[rant] I try really hard not to be one of those people who only writes about things that they do not like, or want to complain about, but I simply have to document this phenomena which turns law students into helpless children.

My least favorite class of the semester is always the class where the professor opens the floor for questions about the final exam.  People inevitably ask the most asinine questions during this class. I know you want a sampling of the types of questions that were asked¹ which inspired the post, so here are some examples from this week:

1. Should we make sure each page of the exam is easily identifiable as our own work in case the pages are mixed up?  Usually this is stated as: Should we write our name/id number on each page? The answer is always yes.
2. How do you want us to staple the pages? All the way around the edge, so no one can open the test.  I still cannot believe someone asked this question.  I really wish I would have had a stapler with, so I could show this poor fellow how to use it.  What kind of parent’s don’t have the staple talk with their kids?  Negligent ones.
3. If we are running out of time on the essays, should we try to quickly write an answer? The choice is between leaving it blank, or trying to answer the question.  You do the math.
4. Does spelling count? Ugh.  I guess pressing spell check on your laptop is awfully difficult.
5. What do we do if the printer won’t work? I say rewrite your entire essay on napkins or paper towels from the bathroom.  Or you could try a different printer, or getting help from the tech guys wandering the halls during finals.

This was only the beginning, the “discussion” went on for 45 minutes.  These ridiculous questions are why I always dread discussing tests and exams during class.  What a giant waste of my time and money. [/rant]

I may have written about something like this before, or maybe that was about clapping.  Well I know I have written about clapping at the end of a class ² but I may have written about this before as well.  If so, I apologize, but reaffirm my position on the subject.

Think before you ask.

[Edit:] From the clinic information page:

Student attorneys in the Domestic Violence Clinic (DVC) represent victim/survivors of domestic violence seeking civil protection orders and/or petitioning to change their immigration status.  The opportunity to gain experience in family and immigration arenas allows student attorneys to evaluate the benefits and limits of these interventions into the complex problem of domestic violence in this two-semester clinic.

In representing clients seeking civil protection orders, student attorneys assume responsibility for all aspects of the representation.  Working collaboratively with clients, under clinic faculty supervision, student attorneys confront the challenges of balancing a client’s immediate needs for safety and support with the ongoing press of trial preparation.  Working in teams, student attorneys conduct intake interviews (usually through the Domestic Violence Intake Centers at D.C. Superior Court or Greater Southeast Community Hospital), assess clients’ legal options, counsel clients regarding legal and non-legal options, and prepare and file court pleadings.  Upon filing petitions, student attorneys represent clients in temporary protection order hearings to provide immediate safety-related relief.  Student attorneys perform research and fact investigation, handle settlement negotiations, and conduct all aspects of contested civil protection order trials – including giving opening statements, calling witnesses and introducing exhibits into evidence, cross-examining witnesses, and delivering a closing arguments – in the D.C. Superior Court’s Domestic Violence Unit.  Clients frequently seek safety provisions, custody, child support, property, maintenance, counseling, and other relief necessary to prevent violence.

Student attorneys also represent clients seeking to change their immigration status under the Violence Against Women Act provisions for battered immigrants.  The Clinic currently handles VAWA Self-Petitions, Battered Spouse Waivers, and U-Visas.  Working collaboratively with clients under clinic faculty supervision, student attorneys assist the client in addressing safety, support, and immigration status issues as they unfolded prior to and during the legal process.  Student attorneys conduct interviews of clients, counsel clients regarding legal and non-legal options, conduct research and fact investigation, obtain witness testimony, prepare the client’s petition, and appear before immigration officials for immigration interviews.

Student attorney teams regularly meet with their faculty supervisor to develop case plans and strategy, to review trial preparation, and to discuss reflections on lawyering, domestic violence, and systemic interventions and responses.  In addition to these supervision meetings, student attorneys meet weekly in a clinic seminar and in case rounds.  The seminar addresses the theory and practice of advocacy, and is structured largely around simulations.  It gives student attorneys the opportunity to practice and hone their skills related to client representation and advocacy in trial settings.  DVC student attorneys meet weekly in case rounds to discuss their experiences and insights gained from their client representation, and to evaluate systemic and other forces affecting the success and failure of various domestic violence interventions.

This should be a very interesting experience.  Just to note, I added the links to the excerpt.

Wow, it has been a long time since I’ve used either the “Law School” or “Rhetoric” category tags.  This post fits into both categories, but mostly in the former.

On Wednesday, I gave my first closing argument in a class called Civil Trial Advocacy.  Essentially, the class entails going through three mock civil trials to give students some “real world” experience. This type of class is usually called a lawyering skills class.  In a skills class you don’t really learn much law, or theory, but instead focus on the “art” of lawyering.  I took the class because it has been quite some time since I last spent serious time doing public speaking, so I thought what better way to get some practice in public speaking, where I was also learning the ropes of a civil trial.

