Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Wednesday, January 29, 2014

A Nice "Questions Presented" Rubric

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)

January 29, 2014 in Appellate Advocacy, Appellate Practice, Law School, Legal Writing | Permalink | Comments (0)

Monday, January 27, 2014

Bock on Restructuring the Federal Circuit

Jeremy W. Bock, Assistant Professor of Law at the University of Memphis, Cecil C. Humphreys School of Law has a new paper up on SSRN, Restructuring the Federal Circuit. The abstract:

The de facto steward of U.S. patent law is the United States Court of
Appeals for the Federal Circuit, which is the exclusive appellate venue for
patent cases. As the perceived importance of the patent system has steadily
increased since the court’s formation in 1982, the Federal Circuit’s
performance has been closely followed by an ever-expanding group of
practitioners, academics, and other interested observers, who have not been
shy about pointing out the court’s deficiencies. Common complaints about
the Federal Circuit’s case law and the quality of its decision-making
include: panel-dependency, formalism, indeterminacy, and the over- or
under-enforcement of certain doctrines. The academic literature offers a
variety of proposals for remedying or compensating for the Federal
Circuit’s perceived shortcomings, such as having specialized patent trial
judges, expanding the number of circuit courts that hear patent appeals,
and modifying the Federal Circuit’s jurisdiction.

Compared to existing proposals, this Article takes a different approach
to analyzing the Federal Circuit’s problems by focusing primarily on the
judges themselves and their adjudicatory environment. Lessons from
cognitive psychology, management science, and the literature on judicial
behavior suggest that many of the complaints about the court are
potentially grounded in, or at least aggravated by, the expertise developed
by the judges and the internal dynamics of the court, which may adversely
affect the Federal Circuit’s ability to reconsider its precedents in a timely
manner. This Article explores how the Federal Circuit, in its current form,
may have difficulty self-correcting, and proposes that a solution may lie in
staffing the Federal Circuit with only district judges who serve staggered
terms of limited duration.

As an appellate court with specialized subject matter jurisdiction and an interesting mandate (create uniformity in the nation's patent law), the Federal Circuit occupies a unique position in our federal judiciary. It is also a rather recent creation, an early 1980s merger of the Court of Customs and Patent Appeals and the appellate division of the Court of Claims.  As such, it is subject to considerable scrutiny and criticism, much of it regarding whether the court is working properly.  Bock's article examines the Federal Circuit's operations through the lens of cognitive psychology and organizational behavior, and he offers an interesting proposal for reform.

January 27, 2014 in Appellate Court Reform, Appellate Justice, Federal Appeals Courts | Permalink | Comments (0)

Sunday, January 26, 2014

Moot Court Teams- Preparing For Oral Argument

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.  

January 26, 2014 in Law School, Moot Court, Oral Argument | Permalink | Comments (1)

Friday, January 24, 2014

"Questions Presented" to the Supreme Court

After my and Tonya's original posts on drafting questions presented, I asked a research assistant to pull all of the questions presented from the merits briefs filed with the Supreme Court during its 2012 term.  Basically, I wanted to see what types of QPs parties are submitting to the Court (at least during that limited time frame).

Overall, parties filed 170 merits briefs during the 2012 term.  That number includes only the initial merits briefs filed by petitioners and respondents.  Here’s a summary of some of the things I found:

  • I broke the QPs into two basic categories: (1) single-sentence QPs; and (2) deep-issue QPs.  “Single-sentence QPs” are exactly what they sound like.  “Deep issue QPs” are QPs that (a) start with facts, law, or facts and law, (b) then pose the question the court is being asked to answer. In this very basic breakdown, 113 of the briefs had single-sentence QPs, 55 had deep-issue QPs, and 2 had no QPs at all. 
  • For the deep-issue QPs, most resembled the examples found in Gressman et al.’s Supreme Court Practice.  Specifically, they included (1) an introductory paragraph that summarized the important facts, law, or facts and law, (2) after the intro paragraph, the statement “The questions presented are:”, and (3) the questions the court was being asked to answer, usually in the “whether” format.  Here’s an example from the petitioner’s brief in American Trucking Associations v. City of Los Angeles:

