Appellate Advocacy Blog

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

Saturday, June 27, 2020

Moving from Pandemic Emergency Zoom Oral Arguments to True Oral Argument Online:  Preparation and Professionalism

 In March, we had only hours to transition from in-person teaching and law practice to remote options.  As many internet memes show, that led to some memorable court appearances sans pants, from closets and bathrooms.  Recently, we’ve been able to step back and assess our remote experiences to see what we can use for better practice and teaching, even as we return to in-person work.  I’ve attended several excellent sessions on online teaching, and I send kudos to William & Mary Law for its fantastic two-day Conference for Excellence in Teaching Legal Research & Writing Online.  (If you could not attend, you can view asynchronous postings here:  https://law.wm.edu/academics/intellectuallife/conferencesandlectures/excellence_online_teaching/index.php.)  Like many of you, my inbox is full of invites for even more webinars and conferences I am not able to attend. 

Luckily, Jill Wheaton of Dykema Gossett recently wrote a summary of the May 4, 2020 ABA Appellate Judges Council CLE webinar on “Appellate Advocacy in the Age of COVID-19.”  The ABA’s program featured judges, a state appellate court chief clerk, and appellate practitioners speaking on how appeals courts will use remote appearances moving forward.  As Wheaton explained, the panel presented “thoughts about, and recommendations regarding, telephone or video appellate arguments” and suggested counsel “do everything they can to make a remote argument as much like an in-person argument as possible.”  Jill M. Wheaton, Appellate Advocacy in the Age of COVID-19, Appellate Issues--2020 Special Edition 1 (ABA May 27, 2020).  Overall, the recommendations for practitioners stressed professionalism in how we approach video appearances.  In other words, be prepared and yes, wear pants.

Part of our preparation for oral argument today should include a test run of our technology.  Whenever possible, appellate practitioners should do moot courts before oral arguments.  Now, we should make our moot courts a test of both online systems and legal arguments.  Since many courts already used some type of internal video conferencing before COVID-19—and a few trial and appellate courts allowed video argument on occasion before 2020--the clerks and judges are already familiar with some remote platforms.  Id.  They expect us to be familiar with the platforms as well.  In fact, many courts have videos of past virtual oral arguments online, and counsel can watch the videos as part of their oral argument preparation. 

We should also be as professional as possible in every detail of our online appearances.  Hopefully, we know to avoid the meme-worthy mistakes of March and April, by dressing in full suits and using a professional-looking digital background or physical space free of clutter and noise for a video appearance.  The ABA panel stressed smaller points as well.  For example, many courts still expect counsel to rise when the bailiff calls the case, and the panel judges noted they prefer advocates to stand when speaking.  Id. at 2.  Therefore, consider either using an adjustable desk, so you can stand when speaking but sit when opposing counsel argues, or use a stool so you can stay at eye level.  The practitioners on the ABA panel suggested using a stack of books to raise your computer to standing level if needed, and to be sure your camera is on the top of your monitor to help you look directly at the judges during the argument.  Id.   Finally, counsel should remember they will be on camera for the entire hearing, even when opposing counsel is speaking.  Id.  Thus, find a way to communicate unobtrusively with co-counsel and your client, if needed.  

We all want life to “return to normal,” but some form of remote oral arguments will no doubt remain after COVID-19 leaves.  For now, “courts have been forced to become creative to continue to advance their dockets, requiring the bench and bar to become creative as well.”  Id. at 3.  Hopefully, these tips from the ABA panel can help us all be more creative, prepared and professional for this new normal.   

June 27, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)

Monday, April 27, 2020

My Final Thoughts on Moot Court in the Age of Coronavirus

Nearly a lifetime ago (ok, it was just a month ago), I posted tips on how to conduct a virtual moot court competition. Since that post we have had some other great posts on remote oral argument and presentation, including these tips from Texas Supreme Court Justice Eva Guzman. 

We held the final round of our moot court competition on April 16.  Based on that experience, and a few other things I learned along the way, I thought I would offer my final thoughts and tips on virtual moot court competitions, in case we are all doing this again in the fall.

(1) Stagger start times.  For our competition, we typically had two separate panels of three judges.  Each panel heard two arguments--one starting at 5:30 pm and one starting at 6:30 pm.  In my earlier suggestions, I recommended having separate Zoom links for each argument even if the panel was the same.  That definitely worked well.  But, if I could do it over, I would have had one panel start either 15 minutes earlier or 15 minutes later than the other panel.  Why?  Well, I "zoomed" into the first argument for each panel, just to make sure that the judges were present and that there weren't any questions.  I ended up having one Zoom open on my laptop and one open on my tablet.  This was a lot to manage, especially if there were issues that needed to be resolved.  A 15 minute staggered start time would have alleviated some of my stress.

(2) Have back-ups.  I wish that I had designated a back-up bailiff and judge for each round.  We only had one judge who wasn't able to make it, but we did have bailiff sound/video issues.  I was able to get those issues resolved with minimal delay, but having a designated back-up would have been even easier.

(3) Develop an online scoring survey. We ask our judges to fill out a fairly detailed score sheet.  I take the scores and enter them into a complicated spreadsheet that incorporates the judges' scores and the student's brief score.  When we have an in-person competition, I can look at the score sheets right away and identify anything that isn't filled out correctly.  For an online competition, I had to wait to receive the score sheets. Then, if there were any problems, I had to get in touch with the judges.  This wasn't an issue with the early rounds, but by the eliminate rounds, I needed to notify the students advancing quite promptly.  If we do this again, I will work with our IT department to develop some sort of online tool that the judges fill out instead.  This would hopefully help me get the scores sooner, and also ensure that the score sheets are completely filled out.

In addition to these general points, here are a few points from the final round:

(1) Use and circulate a background.  The version of Zoom on my home laptop allows me to use a background without a green screen.  I wish that I had circulated a background to the students and judges to use to make it a little more uniform.

(2) Figure out an online timer.  I didn't use an online timer. Rather, my plan was to hold up time cards.  I regret that choice.  The time cards didn't show up with the background, so I ended up holding up fingers instead.  I wish that I had tested the time cards to know that they wouldn't work. Then I would have definitely figured out how to put a small clock on the screen.

(3) Expect the unexpected (or be sure to lock your office door).  Our final round started at 5:30 pm on April 16. I had told my spouse in the weeks leading up to the final argument that he would be on toddler duty all night long.  I ordered dinner to be delivered, and reiterated to him right before the round began that I was unavailable. Well, as luck would have it, at about 5:50 pm my very tall, just turned 2 year old discovered how to open doors.  And, as I am sure that you have guessed, the first door that he opened was the one right into my office as the Respondent was arguing. My microphone was muted, and the background kept him mostly hidden, but he was still a bit visible (as was my husband who, with a look of horror on his face, tried to quickly remove him from the scene).  In hindsight, it was pretty humorous.  I wasn't able to keep a poker face on while it happened, which I felt bad about.  Now I know to lock my office door if I don't want to be disturbed.

April 27, 2020 in Appellate Advocacy, Law School, Moot Court, Oral Argument, Web/Tech | Permalink | Comments (0)

Sunday, April 19, 2020

Writing a Statement of Facts

In law school, students study legal doctrine in many areas of the law and spend a substantial amount of time reading case law, writing memorandums and briefs, and engaging in real-world simulations.

Of course, while the law is relevant to the disposition of any case, it does not often determine the outcome of a particular case. For example, statutes or constitutional provisions may be ambiguous and precedent may not adequately address the relevant legal question. Rather, the most important aspect of a case is the facts. The facts often determine how the law is applied and present equitable considerations that counsel in favor of a particular outcome. 

Thus, when drafting a trial brief, appellate brief, or pretrial motion, the statement of facts is critical and, arguably, the most important part of your brief. Below are several tips that will help to maximize the persuasive value of your statement of facts.

1.    Tell a story

In your statement of facts, do not simply list the facts or describe the facts in a bland or boring manner. Instead, tell a story – and make it interesting. Doing so will capture the reader’s attention and engage the reader in your story. Consider the following examples:

When the plaintiff was terminated, the defendant (the plaintiff’s employer) completely disregarded the relevant terms of the plaintiff’s employment. Furthermore, the defendant made disparaging and insulting remarks to the plaintiff that caused the plaintiff to suffer substantial distress, and that demonstrated the wrongfulness of the termination,

***

When terminating the plaintiff, the defendant unapologetically stated, “I don’t care what the contract says because I can do what I want and you could never afford a lawyer.” Additionally, the defendant repeatedly berated the plaintiff, calling her “pathetic, a loser, and an embarrassment to the company.” The plaintiff left the defendant’s office in tears, and as she existed, the defendant yelled, “get the f*** out.”

The second example is far more effective. Through the use of specific facts, it shows, rather than tells, the court why you should win.

Of course, when drafting the statement of facts, you should avoid unnecessary adjectives and over-the-top language. 

Finally, remember that you do not have to state the facts in chronological order. Although this may be appropriate in some cases, you can – and should – be creative in your organization. For example, if your case involves the breach of a contract, you may want to begin by describing the events constituting the breach and detailing the damages that your client suffered. Simply put, just as some movies begin with the ending, some briefs can too if doing so enhances the persuasive value of your argument.

2.    Don’t be argumentative

One of the worst things that you can do in a statement of facts is to argue. First, your facts should be drafted in a manner that makes you appear objective. Doing so will engender credibility with the court. Second, arguing in the facts may lead a court to believe that you are presenting an incomplete or biased version of the facts. Third, and perhaps most importantly, when you argue, you are telling, rather than showing, the court why you should win. No one likes to be told what to do.

3.    You can – and should – still advocate

Although you should not argue, you should still advocate. For example, you should emphasize favorable facts over non-favorable facts. You should organize the statement of facts in a manner that highlights the most favorable facts and de-emphasizes unfavorable facts. In so doing, you will be advocating without arguing, and persuading without misleading.

4.    Acknowledge unfavorable facts

Be sure to acknowledge unfavorable facts. In so doing, you should rely on other facts to show why the unfavorable facts should not affect the outcome you seek. If you conceal or misrepresent unfavorable facts, your adversary will highlight this error and your credibility with the court will diminish substantially.

5.    Eliminate irrelevant facts

You should never include irrelevant facts in your brief. Doing so will undermine the persuasive value of your statement of facts and distract the reader. Consider the following example:

The plaintiff is a private figure and employed as a cashier at Whole Foods Supermarket. On January 11, 2012, while the plaintiff was in the midst of her shift and serving customers, the defendant (the store manager) loudly stated that the plaintiff was a “liar, a whore, a criminal, and a disgusting human being.” As a result of these statements, several customers ridiculed the plaintiff and the plaintiff suffered severe emotional distress.    

                                                                                                  ***                                                                                                                                               

The plaintiff is a private figure who was born in Austin, Texas. A talented musician and artist, the plaintiff attended the University of Texas for two years before deciding to pursue a career as an actor. The plaintiff enrolled at the Texas Academy of the Arts and completed a twelve-week intensive dramatic acting program. Soon thereafter, the plaintiff auditioned for many roles, including on the well-known soap opera General Hospital and the primetime television show Breaking Bad. During this time, the plaintiff obtained a job at Whole Foods Supermarket to make ends met while auditioning. The plaintiff enjoyed good relationships with her colleagues. Unfortunately, two months after being employed, and during her afternoon shift, the defendant (the store manager) loudly stated that the plaintiff was a “liar, a whore, a criminal, and a disgusting human being.” As a result of these statements, several customers ridiculed the plaintiff and the plaintiff suffered severe emotional distress.

The first example is far more effective than the second. The second example contains facts that are entirely irrelevant to the legal issues (who cares about the plaintiff’s acting career?), and these facts distract the court from the facts that support the relief plaintiff seeks.

6.    Describe the record accurately

Always describe the record accurately. If you misrepresent facts in the record, you will immediately – and perhaps irreparably – damage your credibility with the court.

7.    You can include law in the facts if it's appropriate

When writing the statement of facts, you can, in appropriate circumstances, include relevant case law or statutory language if doing so would assist the court in resolving the legal issue. For example, assume that your client was arrested on suspicion of driving while intoxicated, and upon arrest, law enforcement, in violation of the U.S. Supreme Court’s holding in Riley v. California, searched your client’s cell phone without a warrant. In your statement of facts, you could – and should – say the following:

On February 20, law enforcement officers stopped the defendant while he was driving home. During the stop, the officers detected the smell of alcohol and subsequently administered a breathalyzer test. The defendant’s blood-alcohol level was .09, in violation of the legal limit of .08, and the defendant was placed under arrest. While under arrest, and over the defendant’s objection, law enforcement conducted a warrantless search of the defendant’s cellular telephone. This search was unlawful because, in Riley v. California, the United States Supreme Court unanimously held that warrantless searches of cellular telephones incident to arrest violate the Fourth Amendment. Accordingly, all evidence seized from the defendant’s cellular telephone should be suppressed.

As you can see from the above example, the U.S. Supreme Court’s decision in Riley is relevant to the legal question and demonstrates that the search was unlawful. Thus, in a situation like this, including the relevant case law will enhance the persuasive value of your argument and demonstrate beyond doubt that the court should grant the relief you seek.

8.    It's not just what you say, but how you say it 

Be sure to draft a well-written, well-organized, and concise statement of facts. For example:

  • Avoid long sentences (over twenty-five words)
  • Avoid complex or esoteric words (and Latin)
  • Use transition words to ensure flow and clarity
  • Avoid unnecessary repetition
  • Avoid long paragraphs (paragraphs should be approximately three to five sentences)
  • Eliminate unnecessary adjectives and minimize the use of adverbs
  • Avoid nominalizations
  • Never insult the lower court or your adversary
  • Ensure that your brief is free of spelling errors and grammatically correct
  • Know when to break the rules to maximize persuasion      

Ultimately, the statement of facts is your best opportunity to explain why you should win. Following the above tips will ensure that you avoid the common errors that courts frown upon and that undermine the persuasive value of your brief.

April 19, 2020 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court | Permalink | Comments (0)

Sunday, April 12, 2020

Tips for Giving An Effective and Persuasive Online Oral Argument

Given the unprecedented and challenging times that have arisen due to the coronavirus, many courts (and law schools) are now conducting oral arguments online (e.g., via Zoom). For many lawyers and most law students, this is likely the first time in which they have been required to deliver oral arguments online.

Below are several tips (some rather obvious) to help lawyers and law students deliver effective and persuasive online oral arguments.

1.    Make sure that you are positioned correctly

When giving an oral argument – or any presentation – online, be sure to observe the following guidelines.

First, whether you are seated or standing, make sure that the camera on your computer is at eye level. Second, you should position yourself so that you are approximately at arm’s length from the camera. Third, to ensure that you are making eye contact with the judge (or professor) always look straight into the camera and avoid looking at the screen. Fourth, make sure that your volume is at the appropriate level so that you can be heard clearly.

2.    Choose a professional background

Be sure to position your desk and computer in an area that includes a professional background and that omits any distracting images. Additionally, eliminate all excess noise.

Also, make sure that the lighting is properly set. For example, if there is too much light in the background, it can cast a glare on the screen and distract the person to whom you are speaking. Finally, be sure to dress professionally.

3.    Avoid Unnecessary Physical Gestures

When presenting your argument, avoid unnecessary movements (e.g., hand gestures), particularly those that will take you out of the camera’s range. Unnecessary movements will distract your audience and detract attention from the substance of your argument.

4.    Get to the point quickly – the judge (or professor, or anyone) may get more easily distracted in an online format

In an online oral argument, there is an increased possibility that a judge (or professor, or anyone) may get distracted more easily, particularly if the environment within which a judge or professor is hearing the argument is less than ideal (e.g., in a home where other family members are present in the immediate vicinity). As such, you should prepare a short, one-page outline that contains the strongest legal and factual arguments supporting the remedy you seek and state them at the beginning of your argument. Indeed, the most persuasive oral arguments include a powerful beginning where an attorney: (1) states clearly the outcome and remedy that the attorney seeks; and (2) explains why the law and facts support that outcome. In doing so, be sure to omit extraneous or irrelevant facts and legal authority. 

5.    Follow all of the rules regarding oral argument as if you were giving the argument in person

You should approach online and in-person oral arguments in the same way. For example:

  • Have a powerful introduction and roadmap
  • State clearly the outcome you seek and begin with the most favorable law and facts that support this outcome
  • Address weaknesses in your case (e.g., unfavorable law and facts) and explain why they do not affect the outcome you seek
  • Answer the judge’s questions directly
  • Be prepared to adjust your argument strategy depending on the questions and concerns expressed by the judge (or judges)
  • Always be honest – never mislead the court or attempt to hide unfavorable law or facts
  • Don’t be a jerk – never attack your adversary and never use over-the-top words or unnecessary adjectives

6.    Be prepared for technical issues

Technical issues sometimes arise when using online platforms such as Zoom or Skype. For example, when I was interviewed via Skype for a faculty position several years ago, my screen suddenly went black and I could not see the faculty members who were interviewing me (although they could still see me). If any technical issues arise, be sure to maintain your composure and go with it. Indeed, in the interview where my screen went black, I still got the job.

7.    Remember that this is new for everyone

Don’t be intimidated or overly concerned about performing an effective online oral argument. This is a new experience for many judges and law professors. At the end of the day, just be yourself – speak conversationally and remember that the skills needed to deliver excellent in-person oral arguments are largely the same as those needed to deliver excellent online oral arguments. And appreciate that, in delivering an online oral argument, you are learning a new skill that may prove valuable in the future.

April 12, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Monday, March 23, 2020

Moot Court in the Age of Coronavirus

In the wake of the COVID-19 outbreak, Arizona Law decided to move our 2L/3L intramural moot court competition online.  Because our university's announcement about moving to online classes came during spring break, we determined that students who had traveled home for spring break would probably want to stay there to complete classes.  Therefore, we needed an option to allow students to conduct arguments remotely.

While our competition is rather small, it is important!  The winners go on to represent our school at the ABA's national appellate advocacy competition.

While our competition rounds start later this week, for the past several days our moot court board has been hosting practice rounds via Zoom.  I thought it might be helpful to other schools if I shared some tips for creating the competition and for running the rounds.

Competition structure:  Each round consists of three judges, a bailiff, and two advocates.  The bailiff is responsible for creating the Zoom meeting link, disseminating it to participants, and keeping time for the round. I have asked the bailiffs to list me as a co-host for the round in case of an emergency.  As soon as all participants are in the meeting, the bailiff will create break-out rooms for the advocates and the judges.  You can find more information about Zoom breakout rooms here.  The breakout rooms allow the judges to ask the bailiff any questions before the round begins. They also allow the judges to deliberate after the round.

Although the judges preside over two consecutive rounds, we are creating a Zoom link for each separate round. This prevents the second group of advocates from disrupting the end of the first argument.

Tips for judges: On Friday, I asked our moot court board what challenges they had seen in running the practice rooms.  They had some GREAT tips for judges to help make rounds run smoothly.

  • Technology Tips
    • Be sure to keep your microphone muted when you are not talking. 
    • Don't forget to unmute when you want to talk.
      •  I think that the above two points are the cardinal rules for any and all Zoom meetings.
    • Consider wearing a headset or earbuds to cut out background noise and to allow yourself to hear and be heard better.
    • Try to minimize Internet usage in your house during the argument.  Your connection will be better if your kids aren't streaming Disney+ while you are trying to judge (or argue!) a round.
      • When I am teaching an online class I try to close everything on my computer but Zoom and my notes. I don't want loud email notifications during my class.
    • Use gallery view on Zoom to better see everyone.
  • Setting Tips
    • Be mindful of the lighting. Back lighting will make you hard to see.  Front lighting will help you appear clearer.
    • Be sure that there is nothing distracting behind you (or in the room with you!).  My cats get locked out of my office during most meetings.
  • Argument Mechanics
    • Don't mark off for a poor sound connection.  Students have various levels of Internet service.
    • Also, don't mark off for lack of professional attire.  Many of our students went home for spring break not knowing that they would be staying home indefinitely while the whole world shut down. Now, as stores shut down, they might not have the ability to get professional clothes in a timely manner.
    • Don't be afraid to interrupt!  And don't be offended if students slightly talk over you.  Given the lag with online communications, some amount of interruption is inevitable.
      • Try to lean forward, raise your finger, or something to signify to the advocates that you are trying to ask a question.
      • But please ask questions!  This makes the students' experience so much better!
    • Don't be offended if students ask for clarification.

Tips for Participants

  • Read the judge tips--many of those apply to you!
  • Use gallery view to see all judges and the bailiffs. Watch carefully for social cues that indicate the judge has a question, like leaning forward. If you see such a cue, pause.
  • Dress as professionally as you can in the situation. If you don't have a suit (or at least a jacket) try to wear something neutral. Now isn't the time to pull out your "taco cat shirt." (sorry, I love my taco cat shirt).
  • Be mindful of your background.  You don't want the judges asking you about the poster for your favorite political candidate that is hanging the background.
  • Have fun and be patient! COVID-19 is fundamentally changing how courts operate.  Some of this is good. It is time for courts to get up to speed on technology and offer more video/telephonic hearings.  But, these types of proceedings require adjustment by everyone involved. Your video moot court experience will be a valuable one.

