Brody, Susan L.

English

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UIC Law Review Volume 19 Issue 2 Article 12 Winter 1986 Fundamentals of Modern Appellate Advocacy, 19 J. Marshall L. Rev. 541 (1986) Susan L. Brody 7brody@jmls.edu Follow this and additional works at: https://repository.law.uic.edu/lawreview  Part of the Litigation Commons Recommended Citation Susan L. Brody, Fundamentals of Modern Appellate Advocacy, 19 J. Marshall L. Rev. 541 (1986) https://repository.law.uic.edu/lawreview/vol19/iss2/12 This Book Review is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact repository@jmls.edu. BOOK REVIEWFUNDAMENTALS OF MODERN APPELLATEADVOCACY By ROBERT J. MARTINEAUTHE LAWYER'S CO-OPERATIVE PUBLISHINGCOMPANY, 1985, 189 PP., $21.50.REVIEWED By SUSAN L. BRODY*Fundamentals of Modern Appellate Advocacy presents RobertJ. Martineau's prescription for his diagnosis that appellate advocacycourses in American Law Schools include "too much moot and notenough court."' Professor Martineau's premise is that appellate ad-vocacy skills can be taught effectively only after detailed instructionon appellate procedure. Traditional appellate advocacy curricula donot address matters of appellate procedure and typically excludetopics such as preservation of issues for appeal, finality and appeala-bility, parties, and the record on appeal. Fundamentals focuses pri-marily on these matters and suggests that their inclusion in appel-late advocacy courses is a necessary prerequisite to teaching theskills of brief writing and oral argument. In contrast to other bookson appellate advocacy, substantial detail about appellate procedureis presented, while significantly less detail is presented about briefwriting and oral argument.It is true that far too little background on appellate procedureis included in most appellate advocacy courses. For this reason, Pro-fessor Martineau's presentation of rules of appellate procedure is along overdue contribution to this field. If this contribution is incor-porated into current appellate training approaches, future lawyerswill be far better prepared to face the intricacies of appellate prac-tice. The book's greatest strength is providing materials about pro-cedure that the appellate advocacy instructor can incorporate into a* J.D., lIT/Chicago-Kent College of Law, 1979; Ms. Brody joined The JohnMarshall Law School faculty in 1982 as an instructor. In 1984, she became an assis-tant professor and Director of the School's Lawyering Skills program, a four semestersequence of courses in research, writing, appellate advocacy, and drafting.1. Martineau, "Moot Court: Too Much Moot and Not Enough Court," 67A.B.A. J. 1294 (1981).The John Marshall Law Reviewmore comprehensive appellate skills course.The book's greatest strength, however, is also its only weakness.By presenting intricate details on procedure, the book overcompen-sates in trying to fill the void. Presentation of general proceduralrules regarding preservation of issues, final and appealable orders,and the parts and function of the record is certainly necessary inachieving the goal of teaching students effective appellate advocacy.However, Professor Martineau presents more detail than is neces-sary to accomplish that goal. For example, intricate details aboutthe appealability of interlocutory orders' may be confusing and areunnecessary if the purpose of explaining finality and appealability isto provide background for teaching brief writing and oral argument.It would be sufficient to explain only the general rules of finality andappealability and then to identify the common exceptions.As a result of the over-emphasis on appellate procedure, thebook places too little emphasis on persuasive writing and oral advo-cacy, skills crucial for the effective appellate lawyer and successfulappellate advocacy student. For example, the chapter "Briefs andAppendix" includes few detailed examples of persuasive style, sim-plicity, conciseness, precision, and organization. Such examples areextremely important if students are to understand thoroughly theskills of persuasive writing. Notably absent from the chapter "OralArgument" is a discussion of rebuttal, an integral part of oral argu-ment. Rebuttal is a skill that is the most misunderstood and difficultpart of oral advocacy for students to grasp.For these reasons, an instructor using this book to teach acourse in appellate advocacy should supplement it with more de-tailed materials on the art of persuasion, techniques of brief writing,and skills for oral argument. On the other hand, the book could beused without supplementation to teach a course in appellate proce-dure and would indeed be outstanding for such a use.Despite omissions from the book, Professor Martineau's presen-tation of the general principles of appealability and preserving is-sues for appeal, and his explanation of developing and working withthe record are welcome additions to traditional appellate advocacycurricula. In addition, there are several other features of the bookthat would be of great use in such curricula.The book's first chapter, on the history of appellate courts, pro-vides background that will enable students and lawyers alike toplace modern appeals in perspective. Professor Martineau traces theorigin of appellate review to civilizations of the ancient Near East,then develops its history in European countries, notably Italy and2. R. MARTINEAU, FUNDAMENTALS OF MODERN APPELLATE ADVOCACY 56-67 (1985).[Vol. 19:541Book ReviewEngland. In particular, he explains the two forms of English appel-late review in the eighteenth century: writ of error and appeal.3 Hethen describes how the American colonies adopted appellate reviewat that time. After presenting the historical perspective, the chapterincludes materials on the structure, organization and function ofmodern American appellate courts, both federal and state.4 In thissection, Professor Martineau compares and contrasts the modernday functions and roles of appellate courts to the historical ones. Inso doing, he provides a solid framework for the appellate advocacystudent to begin his/her studies in appellate advocacy.The chapter on history of moot courts in legal education is an-other noteworthy dimension of the book. Professor Martineau's pur-pose in presenting the topic is to help correct an anomaly that heperceives with moot court programs. In his view, law students whohave engaged in moot court competitions are not prepared to be-come effective appellate advocates, and their moot court experienceis unrelated to their skills as an advocate.' Although moot courtdoes not always accurately reflect the "real world" of appellate ad-vocacy, