Category: Advocacy

Moot court judging—once more unto the breach

Jennifer RomigLeave a comment

Moot court student leaders and faculty advisors are now registering for 2018-2019 competitions. One factor in choosing a competition is the quality of volunteer judges at the competition. As anyone passingly familiar with moot court knows, most of the moot court judging is done not by actual judges but by attorneys volunteering to play the role of judges. Moot court is a massive annual undertaking in legal education, with approximately 75 competitions listed on LSU’s catalog of moot court opportunities nationwide. If each competition uses 20 volunteers (a conservative estimate) and if each attorney judges at only one competition, that’s 1500 attorney volunteers annually. And that figure does not include the many internal competitions at various law schools also utilizing attorney volunteers. It also does not include the many volunteers at mock trial competitions, ADR, and other litigation-skills competitions. This post is relevant to those as well—it’s relevant to any skills competition that uses attorney volunteers to play a role during the competition, score the competition, and give feedback to law students.

These attorneys are crucial to making moot court broadly available so students can demonstrate and use their advocacy skills in a (simulated) high-stakes environment. These attorneys also have tremendous influence over the quality of competitors’ experience. The volunteer attorney judges must ask questions, evaluate answers and transitions, and give scores that determine which teams progress to the next rounds. The volunteer attorney judges also are often given the opportunity to address the competitors and share some brief commentary and advice. Moot court is “moot,” but advocating for a client before strangers, accepting feedback with aplomb, and firing up to “go again” in another competition round on short notice does help prepare students for high-stakes experiences in practice.

On all of the volunteer attorney judges’ objectives—educationally valuable questions, fair scoring, and wise feedback—their performance can vary widely. When they ask judge-like questions, score fairly, and give useful, constructive commentary, moot court succeeds. But when they badger or dominate a round, give superficial, inconsistent, or unfair scores, or share unhelpful or unnecessarily damaging comments to competitors, moot court fails.

After hearing positive and negative stories along these lines shared by other faculty advisors, I invited contributions about moot court judging. The questions contributors could choose from included the following ideas:

  • What are some of the best experiences you’ve had with attorney judges at moot court competitions?
  • What can attorneys do to prepare for judging to make it an excellent educational experience for students and helps the attorneys share uniquely valuable advice and feedback with students?
  • What are some of the worst experiences you’ve had with attorney judges at moot court competitions?
  • How do you distinguish between critical feedback and scores that are poor but fair, and inappropriate feedback and unfair scores?
  • What can competitions do to prepare their attorney judges and minimize bad experiences for students?
  • Have you ever pulled your law school out of a competition because of inappropriate judging or other problems with a competition?
  • How do you prepare students to handle any type of attorney feedback they may receive?
  • Some attorneys argue that harsh words and even harassment are part of legal culture, so moot court can help students by preparing them for that too. What are your thoughts on that stance?
  • When moot court is done right, what does it offer students and attorney judges who are willing to volunteer?

In response to the call, this compilation features three contributions: Patrick Long of Buffalo, Susie Salmon of Arizona, and Barbara Gotthelf of Rutgers. Thanks to each contributor.

PLONGBy Patrick Long 

Legal Analysis, Writing and Research Program Coordinator and Lecturer, and Director of Moot Courts, University at Buffalo School of Law

Q: What makes a good—and a bad—volunteer moot court judge?

We tend not to hear about the good experiences with judging. Few people talk to us as directors when arguments go well, judges are engaged, and there’s enough coffee. So as directors, no news is really good news. As a result, my most vivid experiences are all bad ones. I know: we need to be thankful for our volunteer judges. CLE is not much payment for the work a good judge does, and we simply could not do moot courts without their help. Nonetheless, there can be some real stinkers. The bad judges fall into two broad categories: lousy humans and lousy teachers.

In the lousy human camp are these judges:

  1. The judge who told a student with mild cerebral palsy and a slight stutter that “because of your speech impediment, litigation is probably not a great fit for you.”
  2. The judge who complimented an Asian-American student on how well she knew English.
  3. The judge who reads the bench brief for the first time when he arrives at the competition.
  4. Any judge who says “I know the dean …”

In the lousy teacher camp are those lawyers who have forgotten what it means to be a student, or to be responsible to educate students. They expect 2L’s and 3L’s to match their own (self-inflated) knowledge of law and procedure, and they expect problems that present near-actual legal issues and facts. These judges are incapable of inspiring students about the profession, or teaching them what they need to know. They also refuse to understand that those who write the problems need to find two issues, on interesting legal topics, that are not factually on point exactly with cases pending (because students will just download the briefs from Westlaw):

  1. The judge who disagreed with a student’s version of the facts because she had not read the record or the bench brief. Then castigated the student for the ridiculous problem “that could never happen in real life” after the student showed her the fact pattern. At lunch, she spent 20 minutes complaining to me about the idiot who wrote the problem, not aware that it was me. That evening, that’s team coach told me in all the years he had been coaching moot courts, he had never seen so lousy a judge, and he was convinced she intentionally tanked his team’s score because of her own failure to read the record.
  2. The judge who tells war stories about his own fabled career for 25 minutes in the feedback portion, ruining the entire day’s schedule, and ignoring the students entirely.