Good luck to all participants, and we here at the Appellate Advocacy Blog hope that you stay safe and healthy!

March 23, 2020 in Appellate Advocacy, Law School, Moot Court, Web/Tech | Permalink | Comments (1)

Saturday, March 21, 2020

One Successful Process for Zoom Moot Court Competitions

I hope everyone is staying safe as we navigate our new COVID-19 reality.  In response to the virus, some law schools are canceling oral arguments and moot courts, while others are considering moving arguments online. 

At Pepperdine Caruso School of Law, we just successfully held the preliminary rounds of our annual first-year moot court competition via Zoom.  We are one the first schools to take such a large tournament--with multiple levels of rounds and cash prizes--online.  As I helped move us to an online format in one crazy week, so many people inside and outside of Pepperdine gave me incredible support.  In an effort to pay that support forward, I am sharing our process here.  I hope our lessons can help other schools and moot court competitions make this transition.  Our experience was very positive.  The students are grateful we gave them a formal oral argument opportunity, and many sent thank you emails and even fun Zoom screen shots to us. 

In practice, many of us have appeared via video or phone for short hearings, and even for appellate oral arguments.  See https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000995 (video and audio recordings of the Ninth Circuit argument in Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019), where Judge Wardlaw appeared via Zoom).  Currently, courts all over the country are holding their oral arguments online.  See, e.g., https://www.courts.ca.gov/2dca.htm (California Court of Appeal website noting: “Counsel will appear remotely via video conference, by telephone conference, or by other electronic means as available and arranged by the Clerk's Office”).

We knew we wanted to give our students the traditional moot court experience in these new circumstances, and we chose to conduct arguments using Zoom.  We made one major change from the past, as we decided to let students opt out of the arguments to help students who had to leave our dorms quickly or who were otherwise struggling.  Happily, about half of our first-year students still chose to participate. 

We usually have two teams of two advocates each, or four students, argue in each room of our preliminary argument rounds.  With about 90 students arguing this year, we placed 4 students and 2 judges in each of our 23 Zoom "courtrooms." 

To run courtrooms at more or less the same time, we needed 23 Zoom host judges who could create Zoom meetings open to anyone with the links.  These judges also kept time, though we had the students run timers on their phones too.  We suggested on-screen timers shared to the whole courtroom, but the students were concerned the timers would take too much screen space, even with Zoom’s side-by-side view.

Once we identified trusted members of our community to be the Zoom host judges, we created and shared a step-by-step guide for making an open Zoom link.  We asked hosts to name their meetings "Courtroom One 4:15," and so on.  We then collected the hosts' Zoom links and added them to our Google Sheet listing all the students, courtrooms, and argument times.  We shared the sheet with the courtroom assignments and links to all of our first-year competitors.   

We had great support from our faculty, who joined some Moot Court Team members and Law Review students, as well as a few alums, to be our roughly 40 judges.  Some judges helped with multiple rounds, and many judges told us this was almost as fun as in-person arguments.

We ran three preliminary rounds, to spread out the ability for our Moot Court Board and me to “Zoom in” to meetings and help as needed.  We used ten courtrooms each during two evening rounds, and we needed to pop in to only two courtrooms to help.  The next morning, our three courtrooms ran without a hitch.  Having trusted judges as hosts really helped, and we recommend this approach.

We made our score sheet into a Google Form for the judges.  It was fun to watch the scores roll in after the rounds.  Moreover, our competition co-chairs had a spreadsheet right away with the score sheet data.  These chairs could quickly identify our top four teams for the semi-final round, unlike when they type in scores from paper forms.

We will have four teams in our semi-final round Monday night, and then the top two will go to our final round Wednesday night.  We will share the Zoom link for our final round courtroom with our whole school, and we will have sitting judges serving on our final round bench.  We made the judges a separate deliberation room Zoom meeting, to be doubly sure their voting discussion will be confidential. 

In our law school virtual classrooms today, we can still give our students a traditional first-year highlight by moving oral arguments online.  Many of our courts are doing the same thing, and after holding these successful digital arguments at Pepperdine, I can promise you will be glad you saved moot court by moving online too. 

March 21, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession, Moot Court, Oral Argument, Web/Tech | Permalink | Comments (0)

Friday, February 28, 2020

Consider Doing Initial Oral Argument Preparation As You Finish Your Brief

 Every appellate practitioner knows oral argument rarely changes a case outcome.  See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003).   However, whether you are a first-year law student, certified appellate specialist, or advocate between those levels of experience, you probably still spend a great deal of time prepping for oral argument.  This time can be hard to justify to clients, but an advocate must be prepared for oral argument.  See generally Cal. Rules of Ct., R. 1.1, 1.3 (2018).

In my last post, I suggested ways to use off-brief oral argument techniques to improve your brief writing.  For this post, I propose using an early, short, oral argument prep before filing the brief as a way to streamline your oral argument preparation while also improving your brief.  Using this technique can make your oral argument preparation time more useful, shorter, and easier to justify to clients.

In my advocacy classes, I tell my students to distill their oral argument points to one piece of paper, or something very similar.  My “one piece of paper rule” forces students to take the main points from their briefs and organize their arguments in one place.  This process requires students, and counsel, to review the briefs and record, reread key cases, and be familiar enough with all aspects of the case to synthesize their points on one page.  Along with the paper, I recommend students have one binder with their case charts, all briefs, copies of any key pages from the record, and extra paper for notes during the opponent’s argument.  The binder should be tabbed and organized for very quick reference.   The process of making the binder is also very useful for both final brief editing and oral argument preparation.

On a practical level, my one piece of paper rule also keeps students from reading from their briefs or reading a longer, prepared statement to the court.  Since most courts either ban or strongly disfavor counsel reading from briefs or papers at argument, this is a good lesson to learn early.  See, e.g., 5 Am. Jur. 2d Appellate Review § 501 (2d Ed. Feb. 2020).  Additionally, an advocate who has organized his or her thoughts well enough to note them on only one piece of paper is unlikely to make the mistake of carting a box of scattered materials to counsel table.  One piece of paper is easy to follow under pressure, and can help counsel get back on track smoothly and confidently when the court’s questions move away from main points.  Advocates also have an organized binder if they do need to check something quickly.

In content, the one piece of paper should include bullet point arguments on each prong, element, or claim, noting the best points for the advocate’s side.  The paper should also have bullet points on counsel’s best responses to his or her opponent’s brief. 

I recommend students create their one sheet by first copying over their point headings from the brief Table of Contents.  Then, students should take the key points from their Introduction or Summary of Argument, and weave these ideas, all with a focus on their theory of the case and key case law, into bullets under each point heading.   I ask my first-year students to make this page before turning in their briefs.  I suggest they then use the paper as an editing checklist for the brief.  The process of distilling the whole case onto one page can reveal holes in the students’ briefing and help with final brief polishing.  Practitioners would reap the same benefit in brief writing from doing an initial oral argument preparation shortly before filing a brief.

In the law school setting, making the oral argument sheet before filing the brief is also efficient.  First-year oral arguments come shortly after the brief writing, and students can easily review the one piece of paper they prepared as a brief editing tool and be ready for oral argument. 

In practice, however, we often wait months after filing a brief for oral argument.  Nonetheless, creating an initial one sheet for argument before filing the brief can still be efficient and helpful in practice.  By creating the one page when most familiar with the record and the law, in the midst of brief polishing, counsel can ensure he or she does not miss any key points for later oral argument.  Also, while attorneys will still need a refresher on the facts and law before oral argument, following an outline created while drafting the brief will streamline the review process, leading to better preparation in a shorter time.  Finally, creating this type of one sheet for the whole appellate case before filing the brief can make final edits of the brief more useful, ensuring the brief is as perfect as possible.     

For all of these reasons, consider taking a quick break from your usual brief editing to create one piece of paper for oral argument, or anything similar that works for you, with an organized binder.  Doing so can show where you have missed something in briefing and can save time later. 

February 28, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument | Permalink | Comments (0)

Sunday, February 23, 2020

When Drafting a Brief or Preparing for an Oral Argument, How Do You Know When to Stop Researching?

One question that most, if not all, attorneys have asked themselves when drafting an appellate brief is: “When should I stop researching?”

This concern is certainly understandable. After all, the last thing that an attorney wants is for a judge to ask “Why didn’t you cite X case, which is directly relevant to the legal issue before the court?” or state “I would agree with your argument counselor, except for the fact that X case was decided by the Supreme Court four years ago and the Court ruled against your position.” If this happens, you will be embarrassed, you will lose credibility with the court, and your client will have little if any chance of succeeding on the merits.

To avoid this problem, attorneys must research a legal issue sufficiently to ensure that they know, among other things, the relevant legal standards, including the standard of review, the governing precedent (particularly cases that are factually similar), and favorable and unfavorable authority. But how do attorneys know when they have done enough research? They rely on several criteria (along with experience) to make this determination and ensure that they are fully prepared to draft an excellent brief or deliver a persuasive oral argument.

1.    Identify the appropriate scope of your research

Before you begin researching, you should identify the universe within which you should be researching. Doing so will enable you to identify the sources of binding legal authority and ensure that you confine your research to the most relevant precedent.  When making this determination, ask yourself the following questions:

  • Is your case in state or federal court?
  • Does your case involve a state or federal issue?
  • Does the legal issue involve a common law cause of action, statute, constitutional provision, or administrative regulation?
  • Are you arguing for a correction in a lower court's decision or an expansion of the law?
  • Have the courts in your jurisdiction previously addressed the legal issue or is it an issue of first impression?

For example, if your case is in state court and involves a state law issue, your legal research will focus primarily on prior decisions in your state by the state supreme court and the appellate courts. If your case is in federal court and involves a federal issue, your research will focus primarily on decisions from the circuit in which you are litigating. If your case is in federal court and the legal issue involves a state law claim, your legal research (on the substantive law) will focus on decisions by the state supreme court and appellate courts. 

You must also identify whether the legal issue relates to a common law cause of action, statute, or constitutional provision. If, for example, you are appealing a case where a state court found that your client acted negligently, you should only research cases in that state (from the state supreme court and the appellate courts). In such a case, your research should focus primarily on cases decided by courts within your jurisdiction that have applied and interpreted the relevant law, and that involve similar facts, if possible.

Importantly, the above advice applies to cases where you are arguing for a correction in the law.

