September 29, 2010

Bad Advocacy - Vol. 5



Although I've probably had a few students through the years that wanted to say such things to rogue judges, this wouldn't be advisable under any circumstances.

September 27, 2010

New advocacy competitions

The "wide world" of law school advocacy continues to grow at what seems like an exponential pace, with at least five (OK, four and a half) new competitions coming on line this year.

Southwestern Law School rolls out its Entertainment Law Negotiation Competition this coming weekend.

Later this semester, my good friend (and first moot court coach in law school!) Professor Tim Floyd will help administer Mercer University School of Law's Legal Ethics and Professionalism Moot Court Competition.

Next semester, Elon University School of Law will put on the First Annual Exum & Frye National Moot Court Competition, which will apparently "focus on a cutting-edge constitutional law issue." Gay marriage, anyone? Immigration reform, maybe?

Also next semester, West Virginia University College of Law will debut the National Energy Moot Court Competition.

Finally, while not necessarily a new competition, the Canadian National Mediation Advocacy Competition is going international, baby! It will now be the International Competition for Mediation Advocacy.

Happy competing, everyone...

September 23, 2010

Laugh your a$$ off while taking in some outstanding argument skills

Just about a year ago I dropped a reference to one of my favorite blogs of all time, Fire Joe Morgan. The site was started back in aught five by a couple of dudes who decided it "would be fun to post some of the ridiculous things that they heard and read from sports journalists." Although Hall of Famer and ESPN baseball analyst Joe Morgan was a frequent target of the boys' ire, they were equal opportunity attackers, generally not hesitating to point out any sports (usually baseball) writing that employed ridiculous reasoning.

They did so through a method known as "Fisking," named after British journalist Robert Fisk, who was a frequent target of such tactics. Essentially, Fisking is a point-by-point criticism of a piece of writing...Or, as the British Observer has described it, "the practice of savaging an argument and scattering the tattered remnants to the four corners of the internet." Which is one of the reasons I adored FJM -- the manner in which they would rip apart the assertions of terrible baseball commentators with such biting wit and precision made me wish I could do the same thing in my legal writing or in court.

Although the guys initially kept their real identities secret, in 2008 they revealed their true names. We all learned that "Ken Tremendous" was none other than Michael Schur, who at that time was a producer and writer for NBC's "The Office," and who was simultaneously creating and writing what would ultimately become NBC's "Parks and Recreation." Not long thereafter, they shut the blog down, leaving me and tens of other dorks very sad.

So, imagine my glee when last year they reunited on the controversial sports blog Deadspin to give us a whole day of it's-like-they-never-left greatness. And while that hardly tided me over, I'm happy to announce that they reunited once again yesterday. So, if you like/follow baseball, don't mind some serious foul-mouthedness (and I mean serious -- it might make you blush), and want to laugh hysterically while learning how to utterly destroy someone else's weak arguments, wander on over Deadspin's way and enjoy. If you want a little taste to see if you like it, I'd recommend this post, in which Schur takes Mitch Albom to task for a recent article Albom wrote in Parade magazine lamenting the impact of fantasy baseball.

September 22, 2010

Frivolous appeal? You be the judge

The topic of this post isn't necessarily relevant to law school advocacy competitions, except to the extent that many moot court competition problems would, if occurring the real world, be subject to an argument that the appeal is frivolous. And that's not all that big of a deal, really, because the overall objective of an advocacy competition is to provide a forum for students to develop their skills. But still, I often chuckle when reading a problem that has some sort of "fatal error" -- be it a standing problem, jurisdictional issue, or just some general flaw that makes either the underlying case or its appeal completely ridiculous by real world standards.

Well, it doesn't happen often, but two days ago the Second Appellate District (Division Two) of the California Court of Appeal held an appeal to be frivolous and sanctioned the appealing parties (which happened to include Toyota Motor Company) a half-stack of high society.

I'm a little surprised by the opinion. The court does identify some alarming problems; it writes that "Appellant's brief is rife with legal and factual errors," which apparently included misstating the standard of review and mischaracterizing at least one witness's testimony. But if that's true, I'm not sure that makes the appeal "frivolous." The attorneys might have violated California's professional conduct rules, but I don't see how that makes the appeal itself inappropriate.

The Court's real problem with the Appellant was apparently the same problem the trial judge had -- that the Defendant, during discovery, denied requests for admission on topics that the jury ultimately decided in Plaintiff's favor.