There are those rare angels, however, who really make me proud to be a lawyer:

  1. The judge who actually reads all the cases cited in the bench brief.
  2. The judge who tells you she enjoyed the problem.
  3. The judge who says for an extra round because you are thin on volunteers.
  4. The (actual sitting) judge who told the competitor who crashed and burned how poorly she did in her first argument in court, and how she thought about quitting the DA’s office.
  5. Your former student who comes back to judge, because she knows how much she learned from the experience, and because she knows it’s part of her duty as an attorney to give back to the profession.

These angels make it worthwhile, but they seem more and more rare these days.

 

salmon_susanBy Susie Salmon

Director of Legal Writing and Clinical Professor of Law, The University of Arizona James E. Rogers College of Law

Q: Some attorneys argue that harsh words and even harassment are part of legal culture, so moot court can help students by preparing them for that too. What are your thoughts on that stance?

I think that attitude is at best misguided and at worst disingenuous. How do we create a culture of civility and respect in the legal profession if members of the profession model this type of incivility and disrespect (and frequently seem to be having so much fun doing it) at moot-court competitions? And, honestly, I’d give that justification more credence if the attorneys who misbehaved while in role then told the students in feedback that their misbehavior—while not unheard of in the profession—should nonetheless be unacceptable. I strongly favor moot-court judges who hold advocates to account, force advocates to use law and fact to support their arguments, chastise advocates for making false statements of misrepresentations, and prevent advocates from evading difficult questions.

But I do not support moot-court judges modeling unprofessional, uncivil, or disrespectful behavior just because some real-world judges and attorneys will behave poorly.

Should we sexually harass students during moot court just because Kozinski existed? Should we make bigoted statements because students might be subjected to such behavior in the real world? No. Of course not.

We prepare students for those unpleasant realities—without perpetuating them—by discussing real-world examples and how to handle them, not by modeling that poor behavior ourselves.

Q:  What can attorneys do to prepare for judging to make it an excellent educational experience for students and help the attorneys share uniquely valuable advice and feedback with students?

Nothing devalues the moot-court experience for the students like unprepared or underprepared attorney judges. Unprepared judges cannot accurately assess the substance of a student’s argument and thus will reward superficial polish and bluster over truly proficient persuasion. Read the bench memo thoroughly and make sure you understand the legal principles and crucial facts. If you have time, read some of the key cases. Discuss the law and facts with your fellow judges, if possible, and ask clarifying questions as necessary. If the problem presents an area of law with which you are entirely unfamiliar, consider browsing a treatise or two. Try as much as possible to prepare as you would if you actually had to decide the issue.

Q: What can competitions do to prepare their attorney judges and minimize bad experiences for students?

Competitions can help by making it as easy as possible for judges to be well prepared for argument. Look: I know it’s often hard to recruit judges, and there is only so much a competition can do to control what busy volunteers do to prepare.

But competitions can make it easier, more fun, and more convenient for judges to be prepared. Many competitions—including our internal competitions at Arizona Law—provide not only thorough, well-organized written bench memos and judging guidelines but also instructional videos that include an overview of the key legal and factual issues and some tips on judging and scoring.

With the proliferation of online education, most educational institutions have access to the technology that will help you make the material accessible to judges in a mode and at a time that’s most convenient for them. Explore whether the jurisdiction allows you to offer CLE credit to attorneys who review the prep materials (maybe even create a quiz to make sure people have digested the key information); attorneys always need CLE credit!

When you create the problem, resist making the legal issues so complex and convoluted that lawyers of ordinary intelligence will struggle to get up to speed; the students will work hard to understand those issues and develop sophisticated arguments, and few things are quite so demoralizing to a moot-court advocate as having an ill-prepared judge favor your opponent’s slick but flawed retort over your nuanced, thoughtful, accurate argument.

And I love it when competitions give coaches comment cards to make it easier to share feedback on the competition, including judging issues. I provide many more suggestions in my article, Reconstructing the Voice of Authority, which came out in Akron Law Review in fall of 2018, but those would be my top tips.

Gotthelf-Barbara-photoBy Barbara Gotthelf

Professor of Professional Practice of Law and Director of Externship Programs, Rutgers Law 

Q:  How do you prepare students for comments from moot court judges that focus on superficial issues?

I’ve stopped calling our program at Rutgers “Hunter Moot Court.” Instead, I call it “Hunter Appellate Advocacy” because I want it to be seen—by students, faculty, and guest judges — as an educationally focused simulation course rather than a public speaking contest.

Hunter Moot Court, named for the late Third Circuit Judge James Hunter III, is a year-long, five credit course in which students brief the case in the fall and argue it in the spring—more or less the way it happens in real life, which is the point. The course is designed to approximate actual practice as much as possible. That goal—making it as real as possible—governs how we approach the judging of the arguments.

