A Pedagogical Twist for the 1L Appellate Brief and Oral Argument

For those who teach legal writing to first-year law students, it is the season for appellate oral argument. Yes, the long-standing tradition of requiring first-year students to complete an appellate oral argument in the legal writing course continues today at the large majority of American law schools–at just under 75% of them, according to recent data. At those schools, the oral argument, which is commonly the capstone exercise near the end of the spring semester, has become something of a rite of passage for the students.

In a 2011 article, Legal Research and Writing as Proxy, I argued that assigning an appellate brief and appellate oral argument in the 1L legal writing course remains a pedagogically sound practice, even though a large majority of practicing attorneys will never engage in appellate practice, let alone complete an appellate oral argument. I still retain that view but won’t rehash my arguments here. Rather, I will focus on a pedagogical opportunity afforded by the brief/oral argument sequence of assignments that I discovered more recently.

In the last few iterations of my legal writing course, the appellate brief and oral argument assignments have proven an excellent vehicle for a bit of a pedagogical twist: A few weeks before the brief is due, not after, I teach lessons on oral argument and require the students to complete a practice oral argument round in front of my 2L teaching assistants. (The formal rounds of oral argument in front of a trio of local attorneys still occur after the briefs are submitted.) For many years, I kept brief writing and oral argument entirely separate—only after the briefs were completed and submitted would I shift the students’ attention to oral argument. (After all, that mimics the realities of the “real world“ of appellate practice.) But as a pedagogical matter, just like writing the brief helps in preparing an oral argument, working on an oral argument–and thereby having to talk out and defend one’s positions–can help in preparing a brief.

A few weeks before the brief is due, most students will have a scattered and underdeveloped array of arguments. Completing a practice oral argument can help them–or, in the case of those students who are spinning their wheels, force them–to organize and further develop those arguments for the purposes of the brief. In pursuit of this goal, I ask my TAs to give extensive feedback to both students after each practice round. Moreover, I require every student to attend two additional practice rounds as observers. At each round, the student representing Petitioner, the student representing Respondent, and the students attending as observers also begin to appreciate the formalities and peculiarities of oral argument, thus helping them to prepare for the formal rounds that will occur after submission of their briefs.

This semester, shortly after the practice rounds (just over a week before the briefs were due), my students graciously agreed to provide me some feedback on the experience. One of my students volunteered to solicit comments from all of her classmates, anonymize those comments and her own, and then send them to me. Twelve out of fourteen students in my small section gave a positive review. I include two of the more thoughtful evaluations here:

  1. I found doing the practice oral arguments before my brief was fully written to be helpful. Arguing my side in the courtroom and fielding questions from the TAs helped me more precisely narrow the theme of my arguments and determine how I wanted to frame my position in the brief itself. After receiving pushback from the TAs on certain points, I was able to refine my responses to common criticisms that would come from the other side. Additionally, I now feel more comfortable going into the “official” oral arguments having completed a practice round. However, I would have liked to participate in another mandatory practice round with the TAs after my brief is written; the substance of my oral argument has substantially changed since my first practice round.
  2. Practice oral arguments were a large motivator to get my arguments organized. I found it really helpful to speak out loud about the arguments. Doing so really helped me understand what my points were and whether or not they held up against scrutiny. Speaking about the arguments also helped me understand how they related to each other. The TA’s did a good job of making us feel comfortable throughout the process. I think overall the exercise is going to be beneficial as long as the practice round is kept informal. We were all stressed about how to perform the oral arguments, so maybe there could be a concession in the formality/process of the oral argument that could make us more comfortable.

Good food for thought, as I continue the tradition of appellate oral argument again next spring.


One Response

  1. This sounds like a great idea, Ben! I do something similar with my MSL students, having them engage in a negotiation before their memo is due. I find that this helps them get a better handle on the legal issues and counter-arguments they may not have considered before turning in their final draft.

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