If, however, you are arguing for an expansion of the law, you will likely expand your research to cases from courts outside of your jurisdiction that have considered this issue and that have expanded the law in the manner that you are advocating. For example, if, in 2015, you were arguing before the Sixth Circuit Court of Appeals that same-sex marriage bans violated the Fourteenth Amendment’s Equal Protection Clause, you should have cited in your brief and at oral argument the Seventh Circuit’s decision in Baskin v. Bogan, which previously held that same-sex marriage bans violate the Equal Protection Clause.

Consequently, in cases where, as in the above example, the law is unsettled in your jurisdiction (or is an issue of first impression) you can and should rely on cases from other jurisdictions that have addressed this issue. Although this precedent is not binding on the court, doing so will help to guide the court in reaching an informed and, hopefully, favorable decision.

Ultimately, determining the scope of your research is critical because it will enable you to identify the sources of binding, as opposed to merely persuasive, authority and it will ensure that you avoid conducting unnecessary or irrelevant research.

2.    Look for repetition

You will likely know that you have researched a legal issue sufficiently when you encounter repetition in the relevant case law. For example, if you are researching the negligence standard and you read fifteen cases in which the courts rely upon the same criteria to determine if a party was negligent (i.e., duty, breach of duty, causation, and damages), you can be confident that you’ve identified the relevant legal standard. Likewise, if you are researching how the courts define causation for purposes of determining negligence and you read several cases where the courts recite the same test or standard for causation, you can be confident that you’ve researched causation sufficiently.  Additionally, if you continue to find the same legal authority despite using different research methods, you’ve probably located the relevant authority.

You should also strive to identify cases that involve similar facts and you should rely only on cases that reach a favorable result. Never rely on a case that, although supporting your recitation of the relevant law, reaches a conclusion that undermines the argument you are making or the remedy you are seeking.

3.    Review the cases in your opponent’s brief

You should review the cases in your adversary’s brief. Doing so will enable you to identify relevant (and likely unfavorable) legal authority that you may have failed to discover in your research. In addition, you should review carefully how your adversary presents relevant case law to ensure that your adversary is not misrepresenting precedent.

4.    Read the briefs submitted by the parties in prior cases that involve the same or similar legal issue

To the extent possible, read the briefs submitted by the parties in prior and relevant cases. In so doing, you may discover additional cases that you did not find in your research or you may simply confirm that you have sufficiently researched a particular legal issue.

5.    Identify the cases cited by courts in prior decisions

You should identify the cases that courts in your jurisdiction have relied upon when deciding the same or similar legal issue. This will facilitate and expedite your research and it will provide you with the specific cases that courts found influential when deciding the issue.

6.    Research the subsequent history of the cases you cite in your brief

Be sure to research the subsequent history, if any, of the cases you rely upon in your brief or at an oral argument. In so doing, you will discover whether there is negative history that impacts the persuasive value of the cases upon which you are relying and whether a case has been overruled.

The above tips are not intended to be exhaustive. However, adhering to these tips will enable you to decide when to stop researching and provide you with the assurance that you’re prepared to draft an excellent brief or deliver a persuasive oral argument.

February 23, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Wednesday, February 19, 2020

Continue Teaching the New Dogs, Old Tricks: The Value of Teaching Appellate Advocacy to Law Students

A majority of U.S. law schools teach persuasive writing and oral advocacy to 1L and 2L students as part of required courses.1 These courses often focus on appellate advocacy. This model has existed for many years, gaining steam especially in the late 1980s after the ABA criticized law schools for failing to properly train law students in appellate advocacy.2 Some law professors and law students question the value of teaching appellate advocacy when we know that many lawyers will not actually engage in writing formal appellate briefs or participate in formal appellate oral arguments during their careers. Through this post I support the continued teaching of the skills required to write an appellate brief and make an appellate argument because the skills taught and tested when doing this kind of work are essential lawyering skills across a wide range of jobs held by lawyers. Lawyers are professional communicators—writing and speaking are essential skills of the profession.

First, writing an appellate brief requires careful, precise, and accurate work. Students must work with and follow procedural and local rules that dictate how to format a particular document, what information must be included, and when and how the document produced must be filed. Students must learn to carefully read a record and research the law to craft legal arguments within parameters set by the rules, including page limits and section requirements that force writers to write and rewrite their work until it is sharp and concise. All of this must be done while the writer is persuasively and accurately explaining to the court why a particular argument has merit when considering the governing law and the facts. The writer must also properly cite the law and the record.  These skills are all skills that are valued in the jobs that lawyers hold, from actually working in a litigation setting as an advocate, to advising and counseling clients in a more transactional practice, to working as a judge or a law clerk, just to name a few settings.

Second, oral communication skills are critical for lawyers. While not all lawyers will choose to engage in a litigation-type practice in which arguing to courts is a part of the work, most lawyers will need to “argue” or explain persuasively in their jobs. Appellate advocacy involves presenting arguments as well as responding to questions; it requires advocates to think on their feet. Lawyers who train in the skills of appellate advocacy will develop skills that will transfer to trial advocacy, negotiation, and other tasks requiring effective oral communication. Transactional lawyers will need to discuss positions with clients, orally communicate terms of a deal or a position, and negotiate terms of contracts. Many of the more formal skills required for oral argument will transfer to this transactional work. Even for those lawyers whose jobs do not include a focus on oral presentations, training to skillfully and thoughtfully respond to questions and clearly present legal and factual analysis is training that is an asset to most everyone in any type of legal job.

Third, developing appellate advocacy skills in law schools introduces students to professional and ethical norms that serve to give these burgeoning lawyers a taste of the legal profession and its traditions. Following rules, extending deference in a professional manner to the court, and showing respect for opposing counsel are all norms that should be learned in law schools and carried into the profession. Participating in the ceremony and discourse required in courses that teach appellate advocacy initiate these soon-to-be lawyers and welcome them into the legal community.

In conclusion, let’s continue to teach the new dogs the old tricks. Let’s strive to improve how we do it. Let’s even consider adding to appellate advocacy instruction, instruction and experiences in a variety of written and oral communication settings, like contract negotiation and drafting, trial advocacy, international advocacy, treaty negotiation and drafting, and other areas where lawyers are called upon to use their communication skills. We can value the foundational skills taught and learned through courses in appellate advocacy and supplement legal education with even more experiences that call on students to learn how to communicate effectively.

 

1 ALWD/LWI Survey 2018, Q. 6.4, https://www.lwionline.org/resources/surveys; Section on Legal Education & Admission to the Bar, Sourcebook on Legal Writing Programs 28, 46 (2006).

2 Michael Vitiello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach, 75 Miss. L.J. 869, 869 (2006).

February 19, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts | Permalink | Comments (0)

Tuesday, February 18, 2020

Reasonable Sources on Appeal

Many of the legal standards courts apply to appellate issues resolve around the inevitably fuzzy concept of reasonableness. The reasonable person, reasonable expectations of privacy, reasonable observers, reasonably prudent consumers, reasonable suspicion—all of these tests require advocates to conjure some ideal of what reasonable people might do or think in a given factual scenario. And for most advocates, that standard can seem hopelessly inchoate.

One problem is determining the sources of a “reasonable” standard. Consider the determination of when a person has been “seized” for Fourth Amendment purposes,  and thus the point at which officers must have a requisite level of suspicion to support that seizure. The touchstone test, established in United States v. Mendenhall, 446 U.S. 544, 554 (1980), suggests that officers have seized an individual when, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The test leaves unanswered whose opinions count in determining what a reasonable person might believe. Does the test measure what a police officer thinks it reasonable for an average citizen to believe—as it seemingly must if the test is to have any utility guiding day-to-day police activity? Or does the test focus upon what the average citizen believes? If the latter, must the test look to the reasonable beliefs of “average citizens” at the highest level of abstraction, or can it take into account the specific characteristics of the defendant, such as race?

The latter question arose recently in the South Carolina Supreme Court’s decision in State v. Spears, No. 27945 (S.C.), where the Court asked at oral argument whether the black defendant’s race should affect the Court’s evaluation of when a reasonable person no longer felt free to leave and was thus seized by police. The South Carolina Supreme Court noted the Mendenhall court’s view, echoed later by the Seventh Circuit, that although the defendant’s race is “not irrelevant,” it is also not dispositive.[1] The Court also carefully noted the Tenth Circuit’s recent suggestion that race is not a relevant factor in the reasonable person test; that court argued that a racial factor would render the test impossibly complex for officers in the field given the “divergent attitudes towards law enforcement” within racial groups.[2] The South Carolina Supreme Court was able to sidestep the issue by finding it unpreserved due to the defendant’s failure to raise it below. But the issue continues to percolate in other State Supreme Courts.[3]

This argument has echoes in broader theories behind the interpretation of legal texts. Originalist accounts of constitutional interpretation, for instance, set their sights on constraining judicial discretion by assuring that would-be activist judges rule according to the law rather than their policy preferences. But the proper sources for originalist interpretation remain unclear. Are the pre-enactment writings of the text’s authors relevant as part of a narrower effort to find the original intent behind the document? What about dictionaries or legal treatises available before (or after) enactment that might shed light upon the popularly understood meanings of a text? And should the interpretive methods taken today echo the interpretive methods that the lawyers or judges of the time of the enactment might have relied upon?

Neither the narrower question of interpreting a specific issue of reasonable beliefs, nor the broader question of interpreting the relevant sources of original intent or meaning, has a clear answer that makes appellate advocates’ jobs easy. But advocates should not resign themselves to guesswork. Definite answers may be impossible in either project. Yet the effort to use all available methods to guide decision-makers can still lend clarity to an apparently insoluble legal inquiry.  Though it is hard to say who has the better of the arguments about the sources and scope of inquiry, it may nonetheless be an argument worth having. Appellate advocates should strive to understand the problems of source in the fuzzy standards they may need to deploy in advocacy, then do their best to resolve the problems by choosing sources in a logical, up-front manner. Those with the most candid and convincing accounts are likely to find success on appeal.

 

[1] United States v. Mendenhall, 446 U.S. 544, 558 (1980); United States v. Smith, 794 F.3d 681, 688 (7th Cir. 2015).

[2] United States v. Easley, 911 F.3d 1074, 1082 (10th Cir. 2018), cert. denied, 2019 WL 1886117 (U.S. Apr. 29, 2019).

[3] See, e.g., Commonwealth v. Evelyn, No. SJC-12808 (Mass.).

February 18, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, January 12, 2020

Ideas for Including “Off-Brief” Moot Court Argument Techniques in Our Writing & Teaching

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. 

January 12, 2020 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument | Permalink | Comments (0)

Wednesday, December 18, 2019

Persuasion Is in the Eye of the Beholder: The Value of Giving the Audience What It Wants, Not just What You Think It Needs

Being a persuasive advocate depends on many things, including the strength and appeal of the message, the delivery, and the audience. This post focuses on the value of considering audience preferences to increase persuasiveness. People are persuaded the most by what they value or what resonates with them. We know from systems like Emergenetics1 and Myers Briggs2 that people have preferences in what types of information they value in decision making. To generalize, some people focus on data to drive their decisions, so an argument that would most resonate with such a person would be an argument that is grounded in data. Others value the impact that a decision might make on a group of people, so an argument that explains the impact of a decision on that group would be best. Others value process and consistency, and still others focus on the big picture, such as moving the law forward for the most people. While the advocate will not have a psychological profile on each judge or audience member in advance of an argument, the advocate would be wise to learn about and recognize the different personality types and ensure that arguments are given that provide a little bit of everything to appeal to the various preferences identified. Moreover, as the advocate learns what motivates the decision maker, the advocate should adjust arguments accordingly.

When an advocate appears before a judge frequently, the advocate may learn what the judge tends to value. Just as important, if not more, the advocate must use listening skills to learn what a judge or judges value during an argument. Listening to questions coming from a judge or other decision maker, the advocate can identify and then address the judge’s concerns. When a judge asks a question, the judge is identifying to the advocate his or her concerns or the concerns of other audience members. Too many times, advocates prepare and deliver arguments without adjusting to address these concerns, missing the opportunity to provide the information that will most resonate with the judge. Agility by the advocate can pay dividends in persuasiveness.

For example, some of the most agile advocates are teenagers who become expert at reading their parents’ unspoken reactions and adjusting their arguments to address their parents’ concerns. The teenager wants to attend a party on a Friday night and begins the argument to the parent by explaining that the parent should allow the teenager to attend the party because everyone will be there. The parent reacts negatively to this argument. The savvy teenager then pivots to an argument based on how attending the party will give the teenager an opportunity to get to know some of the parent’s friends’ children. If this argument works, the teenager closes. If this argument does not work the teenager shifts to an argument based on how attending the party will put the teenager in a better position to get elected to a school position the teenager knows the parent would like the teenager to hold. This dance continues until either the teenager persuades the parent or the parent ends the conversation. The teenager is not likely trained in advocacy; the teenager instinctively realizes that he must appeal to what the parent values to get his way.

In the same way, the advocate needs to listen and be attentive to judges’ concerns and cues. After all, the advocate wants to provide the information the judge needs to find for the advocate’s position. Research shows that decision makers are most persuaded when “requests are congruent with our values, self-image, and future goals. In other words, people are easily persuaded of that which they wanted to do in the first place.”3 

Therefore, to increase persuasiveness, advocates need to speak to the judge in the language that will most resonate with that judge. Advocates can benefit from studying the personality systems referenced herein, which provide information on how best to give each judge or audience member what he needs to make decisions.

1See Emergenetics International, www.emergenetics.com.
2See The Myers & Briggs Foundation, https://www.myersbriggs.org/my-mbti-personality-type/mbti-basics/home.htm?bhcp=1.
3Tomas Chamorro-Premuzic, Persuasion Depends on the Audience, Harvard Business Review, https://hbr.org/2015/06/persuasion-depends-mostly-on-the-audience (June 2, 2015).

December 18, 2019 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Moot Court, Oral Argument | Permalink | Comments (0)

Monday, December 9, 2019

Gen Z Advocates

Does generational theory have any relevance in Appellate Advocacy? Yes, particularly in its teaching. Dr. Corey Seemiller, an expert in generational theory, recently gave her insights on Gen Z, the cohort born between 1996 and 2010, and how they approach advocacy at the Reimagining Advocacy Conference at Stetson University College of Law. The oldest members of Gen Z are now 24, so many current law students are in this group. Dr. Seemiller's keynote kicked off a weekend-long discussion of how to harness the strengths of Gen Z and bolster some of the weaknesses. Whether you work at a law school with these students right now or are a practicing attorney who will soon have Gen Z colleagues, it’s helpful to learn about some of their strengths and challenges as a group. Dr. Seemiller’s presentation gave the conferenceattendees a shared vocabulary. As a caveat, anytime one deals with generational theory, one deals in broad categories, but individuals and personalities vary. Still, I see applications for how I teach students to work as a team, read materials, approach an audience, and prepare for an oral argument.

So what characterizes Gen Z? Among other things, they are curious, honest, kind, and fair. They are diverse. They have experienced a significant amount of vicarious trauma and do not remember a world before Columbine and 9/11. They are motivated by relationships and by what they believe in. They are constantly connected and often addicted to technology; according to Dr. Seemiller they have an average of 8.7 social media accounts. Gen Z students say that they prefer face-to-face communication, but smart phones have been a part of their world since childhood or birth. They may need coaching in how to have live conversations.

Now that Gen Z has officially arrived at law school, and as we try to train them in appellate advocacy, there is a gap between the advocacy methods they have used and appellate advocacy. Over the last few years they may have engaged in twitter wars, used hashtag activism, and witnessed cancel culture. Appellate advocacy in some ways is the polar opposite of hashtag activism and slogans. Professor Mary Beth Beasley identified mastery as the key to appellate advocacy. Mastery takes focus. When we overburden our short term memories with a constant stream of information (like from a smartphone), we diminish our long term memory capacity. Both long term memory and the ability to build connections between a mass of materials are necessary to effectively advocate at the appellate level. Of course, these skills are important to all of us, but Gen Z has never known a time with out smart phones constantly pulling their attention. Many of these students have not learned to read deeply and sustain prolonged focus. We need to find ways to help them pursue and recognized mastery.

We can also try to harness Gen Zs strengths. Hashtag activism requires the ability to boil things down and be concise, which are helpful skills when thinking about theme. These students care deeply about the causes that are important to them. While they may not be patient in the skills development process, once they see the value in a project, they will buy in.

Gen Z is not alone in being constantly connected to technology; most of us are. So as we prepare to teach the next generation of students how to advocate, we need to consider the way that the audience is changing, too, even though there are not yet Gen Z appellate judges. Ultimately, the boiled down, concise persuasion styles Gen Z gravitates to may be helpful to any audience with a shortened attention span. Fortunately, it’s also good writing. But we need to teach students to achieve mastery, think deeply, and make meaningful connections before they start condensing.

December 9, 2019 in Appellate Advocacy, Law School, Legal Writing, Moot Court | Permalink | Comments (0)

Wednesday, November 27, 2019

Valuing Precedent

Advocates must be keenly aware of which authorities bind the courts to which they are arguing and which authorities will be persuasive to the courts.[1]  When the authorities are prior decisions, advocates should also recognize that courts are often interested in hearing how other courts have interpreted and applied the law in similar circumstances.  As Professors MacCormick and Summers have explained, “Applying lessons of the past to solve problems of the present or the future is a basic part of human reason.”[2]  In many of our day-to-day decisions, we try to act consistently with our prior behavior—to be predictable.  Acting in this manner seems fair to everyone and keeps people we deal with content.  When we act differently, we call it a surprise, which can be a good thing or a bad thing.

 Courts use prior decisions or precedents in much the same way, as models for later decisions.  Courts are motivated to correctly and consistently interpret the law and provide some certainty and stability for those parties operating in a jurisdiction.[3]  Courts in the United States, including Louisiana (which is a civil law or mixed jurisdiction), as well as courts in jurisdictions around the world, frequently consider prior decisions when interpreting the law, whether they state that they are relying on these decisions or not.  Commentators have characterized this reliance on the work and reasoning of earlier judges as a way for courts to “share power across time,” thus democratizing the judiciary and allowing current judges to be assisted by their predecessors.[4]  Reliance on precedent helps to ensure stability in the law so that it will not change based on the whim of one or a handful of judges. 

Courts around the world consider precedent in varying degrees.  We can characterize their reliance on prior decisions or precedent using three basic points on a spectrum: on one end of the spectrum, strict stare decisis; on the other end of the spectrum, jurisprudence constante; and in the middle, a blended version of these two which seems to describe what goes on “in fact” in the United States federal system, in state courts in the United States, including Louisiana, and in many parts of the world.

Strict stare decisis refers to a system of valuing prior decisions as “the law,” binding later courts that face similar issues.  Judicial systems that employ strict stare decisis require subordinate courts to follow the decisions of higher courts within a judicial system; sometimes the requirement is to follow the decisions of the higher courts to which the subordinate courts’ decisions are appealable.[5]  In some jurisdictions, courts are expected to follow their own decisions as well, with some latitude given.  One decision alone is said to make law that must be followed in subsequent cases.[6]

On the other end of the spectrum is a system in which courts may loosely consider prior decisions, but the decisions do not make law.  A doctrine such as jurisprudence constante directs courts to consider a long line of consistent interpretations of the law as persuasive and entitled to great weight.  These decisions do not bind the court to a particular interpretation of the law, nor do they make law.  In fact, in some jurisdictions employing a version of jurisprudence constante, courts are forbidden from citing to a prior decision as the basis for a current decision.[7]

The middle of the spectrum sees a combination of characteristics from those noted above, and it seems to exemplify the model used “in fact” in many jurisdictions worldwide, including the model used in United States jurisdictions.