This is what I tell my students. From their perspective as advocates, the purpose of oral argument is to persuade the court by narrowing the issues; answering the court’s questions, rebutting arguments; and explaining in simple, concrete terms, how and why they should win. From the court’s perspective, oral argument is a chance to clarify, to probe, to challenge, and to resolve any issues that stand in the way of reaching a decision.

I also tell my students this: None of this has much to do with their oratory prowess.

As Justice White once commented, judges view lawyers as resources, not as orators. As long as the lawyer can be heard and understood, I honestly don’t believe the court cares one bit whether the lawyer appears nervous or pauses to gather her thoughts.

Judges do care, and care a lot, if the lawyer is prepared; if she is respectful; and, most of all, if she answers the court’s questions, fully and directly. I tell my guest judges this as well, and I ask them to evaluate the arguments from the perspective of an actual judge hearing a real argument, focusing on what truly matters to someone who must render a decision in a real case involving real litigants.

And then I warn my students that no matter how well we try to prepare the lawyers who will judge their arguments, some of them are still likely to give feedback on things like inflection, use of verbal fillers, dramatic flair, and rhetorical wizardry.  Worse yet, I tell them that at least one student—probably a woman—will be told to smile more, and another—probably a man—will be told to “come out swinging” on rebuttal. This is the cyclical curse of moot court. As law students, these are the criteria many of us were judged by, especially those of us who went to law school before much thought was given to what “practice ready” means.

The lawyer/judges don’t always get this. But the students do. By the time we get to the argument phase in March, they have lived and breathed the case for six months, and frankly they don’t want to be told to smile more. Because we’ve discussed this, they are able to filter out the superficial comments and focus on the substantive feedback.  This is one of many reasons I always invite Hunter alums to judge the arguments.

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Thanks again to the guest contributors above. For more information on moot court judging, see Barbara Kritchevsky’s law-review article Judging: The Missing Piece of the Moot Court Puzzle, reprinted in the Legal Writing Institute’s Monograph Series, Volume Six on Moot Court and Oral Advocacy. (Full disclosure: I was editor-in-chief of that volume.)

And good luck to every student competing in moot court and other skills competitions this year. You are making yourselves into stronger and more skillful future lawyers by all your work!

 

“May it please the Court…”

Jennifer RomigLeave a comment

It’s that time of year when 1Ls start preparing for their first oral argument. In a class on how to prepare, I’ll be sure to share this tweet from experienced SCOTUS advocate Bob Loeb of Orrick:

As the card shows, even expert advocates benefit from a sort of security blanket in a high-pressure situation. And precisely because a SCOTUS argument is so important, holding the card gives the advocates a small bit of extra mental bandwidth. They can reallocate this bandwidth to the actual substance of the argument. Of course, experienced SCOTUS advocates do not really need notes for the opening moments of their arguments. They probably never look at the card. But just having the card can provide some piece of mind.

Beginning advocates also need notes, partly to avoid the possibility of going blank.  (This happened to me in my 2L trial advocacy class and it was a lot like this, but scarier.) Beginners are more likely to cling to their notes and read them even when they don’t need to. But ideally, the notes serve a similar purpose to the Supreme Court card. Having them as a backup can reassure the advocate, freeing up mental bandwidth to think more about substance, and maybe even listen more intently to the questions.

There is one difference in the SCOTUS card and cards that 1Ls might make for themselves—a 1L’s creation does not double as a library card:

Question for readers: How do you make sure your notes are a help, not a hindrance, in public speaking—oral argument or any other formal setting?

How Should Judges Listen to Victim Impact Statements?

Jennifer Romig1 Comment

Many thanks to Rhani M. Lott of Emory Law School for this guest post.

“I do want to thank you, first, Judge Aquilina, for giving all of us the chance to reclaim our voices. Our voices were taken from us for so long, and I’m grateful beyond what I can express that you have given us the chance to restore them.”

Victim Impact Statement of Rachael Denhollander

In “In Defense of Victim Impact Statements,” Professor Paul G. Cassal identifies four main justifications for victim impact statements:

First, they provide information to the sentencing judge or jury about the true harm  of  the  crime—information  that  the  sentencer  can  use  to  craft  an  appropriate  penalty.  Second, they may have therapeutic aspects, helping crime victims recover from crimes committed against them.  Third, they help to educate the defendant about the full consequences of his crime, perhaps leading to greater acceptance of responsibility and rehabilitation.  And finally, they create a perception of fairness at sentencing, by ensuring that all relevant parties—the State, the defendant, and the victim—are heard.

In light of the Nassar trial, I have been thinking a lot about how a judge should handle victim impact statements.  I’m not alone.  My social media feeds are full of lawyers celebrating and excoriating Judge Aquilina.  One career public defender had this to say:  “Grandstanding on a grand stage, let’s not forget that a judge’s role is to administer justice, not advocate for one side or the other.”  Another friend, a family law attorney, wrote, “[t]he way that Judge Rosemarie Aquilina handled the survivors in this case brings me hope for our justice system.”