I have not been disappointed.  This has been my favorite class thus far in law school.  I’ve already had the opportunity to cross examine an expert witness, and this week I gave my first closing argument.

I thought my closing argument went well, but the whole situation gives me the opportunity to talk a bit about rhetorical strategy. I was faced with a much more prepared adversary.  Seriously, who has some much time that they are able to prepare a 35 minute argument when we were only allowed 10 minutes?  To make things worse in my case the Judge let my opponent go on for the entire 35 minutes when I only had prepared for the expected 10 minute speech.  I think she should have been cut off much earlier, but she wasn’t so I was forced to rethink my strategy on the fly.

In my experience in public speaking [which is admittedly somewhat limited] the following are speaking strategies I use when confronted with a much better prepared opponent in a speaking situation:

1. Listen carefully to your opponent’s argument. Every position has it weaknesses.  The longer the explanation takes, the more the other person’s argument’s weaknesses are exposed.  Use this to your advantage.  Instead of trying to respond to every argument in turn, [which you  do not have time to do], try to highlight a couple of your opponents weakest arguments.  Directly reference these weaknesses, and then assert that they are representative of your opponents entire argument.  Hey, if they make a number of flimsy arguments, what makes the rest of their points reliable?  At the very least you’ll force your opponent to address this during rebuttal which will use up some of their remaining time.
2. Take a more conversational approach. What ever you do, do not panic.  Try to personally identify with your audience.  Make eye contact, and speak slowly.  Most audiences don’t like to be lectured, therefore it is to your advantage to act calm and “converse” with the audience rather than hit them with every available argument.  Think about how you like to be spoken to while listening to a speaker.  Act accordingly.
3. Make your opponent play on your turf. Latch onto your opponent’s terminology and turn their talking points to your key phrases.  Taking ownership of your opponent’s key terms shifts the attention from underlying issues to who is accurately portraying the meaning of the word.  This is especially effective when you opponent is incorrectly using a word, or using an uncommon use.  Either way if you opponent comes into this engagement relying on a few key phrases, show the audience why your side/point of view is actually a better representative of those phrases.
4. Focus on the key points. Obviously the other person has said a lot more than you, but quantity does not equal quality.  Attempt to crystallize the key issue in your favor.  While your opponent may have thrown out every argument known to man, focus on slowly expanding your best argument to show that the key issue is falls on your side of the argument.  Of course this also implicitly means that you must suggest that THE key issue of the debate falls to your side.  Therefore make sure to pick an issue to pound away at that you can win.  A thorough explanation of one issue is much more convincing than cursory mention of several.  Remember quality is better than quantity.
5. Ask for the sale. Let me repeat: ASK FOR THE SALE!  This is the one step that I forget most; yet it happens to be the most important.  Go figure.  Ask your audience to act, and let them know what you thing they should do next.  Your best arguments are wasted if you don’t take this last affirmative step to tell a convinced listener what actions they should take next.  No matter what your field: Law, Business, Consulting, Sales, Education, whatever; you must tell your audience what they ought to do.  Otherwise what is the point of you being up there speaking?  Ask for the sale.  Ask the audience to choose you.

Again these are just some of my personal strategies which I employ when debating something in public [well I guess sometimes in private as well, but that's just not as interesting].   Not all are effective at all times.  I tried to use 1-4 this week during my closing argument which worked out pretty well.  Remember, I only had 10 minutes to counter a 35 minute argument.  You are forced at times to pick your battles.  Unfortunately,  I forgot about Asking for the Sale, which was a huge blunder which was then pointed out by the Judge later.  Yuck, don’t put yourself in that situation.  Never forget that step[Note to self . . . ].

Anyone else have any other suggestions, comments, or strategies?

Wii Yickit

Stress is a very personal issue, and everyone tends to deal with it differently.  What works for one person might not work for anyone else.  Be that as it may, I do have a recommendation of one thing that has recently worked for me.  Buy a Wii¹.  For the last two weeks my Wii has helped me blow off a lot of steam, and while I do have other game systems² nothing has helped me relax more than the Wii.

I think what makes the Wii a good stress reliever is the actual physical acts you must do to play the games.  The weather hasn’t been great outside so it has been very difficult for me to run, and the Wii has clearly helped me replace my stress runs³.  I am a huge baseball fan, so my favorite stress reliever is to play Wii Baseball on the Wii Sports game, which is included with the Wii when you buy it.  Actually swinging at the pitcher’s throws really increases the game’s therapeutic benefits and is clearly better than sitting around reading when you have cabin fever.  So if your looking for a new stress reliever for the cold winter months you should think about getting a Wii, especially is you like games.

So what works for you when you need to blow off some steam?  Anybody have good suggestions for stress relief⁴.

