Monday, June 24, 2019
Have you ever picked up a book, read the back cover and immediately set it back down, with nothing enticing you to read further? An ineffective summary of the argument can create this effect in your brief.
One of the final parts of the brief to write, the summary of the argument is often the first chance to persuade the judges. But more than that, the summary of argument serves to frame and present the thinking of the brief, and it should do so in a way that draws the judge further into the brief. Some judges read the summary of the argument first, and it’s a mistake to throw something together than is bland and doesn’t get to the heart of your argument.
Judith Fischer’s 2015 article, Summing it up with Panache: Framing a Brief’s Summary of the Argument
takes a deep dive into summaries of the argument and looks at recent Supreme Court briefs’ summaries to gather insights into how appellate practitioners write them. It’s a helpful article in understanding a practitioner approach to the summary of the argument, and it’s rich in examples.
For moot court, I believe scorers are looking for the same thing that a judge would be. Does the summary of the argument give a persuasive overview of the case? Here’s an example of summary of the argument scoring criteria from a competition I have scored before:
SUMMARY OF ARGUMENT:
Is it a succinct, clear, accurate statement of the argument?
Is it persuasively written?
Is it more than a restatement of the point headings?
(10 points possible)
TOP TIPS FOR THE SUMMARY OF ARGUMENT
1. Include your theme in the first sentence or two of the summary. If I get to the end of the first paragraph and I don’t know your position, that’s a problem.
Here is a great example from Judith Fischer’s article mentioned above comparing the first sentences of petitioner and respondent summaries of argument:
Eminent domain was the legal subject in Kelo v. City of New London, where the petitioners opposed a local government’s taking of private property for use by a commercial entity. Their summary of the argument opened with an appeal to Americans’ emotional attachment to their homes: “To Petitioners, like most Americans, their homes are their castles.” The brevity of this sentence intensifies its impact.
The respondents’ summary evoked logic rather than emotion: “At the heart of this case are a series of decisions made by the Connecticut legislature and the elected officials of the City of New London as to what will best serve the economic, social, structural and environmental interests of New London's citizens.”
These sentences primed the Court for two contrasting approaches to the case. The petitioners tapped into deep-seated feelings about homes. By contrast, the respondents relied on legal principles, telling a “‘justice’ story” to argue that the city’s decision was correct despite an outcome displeasing to some.
In Kelo, the justice story prevailed when the Court approved the city’s exercise of eminent domain.
2. Keep it under about 10% of the length of the actual argument. It should be a true summary, not a full recap. Too long, and you risk losing the opportunity to give a good overview to your reader; too short, and it may not be enough to be helpful.
3. Limit citations. It will bog down the summary.
4. Don’t just restate the point headings. It’s lazy and just taking up space.
5. Make sure to leave yourself enough time to give thought to your summary of the argument once you are done with the argument.
Just like authors and editors spend significant time on the back of the book to grab readers’ attention, you should be persuading from the beginning of your brief by having a strong, concise summary of argument.
Tuesday, June 11, 2019
As both a moot-court coach and a real-life appellate specialist, I find myself moving back-and-forth between real appeals and simulations on a regular basis. Each one advises the other, and I think the experience makes me both a better coach and practitioner.
One area of overlap is in "mooting" appeals. In law school, it is an exercise in practical skill building with formative assessment in the form of constant feedback. In real appeals, it is the best preparation there is for oral argument, no matter how skilled the presenter might be.
Don't just take my word for it:
No preparation for oral argument is as valuable as a moot court in which you're interrogated by lawyers as familiar with your case as the court is likely to be. Nothing, absolutely nothing, is so effective in bringing your attention to issues that have not occurred to you and in revealing the flaws in your responses to issues you have been aware of.
Antonin Scalia & Bryan Garner, Making your Case: The Art of Persuading Judges 158 (2008)
Your opponents are probably doing it. The United State's Solicitor General's office, as well as Appellate Staff throughout the government, conduct at least one moot session before oral argument. In larger cases, it is increasingly considered best practices to do so. Larger firms often conduct multiple moot sessions in-house. Even in smaller matters, informal mooting sessions are becoming more common.
Fortunately, if you are familiar with moot court from law school, you can probably put together a moot round for your argument. You just need a panel, a video camera, a plan, and time. Lots of time.
1. Pick your Panel Carefully
In general, you want to pick at least three panelists who will represent the type of judges you anticipate will be on your panel. Legal expertise is less important than appellate experience. For this reason, former appellate judges and appellate specialists are often utilized. Appellate specialists can put together a panel for you if you need the assistance.
Why not pick someone who really knows the substantive law? Because they aren't a good emulation of your court. You want people who will read what the court will read (the briefing, key cases, orders/judgments at issue and record excerpts) and then ask you the type of question that this preparation brings to mind. Someone who knows the law very well outside of this exercise might carry the same blinders you have developed during your time with the case.
If you are appearing before a court en banc or a court with more than three justices, you can use more panelists. Most practitioners do not suggest matching the full number, however, as there is diminished value in adding more seats at the moot.
2. Prepare For Your Session Wisely
You want to have at least one moot round within two weeks of the oral argument so you have time to prepare and adjust based on your session. If possible, discussing the issue even earlier can be of great benefit. Indeed, if you can schedule a time with your panelists to have a roundtable discussion before you finish briefing, that is ideal. Uncovering arguments and answering questions you had not thought of asking in your briefing, rather than in the oral argument alone, is ideal.
Some research into your potential panelists is a good idea. If you are in a jurisdiction that videotapes oral argument, watch recent arguments on related issues to get a feel for how the justices you might get on your panel are approaching your issues. I recently mooted a panel for a public interest group, and noted that one justice in particular on the circuit tended to focus on a particular statutory issue. I flagged that for them during the moot court, and when that issue arose at oral argument, they were able to answer it when others had not and ultimately prevailed.
You may also wish to find someone willing to argue the other side. The moot session can work with just your side if you are experienced. But if you need work on your rebuttal skills or in shaping your appellee or respondent argument to an unexpected approach or to address questions asked to co-counsel, this step can provide you some additional help.
3. Videotape the Proceedings
Time acquires a very subjective and malleable quality when one is being grilled by a panel of intelligent skeptics about a topic that has great importance. Before you know it, your time is up and you are sitting down trying to remember what was just said. Videotaping the round ensures that you will remember the questions asked and answered, and you can see how you look and act during your moments of panic and introspection. If you need to work on your "uhs" and tendency to sway while speaking, now is the time to do so.
4. Take Your Time at Every Stage
Finally, make sure everyone takes the time necessary for the process to work. You need to take your time in preparing your argument and answers for the moot session just like a real argument. Your panel needs to take the time to read the briefing and record. After your session, take the time to round everyone up and discuss what worked and what did not, how answers can be refined, and otherwise discuss the round. Then, if you have time, do it again.
Indeed, you can schedule multiple moots with multiple panelists. There are law schools that have appellate clinics who may be willing to do so for free. If you are arguing in the Supreme Court of the United States, book your time with the Georgetown University Supreme Court Institute as early as possible, as they are "first come first serve" when it comes to sides.
If you pick panelists who will ask you difficult and unexpected questions, if you take the time to prepare your presentation, if you review the videotaped proceeding carefully and refine your arguments, and if you are willing to do it all again if need be, you will go far in refining your argument. There is a reason one of the most commonly-heard comments from real judges who sit on panels for moot court competitions is "I wish the real advocates who appear before me were as prepared and skilled as you are."
In the next installment I will talk in a bit more detail about how to actually conduct the moot session to maximize its usefulness.