Title 49 U.S.C. § 14501(c)(1), originally enacted as a provision of the Federal Aviation Administration Authorization Act of 1994, provides that “a State [or] political subdivision…may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier…with respect to the transportation of property.”  It contains an exception providing that the express preemption clause “shall not restrict the safety, regulatory authority of a State with respect to motor vehicles.”  The questions presented are:

  1. Whether an unexpressed “market participant” exception exists in Section 14501(c)(1) and permits a municipal governmental entity to take action that conflicts with the express preemption clause, occurs in a market in which the municipal entity does not participate, and is unconnected with any interest in the efficient procurement of services.
  2. Whether permitting a  municipal governmental entity to bar federally licensed motor carriers from access to a port operates as a partial suspension of the motor carriers’ federal registration, in violation of Castle v. Hayes Freight Lines, Inc., 348 U.S. 61 (1954).
  • For the single-sentence QPs, the overwhelming majority were “whether” questions (some started with “does” or “under”).  Also, I attempted to break the single-sentence QPs into “short, neutral” and “short, aggressive” categories (based on the categories in Noah Messing’s The Art of Advocacy).  My attempt here was admittedly unscientific, but I think my categorizations were fairly accurate.  Overall, I put 53 of the 113 in the “short, aggressive” category and the remaining 60 in the “short, neutral” category.  
  • In 8 of the 77 cases heard by the court in the 2012 term, the parties submitted identical QPs.   
  • Consider this a footnote:  I mentioned above that I pulled all of the QPs from the merits briefs.  There were a handful of exceptions where I had to look to the cert petition or to the response to the cert petition to get a party’s QP.  In other words, sometimes a party would include a QP in the cert petition or response to a cert petition, but not in the merits brief.    

January 24, 2014 | Permalink | Comments (0)

Thursday, January 23, 2014

Streamlining Longer Issue Statements

Multi-blade_scissors (1)It's time to round out our short series on "multisentence" or "deep" issue statements. Previously, I looked at how to use longer issue statements to frame the issue, as well as how to achieve more objectivity by balancing the factual context both for and against the client. Thomas Burch also weighed the overall pros and cons of the deep issue method.

Below, an otherwise good example shows us where we can eliminate some extra baggage for a more streamlined statement that highlights the client's problem, rather than several distracting, low-priority details. This post continues using the recent contraceptive health care coverage cases from the Seventh Circuit. Once again, the examples come from the employers' briefs because most of the Justice Department briefs used simpler, "whether"-style issue statements.

Before streamlining

Federal regulations enacted pursuant to the Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (March 23, 2010) (hereafter “the Affordable Care Act”) require many employers, under pain of penalty, to include in their employee health benefit plans coverage for contraceptives, including abortion-inducing drugs, sterilization, and related patient education and counseling (hereafter “the Mandate”). Plaintiffs Cyril and Jane Korte own the controlling interest in Plaintiff K & L Contractors, Inc. (hereafter “K&L”). Plaintiffs' Catholic religious beliefs specifically forbid them from paying for or providing these products and services, directly or indirectly, as the challenged Mandate requires them to do. The district court denied Plaintiffs' motion for a preliminary injunction, and a motions panel of this Court thereafter granted Plaintiffs' emergency motion for an injunction pending appeal. App. 23, 28. The issues presented are: [134 words; proceeding list of "whether" statements omitted].

After streamlining:

Federal regulations enacted pursuant to [enforcing] the Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (March 23, 2010) (hereafter “the Affordable Care Act”) require many employers, under pain of penalty, to include in their employee health benefit plans coverage for contraceptives, including abortion-inducing drugs, sterilization, and related patient education and counseling (hereafter “the Mandate”). Plaintiffs Cyril and Jane Korte own the controlling interest in Plaintiff K & L Contractors, Inc. (hereafter “K&L”). Plaintiffs' Catholic religious beliefs specifically forbid them from paying for or providing these products and services, directly or indirectly, as the challenged Mandate requires them to do. The district court denied Plaintiffs' motion for a preliminary injunction, and a motions panel of this Court thereafter granted Plaintiffs' emergency motion for an injunction pending appeal. App. 23, 28. The issues presented are: [72 words; proceeding list of "whether" statements omitted].