HeadshotAt its heart, I think this is a conversation about how we think the judge should “listen” to victim impact statements.  In turn, how we want the judge to listen depends on how we prioritize the purposes of victim impact statements.

If we are chiefly concerned with victim impact statement’s utility in providing information that the sentencer “can use to craft an appropriate penalty,” then we want the judge to be listening to learn.  We will be disappointed if there does not appear to be a correlation between the statement and the sentence.  Santa Clara County Judge Aaron Persky finds himself facing a recall election at least in part because of his failure to listen and heed the pleas in a victim impact statement that attracted national attention in the Stanford rape case.

If we believe the “perception of fairness” is paramount, then we might think the judge should listen attentively but not engage with the victims.  For example, Rachel Marshall criticizes Judge Aquilina for the way she “talked to victims as though she were their confidante . . .” Rachel Marshall, The Moment the Judge in the Larry Nassar Case Crossed a Line (January 25, 2018).  Ms. Marshall is worried about “future defendants who shouldn’t get sentenced harshly but may face judges too swayed by their own emotional reaction to victims . . .”  A former colleague I spoke with has the same concern about judge’s being “swayed by their emotional reaction,” but for a different reason.  She prosecutes crimes against women and children and has seen judges swayed by emotional pleas for leniency from domestic violence victims even when that leniency is not in the best interests of justice or the victim.

If we believe that “help[ing] to educate the defendant about the full consequences of his crime” is an essential aspect of victim impact statements, then we may expect the judge to be unobtrusive.  If the defendant is the primary audience for the statement, then it will be upsetting if the statement becomes too much like a conversation between judge and victim.  We may also find it inappropriate if the judge’s commentary doesn’t leave room for “acceptance of responsibility and rehabilitation.”

Finally, if we highly value the therapeutic aspects of victim impact statements, then we might demand a judge engage in empathic and active listening.  We might appreciate someone who, like Judge Aquilina, “punctuate[s] each and every victim statement with some words of her own—a mix of praise, gratitude and support for the women who have come forward to address the court and, in many instances, Dr. Nassar himself, who has been a captive to it all from the witness box.”  Scott Cacciola, Victims in Larry Nassar Abuse Case Find a Fierce Advocate: The Judge (January 23, 2018).

Perhaps Judge Aquilina was not grandstanding; maybe she was just trying to maximize the therapeutic aspects of the process.  That doesn’t make her actions right or wrong, but considering it might help us understand why she “listened” as she did.

 

New book: Litigation in Practice by Judge Curtis E. A. Karnow

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What does a veteran trial judge have to say about . . . everything trial related? On my summer reading list was Litigation in Practice by Judge Curtis E. A. Karnow of the San Francisco Superior Court. It has some of the obvious—be nice to court staff; how to introduce documents into evidence—but also delves deeper into complex litigation, statistical evidence, expert witnesses, and the strategy of timing settlement.

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The book doesn’t directly address listening at trial. But it indirectly touches on listening by criticizing lawyers who interrupt the witness or use “body language such as a raised hand.” Judge Karnow advises lawyers to ask the judge for help directing the witness to answer. He points out that “[y]our questions, too, might be part of the problem, in inviting a meandering, narrative response.” And that leads to my favorite section of the book: “Bad Questions.”

I thought the section on bad questions would be good for this blog because I know I’ve heard many of these questions used repeatedly in depositions and at trial. In fact, one of the questions on Judge Karnow’s list was described to me by a senior trial lawyer as his favorite question.

So I’m interested in blog readers’ reactions to whether they agree these are bad questions. or perhaps just in California where Judge Karnow sits. What are other bad questions you’ve heard lawyers try?

“Is it possible that . . . .” Unless the matter is a logical impossibility (is it possible that 2+2=8?) or a factual impossibility (is it possible you saw a unicorn?) the answer to this question is always “yes.” Anything is possible. Accordingly the question is pointless . . .

“Didn’t you testify that . . . .” This is often a squabble about wording. I assume the jury has been paying attention, and testimony on what a witness has testified about poses the risk of a dangerous infinite regress. Find another way to impeach. . . .

“You heard witness X say . . . (or, “Assume witness X said . . . .) . . . are you calling X a liar?” This is either rhetorical flourish, argument to the jury, calls for speculation, or all of the above.

“Would you be surprised to know . . . .” or “Would it surprise you to learn that . . . .” Nobody cares if the witness is surprisable or not. The question obviously is designed to get a fact in front of the jury whose source is the lawyer, not the witness.”

“Is it fair to say that . . . .” What would it mean if the answer were yes? Or no? Fair to whom, exactly? . . .

Judge Karnow also says that “[a]ny question longer than fifteen words” is a bad question.

For cross examination, he agrees with the “common wisdom” of asking short, focused questions that avoid double negatives. His introduction to the whole section on bad questions serves as a conclusion here: “While most of these are ultimately harmless, they confuse the issues and are a waste of time.”