(Image credit: Honore Daumier, The High Tribunal of Judges, 1843)
Saturday, May 18, 2019
A few weeks back, Deputy Assistant Attorney General Thomas Ward argued before the Fourth Circuit. What followed "May it please the Court," has become a lesson for appellate practitioners everywhere: Always remember your audience.
The case is Sanders v. United States, No. 18-1931. It's a pretty important case in its own right. Sanders is a Federal Tort Claims Act case. The plaintiffs alleged that the Government had failed in its duty to conduct a background check on Dylann Roof, the man who murdered nine African-Americans in Charleston, South Carolina. The plaintiffs contended that the Government's failure had allowed Roof to buy the guns used in the shooting.
The Government contended that the FTCA's discretionary function exemption applied and, thus, that there was no liability. That argument carried the day at the district court, and the Government relied on the same argument on appeal. The panel was relatively conservative, so the Government should have felt pretty good about its odds.
The Fourth Circuit's Chief Judge, Roger L. Gregory, wasn't having it. He asked a particularly charged question, which ended with Judge Gregory calling the Government's argument "absurd." That exhortation drew an eyebrow-raising comment from Mr. Ward, who responded, "Your Honor, I know you're not trying to humiliate me by that tone." What followed was a well-deserved tongue lashing from Judge Gregory, ending with the command to "just answer [the] question."
Mr. Ward's Sanders argument is a great example for us all. It's tough to see another attorney go through something like that. There, but for the grace of God, go I, right? Even so, the exchange offers an important lesson. Always keep your audience in mind. Remember that most judges are warm, friendly people, but that every so often one will find your considered position offensive. You've got to do your best to put these personal differences behind you. Otherwise, your argument will end up as a footnote to the much more juicy exchange you had with the bench. I know I remember very little about the Sanders argument, other than the attention-grabbing bit.
Monday, May 6, 2019
Don't worry, this post isn't about what color suit and shirt you should wear during an appellate argument (I mean, we all know the answer is charcoal or blue with a white shirt). This post is about whether you should wear any sort of affiliation pin on that (charcoal or blue) suit. Should you indicate your support for the Marine Corps, your alma mater, breast cancer research, the Federalist Society, Black Lives Matter, or any other number of groups by wearing some sort of lapel pin?
As I recently learned, the answer is no. A few weeks ago, I was listening to judges talk to students about appellate advocacy. One of the students was wearing a lapel pin for one of the branches of the military. A judge commented that the student shouldn't wear the pin at oral argument, and the judge's colleague agreed. I was surprised by this advice, as I had never heard it before from a judge. I asked around on a moot court listserv and got surprised responses as well. But, as I reflected on the advice, it made sense. It especially made sense for attorneys who are appearing before a judge for the first time or who are unknown in the jurisdiction.
Imagine a scenario where an appellate attorney argues a case before a panel of judges, two of whom have been active in an organization like the Federalist Society or the American Constitution Society. The attorney dons a lapel pin from that organization. As he stands up to argue, he is sending a signal to the judges that he is one of them--that he is part of their society and ascribes to the same ideals as the organization that he is representing on his suit collar. It boosts his ethos with the court.
Some trial court judges have specific rules preventing attorneys from wearing "political pins" in court. One listserv member shared a story about an attorney in Ohio who was held in contempt of court for wearing a Black Lives Matter pin into such a courtroom in 2016. Although the attorney appealed the decision, the case was settled and she stated that she "now understands 'that a courtroom is a nonpublic forum over which [the judge] had the authority to dictate decorum.'"
Without digging into the constitutional issues, the no pins policy seems to be a prudent one. The logos, ethos, and pathos of an attorney's argument should carry the day, rather than the "I'm part of your secret society" message that some lapel pins might attempt to convey. I do think, however, that some pins, especially school affiliation or military ones, become less of an issue with attorneys who practice regularly before the same judges. My husband was a prosecutor for many years in Virginia. He practiced primarily in juvenile court before the same three judges. After a few years of practice, I am sure that the judges didn't care if my husband had a lapel pin reflecting his military service--they knew that he was reliable, dependable, and prepared based on the years of seeing him in court.
For my students who are still building their ethos, I will now be telling them to (1) button their jacket when they stand to address the court, and (2) be cognizant of wearing a lapel pin that might be seen as an attempt to improperly influence a judge.
Monday, April 29, 2019
Many of the characteristics of the best real-world briefs—clarity, strong theme, readability, focus—are critical in moot court, too. An appellate attorney and a moot court participant both want to produce a winning brief. But winning is defined differently in moot court. Rather than a panel of appellate judges or justices deciding the issues in a case, moot court briefs are scored on a point basis and compared to potentially dozens of other briefs on the same issue and even same side.
My plan over my next several posts is to compile advice for specific sections of Supreme Court briefs generally, then add some thoughts that specifically relate to moot court. I have scored moot court briefs for several national competitions and graded hundreds of students briefs over the years, and those experiences give me insights into common student pitfalls. I have also pulled score sheets from a variety of competitions to give concrete examples of moot court scoring criteria.*
We will start at the beginning with Questions Presented and Issue Statements. You know what they say about first impressions. . . It’s absolutely true for briefs. As a jumping off point and for reference, I compiled a list of many of the Issue Statement/Question Presented blog posts that have appeared on this blog.
From earlier this month, Chris Edwards on framing issues:
Tonya Kowalski’s series on (1) Deep Issue Statements:
(2) Streamlining longer issue statements: https://lawprofessors.typepad.com/appellate_advocacy/2014/01/streamlining-longer-issue-statements.html
(3) More Objective Deep Issue Statements:
Thomas Burch on which style of Issue Statement/Question Presented is used:
As you’ll see from these posts, there is not unanimity as to what format is used and preferred in actual Supreme Court briefs. But it’s helpful to get grounding in how practitioners are framing questions presented.
As for question presented scoring criteria from moot court competitions, here’s four examples with their respective point values:
Competition 1 - Are the questions posed to frame the issue(s) to be decided in a favorable manner without being
Is there a clear point of view? (5 points out of 100)
Competition 2- Do they clearly and accurately explain the issues before the court?
Are they persuasively phrased? (10 out of 100)
Competition 3- Correctly states issues
Articulates legal questions and includes relevant facts
Does not include legal arguments or conclusions
Succinct and concise (12 points out of 100)
Competition 4- Combine legal principles with key facts
Are persuasive but not conclusory
Are clear and succinct (4 points out of 100)
All of these criteria include persuasion, argumentation, or relevant facts. A neutral short framing would not fully comply. Instead, it’s likely that a well-written, Bryan Garner-esque Deep Issue, as described in the second post above, would be better scoring. My theory is the professors and students who run competitions and create score sheets have a preference for the more modern, persuasive, multiple-sentence Deep Issue. Though, I think a short, argumentative question presented with a few key facts could also score well.
Finally, there are a few key errors that will really impact the question presented score on a moot court brief. First, as a brief scorer, I gave very little credit for just copying the issue certified for appeal. That is not the task at hand. Don’t do it. Take the time to frame a well-written issue for the court. It’s possible you could lose 5-10% of your brief score by copying and pasting the issues certified for appeal.
Second, in moot court briefs there are usually two or three separate issues that need questions presented. Try to make them stylistically similar. It’s not cohesive to have one deep issue and one neutral short issue. Yes, this takes time and possibly teamwork. But your questions presented set the tone for the brief. If it’s obvious they were slapped together at the last minute, that’s not a good sign for the rest of the brief.
Third, on a technical note, do not rely on spell check for ALL CAPS in Word. If you type in ALL CAPS, spell check does not pick up spelling errors. Either proof read it carefully, or type it in regular font, then go to font and change it to the ALL CAPS. I see more typos in headings and questions presented than anywhere else because of this. A question presented with spelling errors also sets a poor tone.