The case was fairly vanilla; Plaintiff alleged that Defendant was negligent when he ran her over with his car in a crosswalk. Defendant denied liability, and during discovery, Plaintiff served him with several requests for admission, most of which effectively asked the Defendant to admit liability (i.e., "Admit this accident was caused solely by you" and "Admit you violated Vehicle Code Section 21950(a)"). Defendant denied the requests, but the jury ultimately found for the Plaintiff to the tune of nearly $625K.

Aside from entering a judgment on the jury's award, the trial court also awarded the Plaintiff the seemingly fake amount of $123,455 (how made up is that???) to cover attorney's fees, expert fees, costs, and other expenses that the Plaintiff wouldn't have had to incur had the Defendant just admitted liability through the RFAs.

Apparently, the trial court (as well as the appellate court) believed that the evidence was so overwhelming that the Defendant could not have, in good faith, denied the RFAs. That may have been true (I don't think any of us can really say without examining the record), but here's the thing: Were the requests appropriate in the first place?

It always annoys me when opposing lawyers send over requests for admission that essentially go to the disputed issues in the case. Here in Texas and under the Federal Rules (I can't speak to any other state, as I've never practiced anywhere else), the specific purpose of the RFA as a discovery tool is to eliminate matters about which there is no real controversy -- things like genuineness of documents, the identity of the owners of a piece of property, whether a signature on a document is valid, whether and when notice was given, etc. The purpose is most definitely NOT to try to win your case. In other words, you don't get to make people "admit" conclusions, opinions, and statements of subjective intent. In the same way we don't expect people to admit that they're liable in their pleadings, we don't expect people to admit that they're liable in a request for admission -- that's why we have trials, after all.

If the Defendant did not believe himself to be at fault, and did not believe himself to have violated any statutes or standards of behavior, then why should he have to admit it as much before the trial even takes place? Doesn't he get to go have his day in court? And considering that it's the Plaintiff who has the burden of proof, isn't it at least reasonable to allow the Defendant to make the Plaintiff prove it? In this case, the jury also found the Plaintiff herself to be negligent. Doesn't that go to show that perhaps the Defendant wasn't all that far off in denying liability?

Anyway, some interesting issues there, I think. Like I said, you don't often see an appellate court hold an appeal to be frivolous. In this instance, I'm not sure the court got it right.

September 17, 2010

More on fonts (but funny, I promise)

My former student, the great Matthew Luensmann (National Fourth-Best Advocate at the 2009 ABA National Appellate Advocacy Competition) brought this to my attention after my last two posts. It's an argument why someone should remove the Comic Sans font from Cleveland Cavaliers owner Dan Gilbert's computer. Written, of course, in Comic Sans. Genius.

September 16, 2010

So, I'm a bit of an idiot

When I was a practicing lawyer, I'd often wake up in the middle of the night thinking about a case. Or, to more accurately state it, I'd wake up in a dead panic wondering if I missed a deadline or forgot to call someone back, or committed some other act of malpractice.

Last night, I had a similar experience, but it pertains to this blog. No kidding -- at 4:30 a.m., I woke up with thoughts of Century typefaces dancing in my head. Why, you ask? Well, just as commenter Warren T., who beat me to my own punch, correctly points out, "Century is not an odd choice because it is the same font required by the Rule 33.1(b) of the United States Supreme Court." Which, for some reason, popped into my brain in the middle of the night and woke me out of dead sleep.

Why hadn't I remembered that as I waxed so poetically in yesterday's post about various fonts? I have no clue, really. Perhaps it's because I can't think of a single moot court competition out there that, despite setting its problem in the U.S. Supreme Court, actually requires you to make your brief look like a SCOTUS brief. Perhaps it's because just last week I was discussing the Federal Rules of Appellate Procedure (which apply to all the federal circuit courts) with my Appellate Advocacy class, and those rules require that briefs be "set in a plain, roman style." Perhaps it's because I was so puzzled at the choice to go with Arial five years ago that I just assumed whoever re-wrote the rules this time went with their own personal favorite.

Regardless of the reason, I'm a moron for not catching it. And hats off to the New York City Bar Association, for being the only competition I can think of to mandate that a fake SCOTUS brief actually resemble a real SCOTUS brief. Of course, real SCOTUS briefs are little booklets -- 6 1/8 inch by 9 1/4 and bound like a pamphlet -- and not 8 1/2 by 11 inch papers bound spirally. But producing those little booklets costs lots of money, which law schools and law students don't have much of these days. So, while it may not look exactly the same, it'll be close, and there's nothing wrong with that.

In any event, I'm glad to see the Century family move into town. I suspect they'll be here a while...

September 15, 2010

The new National Moot problem is here! The new National Moot problem is here!