My question to readers is: Do you agree with Judge Karnow that these are bad questions at trial? Have you used these questions with success? Do you have ideas for better questions that do work across contexts? 

 

 

 

 

Stereotype threat

Jennifer RomigLeave a comment

Before a math test, women test-takers reminded of their gender did worse on the test than a control group who took the same test without the reminder. This experiment forms a classic example of stereotype threat, which Professor Susie Salmon from Arizona Law spoke about at the recent Moot Court Advisors’ Conference held by the Legal Writing Institute.

Every identifiable group is in some way vulnerable to stereotype threat, explored for a popular audience in Claude Steele’s Whistling Vivaldi. (For an introductory version, here’s Steele’s 1999 Article in the Atlantic.)

In Whistling Vivaldi, Steele outlines the extra burden caused by stereotype threat:

The problem is that the pressure to disprove a stereotype changes what you are about in a situation. It gives you an additional task. In addition to learning new skills, knowledge, and ways of thinking in a schooling situation, or in addition to trying to perform well in a workplace . . . you are also trying to slay a ghost in the room, the negative stereotype and its allegation about you and your group. You are multitasking, and because the stakes involved are high — survival and success versus failure in an area that is important to you — this multitasking is stressful and distracting.

Professor Salmon explores more open forms of bias as well as stereotype threat in her forthcoming article on gender bias in moot court. Comments to female moot court competitors that their clothes or hair or bodies are distracting or they should make their voices deeper and lower all imply that the ideal of an advocate is male.

The second half of her article delves into stereotype threat, which has a more subtle, more common, and often unintentional effect on students who are members of a group (any group) with associated negative stereotypes. Stereotype threat does not have to be the product of intentional bias. But that doesn’t make it any easier to deal with: “The more that a person cares about performing well at a given task, the more stereotype threat will hinder that performance.”

For a moot court competitor, it’s hard enough to deal with nerves, deliver an organized argument, and answer the moot court judges’ questions. The burden of trying to “slay a ghost in the room” of negative stereotypes makes the competitor’s job that much more difficult.

For professors and supervisors seeking to reduce stereotype threat, there are a number of possible mitigating steps. For one thing, comments about natural ability are actually not constructive.

Legal skills are just that: learnable skills that can be built through work and focus.

Thus, a “growth” rather than “fixed mindset” helps law students in myriad ways including with reduction of stereotype threat.

Another method for reducing stereotype threat is to guide students through a self-affirmation exercise. Before you object, please know: this does not mean the Stuart Smalley-type affirmations about being good enough and smart enough and having people like you. Instead, it means writing about a core value you hold dear that makes you special. This type of writing reinforces the writer’s integrity. It also reduces stereotype threat. The theory, as Salmon outlines in the article, is that it provides the writer with a counter-narrative and interrupts the operation of the threat itself.

My favorite suggestion from Professor Salmon’s talk was the recommendation to give “wise feedback.” Wise feedback means that professors, supervisors, and anyone in a position of authority does two things:

  • Show that they have high standards.
  • Provide personal assurance of their conviction that the students/externs/junior lawyers can meet these standards.

Wise feedback is not just feedback, but mentoring over the long term.

Not only does the wise mentor need to deliver wise feedback consistently, she needs to communicate to each student that she cares about that student’s success and believes in her capacity to achieve.

Professor Salmon acknowledged that stereotype threat is a big topic. The resources below are a sampling of what’s being discussed on stereotype threat in legal education today.

ABA Council on Racial and Ethnic Diversity, Beyond Diversity: How Stereotype Threat and Implicit Bias Contribute to the Status Gap (2012)

Sean Darling-Hammond and Kristen Holmquist, Creating Wise Classrooms to Empower Diverse Law Students, Berkeley La Raza Law Journal (2015)

Russell McClaine, Helping Our Students Reach their Full Potential: The Insidious Consequences of Ignoring Stereotype Threat, Rutgers Race and Law Review (2016)

United States Senior Circuit and Chief Judge Emeritus Judge Harry T. Edwards, Reflections on Racial Stigmas and Stereotyping, Paper Presented at the 2017 African American Alumni Reunion, University of Michigan

Deliberate practice and lawyering skills

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This past weekend, the Legal Writing Institute hosted its second Biennial Moot Court Conference at John Marshall Law School in Chicago. Several of the talks touched on listening-related themes. Kent Streseman of the Chicago-Kent College of Law explored the concept of “deliberate practice” for moot court competitors. His summary of the tenets of deliberate practice could be useful for anyone who wants to improve their mental dexterity and ability to think on their feet. 

I once heard Rutgers Law professor Ruth Anne Robbins refer to moot court with an analogy to “muscle memory.” In sports, building up muscle memory can be a good thing—or a bad thing. If you learn how to swim the wrong way and then repeat the mistake over and over, she said, you won’t become a better swimmer no matter how much you practice. (Likewise for lawyers preparing presentations and arguments, creating wordy PowerPoint slides and then silently reading them to yourself may not be the path to great public speaking.)