Overall, students participating in moot court should start with the good advice in the posts above for practitioners about focusing and selecting the issues and framing them clearly and positively. But, since most competitions seem to prefer a persuasive style with concise inclusion of facts, I’d avoid a neutral short issue for questions presented in moot court competitions.
For those of you involved in moot court, do you have any other suggestions?
* Of course, students should try to find and refer to the score sheet of their own competition if it’s available.
Monday, March 18, 2019
Tessa’s moot court posts over the last few weeks have been timely for me, as I am leaving tomorrow with a team from the University of Houston to coach them in the Hispanic National Bar Association in Albuquerque. I’m a fan of moot court. Not only is it correlated with bar exam success, but it rewards students for becoming an expert on a topic. The presentation skills honed translate to areas beyond appellate advocacy, and students have to be able to argue both sides of an issue, creating intellectual flexibility. Some of our readers may be in a position to give back to their law school by coaching a moot court team, so I wanted to spend some time on moot court coaching.
Before joining UH’s faculty, I directed Pepperdine’s Moot Court program and learned the value of excellent coaching. My predecessor, the amazing Nancy McGinnis, developed a team of top-notch alumni coaches who invested significant time helping students prepare for oral arguments. As I learned how to run a program and develop student advocates, I saw how some coaches have consistent success with their teams. Beyond awards and trophies, though those were plentiful, there were deep relationships built and significant growth in the students.
While I could spend an entire blog post giving recognition to amazing coaches and students, the two that I learned the most from are Pepperdine alums Wendy McGuire Coats and Jeff Belton. These two have generations of law students who hold them up as extraordinary coaches and professional mentors. They do most of the things I am suggesting below, and then some. After observing dozens of competitions, teams, and coaches, and coaching some of my own, here are the top moot court coaching tips I have gleaned:
- Establish accountability for students
The best coaches set expectations for the students early. Solid moot court programs have strong team expectations, but the coach reinforces these and makes sure that students understand the work that they will have to put in to be ready for the competition. An introductory meeting is a great start. Plan a schedule of practices leading up to the competition and what students should do on their own. Encourage the team to read all of the briefs if they are available. Have them identify the most compelling arguments. They should make lists of the hardest 15-20 questions for each issue on each side. Knowing that you, the coach, expect this output from them is key.
- Give them a realistic view of national competitions
This is particularly important for students who have never competed nationally before. The level of competition that they will see at a national competition is dramatically different than intraschool competitions they might have experienced. What type of questions are they likely to get? How should they deal with inevitable challenges? There will be few teams at a national competition that are not well-prepared. Not every excellent team will win, but an unprepared team will definitely not. I try to hit this point home, because typically law students involved with moot court are busy with other law school activities. They need to understand how important their preparation time is.
- Be a coach, trainer, cheerleader, and tour guide all at once at the competition
Finally, once the competition arrives, the coach fills many rolls at once. As coach, I take notes during the competition of questions asked, feedback from the judges, and any areas that may need tweaking between rounds. The rounds fly by for the advocates, so it’s helpful to have something to recap. I’m also ready to advocate for my team with the competition administration, if necessary. I also think of myself as sort of an athletic trainer, and I try to bring a bag full of potentially useful items – a sewing kit, snacks, highlighters, usb drive, and all of the competition documents. You never know what might come in handy. Many students find these competitions stressful, so I see my role as cheerleader, as well. I know how much hard work has gone into their argument, and I want them to see the value of their experience regardless of the results. Their job is just to stand up and do their best. Lastly, I don’t want the advocates to have to worry about anything other than their arguments, so I figure out all of the logistics, find cool places to eat, and try to make the times that they are not arguing fun. Moot court develops skills, but it also builds relationships, and that’s a big part of what I love about it.
Coaching moot court has to be one of the most fun and rewarding ways to be engaged with a law school. Like most things, if you put a lot in, you will get a lot out. If you are interested in more reading on this subject, I highly recommend The Moot Court Advisors Handbook by James Dmitri, Melissa Greipp, and Susie Salmon.
Wednesday, March 6, 2019
Like a lot of advocacy professors, I'm an avid consumer of social-science literature on persuasion, decision-making, and pedagogy. And I'm a fan of efforts by law professors to apply this literature to what advocates do. Sure, we've got to be humble and cautious: I and many of the law professors with interest in this area aren't trained scientists or statisticians, and stuff like the Social Sciences Replication Project and the hubbub over power posing offer healthy reminders that it's possible (even easy, sometimes) for folks trained in the right disciplines to get out over their skies. As Ted Becker points out, we in the persuasion business don't really know much about what really persuades judges. But much of the good, humble, cautious work helps us at least start down the path of sorting out techniques that work from techniques that we adopt just because they're the way we do things. There is a wealth of interesting work being done in this area related to persuasive writing and legal reasoning: Kathy Stanchi's body of work on psychology and persuasion is remarkable; Lucy Jewel's piece on old-school rhetoric and new-school cognitive science is a revelation; Steven Winter's work broke fascinating ground in knitting together cognitive science and legal reasoning. I could mention dozens of other scholars here: exciting things are happening.
We don't have a similar volume, as yet, of scholarship linking social science to oral advocacy. Still: I'd like to devote a few posts to highlighting a couple of pieces that I find particularly useful in refining the advice I give to advocates and in polishing my own performances.
I think it's fair to call the first a classic in the field: Michael Higdon's Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience, published in the Kansas Law Review in 2009. Professor Higdon offers a rich, comprehensive overview of research into the seven basic codes of nonverbal communication: (1) kinesics (i.e., what speakers do with their bodies); (2) physical appearance (i.e., what speakers look like); (3) vocalics (i.e., what speakers sound like); (4) haptics (i.e., how speakers physically touch an audience member); (5) proxemics (i.e., how speakers use physical space); (6) environment and artifacts (i.e., how speakers use instruments and their environment); and (7) chronemics (i.e., how speakers manages time). And he thoughtfully applies that research to what lawyers do in appellate oral argument.
I find Higdon's piece particularly useful in sorting out advice on things like the use of gestures. Quite often, beginning appellate advocates will do stuff with their hands that distracts judges. So they'll get categorical advice: don't talk with your hands. And they take that advice ... and promptly get told by the next set of judges not to be so stiff and nervous. Higdon's piece details research spanning several decades that makes it clear that any "don't use your hands" advice is flatly wrong: gestures are essential to effective in-person communication generally, and they're especially vital to persuasion. But there's a catch: only those gestures that are "synchronized with and supportive of the vocal/verbal stream" enhance comprehension and persuasion. The lesson that emerges: advocates should use purposeful gestures that match and support the points they make verbally, but avoid gestures that simply accompany the verbal stream. So use the hands to help you make a point, but don't let your hands flap around randomly to accompany your talk.
Higdon's points on speed of delivery (somewhat fast is actually good, so long as it doesn't flatten out a speaker's pitch and tone) and on managing the judges' dominance are similarly illuminating. If it is read as widely as it should be, the generations of appellate advocates will tilt their heads eight degrees to the right (see p. 643). And win.
Monday, February 25, 2019
Moot Court season is upon us. Law students from around the country are headed off to compete in a mock appellate arguments on a wide range of topics. This past weekend students competed at the Jeffrey G. Miller National Environmental Law Moot Court Competition (more commonly known as Pace). Students also competed at the San Francisco and Portland regionals for the National Appellate Advocacy Competition put on by the ABA. (Congrats to the teams from my school that both made it to the round of 5 at the San Francisco regional).
This coming weekend Boston and Philadelphia host their NAAC regional competitions. And, my school hosts the National Native American Law Student Association Moot Court Competition. We are looking forward to hosting 40+ teams from across the country to argue a difficult, but fascinating, Indian Law problem.
