Category: Law school skills competitions

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Moot court judging—once more unto the breach

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.

__

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!

 

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“May it please the Court…”

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?

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Stereotype threat

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

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Deliberate practice and lawyering skills

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.

 

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Postscript on “um”

Yesterday I had the pleasure of moderating a Facebook chat on Rutgers law professor Barbara Gotthelf’s article The Lawyer’s Guide to “Um.” She published it in Legal Communication & Rhetoric: JALWD (for which, full disclosure, I’m a social media editor.) The Facebook chat, available here in LC&R’s ongoing Discussion Group, was a chance to explore and, in some cases, push back on her unexpected thesis:

Lawyers who speak before courts, clients, and other discerning audiences should know how fillers function to communicate information; they should understand that the actual effects of fillers on listeners may be less dire than imagined and may even be beneficial under some circumstances.

More specifically, Gotthelf shows in the paper how listeners comprehend speech better when it contains some discourse markers and “fillers” (also known more favorably as “planners”) such as “um.” Taking a text and reading it out loud perfectly, with no fillers, is less effective for speakers  than inserting some speech cues—including, yes, “um.”  Use of fillers such as “um” can signal delay while processing a thought, but can also preserve one’s “turn” to talk, attract attention, or actually help emphasize a point.

Building off of Gotthelf’s paper, the most heated part of the Facebook Discussion, if you can use “heated” to describe a respectful group of people who appear to care very much about the topic as well as one another, concerned whether to explicitly call students out on using “um.” Professor Gotthelf’s strongly held belief is NOT to point them out early in a student’s preparation cycle:

Many of my students begin the semester with annoying habits. Umms, giggling, hair twirling. It’s early nerves. That stuff melts away on its own as the students gain confidence from practicing and thinking about their arguments.

In that sense, Gotthelf said, “ums” are caused by natural unpreparedness, which can be cured naturally as well, by substantive preparation. Georgia Tech professor Brian Larson uses the opposite approach:

I DO point them out. In fact, we count each other’s (I subject myself to video as well) ums and uhs per minute in presentation videos (undergrad presentation class). We do so to draw attention to something that many audiences find annoying. I also draw attention to the fact that as a very experienced public speaker, I still average 4.5 UPM (ums per minute). Thus, there is no point freaking out about a few ums/uhs. Most of them start the semester at 12-15 ums per minute and are down below 8 by end of semester.

This debate is important because, as Gotthelf writes in the paper, there are two causes for uttering “um”: (1) task complexity and (2) task concern. Basically when a task is more complex and more vocabulary options to describe a single idea, the speaker is more likely to say “um.” And—in a painful but all-too-understandable irony—being self-conscious about speaking makes a speaker say “um” more. Which of course leads others to comment on the speaker’s use of “um” as a problem to fix, leading to even more self-consciousness.

Although there was disagreement about whether to be explicit in addressing “um,” the discussion participants seemed to agree that obsessively fixating on “um” is a mistake. As Gotthelf noted in explaining why people hate “um” so much, it’s partly because “um” is simple:

It’s easy and superficial to focus on things like “um.” It’s much harder to evaluate the content of what someone is saying.

She also noted in the paper that historically—in the classical glory days of spoken rhetoric—no one cared about “um.” Only with playback on radio and TV did “um” become a major perceived problem. And now a distaste for “um” has entered the popular view of what good speaking is:

I think people just accept the conventional wisdom about “um” and don’t dig deeper. So that conventional wisdom gets repeated and repeated and becomes cemented.

Still professors have to prepare students for the world that is, not the world we wish for. Thus some thoughtful approach to helping students avoid excessively distracting “ums” was a common theme—even if that means rigorously never mentioning “um” at all.

 

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Judge like a judge, please

 

The Georgia Supreme Court 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.

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A Winning Approach to Negotiations: Self-Awareness, Flexibility, and Practice

lee-headshot-2-1Guest post by Katrina June Lee, Associate Clinical Professor, The Ohio State University Moritz College of Law

On September 21, the Moritz College of Law hosted the incomparable Marya Cody Kolman as its 2016 Lawrence Lecturer, named in honor of lawyer and law school educator James K. L. Lawrence (Moritz ‘65).

A Yale Law grad, Kolman is a long-time adjunct professor of negotiations and coach for The Ohio State University’s ABA mediation advocacy team. For more than 30 years, Kolman has helped train OSU law students to be, in her words, “high-quality ethical representatives.” Kolman’s full-time day job, since 1999, is Director of Mediation Services at Franklin County Domestic Relations Court in Columbus, Ohio.

In giving this year’s Lawrence Lecture, Kolman drew from her deep negotiations experience. The Lecture took place in the law school’s large auditorium and was attended by students, professors, and practitioners.

Kolman’s main theme for aspiring effective negotiators could be summed up as follows: reflect on and identify your own negotiating tendencies, build into your repertoire styles that do not come naturally to you, and practice so that you can adapt to any type of negotiating situation.