In his Chicago talk, Streseman made a related point about sub-optimal practice: Even practicing correctly but in the standard, same way over and over is not going to produce results, especially if it’s ill-informed to begin with. Repetitive practice doesn’t help a learner progress beyond a certain fixed point, and in fact, “skills tend to regress.” 

The “gold standard” of preparation is “deliberate practice,” a concept from Anders Ericsson’s work summarized for a popular audience in Ericsson’s Peak: Secrets from the New Science of Expertise. The purpose of deliberate practice is to yield expert performance:

The hallmark of expert performance is the ability to see patterns in a collection of things that would seem random or confusing to people with less well-developed mental representations.

To build up these mental representations, you need deliberate practice. In his talk Streseman outlined some of the conditions of deliberate practice:

  • The practices must be challenging, with the learner giving their full attention to a task demanded beyond the edge of their comfort zone.
  • The feedback needs to be informed by experts’ accomplishments and understanding of what they themselves do to excel.
  • The feedback must be followed by the opportunity to modify the performance in response, and to recover and reflect on the practice.

These types of focused practices lead to more effective mental representations of the argument in the competitor/advocate’s own mind. And having those effective mental representations mean the competitors can react more quickly to questions and make better decisions on what to say next and how.

The closest connection to listening seemed to be the crucial fact that deliberate practice requires the learner’s full attention. Moreover, the learner has to actually listen and adjust to the feedback provided. Speaking and speaking and speaking again without attention to feedback may be practice, but it’s not deliberate. You can do that in front of a mirror or your dog, and we all know sometimes that’s what a person needs to initially prepare. As beginners approach a task, they may need some repetitive practice with no feedback to get into their comfort zone. Once there, they can then start to push beyond that zone.

But rehearsing to a dog is too comfortable. It’s not deliberate practice, as the dog’s feedback is not informed by experts’ accomplishments and methods of excelling. My dog has been a lawyer’s dog most of his life, spanning three owners with a variety of practice experience both civil and criminal. All three of these lawyers were moot court types. But the dog still can’t coach moot court effectively.

Thanks to Kent Streseman for his talk on deliberate practice and moot court, and to John Marshall Law School and the Legal Writing Institute for hosting the conference.  I look forward to reading Peak and sharing any additional insights from delving into it.  I also hope to share more posts from the conference with additional connections to listening. Until then, you can access tweets from me and others at #LWIMootCourt.

 

Judge like a judge, please

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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.

Future trial lawyers, take heart

Jennifer RomigLeave a comment

Listen Like a Lawyer will be delving into communication and writing in the next few posts. One reason this blog is generally dedicated to listening is that there are already many excellent legal-writing blogs available for the legal community. (For example: Forma Legalis, Lady Legal Writer, Law Prose, Legible,  and Ziff Blog, just to cite a few.) The writing-related posts here will connect to broad communication themes such as voice, empathy, and the relationship between senior and junior lawyers emerging from a lot of writing and talking as well as reading and listening.

Law professor Philip N. Meyer once did an unusual thing: he spent thirteen weeks observing a federal jury trial on a daily basis. Day after day throughout an entire summer, Meyer sat as a watcher and listener, taking in the spectacle of the trial and everything it entailed—from the painful moments to the surprisingly lighthearted. Leaving court late at night, he spied the lead defense lawyer sitting alone in a car in a remote parking lot with the windows rolled up, practicing his closing argument. This experience is just one of many inspirations for his book Storytelling for Lawyers (Oxford 2014).

Storytelling for Lawyers has neither a chapter on listening nor an index entry on listening. The book is about talking and writing—in other words, producing—narratives, much more than listening as such.  But Meyer mentions listening on page 2, talking about his work as a trial lawyer:

I learned to watch and listen to how my audience listened to me, and I would respond to their concerns, reshaping my stories to fit the shape of their imagining.

The book is about crafting stories that will resonate with audiences, whether at trial or in motions practice. So I recommend it.

But now let me get to the point of this post and why I titled it “Future trial lawyers, take heart.” Meyer teaches a variety of classes including doctrinal classes in criminal law and torts. In his chapter on voice and style, he begins with a reflection on what it’s like to grade law-school examinations:

As I grade these examinations, as best I can articulate it, the singular difference between the mediocre examination answers (C and below) and the middling to good examination answers (B-range grade) is primarily in the “substance”—whether students can identify the relevant issues and accurately articulate the relevant legal rules necessary to analyze the problem.

The distinction between the B exams and the A exams is, however, primarily in the “voice” and “style” of presentation. Voice and style, however, mean something much different in the context of law school examination taking than in the artful trial and appellate narratives that litigation attorneys construct in a factually far more complex and indeterminate world. (This, I think, speaks to why excellent litigation attorneys were often poor law school test takers.)

Meyer goes on to explain that the voice and style of top law school examinations “clamp[] down” on the facts, use clean organization, and employ the King’s English.  The student’s voice must be neutral and must not call attention to itself. “A” exams certainly don’t use colloquialism or humor. And they don’t explore the story embedded within the exam hypothetical in any depth. Meyer quotes a former student describing the events in an exam as “floating factoids.”