The University of Houston has already started tabulating the top moot court programs for its rankings. This year the current top 5 is Texas heavy:
- Loyola University
- South Texas
- University of Georgia
- University of Houston
I really love moot court. I love coaching, I love judging, and I love seeing students develop over the course of the weeks that they work on the problem. Moot court has many benefits for students. While it certainly teaches them teamwork, it also teaches them to be problem solvers and work independently. For most moot court competitions, students cannot receive any outside help on their briefs. For some competitions, they can't even receive substantive help during their oral advocacy practices. Moot court also teaches time management. Some of the major competitions, like the NAAC and the NNALSA, require students to brief over the winter holidays. Finally, moot court helps students learn to become excellent public speakers. I have heard that the number one fear that people have is public speaking. As a person who formerly hated public speaking, I know that the only thing that has helped me improve is practice, practice, practice. Moot court does that for law students.
Moot court has benefits for the local legal community too. Volunteering to judge provides you with more than a few free CLE credits, it allows you to think about and discuss an interesting area of law. Moot court problems are often centered around an interesting and unsettled area of the law--the kind of question your least favorite professor might put on a law school exam. It can be fun to get back into law school mode and ponder these questions (especially when you are asking the questions, rather than the other way around). I also think that moot court gives us hope for the next generation of lawyers. They can, and will, do great things. That is exciting.
But, despite the excitement, moot court isn't perfect. It isn't perfect because we all know that the briefs are way more important than the arguments in real life. It also isn't perfect because, just like in real life, gender stereotypes can rear their ugly heads. I was reminded of that this week when I saw an article on Law.com announcing that the first female appellate law clerk had passed away at the age of 94. Carmel Ebb, who graduated first in her class at Columbia Law in 1945, is believed by most to be the first woman to clerk for a federal appellate court judge. She clerked for Judge Jerome Frank on the Second Circuit. She interviewed for a Supreme Court Clerkship but, according to her obituary, “Her hopes were dashed when the justice concluded their conversation by saying he had no doubt she would be a fine clerk, but that his wife would never allow him to work in such close proximity to a woman.” Ms. Ebb went on to have a successful career, including making partner at a New York firm.
So how do gender stereotypes play a role in moot court? Next post I will look at an article on this topic.
Tuesday, February 12, 2019
Last night, I watched On the Basis of Sex with first-year law students. Munching on popcorn and candy, the students learned about Justice Ruth Bader Ginsberg and her first gender-discrimination case, Moritz v. Commissioner of Internal Revenue, 469 F.2d 466 (10th Cir. 1972). Moritz challenged section 214(a) of the Internal Revenue Code, 26 U.S.C. § 214(a) (1954), because it precluded him, as an unmarried man, from claiming a caregiver deduction despite caring for his elderly mother.
On the Basis of Sex provides 1Ls with an excellent introduction to appellate advocacy. The movie begins with Ginsberg’s first day of law school, then chronicles her writing her first brief and delivering her first oral argument. After the movie, I discussed with the first-year students how the movie compares with what they will do when they receive their first appellate problem in a few weeks. Below are some of the lessons learned.
Appellate Practice Is a Lot of Work
Most of the movie occurs outside the courtroom. Students saw Ginsberg meet with Moritz to discuss taking an appeal. They saw her strategize with other attorneys about arguments. She works with her husband, a tax attorney, and her staff and students at Rutgers Law School. She researches, writes, and rewrites the appellant’s brief. When appellee’s brief arrives with an appendix of over six hundred federal laws that distinguish between men and women, Ginsberg and her team look up and discuss each one. She takes a settlement offer to her client. Before oral argument, Ginsberg practices before a moot court and then before a mirror. Ginsberg works hard. The process takes a long time.
Oral Argument Is a Little Scary
The climax of the movie is during the final minutes when the parties argue before the Tenth Circuit. Students noted how different oral argument looks from the trials they had seen on TV. There is no jury. A lone attorney stands before a panel of three judges. They remarked how Ginsberg was nervous and awkward at first. The judges directed the course of the argument. They interrupted with questions.
The students began to imagine what it will be like when they argue in April. We discussed how preparation goes a long way toward easing nerves. I shared that they will have the opportunity to practice before moot courts organized by our Moot Court Honor Society. I encouraged them to practice in front of a mirror like Ginsberg. I shared that it is normal to be nervous, especially for your first argument.
One Case Can Be Two Different Stories
The underlying dispute in Moritz involved the denial of a tax deduction because the taxpayer did not meet the qualifications in the tax code. The law was clear. Mr. Moritz did not qualify for the caregiver deduction because he was an unmarried man. Had he been a woman, divorced, or a widower, he would have been eligible for the deduction.
The students observed how the lawyers (arguing for the IRS) and Ginsberg (arguing for Mr. Moritz) told two different stories based on the same case. The IRS portrayed Mr. Moritz as a tax cheat. Ginsberg held him up as a loving and devoted son. The IRS, armed with one hundred years of precedent, argued that the Tenth Circuit should protect society by maintaining the status quo on gender. Ginsberg advocated for new law because precedent had failed to keep up with society’s evolving views on gender.
During oral argument, the IRS argued that “radical social change” is something to be feared and must be stopped. Ginsberg picked up on this point during her rebuttal. She argued that “radical social change” had already happened and the Tenth Circuit should bring the law into alignment with that change. Students were struck by this exchange. Each side used the same words to make two very different points.
At the end of the evening, students left our gathering excited, inspired, and a little nervous. I’m grateful to have had the opportunity to introduce them to appellate advocacy in such a fun way. Ginsberg remarks at one point during the film that by teaching law students she hoped to inspire the next generation of lawyers. Through this movie, Justice Ginsberg is still doing just that.
Wednesday, October 10, 2018
If you're looking to gin up controversy in moot court circles, here's one way: raise the topic of arguing without notes. If the moot-court whisper network and this Reddit thread are to be believed, some faculty coaches insist that their student advocates argue without notes. And, whether coaches insist on it or not, quite a few moot court advocates (including a bunch from my school) compete notes free. Hence the controversy. A lot of folks, like Reddit Person, don't see much genuine benefit to arguing sans notes. Sure, it might intimidate opponents or wow easily-impressed judges. But beyond that? Not much.
I would agree that going notes free probably doesn't offer many benefits in the actual oral argument performance. As the notoriously notes-free Paul Clement explains on page 16 of this article, well-prepared advocates mostly bring notes to the podium. And they mostly don't use them. Of course, as the Supreme Court's Guide to Counsel admonishes, "under no circumstances should you read your argument from a prepared script." But having notes to provide security, especially about key statutory language or sharp bits from the record, and making nondistracting use of them on occasion ... often a good thing, and rarely a bad thing.
But I think going notes-free is incontrovertibly great in one context: practice. Why? Science. As I've argued before on this blog, oral argument is a tremendous tool for learning. And doing it without notes can deepen learning. In a study published a few months ago in Applied Cognitive Psychology, researchers built upon a substantial body of literature showing that teaching material to others enhances the teacher's own learning of the materials. They attempted to figure out why. So they split research subjects—a group of undergraduate students—into four learning groups, all of which were given time to study and prepare to teach a lesson on the Doppler effect. Then two groups actually taught the lesson. One group taught from a script; the second taught without notes. A third group didn't teach, and instead took a free-recall test about the Doppler effect. The forth group—the control—simply did arithmetic problems.
One week later, the subjects were tested on their knowledge of the Doppler effect. And the subjects who taught without a script outperformed those who taught from a script.
