Monday, May 13, 2019
Getting started on any task can be tough. For a first-time appellate brief writer, getting from a blank screen to a completed brief may seem nearly impossible. My current series of blog posts (beginning with Questions Presented here), aims to compile good appellate advocacy and legal writing advice for briefs and then frame it with moot court particularly in mind.
Today’s post deals mostly with process: starting at the beginning, but with the end in mind. What is the goal for the final moot court brief? A polished, professional, persuasive product that fully addresses the issues presented in the problem. As I mentioned in the Question Presented post, find the relevant competition’s score sheet if available, and use it as a guide. Reviewing past winning briefs is also very helpful. It pays off to spend some time gathering resources.
Often after moot court briefs have been submitted, I have reviewed them with students. Many miss the mark. There are any number of things that can go wrong, but common themes of lacking briefs revolve around procrastination and bad process. Things veered off track early, and the final product suffered as a result. Here are three categories of advice for starting a moot court brief well, compiled from prior Appellate Advocacy posts and my own experience.
1. Organize and Focus the Research
Unlike real-world appellate practice, moot court students start off with the record compiled, issues identified, and a head start on some of the relevant authorities, which are given in the decisions below. After reading the problem carefully, create a folder with all of the cases in the problem and read them all. Typically, only a small number of the important cases are given, so expand the research using secondary sources and citators. DO NOT JUST USE THE GIVEN AUTHORITIES UNLESS IT IS A CLOSED UNIVERSE PROBLEM. A well-written brief will have a breadth of authority and be well-supported.
Also, read and re-read the issues certified for appeal. Stay focused on those issues (see tip #3). If the problem is well-written, there will be authorities and facts on both sides of the issue. Find a system that works to organize the material and dig in. Once ready to write, find and fill holes using good outlining techniques. I will address the argument organization more in another post.
2. Conquer Procrastination
Many of the issues I see with student briefs can be traced to procrastination. When tables are generated in the middle of the night before the brief is due, it can get ugly fast. Sloppy writing, thin research, and mechanical errors all get blamed on running out of time. These are also some of the easiest points to lose from a brief grader. This post on productivity hacks gives great tools and advice for writing, including a step-by-step drafting plan. I agree that breaking the brief into smaller bite-sized can help make it more manageable.
Adding interim deadlines beyond the competition deadline can also help. Teams should meet and agree on dates to finish particular tasks for the brief. These internal deadlines help spread the workload over time. For some students, external deadlines are most motivating. When I directed a moot court program, I required teams to submit the final brief to me in a sealed manila envelope 48 hours before the competition deadline. I did not give them feedback, as that would violate most competition rules. The purpose of the requirement was solely to force them to have the brief completed in time to do real editing.
3. Play the Game
I encourage my students to try to look behind the problem. What was the problem writer trying to focus attention on? What is the focus of the opinions below? What facts are present and what legal tests utilize those facts? My advice is to focus on those things. I call this “playing the game.” Besides arguing both sides, this is one of the biggest differences I see between moot court and real-world appellate advocacy.
As much as problem writers try to foresee every issue that teams will see, occasionally they do not. In rare instances, students might find issues (or think they have found issues) that could strip the appellate court of jurisdiction or moot the entire case. This is a problem writer’s worst nightmare. If those issues are not certified for appeal, it’s likely the problem writer did not foresee them. I applaud students who spot those issues, and of course, they are critically important in appellate advocacy. The problem writer, however, is usually the bench brief writer, or at least in close communication with the bench brief writer. Staying focused on the issues certified is likely to garner the highest score, because the problem writer did not write a 40-page problem to have it disposed with a single case or on a technicality.
For a serious, uncertified issue, a short preliminary section addressing it is likely the best approach, before moving on to the other sections where the anticipated arguments are addressed. At oral arguments, there are times when a surprise standing or mootness issue can be utilized effectively. But at the brief stage, try to play the game.
Any other tips to the mooters out there once they have their competition problems?