This is just one professor’s reflection on his experience grading exams, and he prefaces all of this by saying he grades holistically rather than with a detailed objective checklist. Still, it’s refreshingly transparent and I think every law student should read this—especially those just receiving their first round of law-school grades.

Law students who want to get into the courtroom and try cases may be disappointed that the skills distinguishing great trial lawyers maybe aren’t really tested in this (very popular and prevalent) type of law-school exam. That disconnect is the subject of discussion, critique, and reform, and more discussion, critique, and reform. The positive side here is that Meyer’s reflection invites law students to understand their grades as only loosely related (if there is much of any relationship) to how they might expect to perform in court.

Meyer’s reflection on the emasculated role of facts in many law school exams reminded me of an attorney’s recent #PracticeTuesday tweet. Bryan Gividen was responding to a call to bust law students’ myths of what it means to be a lawyer:

 

Working with the facts, crafting the story, developing a voice, testing whether the voice and the story resonate with an audience, all of these tasks are deeply connected with what it means to be a trial lawyer. The best appellate lawyers experiment with all of these things as well, but there are limits: the idea of “clamping down on the facts” by rigorously adhering to the record, and controlling one’s voice for the genre of the appellate brief and the audience of the appellate panel. Gividen draws this line when he identifies competitive appellate work as an exception to “practicing the facts.”

Any law student or lawyer who wants to develop their skills practicing the facts should benefit from studying Storytelling for Lawyers. Meyers concludes the book with a reflection on why law stories are different from stories told by journalists, filmmakers, and artists:

A final characteristic of law stories, especially the stories told in litigation practice, is that these stories are typically open or unfinished stories—their endings are strongly implied but not ordered or prescribed. It is up to a decision maker to write the ending, provide the closure and the coda that gives the story its meaning, and determine the outcome.

Legal storytelling has a rich literature, and anyone intrigued by this brief exploration of Meyer’s book would enjoy delving into the legal storytelling/applied legal storytelling scholarship. One gem is  Ruth Anne Robbins’ Harry Potter, Ruby Slippers, and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey, 29 Seattle L. Rev. 767 (2006). She argues that the client should not look to the judge as the hero and savior; the client should show how they are traversing a series of challenges and need the judge’s help in a mentoring role. The client is the real hero, a flawed hero but a hero nonetheless, seeking to carry on with their larger, bigger, more meaningful challenge. So the judge is not supposed to save the client; the client can save themself if they can just get through this lawsuit and carry on with their larger quest. Thus the opposing party is not the true antagonist but merely a “threshold guardian” impeding the client’s real quest.

Law students can take heart in this advice as well, in understanding their own personal story and quest. Law-school exams are basically a “threshold guardian.” They are a gatekeeping challenge the law student must face in the larger quest for something more meaningful.

 

 

 

What do we hear when we hear vocal fry?

Jennifer RomigLeave a comment

Tennessee professor Michael Higdon has followed up his 2009 Kansas Law Review piece on nonverbal persuasion with a thoughtful new essay,   “Oral Advocacy and Vocal Fry: The Unseemly, Sexist Side of Nonverbal Persuasion.”

If you’re not familiar with vocal fry, check out this MSNBC video at minute 3:30 for an example drawn from law practice (“Um, I don’t really think that evidence is sufficient.”) The video briefly explores a few themes expanded upon in much greater depth in Professor Higdon’s piece: Is the problem with women using vocal patterns that diminish their appearance of competence? Or is the problem with managers and society scrutinizing and judging women harshly yet again? Higdon quotes Amanda Hess describing the joint perils of vocal fry and “upspeak”:

So we’re wrong when we raise our voices, and we’re wrong when we lower them.

Higdon takes this debate into the realm of law and the individual choices women law students and lawyers must make. He also places vocal fry into a larger framework of nonverbal persuasion including body language such as gestures, the use of space, the relationship to the speaking environment as well as any props or other instruments, physical appearance, the use of time, and other factors. “Vocalics” or what the speaker sounds like is the factor raising these questions.

Higdon and many others eschew the easy answer that women should stop vocal fry simply because it hurts others’ perception of them.

What is a female attorney to do? Does she scrupulously monitor and adjust her professional nonverbal behavior to match those qualities that social science tells her tend to be perceived more positively? Or does she ignore this research and what it might mean within her own career and instead follow her own preferences on how to present herself? Clearly, this essay cannot definitively answer that question—it is instead a personal question that must be answered by each person individually.

He points out that not all critiques of nonverbal behaviors are complicated: for example, lawyers should avoid pointing at their audience, especially when that audience consists of judges sitting as a court of law. But preferences about some nonverbal behaviors such as women’s vocal inflections raise harder questions of underlying bias. Higdon’s discussion reminded me of the discussion—how can this discussion still be happening?—whether women make a mistake by going to court in pants suits rather than skirts.

