Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Summer 2019

by Catherine Fregosi, Esq. WRITE ON Judge for a Day Legal writing faculty at Vermont Law School contribute to the Write On depart- ment for every issue of this Journal. We generally write about some aspect of le- gal writing that is meant to help you in your practice, such as citation, 1 the use of rhet- oric, 2 or drafting policy analysis. 3 This time around, I am writing to ask for your help and to share an opportunity to meaningfully con- tribute to legal education and earn a couple of CLE credits along the way. First, some background on the legal writ- ing program at Vermont Law School. Most law schools require students to take two se- mesters of legal writing courses. We require three semesters of legal writing. Each se- mester focuses on a different kind of legal writing. In the first semester of law school, students learn IRAC, how to cite cases and statutes, and work on drafting objective memoranda. Assignments in the first se- mester are closed universe, allowing stu- dents to focus on mastering the basics of writing. The second semester of legal writ- ing introduces persuasive writing, different organizational structures, and different Blue- book rules. Second semester assignments are open universe. Students start devel- oping their legal analysis skills by working through more complex fact patterns and le- gal arguments. They learn how to synthe- size rules and work on sorting out relevant from tangential authority. Students do this through drafting trial court filings and short academic works. At the end of the semes- ter, students present a ten-minute argument as an introduction to oral advocacy. In the third semester at Vermont Law School, students are required to take Appel- late Advocacy. The premise of this class is simple: Students write a full-length brief in a case pending before the United States Su- preme Court and then present a twenty-min- ute oral argument before a panel of judges. The skills required in this class are a leap be- yond those required in the first two semes- ters of legal writing. First, while professors give students a small handful of cases as re- search prompts, students must conduct a great deal of independent research to sup- port their legal arguments. For many stu- dents, this is their first exposure to working with not just cases and statutes, but also sec- ondary sources like treatises and law review articles. And since the cases are pending before the U.S. Supreme Court, they often implicate federal constitutional issues. Thus, students may need to work with at least sev- eral decades of jurisprudence on particular constitutional provisions. 20 Second, students have to put all of that re- search together to form a coherent and log- ical legal argument. This is the hard part. Just as legal writing professors give students a few cases as research prompts, we also give students a strong nudge in the direc- tion of the best arguments for both petition- er and respondent. But students need to work out the intricacies of those arguments on their own. For almost all students, this is the first time they have had to independent- ly determine the correct analytic path to the result that they are seeking from the Court. And then they still need to draft that argu- ment in a persuasive, but not over the top, voice with perfect citations. Finally, students need to present a twenty-minute oral argu- ment on their brief. Appellate Advocacy has become some- thing of a rite of passage for Vermont Law School students. A student recently told me that in this class he started to think that he might, actually, one day become an attor- ney. Students, of course, learn a great deal of substantive law in their other classes. But Appellate Advocacy challenges them to be self-directed and thoughtful in a way that doctrinal classes do not always require. It is that aspect of this course that my student was commenting on—after writing a brief and presenting an oral argument, he started to believe that he might have the skills and aptitude to become an attorney. I suggest that, even more than writing a brief, it is the oral argument component of this class that pushes students into believ- ing they can succeed. And this is why I am asking for your help on behalf of Vermont Law School’s legal writing department and students. As mentioned above, students pres- ent oral argument before a panel of judg- es. That panel is comprised of practicing at- torneys and judges who generously volun- teer their time to help Appellate Advocacy students. Many attorneys and judges have made the trek to South Royalton every year for years and even decades to ask students questions and give students feedback. We are grateful for each of these volunteers. But for those of you who have not heard of this opportunity, please consider this a for- mal invitation to join us. Law schools are increasingly moving in the direction of experiential learning. Ev- ery law school has its share of clinical and semester-in-practice opportunities, includ- ing Vermont Law School. Appellate Advo- cacy oral arguments offer the same kind of experiential opportunity for students in their THE VERMONT BAR JOURNAL • SUMMER 2019 third semester, before many of them partici- pate in clinics or semester-in-practice intern- ships. And for students, the experience of presenting an oral argument before practic- ing attorneys and judges is without parallel. Formal argument teaches students to talk about the law in an organized and thought- ful way, which is just as important as being able to write about the law. The prepara- tion for argument requires students to think through the holes in their arguments, the strengths of the argument on the other side, and the practical consequences of the deci- sion they are asking the Court to reach. By the time my students get to their final argu- ments, they have heard all of my questions and know exactly how to deal with them. Arguing before new judges pushes students to go deeper in thinking through their legal arguments. Volunteer judges can earn two CLE cred- its in a given reporting period for judging a two-hour block of student arguments. We hold arguments twice a year, in late July and again in late November. July argu- ments take place over a few weekdays and on a Saturday. Arguments are held during the day and in the evening. This year, argu- ments are scheduled for July 26, 27, 29, and 30. November arguments have traditional- ly been held on Monday through Thursday evenings over the course of three weeks. We may add arguments during the day on a couple of Saturdays this year. We sched- ule arguments in two-hour blocks, and ask that judges sign up for at least one two-hour block. Judges are invited to join us for an informal reception and meal before each block of arguments. We send judges the opinion on appeal, a short memo about the case, and the students’ briefs about a week before arguments. Judges need to be fa- miliar enough with the case to ask students questions during argument, but we do not expect judges to have mastered the minuti- ae of each student brief, nor do we ask judg- es to give students any feedback on their briefs. Legal writing professors pick a range of cases each year, and judges can choose the case that they want to hear. Last Novem- ber, the cases selected addressed retalia- tory arrests, 4 sentence enhancement under the Armed Career Criminal Act, 5 and inef- fective assistance of counsel claims. 6 Profes- sors choose single-issue appeals, and typi- cally pick cases that will be reasonably ac- cessible to second-year law students. Some- times the cases selected for Appellate Ad- vocacy even touch on the decisions of the www.vtbar.org

Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Summer 2019 | Page 20