The reason: teaching without notes forced subjects to engage in retrieval practice. The experiment suggests that teachers learn by teaching largely because—and when—they are required to extract, with effort, information from their brains. So it isn't the act of teaching per se that boosts learning, but the act of retrieving the information that does the trick. Hence this result: the no-notes teaching group performed as well on the test as the group that engaged in retrieval practices without teaching. And the scripted teaching group barely outperformed the control group.
As I've said here before: prepared oral advocates learn, deeply, then teach, and learn more deeply for having taught.
Pull the notes, and the learning is richer and deeper.
Thursday, September 27, 2018
Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School
Storytelling is an integral part of a lawyer’s work, particularly for appellate lawyers. One critical aspect of effective storytelling is structure—and when it comes to structuring an effective story, lawyers can learn a little something from screenwriters.
In Teresa Bruce’s forthcoming article in the Journal of Legal Writing Institute, The Architecture of Drama: How Lawyers Can Use Screenwriting Techniques to Tell More Compelling Stories, Professor Bruce proposes that “lawyers build their stories in the same way Hollywood writers do.” Just as screenwriters follow a formula, lawyers should do the same: as IRAC is to argument sections, SCOR is to fact sections.
Professor Bruce’s article builds on existing storytelling literature, which approaches narrative theory from several different perspectives. The structural perspective uses a pragmatic or pedagogical approach, arguing that “[a] large part of telling an effective story is the order in which the reader presents information.”[i] Scholars in this area argue that an effective story structure helps judges and juries understand and remember information, and the story that flows most logically will be the story that seems most probable. As a result, good story structure can increase a client’s chance of winning.
Professor Bruce’s article takes the structural approach to narrative theory a step further by introducing the SCOR structure. Many lawyers will be familiar with the writing stages identified by Professor Betty Flowers: Madman, Architect, Carpenter, Judge. The Architect stage is where writers focus on “large, organizational, paragraph-level thinking.” The SCOR template gives writers a “flexible, generally applicable template they can use each time they tackle a new case.” This enables “lawyers to skip the Architecture stage entirely when writing a facts section (as IRAC enables them to do when writing an argument section).” Ultimately, Professor Bruce’s hope is that using SCOR will make it easier for lawyers to write their clients’ stories more coherently, which will result in clearer, more compelling, and more convincing stories.
So, what is SCOR? To explain SCOR, Professor Bruce begins with the classic three-act story structure, “the basis of Western storytelling.” Act I, the Setup, establishes the protagonist’s “status quo.” Act II, the Confrontation, breaks the status quo and takes the protagonist on a journey to a point of climax. Act III, the Resolution, introduces the protagonist’s “new normal” and resolves any unanswered questions. Taking this basic story structure a step further, advanced story structure builds additional milestones into each act to create an overarching “story arc” that provides “rising tension throughout the first and second acts and falling tension during the third.” Professor Bruce illustrates both the basic and advanced story structure through a classic movie, The Wizard of Oz.
Professor Bruce then translates this traditional formula into legal writing: Setup, Confrontation, Outcome, Resolution, or SCOR. As in advanced screenwriting, within each act, additional milestones help to give the story added structure and keep audience members engaged.
First, the Setup, Act I, humanizes the client by establishing the client’s life and status quo before the “bad event” of the litigation. Second, the Confrontation, Act II, is the “meat” of the story—it introduces the client’s antagonist and sets out the pivotal (i.e. outcome-determinative) facts. While the opposing party will often be the antagonist, for some clients, the antagonist will be subtler. For example, for less-sympathetic clients, the antagonist might be “mental-health problems, addiction, childhood trauma, or poverty.”
The third and fourth components of the story are the Outcome and the Resolution, Act III. The Outcome is “the end of the protagonist’s quest,” while the Resolution is “where the audience gets closure.” This is the most difficult section for legal writers because a “lawyer cannot simply resolve her client’s story . . . the way a screenwriter can.” Instead, the lawyer may invite closure by inviting “the judge or the jury to resolve the storyline in a way that favors the client.”
To illustrate how this structure works and why it is effective, Professor Bruce uses the statement of facts in the Petition for Certiorari in Miranda v. Arizona. This statement of facts helps illustrate the SCOR structure, but also shows how the structure “can work even for a largely unsympathetic defendant, one who has been convicted of a violent crime.” In addition, Professor Bruce points out that other landmark briefs use a similar story structure.
I encourage practitioners, legal writing professors, and law students to read Professor Bruce’s article. In the article, she provides a more in-depth discussion of advanced storytelling structure, including the milestones within each act. SCOR provides a practical, accessible, and memorable way to help lawyers incorporate storytelling into their legal writing. And if lawyers can make their clients’ stories more accessible to their audiences, those stories will hopefully also be clearer, more compelling, and more convincing.
Special thanks to Alison Doyle for her help with this blog post.
[i] Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Fact Sections, 32 Rutgers L.J. 459, 475 (2001).
September 27, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Film, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts, Television, United States Supreme Court | Permalink | Comments (0)
Thursday, August 2, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
Dr. J. Christopher Rideout, at Seattle School of Law wants lawyers to appreciate the elements of narrative plausibility (colloquially: story believability). The believability quotient is affected by whether the proffered story’s structure bears up in its consistency and completeness, and whether the story's substance jibes with the audience's experiences and lessons learned from those experiences. In his Journal of Legal Writing article Storytelling, Narrative Rationality, and Legal Persuasion, Rideout explains that his understanding of what persuades in law has shifted from one grounded primarily in rhetorical models of persuasion to now include narrative models as well.
To be persuasive, a narrative must possess narrative probability and narrative fidelity. Narrative probability is formalistic, in that it is structural. It involves two elements: coherence and correspondence. Narrative fidelity, in contrast, is substantive, focusing on the content. The bulk of rhetorician’s work on the persuasive structure of narratives has focused on the structural features. The way in which a story is told influences its credibility. “regardless of the actual truth status of the story.”
Narrative coherence refers to the way the parts of the story fits together. The story structure should have a cause and effect flow. Having that cause and effect flow makes a story feel feasible—thus, the story that is presented most coherently will be the story that feels the most probable. To be coherent, a story must also be complete—that it contains all of the expected parts of a story. While the audience may be able to fill in some of the elements with inferences, a story that is too incomplete will appear to have logical gaps.
Narrative correspondence. the second formal (structural) requirement, lines up what the audience believes typically happens in the world. As story consumers we are always comparing the story being told with how we have experienced our world’s physical properties or within the audience’s mental storehouse of social knowledge. A story that contradicts the audience’s understandings of how things work will lack plausibility. While the story need not conform precisely to the most-common-flow in a given situation, it must be congruent to how humans react in given situations.
Dr. Rideout spends the second half of the article working through his suggestion that when competing legal narratives have equally compelling story probability, the substantive concept of narrative fidelity may tip the persuasion scales. Narrative fidelity may feel like narrative correspondence but is not structural in nature. The story must present good reasons for belief or action. It must fit with the social norms of the setting and moment in time. Fidelity goes beyond formal inferences to include what one rhetorician terms “communal validity.” The story should have a “tug” to it because it appeals to our lived experiences and the values derived therefrom. Stories that win, do so for the logical construct but also for the substantive fit.
 W. Lance Bennett & Martha S. Feldman, Reconstructing Reality in the Courtroom: Justice and Judgement in American Culture, 89 (Rutgers Univ. Press 1981).
 Robert Burns, A Theory of the Trial, 217 (Princeton Univ. Press 1999).
Thursday, July 19, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
Dr. Joan Magat, a law professor at Duke, wants you to know that hyphens matter, and they are too often underused. For years she has tried to convince the editors at Legal Communication & Rhetoric: JALWD that the phrase should be “legal-writing document” rather than “legal writing document.” And that lawyers who work with clients who have been charged with crimes are “criminal-defense attorneys,” rather than “criminal defense attorneys.” The latter isn’t distinguishable from someone trying to describe one of those specialists who themself was convicted of a crime. That lawyer would be a “criminal defense attorney.” See the problem? Although she often finds herself on the losing side of these battles, Joan Magat isn’t wrong.