[W]hat one gains in the short term by presenting herself as in line with societal expectations can create problems in the long term by making it that much easier for everyone to ignore the sexism motivating those preferences.

Some would say the women lawyer’s identity shouldn’t matter. If she’s going to court where a judge has previously expressed disdain for women in pants suits and if she takes seriously her role as an advocate for the client, then she should grin and wear it (the skirt, that is). Likewise if society is saying vocal fry makes a woman sound incompetent and if a woman lawyer wants to represent clients effectively in said society, then stop with the vocal fry. As Higdon acknowledges, failure to comply can be damaging.

But he urges a deeper analysis that makes room for identity even as it contemplates audience:

[T]he preferences people have for certain behaviors are almost always motivated by something other than the behavior itself. Typically there is a connection in the audience member’s mind between that discrete behavior and something else—and it is the “something else” that requires more inquiry.

I recommend this article, especially as a companion to Higdon’s foundational article on nonverbal persuasion, previously reviewed here on the blog.

Do you know it when you hear it?

Jennifer RomigLeave a comment

 

When taking a deposition, can you immediately recognize the testimony you want to quote in a later dispositive motion? Do the words jump out at you like a “nugget” in a “treasure hunt”?

Legal writing and nonfiction writing have a lot in common, as a recent New Yorker article by John McPhee suggested. I studied his work in journalism school and continue to follow it more as a hobby than anything strictly related to lawyering. But McPhee’s article on selecting material is very much relevant to what lawyers do in taking depositions and conducting witness examinations to generate powerful, memorable words later used in writing such as motions and briefs.

The article is Omission: Choosing What to Leave Out (September 14, 2015). This post explores his essay and draws some points of contrast with legal writing, before arriving at the real connection to listening, which is the art of the quotation. McPhee is partly a luxury for the novelists disguised as lawyers among us, but here’s the pragmatic sell:

Lawyers who can elicit, recognize, remember, and effectively frame quotations in writing have an advantage in their writing and advocacy just as creative nonfiction writers do. In other words, being an effective listener leads to more persuasive writing and lawyering.

McPhee’s broad point in Omission was to explore the experience and process of cutting his own work and having it cut. From the beginning to the end, “[w]riting is selection”:

Just to start a piece of writing you have to choose one word and only one from more than a million in the language. Now keep going. What is your next word? Your next sentence, paragraph, section, chapter?

And then when the draft is complete, it may need to be cut in order to fit on a magazine page, or just because readers may not persevere through 40,000 words about a topic such as oranges. It’s not surprising that he wrote 40,000 words on oranges because, according to McPhee, the decision to leave something in should be based on whether it is “interesting to you.”

And by “you,” he means the “you” doing the writing, not the hypothetical “you” doing the reading:

At base you have only one criterion: If something interests you, it goes in—if not, it stays out. That’s a crude way to assess things, but it’s all you’ve got. Forget market research. Never market-research your writing. Write on subjects in which you have enough interest on your own to see you through all the stops, starts, hesitations, and other impediments along the way.

This writer-centric view is very different from client-driven legal writing such as trial and appellate advocacy. If you as a lawyer writing on behalf of a client and putting something in because it interests you personally, you may be on the wrong track. In some cases, I’ve seen writers insert comments in their memos and briefs such as “Interestingly, . . . .”

These types of comments are rarely effective. And in that sense, the tenets of good legal writing and good nonfiction writing come back into accord, as McPhee instructs: “If you see yourself prancing around between subject and reader, get lost.”

After exploring these thoughts on how to select material, McPhee narrowed the focus to selecting quotations. He received the following inquiry from a reader:

“I was curious—do you know right away when you hear a quote you want to include in the story, or do you usually mine for it through your notes?”

He responded in part as follows:

Dear Minami—Across my years as a writer and a writing teacher, I have been asked myriad questions about the reporting and compositional process but not before now this basic one of yours. And the answer comes forth without a moment’s contemplation: I know right away when I hear a quote I’ll want to include in the story.

McPhee is a master of weaving themes throughout his writing. (For anyone who likes thinking about themes and structures in writing—such as modifications to the “IRAC” format taught and derided in legal writing—read McPhee’s incredible essay, Structure.)

In the essay on omission, the theme comes back again and again:

Writing is selection.

He doesn’t explicitly mention listening very much, but it runs throughout.

McPhee takes copious notes so he can have lots to choose from later. (In a separate article, Elicitation, he goes into more depth about creating conversational settings for interviews, and how he uses a tape recorder unobtrusively when possible.)

He doesn’t need good notes to recognize a “nugget” in the “treasure hunt” immediately when he hears it.

And he brings affection to his work; about one subject, he says, “I loved just listening to him talk.” The joy McPhee described is perhaps not exactly what a lawyer experiences sitting at the deposition table for hours on end—until that moment of hearing a perfect quote that will ice the dispositive motion. (Forget about the Bluebook;

Forget about the Bluebook; block-quote it for emphasis even if it’s only one word.

That’s a type of joy unto itself.