In the "after" example, I've eliminated the following types of information:

  1. Longer prepositional phrases such as "pursuant to," where a simple preposition such as "under"--or a better verb--would convey the same meaning
  2. Full, formal names of statutes when the act is easily recognized by a shorter name
  3. Legal citations and record citations that the judicial reader knows will be provided shortly in the sections to come
  4. "Hereafter + short name" parentheticals. The "hereafter" parenthetical is sorely overused in almost all legal writing. The device simply is not needed when there is no real chance the reader would mistake the short name for a different concept, entity, or party.
  5. Redundant or implicit concepts: here, that a federal statute mandating certain activity also does so under "pain of penalty," and "as required." (If the writer wishes to emphasize the penalty, it will normally be better to state factually what the penalty is, and to let the reader form her own impression that the consequence is too harsh.)
  6. Procedural history that is already clear from the preceding jurisdictional statement and that is not central to the main issues under review.

Source: Cyril B. Korte, et al., Plaintiffs-Appellants, v. United States Department of Health and Human Services, et al., Defendants-Appellees., 2013 WL 431686 (C.A.7), 3-4

Image: Wikimedia Commons

January 23, 2014 | Permalink | Comments (0)

Wednesday, January 22, 2014

Should You Use Trial Or Appellate Counsel?

Which person is best-suited to handle an appeal, the original trial attorney or a specially-retained appellate attorney?  Arguments can certainly be made for either.

The obvious benefit for the trial attorney handling the appeal is his/her intimate familiarity with the client and the facts of the case.  having likely been involved with the case for many months, if not years, this person is most likely to know the facts better than anyone besides the client.  This person will also have a good understanding regarding how those facts intertwine with the prevailing law. 

However, there is something to be said about having an appellate attorney handle the case.  After all, this person is intimately familiar with the procedural nuances of appellate advocacy and is more likely to develop a better brief and present an oral argument in the style and fashion that the bench desires.  Indeed, this attorney likely knows the judges and their idiosyncrasies very well given his/her repeated appearances before the court.  This familiarity may help the attorney get the benefit of the doubt in close-call cases.  Credibility before the court can be very persuasive.

During my days practicing before the court, both the defense firm I worked for and also my sole practice I started shortly thereafter utilized the same attorney for both trial and appellate work.  While I am not sure why the defense firm decided this was the best route, I did it primarily because I tended to believe I would be competent enough to handle the appeals work as well.  Not wanting to pay or share proceeds with an appellate attorney probably played a role in my decision-making as well.  I am somewhat of a cheapskate. 

Overtime, I have started to change my thinking, and after I started teaching appellate advocacy I developed a greater appreciation for the specialization needed to be effective at appellate advocacy.  While a trial attorney certainly "could" handle the appeal, a competent appellate attorney may be a better option.  Not only does it free up the trial attorney to work on other matters, it also alleviates the urge to simple reformat the motion(s) filed before the trial court and submit a substantially similar document on appeal (of course, renaming it a "brief").  Also, an appellate attorney can look at the facts with fresh eyes and may see a flawed approach or develop an alternative strategy to make the argument more persuasive. 

To see more analysis on the topic, check out the California Blog of Appeal.

 

January 22, 2014 in Appellate Advocacy, Appellate Practice, Legal Writing, Oral Argument | Permalink | Comments (0)

Sunday, January 19, 2014

Moot Court Teams - Writing The Brief

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.  

January 19, 2014 in Law School, Moot Court | Permalink | Comments (0)

Friday, January 17, 2014

Your Theory of the Case . . . in Six Words?


Six_One of the biggest challenges in appellate writing (or any legal writing) is the task of communicating complex legal positions in simple and motivational terms. Does the idea of encapsulating your client's case theory in just six words sound impossible? Maybe not, according to lawyers who have been inspired by the idea of thesix-word memoir to adapt the challenge to legal writing. 

California attorney Laura Wystma one handled a case involving the rights of publicity regarding Marilyn Monroe. She took up the six-word challenge. Her capsule case theory? "Marilyn Monroe belongs to the world." She won that long battle.