Her 2014 article, Hawing Hyphens in Compound Modifiers explains as it proves her point. Although she thanked and dedicated the article to her fellow-editor colleagues, its brevity and clarity offers an argument for all lawyers.
The base rule is easy to remember: compound adjectival-modifiers preceding a noun should be hyphenated. It easy to apply it consistently. Exception exist for phrases in italics, quotes, and proper nouns. Yet, to Professor Magat’s woe, too often writers omit the hyphen, mimicking some of the familiar-but-unhyphenated phrases like “high school student” or “sales tax increase.” She rejects the entries in The New York Times Manual on Style and U.S. Government Printing Office’s Manual of Style, both of which advise against hyphens when the meaning is clear without them. It is up to the writer to determine what might be clear or unclear to the reader. The MLA Style Manual, in contrast, takes the opposite approach and instead requires hyphens to prevent a misreading. Only commonly unhyphenated phrases are excepted. There is much less guesswork involved.
Dr. Magat parses “pointless” from “helpful,” and shrugs off the critique that unexpected hyphens will distract readers. She pushes back, saying that hyphens are unlike scare quotes, exclamation points, or em-dashes used to excess. Rather, the hyphen smooths the way for readers because at times it can become difficult to tell what’s the noun and what’s the modifier. Think about the phrase “common law practice” for a moment. What is that? It could be one of two things. A hyphen could clear it up.
The article ends with a lovely appendix, providing advice about hyphenating compound modifiers. For that alone, the article is worth the thirty-second download time.
Thursday, July 5, 2018
Ruth Anne Robbins, Distinguished Clinical Professor, Rutgers Law School
Professor Andrew Carter has used a juggling metaphor to caution his students about exceeding a reader’s working-memory limitations. A sentence and paragraph need to stay within the boundaries of what a reader can competently hold in her working memory if the writer wants that reader to thoroughly comprehend and maintain the writer’s ideas. His article on the topic provides lawyers with useful information why our writing needs revisions for clarity and, yes, brevity.
Working memory is more than pass-through storage for new information. It is also where we interpret that information and use it to complete tasks. A simple arithmetic problem can be solved in our heads thanks to working memory, because it is there that we are both storing information (the numbers) and processing that information (performing the arithmetic function). At some point, Professor Carter points out, arithmetic becomes too difficult if there are too many numbers to store and manipulate. While we might be able to add numbers in the 100’s, we may need to turn to writing instruments to solve addition or subtraction problems that involve numbers in the thousands or ten-thousands.
Working memory has three different components to it: the first part stores the new information and the second part rehearses it on a loop to avoid forgetting. Third, the central executive component coordinates the information and controls the processing.
Written text likewise engages working memory. But, a reader can process only a limited number of concepts in a single sentence or paragraph before overwhelming the limited capacity of working memory’s ability to store, rehearse, and process information. In the central executive aspect, the reader completes two tasks: discerning the text’s meaning and putting the text into context by mediating interactions with information housed in long-term memory. Thus, says Professor Carter, legal writers need to be cautious about how much information they ask the reader to juggle.
Professor Carter thus offers two sage pieces of advice. First, promote automatic processing. That means keeping the information simplified and free from disruptions. Long sentences with extraneous information, ornate syntax or obscure phrases all inhibit the automatic processing of information. So too will stumbling blocks in the way of grammatical, word-choice, or punctuation errors. Second, manage the cognitive load visually by chunking sentences and paragraphs so the interactivity of ideas is obvious rather than difficult to sus out. Causal ideas (if/then) in sentences and paragraphs should be clear to the reader via small-group chunks that are more automatically processed because they contain recognizable flow.
Naturally, legal readers carry a duty to read and digest the legal writing of an attorney. But, it bears repeating that a piece of writing’s efficacy will turn in part on its readability. Sometimes, keeping it simple is the strategic choice.
Thursday, May 24, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
Parentheticals. We love them, but we don’t always understand how to use them. An empirical study and article by Professor Michael Murray compiling the most-often use of these legal-writing creatures, demonstrates that most of the time they are used either incorrectly or inefficiently. Parentheticals are best employed to illustrate the governing rule of law by pointing to key facts from precedential narratives. Or, to embed a pithy quote that likewise illustrates a point.
Parentheticals are typically used when an illustration can be easily reduced to a comprehensible present-participle phrase. Experts also consider relevance in the equation. Sometimes the efficiencies suggest the use of a parenthetical to save space, i.e. when the precedential case isn’t important enough to elevate to an in-text explanation. A parenthetical can also be used to make a point about a rule being used in a series of precedential cases. That is, the parentheticals can then form visual support for synthesis such as, “the five cases that analyzed this point all interpreted the term broadly.” Five cites with parentheticals would then follow.
However, the substance inside parentheticals are sometimes visually difficult to locate, coming at the end of a citation sentence. If a case is more relevant to the client’s outcome, a better choice may be using one or two sentences of in-text explanation in lieu of the parenthetical.
Michael Smith, at Wyoming College of Law is *the* expert on this topic, and his Advanced Legal Writing textbook’s Chapter 3 has been termed by 15 years of upper-division law students as “mandatory reading for any to-be lawyer or lawyer.” In the chapter he categorizes types of narration one might do in a parenthetical:
- Illustrate for elucidation (using a parenthetical to illustrate how a rule operated in a precedential case).
- Illustrate for elimination (using a parenthetical to eliminate possible misinterpretations of general rules).
- Illustrate for affiliation (using a parenthetical to tie a rule to something in the everyday knowledge of the reader—a reference to a cultural icon, publication, or phenomenon).
- Illustrate for accentuation (using a parenthetical to demonstrate how one word in the rule that might otherwise be overlooked is actually the key to solving ambiguities).
In my own textbook, written with Steve Johansen and with Professor Smith’s colleague Ken Chestek, we expand slightly on Professor Smith’s categories, by talking about one-word or one-phrase uses of parentheticals. That is used in situations where a single word or phrase can conjure a story-scene for the reader and make the elucidation point. By way of quick example, “New Jersey considers the smallest of offensive touches ‘bodily injury’ in its criminal caselaw. [case cite] (slap); [case cite] (shove); [case cite] (kick); [case cite] (pinch).” We also talk about times when you can use quotations effectively in parentheticals: when it’s unique language that succinctly illustrates the rule. “wall of separation” is a good example of this.
Professor Smith also includes cautions for the use of parentheticals, and it is here that the numbers crunched by Professor Murray in his article make clear what is going wrong in the majority of appellate briefs. The number one and number two issues that Professor Smith sees in the drafting of parenthetical substance? Exactly what Professor Murray sees the most in his data. The error of placing the rule in the parenthetical. Or, the error of restating the rule in the parenthetical. That is, quoting the rule the attorney just synthesized into a client-oriented rule statement—or should have just synthesized that way. Restating the rule is simply a crutch for the writer—as if to say, “I really did read the case!” Restating the rule also ruins the cause-to-effect narrative flow of the rule illustration/rule explanation part of legal analysis.
Other common errors include being too overbroad in the factual illustration or being too specific. The right height to look down on the case and describe facts for parenthetical purposes is something like 30 feet from the ground. What can you see of a precedent’s story from that height? Not every blade of grass, but maybe a person’s front yard.
What is the takeaway? Parentheticals are an important tool in the lawyer’s kit, when used to promote persuasion and efficiency. They can, however, be cluttering and in some cases can add bulk if they are merely repetitive. Use them well—and use them wisely.