The National Moot Court Competition -- one of the oldest, and arguably the most prestigious, moot court competition in the world -- released its problem today. Which isn't blogworthy, really. It's just that for the first time in five years, the fine folks at the New York City Bar Association finally caved to my (and others') incessant bitching and gave us a proportional, serif font.

Huh??? (you ask). Well, gather round for story hour, kiddos, 'cause this one's a thriller. Once upon a time, the NMCC's rule regarding "length and form" of briefs was a bit ridonkulous. It read: "The style, font, and pitch shall be uniform for all brief contents...The type size used shall produce no more than 12 characters per inch and no more than six lines per inch." It then had one page limit for "briefs which use a type size producing 10 characters per inch or less," and another for those "producing more than 10 characters per inch, but not exceeding 12 characters per inch." It also had a rule, which nobody understood, that dictated any single-spaced text "shall be counted as 2 inches of text." Umm, yeah...

The uniform pitch requirement meant that you had to use a non-proportional, or monospaced, font. In other words, every letter is the same width (the "m" is just as wide as the "l"). The most common non-proportional font? Courier (also known as "typewriter"). Which was all well and good, except that the briefs all looked as if they were written in 1972.

So, the Association finally entered the computer age and changed the rule in 2005. Only instead of mandating that the font be Times New Roman (or any other Roman-styled typeface) as one would expect, the Association dropped a head-scratcher on us all and mandated Arial. Arial!!!

So what's so bad about Arial, you ask? Well, nothing, per se. I'm sure she comes from a good home, with good parents and the like. The problem is that Arial is a sans-serif font. Serifs are the little thingies (that's a technical term) that extend off the ends of letters. Serif typefaces, like Times New Roman and Garamond, have them. Sans serif fonts, like Arial and Calibri, don't. There's a reason newspapers and magazines use serif fonts: They're easier to read. When you're dealing with small print, serifs help the words stand out on the page and help the eye move from letter to letter. Sans-serif fonts are fine for much bigger print -- like headlines -- but they tend to "bleed" into the page when used in ordinary text. (Sans-serif fonts also do well on computer screens, for what it's worth.)

Not a year has gone by that I haven't asked the Association to mandate something other than Arial (I've asked nicely; it's not as if I'm a jerk). So imagine my pleasant surprise when today, upon opening the problem, I see it printed in -- wait for it -- Century??? Knowing that the problem is usually printed in the same typeface that the rules require for the briefs, I quickly scrolled to the Competition's Rule 3, and there it was: "Rule 3.2.2: Use Century family (e.g., Century, Century Schoolbook, etc.) 12-point type." Wow!!! See 'ya, Arial. Your fifteen minutes (er, five years) is up.

So, while the choice is still a bit odd, I'll take it. In related news, the Association has dropped the page limit (which, even last year, still included the odd "one inch of single-spaced text counts as two inches" rule) in favor of a much simpler word count (12,000, if you must know).

That's way more than most of you thought you'd ever learn about fonts, but hey, I'm full-service around here.

September 14, 2010

Argue like some really good laywers

It doesn't matter where you stand on the California Prop 8/gay marriage debate; regardless of your position, you have to acknowledge there's some really good lawyering going on, at least on the side fighting the amendment (and I think on the other side too, as it seems the attorneys are doing their best with little, if anything, to argue).

A few links related to the case: The first is an interesting article by legal writing guru Ross Guberman. Titled "Five Ways to Write Like Ted Olson and David Boies," he uses a June 2009 brief they wrote in the case to extract some solid drafting advice.

The second (video below) is an interview Boies did this summer on how he cross-examined (and destroyed) the defense witnesses.



The third is a great clip from a Chris Wallace/Fox News interview of Ted Olson, in which Olson lays down some wicked mooting skills. My favorite part: At the end of the "round," Wallace defeatedly proclaims, "I gotta say, after your appearance here today, I don't see how you ever lost a case in the Supreme Court." A student could only wish for such a critique. Click here to watch...

September 13, 2010

Bad Advocacy - Vol. 4



I know this isn't footage of a trial or oral argument, but it's too priceless not to post. Needless to say, Phil Davison wouldn't make it very far in a law school advocacy competition. Several reasons, of course, most of which have to do with his forensic performance (let's start with the caged-animal-like pacing beside the podium; the odd hand gestures, failure to control the volume of his own voice, and odd word emphases are just a few of many problems in that area). But what I find so amusing is the fact that he speaks for six minutes and says absolutely nothing of any substance.

I'm also a bit tickled by his own self-critique: "It was strange," he told Politico. "Feedback would have been nice. I really don’t know how it was received." Seriously Phil? The giggles you can hear from the crowd should have been a clue.