She started the lecture with a very telling story that revealed her main theme.  Over the years, as a coach for OSU’s ABA mediation advocacy student team, Kolman noticed that OSU’s team regularly beat teams that had practiced for months and months (sometimes years). Yes, OSU law students were (in Kolman’s words) “simply amazing” and benefited from education in an outstanding law school dispute resolution program. Still, Kolman wondered if there was something about their competition preparation that made OSU law students especially effective.

A winning approach

After some reflection and investigation, Kolman discovered that the OSU teams benefited from not being scripted and not being coached to follow a fixed protocol. Kolman learned that some law schools tried to script the roles for their students or require that they negotiate in a certain way. This approach to preparation differed significantly from Kolman’s approach.

Kolman described the OSU team approach, which emphasized self-awareness and flexibility. Coaches first watched the students and observed their negotiation styles. The coaches noted the students’ strengths and challenges as negotiators. They then helped the students build on their own style and be more effective negotiators using existing strengths. This approach proved to be much more effective than giving students a script or a fixed protocol on how to negotiate.

OSU team coaches had identified a winning approach. The approach focused on developing self-awareness about students’ “natural” negotiation styles and tendencies, and helping students build on their strengths and develop the ability to use other styles when situations called for them.

Raw talent is not enough. Be prepared.

Kolman emphasized that “raw talent” is not enough to be a successful negotiator. Lawyers need to learn about different styles and skills and practice them. Only through that exploration and practice can a lawyer learn what works best for him or her. Kolman coached the audience: Develop strengths and expand on them. Avoid “forcing yourself into a style that does not work for you.”

Even though everyone has negotiated before law school, whether at the grocery store or with family members at home, Kolman cautioned, lawyers should not enter negotiations without training, forethought, and preparation. As I tell my negotiations students, preparation is key.

When Kolman practiced law as a domestic relations attorney, she negotiated with opposing counsel on a daily basis, with 95 percent of cases settling before trial. Most opposing counsel were well-prepared, but some were not. Those who were not would come into the negotiation and start flipping through their files trying to figure out what was going on in the case. Not surprisingly, in those instances, Kolman was usually able to negotiate a very favorable settlement for her client.

Steps to effective negotiating

Kolman offered these steps for any law student or lawyer to become a better negotiator:

Analyze your personal negotiation style and preferences.

One place to start is the Thomas-Kilmann Conflict Mode instrument. For a price, a person can assess which conflict-handling modes he or she is overusing or underusing. The five conflict-handling modes are competing, accommodating, avoiding, compromising, and collaborating. Kolman noted that, without paying for the T-K Conflict Mode Instrument, you can still assess your conflict-mode tendencies through honest hard reflection.

“Think about what’s you” and work on styles that are “not you.”

Once a person has identified personal preferences and tendencies, Kolman urged audience members to “think about what’s you,” maximize your own tendencies, and work on other styles that may not come naturally. Bringing together the strengths of “natural tendencies” and an ability to use other styles as needed will help a lawyer become a well-rounded negotiator. For example, the lawyer who naturally tends to use an accommodating style will find it helpful to learn how to use a competing style so he or she can use it when needed.

Learn about different negotiation styles and practice.

Training and practice help build effective negotiation skills. Kolman commented that “the beauty of a negotiation class” is that “you can try things out.”

Always be willing to learn the interests of your client and the other party.

Kolman emphasized the importance of learning the interests of a client and the other side. This can help with problem-solving and collaborating to find a solution that all parties are happy with. In our negotiations courses at OSU Moritz College of Law, students learn skills that help with exploring interests, including active listening, asking helpful questions, and achieving an optimal balance of empathy and assertiveness in a negotiation.

Kolman encouraged all aspiring negotiators to work on being more self-aware about personal tendencies, understand that raw talent is usually not enough to be an effective negotiator, and to practice styles that do not come naturally.

After reading this post, consider what your personal style is in handling conflict, and try a different one.

 

Sources cited in the 2016 Lawrence Lecture (arranged alphabetically here):

Roger Fisher, William Ury & Bruce Patton, Getting to Yes, 2nd Ed. (Penguin Books 1991).

Gary Goodpaster, A Primer on Competitive Bargaining, 1996 J. Disp. Resol. 325.

Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA Law Review 754 (1984).

Robert H. Mnookin, et al., Beyond Winning: Negotiating to Create Value in Deals and Disputes (Belknap Press 2000).

Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style, 7 Harv. Negot. L. Rev. 143 (2002).

Richard Shell, Bargaining Styles and Negotiation, 17 Neg. J. 155 (2001).

Listen Like a Lawyer is grateful for this post by Katrina June Lee, Associate Clinical Professor and a member of the Dispute Resolution faculty at The Ohio State University Moritz College of Law, where she teaches Legal Negotiations and Settlements. Moritz’s DR program is No. 1 in the 2017 U.S. News & World Reports ranking of law school DR programs. Professor Lee notes her thanks to Marya Kolman for her insightful Lecture and for sharing her notes and slides for use as background for this post, and to Professor Ellen Deason for her review and comments on this post.