Background: For my brief I have to argue that the trial court should not have awarded summary judgment. At issue is whether a certain contract is enforceable. There is a very well defined three prong test for assessing "reasonableness" where the contract has to pass all three test (prong A, prong B, prong C). At the lower court, the court determined that the agreement at issue flunked part one (prong A) of the test but said B and C were reasonable. Thus, I need to argue that there are issues of material fact that should have precluded summary judgment (with prong A). But since it is reviewed de novo I need to argue all three prongs, in some form. Our instructors want us to frame all of A, B, and C in SJ terms whereas I'd like to frame only A in strict SJ terms. I'd like to frame B and C in stronger terms but, in the actual text argue in the alternative and state the SJ terms.

I don't see how arguing for a lower standard on appeal of summary judgment (that there is a material fact in dispute) is more persuasive than actually arguing the point itself. For example, compare "Factor A is reasonable" with "There are issues of triable fact that suggest A is reasonable." Forget the fact that the latter is putzy (I still haven't found a good stylistic way to incorporate the summary judgment standard.) It is just generally a bad negotiating tactic in arguing a point.

If a brief is meant to be persuasive, then one should try to stake out as much ground as you can, at first, and concede ground as you go along. Forget swindling, this is used car salesman 101. Most of us knew this principle as a child, trying to negotiate with parents. When I haggle for bottles of Dasani (the most cost effective water available for your money) outside central park, I don't start at $2.00 which is arguably what I can get out of the guy. I start at $.50 or a dollar. I want to go as low as possible without going so low to the point the guy stops taking me seriously or makes him angry. edit: I'm selling an argument and I only want to grudgingly sell my argument at a lower standard after a rotten and insulting argument.

You also need to pick and choose spots carefully so as not to waste time / effort. Negotiating down the price of a Big Mac is futile (trying to get it for free would be easier). Also, you can't overshoot on every point because then it dilutes the tactic. I think the phrase goes "shoot for the moon and land amongst the stars." I think their insistence to not doing it, not appealing to basic human emotion, is a testament to law school's ability to squelch creativity, and, in this case common sense. Of course, I'm not advocating submitting a brief written on pink paper just trying to supplement orthodox legal thinking with common sense.

I don't want my brief to be read every other brief, especially since I know my brief will never stand out on account of my writing because I am not nearly as fluid as some of my classmates. Besides, no significant societal advancement to my knowledge has occurred through repeated exercise of the status quo.

So in sum, I just don't give a shit because I don't think that either is right.

-- MatthewZorn - 07 Mar 2010

Matt- I feel your frustration with these 1L briefs. Mine is also an argument that summary judgment was improper in the lower court. However, I don't necessarily feel your same irritation with having to argue against a summary judgment decision at a lower standard. I don't see it so much as a question of what's more "persuasive" - it's a question of what needs to be done to get your case where it simply has to go for the client to stay in the game. Since, at this level, what you have to argue is that summary judgment was erroneous, you have to meet a lower standard in order to assure that your client doesn't lose right off the bat. That doesn't mean, however, that you can't argue "for the stars"- just that you need to balance what you actually need to accomplish practically (simply to get summary judgment reversed so you can actually have a case) with your real persuasive arguments. Just because all you need to argue is that there are "issues of fact" doesn't mean that it isn't important to make a stronger case. I think there's still room to be creative with that argument while still keeping within the bounds of the practical reality of what the case demands of you.

Maybe your frustration is more with the posture of the assignment- that we've been asked to argue this seemingly lower standard, when we could have been told to argue the case flat-out. Maybe it's more of a realistic assignment since we've been given appellate briefs to write and are working off a set Record and aren't doing trials- simply because it isn't feasible in our 1L writing class. Are you more frustrated with the way the school is approaching the assignment in general, or with the way the judicial system works in requiring these sort of intermediary steps that avoid the "meat" of the argument? I'm curious, because I think I understand where you're coming from but would like a little more clarification.

-- JessicaHallett - 08 Mar 2010

I completely agree--my ire or frustration is that our instructors want us to frame our argument in terms of summary judgment at every stage of the game. In this particular case, that means framing 3 separate issues (of a 3 prong test) in putzy summary judgment terms.

With one (and possibly two) of the three, I certainly see the utility of not arguing the stronger standard. Which, I guess brings me to my point--that arguing a point in summary judgment terms may not actually be a lesser standard in reality. For example, try selling a brand new BMW for $100 versus $10,000. With the $100 you are immediately going to think "what's the catch?" or "what is wrong with the vehicle?" whereas with the cheap, but more expensive price people may just be thinking "Wow, great deal!" Obviously, this ties into Leff's piece a ton. Psychologically, I think that arguing in SJ terms sometimes can hurt a case more than help it because it reframes the issue in terms that suggest a dispute (when there may not be). If something is black, I don't want to argue about how its not white. I want to argue that it is black. Besides, I'm pretty sure Yale Law educated people understand that even if you fall short of a higher burden you may meet a lower burden.

The assignment itself doesn't really frustrate me because it seems practical--much more so than Con Law readings. Well, actually it does frustrate me.

-- MatthewZorn - 09 Mar 2010

"Of course, I'm not advocating submitting a brief written on pink paper just trying to supplement orthodox legal thinking with common sense." I don't think you realize how close you are to the truth. Most appellate courts do require specifically colored cover pages for the various briefs. I once received a call from an angry clerk complaining about an "aqua" appellant brief that our office had filed.

The problem with Moot Court is that the problems are written with specific cases and arguments in mind and any significant deviation from that is discouraged or not allowed. This is what stifles creativity.

-- JohnAlbanese - 23 Mar 2010

I do acknowledge many of these arguments, and I've certainly heard plenty of horror stories about the various moot court advisers blowing up student briefs because the students weren't arguing specifically what the adviser had intended his or her charges to argue. Frustration is perhaps warranted.

On the other hand, we're 1Ls and this is the first stab at writing any sort of document that can be submitted to a court. Personally, I'm not very confident in my brief-writing ability at the moment - I'm worried enough about arguing persuasively, writing clearly and precisely, and formatting my brief properly. I don't know if I could sweat operating without too much restraint at this point, and I would assume that many of us feel like we're in the same boat. I, at least, am grateful that we have a set of "training wheels" in the form of restrictions about what we can argue so we can focus for the first time on making that argument.

I remember back when I was in tenth grade and we were learning to write our first five paragraph essays. The brightest students (that's you, Matthew) complained that they felt stifled by the ultra-restrictive form and topic stipulations. They were right of course, but there were students in the back of the room who could barely write at all (that's me, in this analogy) who were thankful that they could learn a little more slowly, and by senior year we were all finally free to run as we pleased so the brightest kids still had their time to shine in the end.

My opinion? There's time to be Perry Mason tomorrow, but I need to attain Hamilton Burger status first.

However, I should add that maybe there's room in the year for both a slow start and an opportunity for creativity at the finish. I don't know about others but legal practice workshop has been my favorite class so far - maybe we need to be writing much more and start off with the highly restrained tasks earlier in the year so that we're able to fly high this late in our second semester.

-- AndrewCascini - 24 Mar 2010