September 10, 2010

The key to effective judging: "No f*&#ery"


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Last night, The Daily Show entered the world of moot court, staging a hilarious oral argument about the constitutionality of California's Proposition 8, with a cast of would-be Jersey Shore rejects (albeit from Staten Island) as the Honorable bench.

Oh Jon Stewart, how I heart thee...

September 9, 2010

South Texas doubles down with Scribes

For the second straight year, South Texas College of Law claimed THE Best Brief Award of all best brief trophies -- the 2009-10 Scribes Brief Writing Award. The annual prize, presented by the American Society of Legal Writers, goes to the best brief (as voted on by the Scribes graders) in the nation from the previous academic year. To qualify, a brief must have placed first at any regional or national interschool moot court competition. South Texas's winning brief came from the John Marshall Law School International Moot Court Competition in Information Technology and Privacy Law.

Second place was a tie between Faulkner University Thomas Goode Jones School of Law for its regional best brief at the National Moot Court Competition, and Chicago-Kent College of Law, Illinois Institute of Technology, for its first-place brief at the Illinois Appellate Lawyers Moot Court Competition. Honorable Mentions went to Case Western Reserve University School of Law for its Respondent brief at the regional rounds of the Phillip C. Jessup International Law Moot Court Competition, as well as South Texas for its national best brief at the ABA National Appellate Advocacy Competition.

Winning Scribes is a tremendous honor, particularly considering you're fighting only briefs that have won top prizes themselves (I had a student win it in 2006-07, and it is one of Texas Wesleyan's proudest moot court accomplishments). So it's quite impressive that South Texas has won twice in a row, and perhaps even more impressive that it's the second straight year they've had a second brief place among the top three.

That said, it has to be hard to pick a "best brief" when you're comparing samples from across numerous competitions. It reminds me of something I once heard Sean Connery say about the Best Actor Oscar: How can you name a winner when they all play different roles? Shouldn't the test be to make all five nominees play the same role? Which got me thinking -- wouldn't it have been so awesomely amazing (in a ridiculous sort of way) to see Tom Hanks, Morgan Freeman, Nigel Hawthorne, Paul Newman, AND John Travolta all take a go at Forrest Gump?

Another note -- and not to take anything away from Faulkner -- but its second-place-award brief (which qualified because it won first in its region at the NMCC) placed TENTH (out of 28) at the national rounds of the NMCC. I bring this up not to pick on Faulkner; indeed, given its placement in the Scribes and at its regional competition, I think you can make a strong argument that the brief was unfairly treated at Nationals. Rather, I think it underscores the point I've repeatedly made that brief grading is incredibly subjective and suffers from wild variations that often make little to no sense. Which is why, despite the fact that briefing in the real world counts for much more than oral argument, we ought to reject calls from moot court critics to make the brief "count for more." If anything, it ought to count for less, given the inability of anyone to agree on what's good and what's not.

September 8, 2010

Creative writing applied to briefs

It's brief-writing season (at least it is for my teams), so I thought this week I'd empty out a few links I saved up over the summer. Check out this one, courtesy of the California Bar's Continuing Education site. It discusses five creative writing techniques that can be applied to legal briefing.

Too many times, my students get hung up on the "Argument" section of their briefs, forgetting that most judges will read the Statement of Facts and Summary of Argument first. Failing to capture their attention at the outset can be fatal, and creatively framing the facts or issues can earn some big points. It's true that sometimes it's hard to tell a good story in a moot court brief because the facts aren't as developed as they would be in the real world. But as we all know, the facts of many other moot court problems are wonderfully fantastical. My point? Don't shy away from solid creative writing principles -- they may be easier to employ than you think.

September 7, 2010

Hello? Anyone still there?

Ahh, a new year (at least for those of us who live our lives by the academic calendar) is upon us. Competition registrations are in full swing, students are busy reading problems and writing briefs, and coaches are making travel plans. Oh, and one more thing: The Bench Brief is back.

I know last year was a poor showing on my part. There were a couple of reasons for that, none of which will likely interest you to any large degree so I'll spare you the details. But I'm committed to doing this thing well this year. It's so nice to meet my readers -- which include students, professors, and competition coordinators -- across the country and get positive feedback. That definitely keeps the fire burning. Funny story on that note: At last year's ABA NAAC regional rounds in Brooklyn, one of my students asked me during the team meeting, "What do you think the over/under is on how many people in this room read your blog?" My answer: "Not including you guys? Two." He then started asking around, and within three minutes, at least 15 people acknowledged being a reader. It was very cool, and just knowing that folks are reading is enough motivation for me to write.

Anyway, here's to another great year in the wide world of moot court, mock trial, and other law school advocacy activities. May all your courts be pleased...