Hamline law professor Mary Dunnewold introduced her legal writing students to the six-word case theory challenge by having them compose their own six-word 1L "memoirs." The funny and sometimes poignant results can be found in her essay about the experience. One fun example: "Studied battery all week. Mugged Friday." Other professors have carried the exercise into their own classrooms. Debra Cassens Weiss recently blogged about Marquette law professor Lisa Mazzie's experience using the exercise. One of Professor Mazzie's students offered: "The Framers should’ve been more specific." Many can empathize.

Next time you find yourself crafting a case theory, consider taking up the six-word challenge.

Hat tip: Lisa Mazzie, in a post to the Legal Writing Institute's listserv. In her post, she adds this gem: "Helen Palsgraf shouldn't have stood there."

Image: Wikimedia Commons

 

 

January 17, 2014 | Permalink | Comments (2)

Reading (to) the Court

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.

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. - See more at: http://www.inversecondemnation.com/inversecondemnation/2014/01/transcript-in-brandt-pay-attention-in-property-i-.html#sthash.rJNMPLBx.dpuf
ou 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. - See more at: http://www.inversecondemnation.com/inversecondemnation/2014/01/transcript-in-brandt-pay-attention-in-property-i-.html#sthash.rJNMPLBx.dpuf

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.

 

January 17, 2014 in Appellate Advocacy, Legal Profession, Legal Writing, Moot Court, Rhetoric, United States Supreme Court | Permalink | Comments (1)

Tuesday, January 14, 2014

The New FRAP 28's "Rulings Presented for Review"

ErrorThis post continues our short series on the new, unified statement of the case under FRAP 28. For readers who are a little new to appellate practice, the third component may seem a bit vague. In addition to facts and procedural history, a contemporary statement of the case must also "identify[ ] the rulings presented for review, with appropriate references to the record." The advisory committee notes to Rule 28 do not explain the requirement further.

I'd be curious to hear others' thoughts on this requirement, but my assumption is that it is similar to the necessity in several state appellate courts to enumerate assignments of error--every ruling by the trial court argued to be erroneous and to justify some relief on appeal. In some of those states, the assignments of error are sometimes referred to as "jurisdictional" in the sense of preservation: the court can only grant relief for errors that are assigned (explicitly listed). The language used in the new FRAP 28 does not seem to go that far, but advocates would be wise to cautiously preserve each error in this section and to cross-check the list against arguments raised in the brief.

For advice from state appellate courts and practititioners with the more stringent assignments of error requirement, see the following sources from Washington and Virginia.

Photo: Wikimedia Commons

January 14, 2014 | Permalink | Comments (2)

Sunday, January 12, 2014

Selecting Moot Court Teams

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.

January 12, 2014 in Law School, Moot Court | Permalink | Comments (0)

Tuesday, January 7, 2014

Writing Better Briefs

The January 2014 edition of the ABA Journal includes an interesting article by Bryan Garner titled The Tyranny of Typewriters.  This interesting piece discusses, as the subtitle states, 4 vignettes that lead to a single moral about writing better briefs.  Mr. Garner provides four (4) examples of how stubborness to do things "how they have always been done" leads to a less-than-optimal final written product.  

First he attacks the age-old desire of attorneys, due sometimes to court rules, to use Courier font.  While this might have offered advantages in the typewriter days, he posits that it no longer makes sense with the functionality of today's computers and digital print capacities.  As an example of suspect thinking when it comes to brief writing, Mr. Garner offers a story of a past supervising attorney that told him to use Courier because "...we would not want the court to think we took any pains in making the brief look attractive...We should win on our arguments, not pretty pages."  

Hmmmm, I am sure those pretty pages matter as much, if not more, than the oral advocacy that                 follows the submission of the brief.

Mr Garner then transitions into a discussion about the change in writing from putting two spaces after a period (in-between sentences) to only one space.  I have never heard of this, and if you look at this blog post you will see that apparently I am resisting this proposition.   Next, he discusses his consulting role in the proposed changes to FRAP 32 and how, in spite of expert recommendations, there was strong resistance to transitioning the language of the rule from requiring monospaced fonts to allowing for more reader-friendly proportional serif fonts.  Lastly, he offers a brief discussion on mumpsimus, defined as one who continues perpetrating a clear error even after irrefutable correction.  Perhaps this is something which many lawyers and legal writers suffer. 

