Judge like a judge, please

The Supreme Court of Georgia recently held arguments on site at the law school where I teach. This was an excellent service for legal education. In class discussion afterwards, my students truly could not contain their enthusiasm for what they observed.

All of the advocates brought different strengths to the podium. One stood out for something he did when any of the justices asked a question:

He paused.

He stood very still throughout his argument and maintained socially appropriate eye contact. When asked a question, he took a moment. During this moment, he did not look down at his notes or up at the sky or left or right. Throughout the pause, his body language was calm and consistent with the rest of the argument.

And—during these pauses—here is something else that stood out:

None of the other justices interrupted the advocate.

They held whatever questions they may have had as the advocate paused, considered, and then responded to their colleague on the bench’s question.

After the argument, I had the opportunity to speak with a few of the justices over lunch. I commented generally about how it’s good for law students to see that they don’t have to race to answer the question. It’s okay to pause and think.

To my delight, one justice said he noticed that too. He said that if he’d had the chance to address the audience after the arguments, that would have been the key idea he emphasized as a teaching point.

And that leads to my plea to moot court judges.

Please let the competitors pause.

Pausing to think is not a weakness. It’s a strength.

It is possible and pretty easy to grade an oral argument based on whether the advocates answer quickly without pausing. This is, frankly, an easier grading criteria than whether they give a good answer.

It’s also possible and pretty easy to interrupt when someone does pause and ask them another question. Then you can also grade their argument on whether they remember and answer two questions at once. That’s also an easier grading criteria than whether they give a good answer.

But if the goal is to help law students become effective advocates, instant responses are not the right grading criteria.

Don’t deduct points for pausing. Add points for pausing and giving thoughtful answers.

The corollary practice is this: when a competitor does pause, don’t interrupt to and add a question. That’s borderline disrespectful to your colleague on the bench who asked the first question and presumably wants to hear the answer.

Moot court judges may meet each other for the first time when they assemble to judge a competition round. But they should still model the collegiality and respect that is apparent on the bench. If a moot court judge asks a question, assume it’s important to that judge to hear the answer.

The result of allowing competitors to pause is this:  Competitors’ answers will be better. The judges’ evaluation will be more accurate on the substance of the response. Speed and lack of hesitation are not an accurate proxy for substantive effectiveness—even in a competitive oral argument setting, and even by 2L and 3L students who’ve tried out and been selected to compete in moot court.

Most of all and beyond the four corners of any score sheet, competitors allowed to pause and think will become better lawyers. They will become the type of lawyer that one day could receive a compliment by a state Supreme Court Justice, for pausing and thinking.

For more information about effective—and ineffective—moot court judging, see Barbara Kritchevsky, Judging:  The Missing Piece of the Moot Court Puzzle, 37 U. Mem. L. Rev. 45 (2006) (available on Lexis and Westlaw).

Also see the Legal Writing Institute’s Model Oral Argument Judging Guidelines.

Soft rock didn’t work

It’s that time of year when I spend hour upon hour upon hour reading and commenting on law students’ draft briefs. To do this, it’s necessary to have a personal “culture of commenting.”

I’m borrowing that phrase from a wonderful writing book, Hilton Obenzinger’s How We Write: The Varieties of Writing Experiences (2015). In the chapter on writing “costumes, cultures, rituals, metabolisms, and places,” he shares delightful stories from a variety of writers on how they create their own personal “culture of writing.”

He credits historian Mary Lou Roberts for the phrase. And Roberts’s own culture of writing apparently includes listening to soft rock. Here’s Obenzinger sharing his interview with Roberts:

[I]t comes as “a shock to some of my students” that she listens to a radio station that features “really bad soft rock.” The fact is that she is no fan of soft rock, but “I can’t listen to good music, because I get distracted.” She can listen to good music when she does something tedious and somewhat mindless, like footnotes; but when writing original material, she needs to be irritated by music that bothers her. “I find as a writer I am best off when I am a little bit distracted. Because if I get too focused, I get stuck; I am thinking too hard about it. I need to either go away from it and come back, which works really well, or I need to be slightly distracted. So the soft rock station “is perfect because the music is listenable at a certain level, but I’m not totally distracted by it.”

Well, I tried it. It may create a culture of writing for one person, but it did not create a culture of commenting for this person. “If You’re Gone” by Matchbox Twenty and its ilk on Pandora Soft Rocks channel did not help me find my grove. Too many words conflicting with the words in my head of what I’m reading and what I might like to share with the student as a comment. My students do not need to hear any voices inspired by Rob Thomas. (“I wonder what it’s like to be the rainmaker” just does not work; legal writing is about the stuff you have to do before making the rain. And “little yellow tags” aren’t really involved in the paperless Real World as much as they used to be.)

I’ve tried the Ambient Radio channel as well, but it just reminds me of the movie Gladiator, which doesn’t help either. The songs are “Elysium” and “Now we are free.” For me to create a culture of commenting, plow through the work, and be free, ambient music turned out to be a fail as well. I do put on the giant ugly headphones from time to time. But I listen to . . . nothing.