 You can preview part of Professor Smith’s Chapter 3 via Google Books. Search string: “Michael R. Smith” & parentheticals
 Do not pay the list price for a new book. The second edition is coming out this fall and will make this first edition a heck of a lot cheaper.
Thursday, May 10, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
The big news this week in field of law and typography was a Washington Post story about a study that purports to settle the one versus two-space controversy that rages on appellate-minded websites, listservs, Facebook pages, and Twitter accounts. Even on this Appellate Advocacy Blog, editor Tessa Dysart chimed in earlier this week. For those of you who are two-space fanatics, I am going to do more than repeat what you may have already heard, i.e. that the study is deeply flawed (although I will quickly review it). Mostly, I am going to suggest that you reflect on your dry, compassionate-less soul and then put down your personal preferences to instead be a citizen of the world.
But before I continue along these lines, I want to reiterate the scientific flaws in the study that have been ably and articulately pointed out by the best typographer and design expert in law—Matthew Butterick. I have had the pleasure of presenting with LWI Golden Pen recipient Matthew Butterick, and I know that when he writes something, he’s carefully researched and analyzed it first. Right away, Butterick calls attention to the central flaw of the study. It was done using the monospaced (typewriter-like) typeface of Courier, which is still required by the upper courts of New Jersey. To try and shake loose the New Jersey committee overseeing court rule changes, I researched the educational and cognitive science of readability and in 2004 published Painting with Print: Incorporating Concepts and Layout Design into the Text of Legal Writing Documents. The New Jersey officials were not persuaded but other courts were, and the article appeared by invitation on the 7th Circuit’s website for twelve years.
Because it is a monospaced typeface, two spaces must appear at the end of each sentence. Otherwise it is too difficult to determine whether there has actually been a break in the prose. But people don’t use typewriter fonts when they have the choice to use a proportionally spaced one such as the one you are reading right now. And there’s a reason for that. Courier, and typefaces like it, are 4.7% more difficult to read than proportionally spaced type. That equals a slowdown of fifteen words per minute, which Dr. Miles Tinker, the lead psychologist who studied the issue deemed “significant.” In his studies, readers consistently ranked proportionally spaced typefaces ahead of monospaced ones. In other words, the new study is flawed both in using a typeface that people don’t normally choose, and in using a typeface that essentially requires two spaces to be able to discern the difference between the end of a sentence or not. The people conducting the study put the cart before the horse. That’s just poor science.
Now, I promised you a lambasting, and here it is. Two spaces after periods take up more space and for lawyers who find themselves up against a page limit, or who wonder why paper is so expensive, think about whether you can save yourself some space and money by switching over to one space instead. You can also cut down on use of one of the most noxious and wasteful products we use: paper. In this country, paper is the largest source of municipal waste, and paper creation is the fourth worst industry for the environment. I wrote about this too, in a follow-up article, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies. Two spaces after periods actually contribute to the polluting of the environment. Yes, that extra space really does cost something to use.
And, if you are in the Seventh Circuit, you don’t even have a choice. The judges care a great deal about typography and instruct lawyers to use only one space after periods.
So, there you have it, two-spacers. An inconvenient truth. There’s logos, pathos, and ethos to using only one space. Your preference harms the Earth, eats into your page limits, and costs you and your clients more money to use. The so-called study is junk science. Are there really any justifiable reasons left to continue your inconsiderate punctuation practices?
 Miles A. Tinker, Legibility of Print 47–48 (Iowa State U. Press 1964) (synthesizing several decades of psychological research on typeface and readability).
 There are also other ways to save yourself some money and ecological ruin. When rules don’t require double-spacing: don’t. It’s harder to read anyway. And when courts allow you to use double-sided printing, do so.
May 10, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)
Monday, April 30, 2018
Forget football and basketball rankings, for many law schools it is the moot court rankings by the University of Houston Law Center's Blakely Advocacy Institute that we wait for each year. Just a few days ago the final rankings were released. The top five schools are as follows:
1. South Texas College of Law Houston (alas, I cannot find a nickname or mascot for you--but great job!)
2. Chicago-Kent College of Law (Affiliated with Illinois Institute of Tech--Go Scarlet Hawks!)
3. Baylor University Law School (Go Bears!)
4. University of Oklahoma College of Law (Boomer Sooner!)
5. NYU Law School (Go Violets? Go Bobcats?)
As usual, the top 16 teams will compete at the Andrews Kurth Moot Court National Championship. The Sooners are the current champs, so we will see if they can hold on to the title this year.
Wednesday, April 18, 2018
Often, I find myself in a conversation about the validity of Moot Court programs in law school. This discussion is perpetual. Indeed, while I was in law school, a pair of articles were published discussing this issue. One clearly opposed, and in support, of the moot court experience. See Alex Kozinski, In Praise of Moot Court--Not! , 97 Colum. L. Rev. 178 (1997); Michael V. Hernandez, In Defense of Moot Court: A Response to "In Praise of Moot Court--Not!", 17 Rev. Litig. 69 (1998). Those that know me, understand that I am a big fan of moot court, even if you have no intention to enter appellate practice. Over the next few weeks, I will address my views on the moot court experience.
In this post, I address how the moot court experience enhances a student's writing skills.
During the first year of a student's law school experience, we take mostly good, or even excellent writers, and change how they perceive the writing process. In some instances, we find students who need real work on basic writing skills, but for most, it is just a matter of getting them to buy into a new approach. No longer are students using filler to reach some magical minimum word count, no longer are we rewarding free-flowing prose. Students must constrain their writing to maximum word counts, and to seemingly arbitrary formulas. My students complain about CREAC, CRAC, IRAC, or CRuPAC, or whatever the acronym of the day is, at least until they have embraced it. I liken good legal writing to an instruction manual that must be written in a manner that frees the reader to focus on the analysis. Certainly, by the end of the first-year students are capable of writing good briefs. They reach legal conclusions that are sound and built upon a strong, rule-based foundations. Such writing is good, and if a student were to enter the legal community immediately after their first year, their writing would be sufficient.
But, sufficiency is not enough. As a practicing attorney, I never had the better part of a semester to write a brief. I've written multiple briefs and pleadings in a single week. If my writing was only sufficient, I would have struggled to put together coherent briefs and pleadings at that pace. So I push my students to excellence, and they way to do that is through practice. The more one writes, the easier it is.
Many law schools with strong moot court programs have a class dedicated to appellate advocacy or brief writing. These classes take the skills a student learns in their first year and builds on those skills. Students learn when and how to step away from the basic CREAC formula. They learn how to write many different types of arguments. They gain extra practice.
Once a student is in competition, the student develops skills that can only come from practicing their skills with no input. Students gain confidence when they realize that they can write a brief, with difficult legal or factual issues, without getting constant reassurance or guidance from their professors. Students learn the importance of crafting an error free document, and from taking the time to review and edit the document. When they begin preparing for oral argument they will learn the value of listening to the inner voice that tells you an issue either is or isn't worth mentioning in the brief. When they compete a second or third time, that skill will be utilized to create an even better written product.
In short, moot court gives students multiple opportunities to develop and perfect the practice-ready writing skills a student gains in their first year, and which every practice attorney needs.
Thursday, March 29, 2018
In my last Thinking Thursday, I discussed some common logical fallacies that lawyers may fall prey to. Specifically, I focused on non-sequitur fallacies and insufficient evidence fallacies. Based on responses to my previous blog entry, I am going to review one category in this piece, and one more in the next entry.
Today I am focusing on shallow thinking fallacies. 
By way of quick review, logical fallacies happen when something goes wrong with the legal syllogism. Here is a proper albeit simplistic legal syllogism:
Major premise: The speed limit where defendant was arrested is 45 MPH.