The article concludes by suggesting a source to assist lawyers with writing, Typography for Lawyers.   As a teaser, it also provides a few examples of "backward conventions" in briefs, such as:

  • Overuse of all-caps
  • Not putting ample space above and below headings for added emphasis
  • Underlining headings that should merely be boldface

Of course, as the author concedes, there is much room for debate on the stylistic best practices of briefs.  You should check out the article and see if it motivates you to change some antiquated ways.

January 7, 2014 in Appellate Advocacy, Appellate Practice, Legal Writing | Permalink | Comments (0)

Monday, January 6, 2014

Plain and Not-So Plain Language in the Indian Courts

An interesting article in the NYT International Edition last month noted an ebb and flow in the use of plain and not-so plain language in decisions of Indian Courts.  Author Dilip D'Souza notes that "enigmatic language" seems to be common in recent decisions, a contrast to the plain language used in the 1950s.

Compare:

"[They] were bludgeoned and thereafter jugulated to death. [T]here is nothing to suggest that intruder(s) perpetrated this fiendish and flagitious crime. Dr. Rajesh Talwar delated the matter with the Police Station.”

with

"'Public safety' ordinarily means security of the public or their freedom from danger. … The meaning of the expression must, however, vary according to the context. … [It] may well mean securing the public against rash driving on a public way and the like, and not necessarily the security of the State."

The former passage's use of words seems designed to obscure the meaning of the passage or, at best, to emphasize the superior vocabulary of the writer at the expense of clarity. The NYT article notes that since the 1950s Indian jurisprudence has increased in excessive, obscure language that is hard to follow and unclear, despite the technically proper use of words. D. Souza suspects these opinions are written with the "intensive use of thesaurii."

Still, some recent decisions provide a ray of hope, evidence that at least some recent decisions are being written in direct, readable prose. Are these mere exceptions to the widespread practice of obscure overwriting or are they evidence of a growing, new plain language approach? Are some of the twenty-one Indian High Courts more or less prone to the thesaurus-diving style? Is the Indian Supreme Court? What is the trend regarding language use in each of these courts? Is this manner of florid writing common in briefs to the court as well as judicial opinions?

As much as I'd like to know the answer, the sheer volume of Indian cases (a 2010 study found over 31 million pending cases and a clearance rate of about 100,000 cases per year) seems to make any systematic study extremely challenging, even if one had access. Still, the sharp contrast between the plain and not-so plain language cries out for investigation. Perhaps in the meantime, readers familiar with Indian courts might provide their anecdotal experiences?

January 6, 2014 | Permalink | Comments (2)

Saturday, January 4, 2014

Organization Helps Human Rights Lawyers in Danger

128px-Cela (2)

This week, The Guardian reports on efforts to protect lawyers around the world who are threatened with jail, disappearance, or even death for doing important work in the public interest. The UK organization featured in the report, Alliance for Lawyers at Risk, is seeking volunteers. The Alliance is a unit of Peace Brigades International, which provides unarmed protection for human rights workers around the world through nonviolent strategies, such as building political networks.

Photo: Wikimedia Commons

January 4, 2014 | Permalink | Comments (0)

UK Supreme Court Steps Up Internet Presence

Th398px-Middlesex_Guildhall_1e Supreme Court of the United Kingdom has been in the news this week for two administrative moves that bring it closer to the public it serves.

First, the Court won a long struggle to obtain an independent URL for its website. The current address, supremecourt.gov.uk, arguably suggests the court was just one department of the goverment, particularly because some other important agencies and branches already had URLs that did not require the "gov" level of domain. The new one, supremecourt.uk, will highlight its status as an independent branch. In the U.S., the Supreme Court's web address is supremecourt.gov, but other, equal branches of government use the same configuration, such as whitehouse.gov.

Second, the Court launched a new YouTube channel for announcements of new opinions. The move has been met with praise and questions about whether full video of hearings should also be made easily accessible to the public. The Court already streams its hearings live on SkyNews. In contrast, the U.S. Supreme Court provides audio recordings and transcripts, which can be streamed simultaneously on Oyez.org.

Photo: Wikimedia Commons

January 4, 2014 | Permalink | Comments (0)