Good luck to all of the people I know, and all those who I don’t [to a lesser degree of course].

I know it seems like a “do or die” situation when you take it, but just remember its only a test and only the beginning of a long process. Don’t get to worked up about it and enjoy the rest of your day.

I thought waiting for the results to be posted was worse than the test itself, but you be the judge.

And if you really need some last minute tips:

After the first time, which is legitimately nerve wracking, you learn how the game is played and things get easier.  You have seen a issue spotter essay question [or many] and feel comfortable spending three hours answering it.  You have also seen the types of questions that professor like to ask.  Your outlines and notes are finely tuned to highlight the main points of your classes.  So you finish your outline, and study it for as many hours as you can, and go in and take your final.  Rinse and repeat until all of your finals are over.  Not as big of a deal as it used to be.

But be that as it may, I’m ready for a week or two off in North Dakota.   After two weeks in the tundra I’ll be ready to get back to work in the relatively balmy DC.  Its a foot race to the end right now.

I know I can’t carry all of my books at once, well at least easily without making my back sore.  I would love an E-reader solution or even pdf format casebooks.

There are many good books about legal writing and rhetoric, but Making Your Case: The Art of Persuading Judges is one of the best I have read. Of course I was probably destined to reach that conclusion because the authors are two men whom I hold in high regard: Antonin Scalia and Bryan Garner. Most books in this category don’t carry the impressive names that Making Your Case does, but there is more to this book than the names of a Supreme Court Justice and the editor of Black’s Legal Dictionary. The book is set up like most legal “nut shell” or horn books, where there are several chapters and sub-chapters with numbered points. The book mainly covers brief writing, and oral argument, but there is a small legal argument section at the beginning. Thrown in throughout the book are Scalia and Garner’s advice to young lawyers who are just beginning their practice. Make sure to glean the pages for these tidbits (I prefer to call them nuggets of wisdom), they are very telling of what works to persuade judges and what doesn’t.

Some of the best of Making Your Case‘s points (a quick sampling of a few points that peaked my interest — just a small taste of the contents) :

1. Outline Your Brief. I know it seems simple enough, but most lawyers (and especially law students) skip this step. The authors make their case that a well done outline of your brief is not only advantageous but necessary to your writing process.
2. Clarity, Clarity, Clarity. Writing a clear, and concise brief is the most important you should have for your brief. The authors said it best, “The clearer your arguments, the harder it will be for your opponent to mischaracterize them” (page 108).
3. “Formality bespeaks dignity.” When addressing judges or deciding whether or not to include a contraction in your brief, remember that some judges greatly value formality. So to be on the safe side, leave out the contractions and always address Judges in the correct way (check the local rules of the court on the titles of its judges) (page 118).
4. Avoid Acronyms. Enough said.
5. Say Thank you. Thank the court for paying attention to your arguments. Don’t over do it though. The authors say, a short “Thank you” is enough to end with. After that sit down.
6. Develop a reputation for excellence. Be very aware that you will probably frequent the same courts throughout your career. Because Judges (at least at the Federal level) are given life terms, you ought to bring your “A” game every time you appear before them (you appear through your brief as well as during your oral argument).

Making Your Case was clearly the best books on legal rhetoric I’ve read. It doesn’t go over formatting or CREAC, which I found enjoyable (which is also strangely refreshing – hearing about CREAC makes me want to vomit), but instead focuses on creating intelligent, respectful lawyers. The conversational tone in Making Your Case creates readable prose, which is much more than I can say for other books on this topic. The bottom line: If you are going to go to law school, or are in law school, this would be a good book to read. Its very informative with out being so detailed that it bores.

I purchased two new books today that I am eager to read. Both books are focused on the legal profession, specifically trying to help lawyers and law students understand how a judge thinks. I’ll post more on these two books as soon as I read them:

Making Your Case: The Art of Persuading Judges by Antonin Scalia and Bryan A. Garner hit book stores today. Or at least it was supposed to be on sale today. I had to visit and call several bookstores before I found a store with the book in stock. Either way after wandering around DC for a bit I was rewarded with the latest in a long line of book designed to help lawyer’s and law student’s writing. Having Scalia’s name on this book certainly gives it some influential power: having a Supreme Court Justice’s opinion on legal writing is clearly a huge selling point. I’ve just started the book and have found it very readable so far (much more so than other books in this genre) and as soon as I finish it I will post my thoughts.

How Judges Think by Richard A. Posner attempts to offer people a window into a judges mind. I do not know much about this book, so I’ll wait until I’ve read it to discuss it further. Posner is a very large figure in the legal world, especially in regards to Law and Economics. He currently sits on the Court of Appeals for the Seventh Circuit. Posner has already published over forty books, and I suspect this latest work will live up to his reputation.

More to follow on both of these books after I finish them.