Department of Politics

APPELLATE BRIEF & ORAL ARGUMENT

Purpose: The purpose of the Appellate Brief and Oral Argument assignment is to practice the research and advocacy skills which are characteristic of liberal education and essential for the legal trade, and to do so in a situation which simulates to some degree the real-world legal environment.

Stages in the Assignment:

1. CASE ASSIGNMENT: On the first Wednesday of the term a random device will be used to assign students to cases. If we are fortunate enough to have an even number of students, two students students will be assigned to each case, one to the petitioner and one to the respondent. If we have an odd number of students, one case will be argued ex parte. The schedule of oral arguments will be posted on the course web site.
   
   
2. THE APPELLATE BRIEF: After you have your assignment and before your presentation date you have the following duties:
   
   a. Study your case with great care. Learn "everything" (see note below) you can about it, particularly about the constitutional issues on which the case must be decided. The best single source for this research is the original synopsis and decision with associated concurring and dissenting opinions printed in the United States Reports. You should also consult previous cases relied upon in the decision of your case, the U.S. Constitution Annotated, and other legal resources as appropriate. Part of the task is to learn to do some creative searching for information, but the Legal Resources of Russell Cole Library will get you started.
   
   Three Rules of Legal Ethics:
   (1) Secrecy: Lawyers may not divulge or in any way hint at the actual historical outcome of the case at bar. It follows that lawyers may not quote nor make any other reference to any of the Supreme Court opinions in this particular case; they have not yet been written. (Clearly, ALL PREVIOUS opinions, including the lower court opinions in this case are fair game.) Others may not investigate the case. If you inadvertently come across some citation or reference to a case that is being argued, forget you saw it.
   (2) Forbidden Research: The actual briefs filed with the court and the transcripts or recordings of oral arguments for your case are off limits. Using them is prohibited and probably counter-productive. You might be seduced into copying when you should be thinking with the result that you don't understand your own argument. Furthermore, the actual briefs often raise issues--both substantive and procedural--that go beyond the scope of this class. You risk confusing yourself and the court.
   (3) Suspension of History: Cases must be argued and decided in their appropriate historical context. It follows that counsel and court alike must render themselves temporarily--but totally--ignorant of any decision or event subsequent to the date of the oral argument in the original case. I try hard to find appropriate cases that are very recent, so this problem is minimized.
   
   b. Prepare a written brief of your argument. This is not a study brief of a decision already made. Those briefs are designed to help you learn the basic elements of the cases we read. This is an advocacy brief--a synopsis of the most critical arguments and precedents which favor your side of this controversy. Briefs should follow the form set out in the Handbook of Appellate Advocacy [on reserve in the Library] except that you may omit Topical Index, Table of Authorities, Opinions Below, Jurisdictional Statement and Summary of Argument. The Handbook of Appellate Advocacy provides detailed guidance for preparing an effective brief. (Note: It is even more important for you than it would be for an attorney arguing to real judges that you explain the pertinence of every precedent to your case. Never make an assertion supported simply by a case reference. Describe the pertinent elements of each precedent you cite and explain why that precedent ought to be determinative in your case.) Your brief must be distributed to every member of the class by e-mail attachment not later than 1:00 p.m. on the day before your oral argument. Your opponent will also get a copy of your brief at that time. (Notes: To save paper your briefs should be formatted single-spaced. An exceptionally good Model Appellate Brief is available for your scrutiny.)
   
   Three Rules to Avoid Embarrassment:
   (1) Do not misspell the word amendment. The word amendment is spelled with two M’s not three, and it is capitalized when it appears as part of a proper noun, such as First Amendment.
   (2) Do not confuse the word precedence with the word precedents. The word precedence or precedency is a noun meaning, “the fact, state, or right of preceding,” as in, “precedence in admissions will be given to students in the top 10 percent of the graduating class.” The word precedent is a noun meaning, “an act or instance (especially a judicial decision) that may be used as an example in dealing with subsequent similar instances" or “a convention or custom arising from long practice.” The plural form of precedent is precedents, with an S. Precedent is also an adjective meaning preceding, as in the phrase “the precedent case.”
   (3) Learn when Supreme Court terms begin and end, and label the cover page of your brief accordingly.
   
   c. Study your opponent's brief and concentrate on how you can most effectively counter the arguments that he/she intends to make. If you have done your research well, your opponent's brief will contain no surprises.
   
   
3. FORMAL ORAL PRESENTATION: On the day of the oral argument attorneys for petitioner and respondent will be given 10 minutes each to present their cases to the court (made up of the professor and the rest of the students in the class). Students whose initial presentation to the court consumes less than the full 10 minutes allowed may reserve the remainder for rebuttal. A good presentation will use the full time available without going over the limit. In the Supreme Court you would be cut off for exceeding the time limit. In our mock Supreme Court, you may not be cut off, but your grade will suffer. Attorneys are reminded that preparing the written brief and preparing the oral argument are different tasks. Although our format differs significantly from that of a real appellate (or law school moot court) hearing, the general advice on preparing for and delivering an oral argument in the Handbook of Appellate Advocacy still applies. You may want to listen to some experts argue real cases before the Supreme Court. See Irons: May It Please the Court (1993) [live recordings of oral arguments before the Supreme Court] on reserve for this course.
   
   
4. QUESTIONS: Following the formal presentations, attorneys will be questioned by members of the court. Again, consult the Handbook of Appellate Advocacy for general advice. Subsequently, attorneys will be dismissed, and the court will deliberate "in conference."
   
   
5. DELIBERATION & DECISION: The court will deliberate the merits of the case and eventually vote a decision. Attorneys will be recalled and informed of the court's decision. The real world outcome of the case will be revealed and discussed.
   
   
6. EVALUATION: Your brief, formal oral presentation, and response to the court's questions will be evaluated independently, and your grade for the project will reflect the quality of its three components. You will receive a written evaluation of each component.