Minor Premise: The working-perfectly radar gun clocked defendant at 63 MPH.
Conclusion: Defendant was speeding
In shallow thinking fallacies, the advocate begins with a faulty major premise. The claimed “rule” is not a rule at all or is poorly articulated. Below are four shallow thinking fallacies.
1. You can spot a false dichotomy fallacy when you are presented only two choices to a complex issue that in fact offer multiple choices. For example, “If you don’t like chocolate, you must like vanilla.” Or, “you are either a Star Trek or a Star Wars person.”
Here’s how the syllogism goes wrong:
The False Dichotomy
People can either like Star Wars or Star Trek, but cannot like both
You like Star Trek
You do not like Star Wars
Logical but incorrect
Some legal maxims are actually examples of this fallacy, including one of the trial lawyer’s favorites: falsus in uno, falsus in omnibus (if a witness lies about one thing, he is lying about everything).
2.Next is the bandwagon fallacy, or what I like to call “teenager logic,” It goes like this, “everybody agrees with this premise.” The obvious implication—so if everyone agrees, it must be correct. The internet is full of the faceless, nameless, “everyone says so” comments, sometimes supposedly supported by unscientific or undocumented polls. Lawyers might see this argument appear in the guise of an uncited “weight of authority” type of argument: “Most other jurisdictions do it this way!” Or, “This is a well-settled rule of law, dating back to antiquity.” [no or very few citations]. This one is a fallacy mostly because the major premise (“everybody agrees”) is not supported by sufficient authority. The premise might be true, but the skeptical reader will likely see this sort of argument as a cover-up for a weak or non-existent rule. A string citation can help overcome a bandwagon fallacy—one of the few times a string citation is actually useful: To show the weight of authority.
3.The third shallow thinking fallacy, the middle ground fallacy, is also known as the King Solomon Solution. This fallacy assumes that when two parties begin from distant or opposite positions, the position squarely in the middle of those two positions is the optimal solution. This kind of fallacy relies on the predilection of humans to rely on opening anchors for negotiation points--if the opening anchor is unrealistic, the rest of the negotiation can become fallacious. You can read more about this on the website of the Harvard Program on Negotiations.
Once again, this major premise contains fundamental flaws—in this case, the flaw in thinking that both positions are equally valid. They might not be. The problem, of course, is that the solution disregards the possibility that one position is objectively reasonable (or legally sound) and the other is grossly unreasonable (or legally unsound). While our legal system encourages and values compromise, when faced with this particular fallacy compromise leads to unreasonable or legally unsound results.
The Middle Ground Fallacy
The best resolution of any valuation issue is the average of the two expert opinions
Plaintiff’s expert values the property at $500,000, but Defendant’s expert values it at $150,000
The property is worth $325,000
Logical but unsupported
4. Related to this, the fallacy of false balances also starts with a fundamental flaw in the major premise. Not all sides of an issue deserve equal weight in every situation. Sometimes one side of a debate has little or no weight at all, and therefore deserves little or no role in the debate. Journalists are often accused of allowing air time to fallacious debates even though one side is without merit.
In practice, this fallacy commonly appears in debates that involve proven science. The scientific method involves repeat experiments by different groups of scientists to verify stated conclusions. Once that has happened and conclusions have been accepted by a majority of scientists in the field, it is a logical fallacy to say that a dissenting view is equally balanced to the proved science. Allowing a debate about whether the moon revolves around the earth or vice versa would fall into this category of fallacies. As with the Fallacy of False Equivalency, lawyers can fall prey to this type of fallacy because we are taught to problem-solve through negotiation and compromise.
The False Balance Fallacy
The Earth might be flat or round
I believe the Earth is flat
The Earth is flat
True (he “believes”)
Logical but False
Keep an eye out in your writing and in your colleagues’ to help correct any of these you spot in their analysis.
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
 Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).
March 29, 2018 in Appellate Advocacy, Appellate Practice, Arbitration, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)
Thursday, March 15, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
Faulty reasoning undermines the substances of a legal argument as well as the credibility of the advocate. After a quick search of the online briefs available on Westlaw and Lexis, I can safely tell you that several thousand appellate briefs reference logical fallacies—typically as a precursor to a direct refutation of an opposing party’s argument. How many of us these days know our logical fallacies as well as we should?
Beyond calling out opposing counsel for these errors, the wise attorney also tests their own writing to see if they have relied on fallacious thinking. In most logical fallacies, something has gone wrong with the legal syllogism. In a sense, the major premise of a syllogism is a rule, while the minor premise is a fact. The conclusion flows from the application of the rule to the fact. Here is a simple example.
Major premise: The speed limit where defendant was arrested is 45 MPH.
Minor Premise: The working-perfectly radar gun clocked defendant at 63 MPH.
Conclusion: Defendant was speeding
In most logical fallacies, some part of the syllogism fails. There are four major categories of logical fallacies in law. Today’s blog entry goes through the first two groups of common fallacies: the non-sequitur fallacies and the insufficient evidence fallacies. The next Thinking Thursday blog entry will discuss two other categories: shallow thinking and avoidance fallacies.
1.1 The correlation equals causation fallacy commonly appears with statistical analyses. The arguer claims that because A and B appear together A must have caused B. The argument that the MMR vaccine causes babies to develop autism is a classic example of this type of fallacy. This amusing site shows these fallacies taken to the extreme.
1.2 The post hoc fallacy is closely related to the correlation/causation fallacy. The arguer claims that because A occurrence is followed by B occurrence, A’s occurrence must have caused B to occur. For example, after I ate an apple, I won an award—ergo, eating the apple caused me to win the award. In law, this sometimes shows up this way: When Pat drinks, Pat becomes violent. Therefore, Pat’s violence is caused by alcohol. That is a logical fallacy. Alcohol may lower inhibitions but does not cause violence by itself.
2. Insufficient evidence fallacies contain faulty minor premises—faulty because they are false or based in inadequate material. There are three major types of these.
2.1 The hasty generalization fallacy happens when lawyers draw big and general conclusions from too small a sample size or from unrelated evidence. “Climate change has been solved because this winter New Jersey saw frigid temperatures in late December and early January, and because it saw two nor’easter storms in March.” In that example, the weather from one three-month period is being used to argue that a decades-old phenomenon is over or never existed. To show this syllogistically:
Major premise: Climate change is making things warmer
Minor premise (flawed): weather over a three-month period matters to climate change
Conclusion (faulty): Climate change is over or solved.
2.2 The anecdotal evidence fallacy is related to the hasty generalization fallacy. The anecdotal evidence fallacy occurs when there is simply inadequate evidence to support the minor premise.
Major premise: Some cities offer Segway tours of tourist areas.
Minor premise (flawed): I have never seen people on a Segway tour of Philadelphia.
Conclusion (faulty): Philadelphia does not have Segway tours.
2.3 Finally, shallow legal research can lead to the Texas sharpshooter fallacy. As a classic example, a person shoots an arrow at a barn wall, and then draws a bullseye around the arrow in the wall. That’s a logical fallacy and happens in the minor premise—i.e. “this is a target with a bullseye.” A Texas sharpshooter fallacy happens when someone builds legal analysis and argumentation around incomplete legal research. Think of this fallacy as related to a confirmation bias—when the legal researcher stops researching when they find a result that demonstrates the governing rule that they want for their client, versus what the rule might actually be.
It is easy enough these days to practice spotting logical fallacies simply by watching television. Many advertisements use fallacious reasoning in the marketing. Politicians will sometimes fall into the logical fallacy trap as well—watching the news for a week or two should net you a few examples. But, most importantly, review your own advocacy for these common errors.
] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).
March 15, 2018 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (1)