Moving from the strict stare decisis side of the spectrum, we see examples of courts that render decisions that have the force and effect of law, but that also accept the obligation to review past decisions to ensure that prior interpretations of the law are correct.  For example, the United States Supreme Court and other federal and state courts in the United States have valued precedent but have often employed a flexible model of stare decisis.[8]  The doctrine of stare decisis, as well as the hierarchical structures of the court systems, typically require the subordinate courts in those jurisdictions to be bound by the decisions of the courts to which the lower courts’ decisions are appealable and require courts to be bound by their own prior decisions.[9]  Despite the apparent rigidity of this doctrine, the United States Supreme Court has the express power to overrule its own decisions, as do most of the state supreme courts.  Precedent is valued and respected, but American courts recognize that blind adherence to precedent that is not workable, antiquated, or poorly reasoned is a mistake.[10]  The United States Supreme Court described this flexibility and the value of precedent in the United States as follows:

Stare decisis is the preferred course, because it promotes the evenhanded, predictable and consistent development of legal principles, fosters reliance on judicial decision, and contributes to the actual and perceived integrity of the judicial process.  Adhering to precedent is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.  Nevertheless, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent.  Stare decisis is not an inexorable command; rather it is a principle of policy and not a mechanical formula of adherence to the latest decision.[11]

American courts have a record of following precedent, but they also have a record of revisiting decisions and the reasoning behind those decisions to ensure that the Constitution or other laws are being properly interpreted and applied.  United States Supreme Court Chief Justice Roberts noted that were it not the Court’s practice to revisit precedent when some special justification warrants further review, certain outdated practices and laws might still exist in the United States, such as segregation and government wiretapping without the need for a warrant.[12]  He explained, “[S]tare decisis is not an end in itself.  It is instead ‘the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.’”[13]

Moving from the other end of the spectrum, where courts do not make law and are not bound by prior decisions, we see courts consider prior decisions when interpreting and applying codified law.  In France, Italy, and Spain, as is the case in many other traditional civil law and mixed jurisdictions, prior decisions, especially by reviewing courts, often are very influential and persuasive to subordinate courts, even though they cannot alone provide the authority for a court’s decision.[14]  Similarly, Louisiana courts value prior decisions, even though the Louisiana legislature does not recognize judicial decisions as a source of law.[15]  The Louisiana Supreme Court has on occasion directed other Louisiana courts to follow its decisions, and the majority of those courts indicate that they consider themselves bound by Louisiana Supreme Court decisions.  These decisions are not a source of law, yet as has been recognized in many different jurisdictions, courts are interested to know how other courts have interpreted the law in the past.  Add to that the court’s awareness that its decisions will be reviewed by certain higher courts, and logic directs courts, and likewise litigants appearing before them, to consider what has been held in the past in similar circumstances.[16] 

 

[1] The author has published articles on the value of precedent and a book chapter that addresses the topic.  This post draws directly from those publications.  See Louisiana Legal Research (Carolina Academic Press 2009, 2d ed. 2013, 3d ed. 2017); Mary Garvey Algero, Considering Precedent in Louisiana: Balancing the Value of Predictable and Certain Interpretation with the Tradition of Flexibility and Adaptability, 57 Loy. L. Rev. 113 (2012), also available in The European Journal of Comparative Law & Governance (Feb. 2014); Mary Garvey Algero, The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation, 65 La. L. Rev. 775 (2005).

     [2]. Interpreting Precedents: A Comparative Study 1 (D. Neil MacCormick & Robert S. Summers eds., 1997).

     [3]. Id. at 2; see also Interpreting Statutes: A Comparative Study 487 (D. Neil MacCormick & Robert S. Summers eds., 1991) (concluding that, together with any applicable statutes, “precedents are the most frequently used materials in judicial opinions,” regardless of whether precedents are considered to have the force of law or not); see also Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 911-12 (2010) (explaining that precedents are to be respected); Borel v. Young, 2007-0419 (La. 11/27/07); 989 So. 2d 42, 65 (emphasizing the value of precedent to maintain certainty and stability in the law); Francesco G. Mazzotta, Precedents in Italian Law, 9 Mich. St. U.-DCL J. Int’l L. 121, 153 (noting that precedents are the most important “justificatory material used in judicial opinions”).

     [4]. Deborah G. Hankinson, Stable, Predictable, and Faithful to Precedent: The Value of Precedent in Uncertain Times

http://www.tex-app.org/articles/HankinsonPrecedent2007.pdf, at 1, 4 (2007) (citing Hon. D. Arthur Kelsey, The Architecture of Judicial Power: Appellate Review and Stare Decisis, Judges’ Journal, at 9-10 (Spring 2006)).

     [5]. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998) (explaining that “[s]tare decisis is the ‘preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’”) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)); Mountain View Coach Lines, Inc. v. Storms, 476 N.Y.S.2d 918 (N.Y. App. Di v. 1984) (trial courts in New York are formally bound to follow decisions rendered by New York appellate courts).  See also James L. Dennis, Interpretation and Application of the Civil Code and the Evaluation of Judicial Precedent, 54 La. L. Rev. 1, 4-5 (1993); Alvin B. Rubin, Hazards of a Civilian Venturer in Federal Court: Travel and Travail on the Erie Railroad, 48 La. L. Rev. 1369, 1371 (1988).

     [6]. Rubin, supra note 5, at 1371.

     [7]. See Michel Troper & Christophe Grzegorczyk, Precedent in France, in Interpreting Precedents: A Comparative Study 115 (D. Neil MacCormick & Robert S. Summers, eds., 1997) (“There is no formal bindingness of previous judicial decisions in France. One might even argue that there is an opposite rule: that it is forbidden to follow a precedent only because it is a precedent.”); id. at 111-12 (quoting F. Zenati, La Jurisprudence, Paris: Dalloz 102 (1991)) (“[T]he very idea that a judge could search for the base of his decision in a prior judgment is literally unthinkable in a legal system based on statutory Law.’”); Catherine Valcke, Quebec Civil Law and Canadian Federalism, 21 Yale J. Int’l L. 67, 84 (1996) (“A lower court in France has no formal duty to follow a higher tribunal’s decisions, and the highest court, the Cour de cassation, enjoys full power to renounce its own decisions.”).  But see Alain Lacabarats, The State of Case Law in France, 51 Loy. L. Rev. 79, 83 (recognizing that even though the decisions of the courts are not binding on other courts, “in practice, courts have a natural tendency to conform spontaneously to the case law of the Cour de cassation, to guarantee citizens a uniform application of the law.”). See also Michele Taruffo & Massimo La Torre, Precedent in Italy, in Interpreting Precedents: A Comparative Study 141, 154 (D. Neil MacCormick & Robert S. Summers eds., 1997) (discussing Italy), and Alfonso Ruiz Miguel & Francisco J. Laporta, Precedent in Spain, in Interpreting Precedents: A Comparative Study 259, 260, 269 (D. Neil MacCormick & Robert S. Summers eds., 1997).

 

     [8]. Mortimer N.S. Sellers, The Doctrine of Precedent in the United States of America, 54 Am. J. Comp. L. 67, 71, 74, 86-88 (2006).

     [9]. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998).  The Court in Hohn further explained that its decisions “remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Id. at 252-53.  See also Gavin v. Chernoff, 546 F.2d 457, 458-59 (1st Cir. 1976) (invoking stare decisis to follow an earlier opinion when “appellants essential arguments remain much the same as those considered and previously rejected, and there were no compelling new reasons and no change in circumstances justifying reconsideration of the previous decision”). 

   [10]. Citizens United v. Fed. Election Comm’n, 130 S. Ct 876, 911-12 (2010).

   [11]. Payne v. Tennessee, 501 U.S. 808, 827-28 (1991).

   [12]. Citizens United, 130 S. Ct. at 920 (Roberts, C.J., concurring).

   [13]. Id. (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)).

   [14]. Lacabarats, supra note 7, at 83-86 (discussing the value in fact of French decisions); Mazzotta, supra note 3, at 137, 141, 153 (discussing the value in fact of Italian decisions); Miguel & Laporta, supra note 7, at 274-75, 288 (discussing the value in fact of Spanish decisions).

[15] La. Civ. Code Ann. art. 1 (providing that the sources of law are legislation and custom).

[16] I have referred to this behavior as “systemic respect for jurisprudence.”  Algero, The Sources of Law and the Value of Precedent, supra note 1, at 781.

November 27, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, United States Supreme Court | Permalink | Comments (1)

Wednesday, November 6, 2019

From Novices to Master Legal Writers

Much has been written about how people learn, including studies showing that people move from being novices to masters, passing through various stages along the way.[1]  When learning new skills, novices act with a “rigid adherence to taught rules or plans” and use “little discretionary judgment.”[2]  As they move toward expert and mastery status, they no longer need to strictly rely on “rules, guidelines or maxims.”[3] They have a “vision of what is possible,” they have an “intuitive grasp of situations based on deep, tacit understanding,” and they can improvise.[4] 

Moving from novice to master in any field at any skill typically requires a person to learn fundamentals before learning to manipulate or vary the fundamentals to become more effective at the skill.  For example, when students are taught to form letters at an early age, they are taught to draw the lines of the letters in a particular direction and to match model letters exactly.  Only after mastering the fundamentals of drawing letters do students begin to vary the precise models by adding personal touches that they think look better or flow better, yet still communicate the letters clearly.  Similarly, athletes first learn the fundamental skills of their sports and practice those fundamental skills extensively.  As these athletes practice and learn more about their sports and move toward mastery, they begin to improvise to perform the skills in unique ways that elevate the athletes’ performances to expert or master levels.  Varying the technique of performing a skill by someone who has mastered the skill is accepted and even admired when the person is performing at a top level.  If athletes are not performing effectively, though, coaches often insist that the athletes return to fundamentals to improve their games. 

Like students first learning to draw letters and athletes first learning the skills of their sports, law students and new lawyers must begin with fundamentals and work through the stages, from novice to master, when engaged in legal argument and writing.  Professors and lawyers working with these novices must exercise patience as they wait for these law students and lawyers to develop.  A common refrain from lawyers working with novice legal writers is that these novice writers do not write persuasively enough.  Perhaps this is because they are novices who have not mastered legal argument and writing sufficiently to improvise—to vary from the “taught plans or rules” and use their discretion.  They do not yet have a deep, tacit understanding of how far they can push their arguments beyond the existing law and how strongly they can tell the court how it should find or hold.  They are new to legal discourse; they do not know how bold or creative they can be.  They are like the children learning to draw letters who try to precisely follow the models of letters and do not dare to add an unnecessary flourish or variation.  They have not yet reached mastery. 

Frustrated by the work of novices, professors, lawyers, and judges sometimes criticize these writers for following formulas and not taking more license with their writing.  Novices even worry that their “formulaic” writing may be a problem.[5]  Legal writers are taught to use formulas, such as IRAC and CREAC,[6] to ensure that they provide the information necessary for a solid legal argument and analysis.  These formulas are used because they track a logical way to present information needed for legal arguments.[7]  Judges are looking for arguments that are supported by rules, explanations of those rules, and application to the facts involved in a case.   As these writers practice and learn more about writing legal arguments persuasively, they will become more adept at varying structures of their arguments.  They will learn when to depart from rigid adherence to taught rules when doing so will make their writing more persuasive.    

