial are pretty common, but I had not yet seen any high school programs that focused on appellate advocacy.
In my research, I came to discover that American University Washington College of Law hosts an annual high school moot court competition. In preparation for competition, high school students study a problem comprised of judicial opinions, the party briefs, case law, and articles. Over the course of two days in the Spring, students present oral arguments on the issues presented by the moot court problem. The competition is open to all students, even those who are home schooled, and there is no requirement of prior experience with moot court or mock trial.
This type of program is positioned to impart a number of skills upon the students. Aside from the obvious ones like poise and public speaking, the studying of cases and defending a position through oral expository argument engages the brain in sophisticated problem-solving thought processes. Furthermore, asking young students to contemplate social justice issues and policy concerns in the context of legal precedent creates opportunities to ignite passion for the law and respect for its power.
I know many attorneys and academics seek opportunities to give back to their communities. Partnering with a high school to train students for appellate advocacy is an excellent way to give back by passing along attorney-specific knowledge to a younger generation.
Tuesday, May 6, 2014
I was recently asked to participate as a judge in a high school “moot trial” competition amongst three of our local high schools. I was intrigued by the notion of a high school “moot trial,” so I of course began asking questions about the event.
It turns out the students had been studying Brown v. Board of Education, and our local Board of Education wanted to host a capstone event to celebrate that study. What they really wanted was to host a debate on the issues in Brown, and I think they really meant moot court, not moot trial. While it was a good idea, the implementation became problematic as the organizers, who were not lawyers, could not understand the full vision or magnitude of the task assigned to the students. After some conversation with me and other professors, however, the vision narrowed to a more manageable scope for the students. In the end, the students basically reconstructed the oral arguments from Brown and delivered them in a moot court style.
I have to admit, I was skeptical going in about the ability of the students to grasp the issues without having had any formal guidance or legal training. The students, however, were nothing short of amazing. Don’t get me wrong—they aren’t ready to argue at the Supreme Court, but these students showed great potential as blossoming appellate advocates. They were poised, confident, thoughtful, and prepared. Until hearing them, I would have thought it unproductive to use Supreme Court precedent in this fashion at the high school level. Surely high schoolers are not open to learning about important historical developments in our law through the reading of the actual cases and briefs, right? Now, though, I see a number of opportunities for awakening social justice issues by engaging in brief studies of major Supreme Court decisions, and I think the context of the cases and briefs is exactly what the students need to stimulate a desire to learn and understand the issues of the day.
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
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.
Friday, January 17, 2014
Earlier this week, Lyle Denniston reported and Josh Blackman commented on Tuesday's Supreme Court oral argument in Marvin Brandt Revocable Trust v. United States. Apparently, there was a "are you talkin' reading to me?" moment between Justice Scalia and one of the advocates. Steven J. Lechner, the lawyer for the trust, had barely begun his argument when Justice Scalia interrupted him to brusquely ask: "Counsel, you are not reading this, are you?" Lechner didn't immediately answer, and Justice Breyer intervened, commenting, "It's all right." Lechner continued his argument and no further mention was made of the issue, though Denniston suggests Lechner was understandably somewhat faltering in the rest of his argument, likely on account of this rough start.
Blackman regards this comment by Scalia as a "dick move," and others proposed we give Mr. Lechner a break. Inversecondemnation suggested:
You know, we've all been there in some venue, haven't we? We're all not übermensch Supreme Court litigators who can do this without a net and who have the stones to go to the lectern sans notes. Heck, we won't even go down to muni court naked (so to speak). Especially when what's at stake is the language in an otherwise obscure 1875 federal statute, where it's important to get the language just so.
The blogosphere and twitterverse were awash in comments, some facepalming at Lechner's reading, some Scalia-blaming, and some genuine sympathy for Mr. Lechner. These all seem appropriate reactions. It's widely known and probably universally taught that judges, at any level, do not appreciate being read to by counsel. Advocates in every legal writing program and moot court organization across the country are taught not to read from a prepared text except when necessary to quote some legally relevant text. The Supreme Court actually has a rule, Rule 28, stating: "Oral argument read from a prepared text is not favored." Similarly, Federal Rule of Appellate Procudure 34(c) states: "Counsel must not read at length from briefs, records, or authorities."
And yet, Scalia could have acheived the goal of taking the advocate off his notes with a substantive question or at least allowed the advocate a bit more time to move to extemporaneous commentary. The man was still giving his introduction, after all. Finally, I, for one, sympathize with Mr. Lechner, not just for the discomfort caused by Justice Scalia's comment but also because of the extensive media commentary that followed, dubbing it, at best, an embarrassing moment.
What can advocates learn from this experience? Well, obviously, that the Supreme Court, or at least some members, have no tolerance for reading prepared statements. And, appellate rules forbid, or at least discourage, reading from prepared texts at the lectern. But more generally, that the instruction to avoid reading to the court is not just something your legal writing or trial ad professor tells you to make your life more difficult. Reading at length to the court is ineffective in building a rapport with the bench, but it also violates a very deeply-rooted tradition about how oral arguments are conducted.
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.