Sunday, January 12, 2020
Every appellate practitioner and legal skills professor wishes for the time to do one more draft or add one more really creative and engaging exercise. As I like to tell my students, since I am not in charge of the world, I cannot offer more time. However, we can all enhance our written advocacy and teaching by incorporating some aspects of arguing off-brief, a traditional and time-consuming exercise for oral advocacy, into our brief writing and teaching.
In a traditional moot court competition, oral advocates must argue both “sides” of the mock litigation. As Dean Dickerson explains, “[t]his is known as arguing ‘on brief’ and ‘off brief.’ In the first round, the student will represent one side on the issues; in the next, the student will represent the other side on the same issues.” Darby Dickerson, In re Moot Court, 29 Stetson L. Rev. 1217, 1220-21 (2000).
While former Judge Kozinski took issue with off-brief arguments in his oft-cited attack on moot court, In Praise of Moot Court-Not!, 97 Colum. L. Rev. 178, 185 (1997), many scholars praise off-brief arguing for law students in moot court competitions. For example, Professor Vitiello explains: “Students must be able to argue [both] positions because lawyers must be able to anticipate and rebut their opponents’ arguments. A lawyer who lacks that skill cannot adequately represent her clients.” Michael Vitiello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach, 75 Miss. L.J. 869, 898-99 (2006). Similarly, Professor Hernandez reasoned: the “legal profession should encourage any instruction that prepares law students to avoid the temptation to become a mere hired gun in practice. By requiring competitors to argue off-brief and thereby thoroughly analyze all sides of an issue, moot court competitions provide such valuable training.” Michael Hernandez, In Defense Of Moot Court: A Response to “In Praise of Moot Court--Not!”, 17 Rev. Litig. 69, 76-77 (1998).
Moreover, top appellate law firms and appellate departments often hold internal moot courts before particularly important oral arguments, and require attorneys to argue both sides of the case to colleagues serving as mock judges. While “attorneys generally cannot afford to formulate complete arguments for the other side, primarily because of constraints on time and client resources,” this is a wonderful technique when feasible. See id. at 74.
The advantages of off-brief oral argument translate well to written work. Although the scholarly writing in this area focuses on appellate oral advocacy, we all know written briefs carry much more weight than oral argument on appeal. See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003). A winning brief, like a good oral argument, must “anticipate points of weakness and . . . take preemptive steps to diffuse the force of opposing arguments” just as an off-brief oral argument teaches. See generally Hernandez, 17 Rev. Litig. at 77.
Thus, as practitioners and teachers, we can do more than simply edit for and generally teach how to incorporate counterarguments into briefs. Instead, we should ask our students, and our brief drafters, to create as much of the argument for the other side, in writing, as budget allows.
For example, in my upper-division legal drafting classes, I often use contract disputes for my final brief projects and ask students, as part of an ungraded assignment, to draft the contract provisions in dispute first to favor their opponent, and then as perfect clauses for their client. Once I added this relatively quick component to the class, I saw the students’ briefs on the contract issues improve dramatically.
In my first-year classes, I similarly ask students to draft arguments for their opponents. I frequently use brief and memo problems from prior years for teaching simulations, to avoid any honor code issues from using a current, graded assignment. Merely asking students to outline or draft bullet points articulating the best arguments for the other side of these past papers can help students see better ways to craft their own graded assignments. Students have shared with me how much they enjoyed being “forced to see the other side” this way. And if you are very short on time, consider holding a quick in-class or law firm lunch-time moot court, with advocates presenting the best arguments for an opposing side, even without much prep time. This exercise can reap large benefits by forcing advocates to acknowledge an opponent’s best points and to draft briefs better refuting those arguments.
Have you used an off-brief technique to enhance your writing or teaching? Feel free to share your ideas in the comments.