A suggestion for these novices and their professors and mentors is that the novices write a draft using IRAC or CREAC to ensure that they have included the necessary information.  Once a draft exists, the writer should then revise and edit the work to turn it from an accurate statement of the law and reasoning to a persuasive piece of advocacy.  This may involve deliberately altering the formulas employed.  For example, precedent case discussions might follow a rule as part of a rule explanation when the precedent case discussion is necessary to explain and interpret the rule.  On another point of law or argument, the precedent case discussion might follow the application of the rule to the case at issue.  Deciding to make this move says to the court that this is the rule, this is how the court should apply it to the facts, and the precedent case corroborates the argument being espoused.  This way guarantees that the court will not become distracted by a precedent case discussion when it comes before the argument involving the case at issue.  It also risks that the court might have wanted a fuller exposition of the law before the argument.  As the writer gains expertise and begins to master persuasive legal writing skills, he or she will become better at determining the best way to proceed in writing an argument, confidently moving away from rigidly following taught rules or plans when appropriate.   

Instructing the novice on the necessary parts of an argument and how to order the parts of an argument is valuable, as is emphasizing to the novice the importance of revising and editing.  Even though the novice will adhere to a formula initially, the novice will only improve as a writer if he or she is willing to experiment with revising to make arguments more compelling.   Novice writers tend to underestimate the value and necessity of revising and editing.  The best writers know that rarely if ever is the first draft the best draft.  Once a writer writes the parts necessary to make an argument, that writer should move the parts around, manipulate the language, and present the arguments in the best format to make the case to the court. 

So, to professors and supervising lawyers, expect to instruct students and new lawyers on how to make their writing more persuasive.  Expect to revise and edit their writing to show them exactly how to do this effectively.  Model the behavior you want to see in these novices.  And, with time, the arguments and the writing will be more persuasive as the writers move toward mastery.      

 

[1] See, e.g., Stuart E. Dreyfus, The Five Stage Model of Adult Skill Acquisition (June 1, 2004), https://www.bumc.bu.edu/facdev-medicine/files/2012/03/Dreyfus-skill-level.pdf.

[2] Raman K. Attri, 7 Models from Research Demystify Stages in Novice to Expert Transition (Nov. 18, 2017), https://www.speedtoproficiency.com/blog/stages-in-novice-to-expert-transition/.

[3] Id.

[4] Id.

[5] Mary Beth Beazley, A Practical Guide to Appellate Advocacy 97 (5th ed. 2019).

[6] IRAC: Issue, Rule, Analysis, Application, or Argument, and Conclusion.  CREAC: Conclusion, Rule, Explanation, Analysis, Application, or Argument, and Conclusion.

[7] See Beazley, supra note 5.

November 6, 2019 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (1)

Tuesday, October 29, 2019

Who Really Drives the Appellate Litigation Bus?

No offense to this blog’s readers, but appellate advocates in general are a narcissistic bunch. We like to think of ourselves as the drivers of legal change in our system. We assume that the arguments we present before appellate courts are the impetus for new opinions that will have far-reaching practical effects in law and society. I feel confident in ascribing this self-important attitude to appellate advocates because I held it dearly when I practiced as an appellate public defender. Nothing could be more meaningful, I assured myself, than a worthy struggle in the arena of ideas that is an appellate courtroom, with the eventual victor illuminating the legal path forward for decades.

When I began wearing an academic hat, I was forced to reexamine my assumptions about the role appellate advocates plays in shaping the law. And that reexamination was sobering. Our judicial system carries a deeply embedded faith in the procedural justice of adversarial litigation—the idea that when parties compete in a fair process for adjudicating disagreements, they will produce the most just results possible. But when I examined both my own experiences as an appellate clerk and the available data on high court adjudication, I was disappointed to realize how often judges themselves, rather than litigants, drive the outcomes in our supposedly adversarial courts.[1] Take the United States Supreme Court, for example. Supreme Court litigants and their attorneys play a diminishing role in actually shaping the direction of the law, while the “umpire” Justices themselves take greater control over the direction of jurisprudence. The Justices have lowered the demands of their discretionary dockets by consistently granting certiorari in fewer than 100 cases per year, while simultaneously increasing the length and originality of their opinions; their written work is both longer and contains less borrowed language from the parties’ briefs than ever before.[2] In those opinions, Justices themselves often participate in a kind of top-down lawmaking. An opinion in a case decided today often ghost-writes the brief the Justice would like to see presented in future appeals, allowing that Justice to shape the law according to their preferences in future case they have transparently invited litigants to file.[3]

Oral arguments are little different. For several decades preceding this term, oral arguments have left less and less space for the advocates themselves to shape opinions. Attorneys in the Supreme Court instead play the role of straight man in conversations dominated by the Justices, who appear disinterested in the responses from the lectern. In a comparison of oral arguments in the 1958–1960 Terms and the 2010–2012 Terms, Barry Sullivan and Megan Canty noted the myriad ways in which Justices have come to dominate the direction of oral argument over the last half-century, including an increase in the ratio of Justice-spoken words to advocate-spoken words, a near doubling of the average number of words spoken by the Justices per oral argument, and far shorter opening monologues by counsel.[4]

It was thus tempting to celebrate the Supreme Court’s recently-announced rule permitting the advocates approximately two minutes of uninterrupted monologue at the start of oral arguments. Perhaps this would mark a sea-change for appellate advocacy, revitalizing the role of advocates in Supreme Court litigation. Yet there is reason for hearty skepticism. Justices have long taken a guiding role in the direction of the law through use of the discretionary docket; invitations for specific arguments in future appeals; and techniques to slowly undermine, or even stealthily overrule, the reasoning in precedent cases.[5] The two-minute rule will not cabin any of those techniques that permit the Justices, rather than the litigants, to drive the appellate litigation bus.

One well-worn trope holds that cases are seldom won at oral argument, but can readily be lost if one is insufficiently prepared to defend their brief’s arguments against a barrage of troubling hypotheticals and slippery slopes. If anything, the new rule only erodes that trope at the very extreme margins. Advocates may have slightly greater opportunity, in increments usually measured by a kitchen timer, to shape the direction of the law in their presentation to high courts. But this offers little salve when the hypotheticals come cascading down, with little interruption for actual answers, during the bulk of the argument. For appellate advocacy to meaningfully change, and for advocates to play a more determinative role in shaping the law, the justices themselves must approach their job with greater humility, aspiring to resolve the controversies actually presented rather than those they have hoped to see and invited to come before them. Without that change in attitude and approach, the two-minute rule may be little more than a procedural fig-leaf from a court that has drifted further and further away from the judicial system’s adversarial ideals.

This is all not to say that appellate advocacy has lost its value in today’s world. Preparing for an appeal remains one of the most demanding, rewarding, and fruitful exercises any attorney or law student can undertake. Nothing helps an attorney refine their legal arguments more than planning for the crucible of hypotheticals they might face from a high court. And the history of our nation’s highest courts still suggests that some advocates, through either sheer intellectual brilliance or perfectly-timed moments of inspiration, play a guiding role in shaping the direction of the law. But a clear-eyed evaluation of the appellate advocacy process suggests that Justices are the real drivers of case outcomes. Of course, appellate attorneys must still ensure that their clients receive vociferous representation and a prepared, skilled advocate at the podium. But that podium’s power is limited, and it is not often the driver’s seat for appellate litigation.

 

[1] Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339 (2017).

[2] See, e.g., Ryan C. Black & James F. Spriggs II, An Empirical Analysis of the Length of U.S. Supreme Court Opinions, 45 Hous. L. Rev. 621, 630, 634–35 (2008); Adam Feldman, A Brief Assessment of Supreme Court Opinion Language, 1946–2013, 86 Miss. L.J. 105, 137 (2017).

[3] See Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341-43 (2017).

[4] Barry Sullivan & Megan Canty, Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958–60 and 2010–12, 2015 UTAH L. REV. 1005, 1042.

[5] See Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1 (2010).

October 29, 2019 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, October 28, 2019

Tips for Excellent Appellate Advocacy

Arguing before an appellate court, particularly for recent graduates or those with limited oral argument experience, can be daunting. Below are ten tips that will enhance the persuasive force of your argument, strengthen your oral argument skills, and maximize your chances for success.

    1.     Have an outstanding introduction

When preparing for oral argument, be sure to prepare a concise and persuasive statement (no longer than two minutes in length) in which you set forth the most favorable precedent, facts, and arguments that support the remedy you are seeking. The reason is that the judges will likely begin to ask you questions shortly after you begin your argument. Thus, it is critical to ensure that you begin with a powerful introduction and emphasize the strongest aspects of your argument before the questions begin.

    2.     Anticipate questions that the court will ask – and prepare effective responses

When arguing before an appellate court, the majority of your time will likely be spent responding to the judges’ questions. And you can be sure that the judges will focus on the weakest aspects of your case. Thus, when practicing for oral argument, it is critical for you to identify and address unfavorable facts and precedent. In so doing, your goal should be to convince the judges that the presence of unfavorable law or facts should not affect the remedy you are seeking.

    3.     Prepare, Prepare, Prepare

In the weeks (or months) before an oral argument, you should prepare extensively. Specifically, you should be able to discuss the record below, the relevant facts, and the governing precedent, and address relevant counterarguments without referring to any notes. Indeed, your command of the facts and law will enhance your credibility and enable you to deliver a compelling argument.

    4.    Concede weaknesses in your argument and acknowledge unfavorable facts

In almost any case, there will be weaknesses in your argument. For example, there may be facts or precedents that are not favorable to your position. When arguing before an appellate court, do not be afraid to acknowledge these weaknesses. Doing so will enhance your credibility with the court. For this reason, you should be prepared to explain why unfavorable facts or precedents should not affect the remedy you are seeking. For example, if you are confronted with unfavorable precedent, be prepared to explain why such precedent is distinguishable or would lead to an unjust result.

    5.     Be respectful to the court and your adversary

This should go without saying, but at all times you must be respectful to the appellate court, the lower court, and your adversary. Thus, be sure not to interrupt the judges when you are asked questions. Do not insult or attack the lower court or your adversary. Always speak in a measured and respectful tone, making sure not to use over-the-top language or express unnecessary emotion. Failing to maintain professionalism will detract from your credibility and reduce the likelihood that you will succeed.

    6.    Consider the impact of a ruling in your favor on future cases

Understand that, when an appellate court is deciding your case, the court is also considering how a ruling in your favor will affect future cases. For example, if the court adopts your proposed rule, will it lead to an unjustifiable expansion of the law or have unforeseen consequences that the court would not countenance? Thus, when preparing for oral argument, be sure to consider the policy implications of a ruling in your favor and be prepared to address how such a ruling will impact future cases in different contexts.

    7.     Respond to the judges’ questions directly

Excellent advocates never attempt to evade a judge’s question. If you do so, the court will likely get frustrated and view the strength of your argument less favorably. Accordingly, be sure to answer every question directly by relying on the relevant facts and law. And remember that the judges’ questions are a window into how the judges are considering the merits of your case, and thus an opportunity to convince the judges that their concerns are best addressed by ruling in your favor.

    8.     Speak slowly and be aware of your non-verbal actions

It is natural and entirely normal to experience anxiety before an oral argument. Knowing this, be particularly mindful of the manner in which you deliver your argument. For example, do not speak too quickly. Instead, gather your thoughts and speak in a conversational, respectful tone. And be sure not to fidget or move unnecessarily at the lectern. Keep your composure and your focus on the facts and law. After all, your non-verbal actions can often be as revealing as your verbal communications.

    9.    Be aware of the time – and practice under timed conditions

During most oral arguments, you will have up to thirty minutes (and sometimes less) to present your argument. You should practice under timed conditions to ensure that you can provide the court with the strongest and most relevant points supporting a ruling in your favor. In so doing, you should prepare a concise list of your most important arguments and make sure that, no matter how intense the questioning, you communicate these points either at the beginning or end of oral argument.

    10.   Prepare an excellent closing

Be sure that your closing statement is as powerful as your opening statement. Regardless of the questions that you are asked, make sure that you end your argument by providing the court with the strongest argument(s) that support the remedy you seek. Indeed, just as you want to create an excellent first impression at the beginning of an oral argument, you also want to provide the court with a powerful ending that offers compelling reasons to rule in your favor.

Extra tip: Have fun and do your best. You have a unique opportunity to obtain a favorable ruling on behalf of your client and effectuate a positive change in the law. Don’t put too much pressure on yourself. Do your best and relish the opportunity to make a meaningful difference in law.

October 28, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Wednesday, October 16, 2019

The Kind of Anxiety Every Client’s Lawyer Should Experience

Advice about appellate advocacy is abundant. How to begin; how to structure an argument; how to respond to questions; how much deference to show to the judge(s); whether to reserve time for rebuttal—these are all things the advocate should consider when preparing for oral argument. The best advocate should also experience a bit of anxiety. Not crippling anxiety; just enough anxiety to get adrenaline flowing; just enough anxiety to evidence that the advocate appreciates the gravity of the task and the client’s cause. “Situational anxiety, if it’s proportionate to the circumstances in which it arises, can have quite a positive impact.”1 

Situational anxiety associated with public speaking is common. In fact, public speaking is ranked highly among things and situations people fear the most, along with snakes and spiders.2 Most law schools require law students to perform some public speaking, from responding in class as part of a Socratic dialogue to delivering a trial level or an appellate level oral argument as part of a moot court exercise. Some law students walk away from these experiences believing that public speaking is not for them because they are anxious about making oral presentations. Others learn to thrive from the rush they feel when under the pressure of public speaking. Law professors and lawyers who mentor students and new lawyers should help students and new lawyers recognize that not only is this situational anxiety good for them, it is also good for their clients. And, it is not unusual. If law students and lawyers could recognize that some level of anxiety is healthy because it shows that the speaker cares about and recognizes the gravity of the task, perhaps some of these students and lawyers would reconsider their perceived aversion to public speaking.

As I prepared for one of my first oral arguments, a mentor advised me that some level of anxiety before an oral argument is healthy. Anxiety borne from a desire to represent your client and your client’s position to the best of your ability, combined with preparation, is good. I would even argue that it is necessary. I have told students that the client who has a lawyer who is not nervous about delivering an argument needs a new lawyer. I think I may have read that somewhere many years ago. Arguably, if the lawyer has no anxiety about delivering the oral argument, then perhaps the lawyer does not care enough and will not be energized enough to deliver a passionate argument. People do not get nervous or worry much about things for which they do not care.

Science supports this theory. Dr. Loren Soeiro explains:  “Anxiety helps us detect and attend to potential threats so that we can avoid danger. In the short term, anxiety can keep you at a heightened state of alert, allowing you to react more quickly when urgent dangers arise—like when you’re driving anxiously in the rain, and you find yourself responding immediately to erratic changes in traffic patterns.”3 He explains that if you face no anxiety when facing life-changing events and choices, you may end up missing something important because you will not fully think through what is going on.4 Situational anxiety serves to enhance your motivation to work hard and perform well, and it boosts your performance levels.5 It can also improve memory and lead to “responsible leadership.”6 “At significant moments when performance becomes an issue, the right amount of anxiety will help us do that much better.”7 

Thus, for the law student or lawyer called upon to represent a moot or a real client, situational anxiety can provide just what is needed to ensure that the advocate is giving the task and the client his or her all, both in preparation and in execution.

Educators and mentors of law students and lawyers should be sure to share this message. Doing so will help to normalize what these students and lawyers may be feeling and allow them to recognize and accept the positive aspects of what is ordinarily considered negative. Moreover, as first generation law students and lawyers enter law schools and the profession, it is especially important to educate these newcomers on the value and, indeed, the routine occurrence of the situational anxiety lawyers experience. These newcomers to the field may lack the opportunities to hear from seasoned lawyers about the anxiety that is common and can be helpful. Recognizing and embracing the kind of anxiety every client’s lawyer should experience before and during an oral argument or presentation should lead to better lawyering and perhaps more well-adjusted lawyers.

 

1Loren Soeiro, 3 Reasons Why Anxiety is Good for You, Psychology Today, May 20, 2019, https://www.psychologytoday.com/us/blog/i-hear-you/201905/3-reasons-why-anxiety-is-good-you.

2Kendra Cherry, 10 of the Most Common Phobias, Verywell Mind Blog, https://www.verywellmind.com/most-common-phobias-4136563 (last updated October 3, 2019) (explaining that fear of public speaking is the most common form of social phobia).

3Soeiro, supra note 1.

4Id.

5Id. (noting that “[r]esearch indicates that student-athletes who feel anxiety are able to perform better in their events — and on college exams! — than those who denied feeling worried.”).

6Id.

7Id.

 

October 16, 2019 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Wednesday, October 2, 2019

October Beginnings

October is a great month, perhaps the greatest month of all. In October, the oppressive heat of the summer sun begins to wane – this year being an exception, of course. With the waning oppression, we have moments of crisp, cool, clear days where the sky is a deep blue, and every breath we draw has a freshness that cannot compare. The stifling chaos that we saw in August, as we tried to cram in just a few more days of summer fun, and prepare to move our offspring back to college, or go shopping for new school supplies, persisted into September. Do you remember September? That blur of back-to-school, with new routines and bedtime fights, and syllabuses that won’t write themselves, and fresh first year law students eager to grasp the subtle nuances of CREAC. Oh yes, I stepped out of September with barely a glance back and walked, head held high, into October.

But why? Why is it that I greet October with such reverence? October is the beginning of holiday season. Yes, I know that many do not consider Halloween to be a true holiday, but it is the start of a season of festivities that will march us month by month, holiday by holiday, until spring. But even the holidays, and the cooler weather, and the promise of sweaters and bonfires, and apples and pumpkins, are not the reason why October is the most romantic of months.  October marks the opening of two things that make me giddy: First, the Supreme Court session year opens with all of its promise and anticipation and, second, October marks the opening of the moot court season with equal amounts of promise and anticipation. I recognize that for many practitioners, news people, and scholars, nothing can compare to the October session of the Supreme Court. And for me, I will be watching, waiting, and pontificating, for sure.  As I went to compile a short list, I went from, "oh this case," and "ah that case," to "how can I choose?"  Just check out the line-up for yourself: https://www.scotusblog.com/case-files/terms/ot2019/

My muse, however, is moot court, where my students and I get to dabble in mock cases based on the issues that the Court will be tackling. In fact, last year, my students argued many of the issues that will be decided this term.  October marks the beginning (if you don’t count all the briefs that were due in the last few weeks).  

Just like those of us in the real world have been making adjustments in late August and early September, my students have been re-adjusting to a new school year. In addition, our 2Ls and 3Ls have been busy writing briefs and practicing their oral advocacy skills. And, now, beginning this coming weekend, and over the many weekends to come, they get to see how they have been doing. Certainly, I have been giving the praise and critiques. We’ve been honing their skills, and sharpening their wits. But at this point, my praise is beginning to sound parental. They need to see how their work pans out in the “real” world, or as real as it gets before you are barred (or have your 3rd year practice certificate). Strangers, who haven’t learned to love each of them for who they are, will be assessing their strengths and weaknesses, and the best part is my students will know almost instantaneously how they fared.

I love this for my students. I want the judges to be respectfully honest, and I want my students to see that some things are truly up to the subjective nature of the individual, while other things are almost universally true. When we know what is universally true, we can begin to learn how to adjust and account for the subjective expectations of others. I love that my students have the opportunity to take the feedback they receive and then incorporate that into the next competition, and I treasure the unique opportunity that I have to see them grow and mature. In less than a year, my 3Ls will leave this moot court world behind, but they will never forget. Moot court students are the marching band of law school. They will forever think fondly of their experiences, and will tell cautionary tales that arise from their negative experiences. They will return to the school and share their real world experience with my next crop of students, and when they get picked to argue in one circuit or the other, they will call me. And it all starts in October.

October 2, 2019 in Appellate Advocacy, Law School, Moot Court | Permalink | Comments (0)

Thursday, August 29, 2019

Bias: What would you do?

I recently attended a fantastic gathering of advocacy coaches, directors, and advisers, American's Second Annual Coaches Clinic. What a joy it was to spend time with a group of individuals dedicated to training students to be excellent advocates.  And so, refreshed, I return to begin preparing my students to compete in moot court. And I bring insights about the psychology of judging.  And while the focus was on competition judges, the psychology applies in daily practice.  For instance, we discussed implicit and in some cases, explicit, biases that some competition judges may have regarding race or gender.  These same judges practice law in our communities and serve as judges in our courts. 

I want to ask how we can combat those biases, but I don't think that is the answer.  Confrontation will not necessarily change the way a person thinks or feels, and as advocates, we are merely a representation of our client, so we have to consider the ramifications of taking a stance.  But in certain circumstances standing up against indignities is absolutely required.

Unfortunately, we are raised in a civilized society.  We don't expect anyone to be blatantly biased, and we are shocked when it happens. If we haven't thought about it beforehand, and planned what our reaction would be, we become paralyzed by that shock.  As a coach, I have begun to consider the worst case scenario, and am trying to plan how and when I would step in.  I talk to my students about bias and we discuss the how and when.

Where do you draw the line?  Have you considered what you would do if a judge, competition or real, were to say something that exhibits explicit  bias towards you, your client, or your team?  Have you considered what you would do if a judge were to exhibit such bias to your opposing counsel or team, or to another person in the room? 

 

August 29, 2019 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Moot Court | Permalink | Comments (0)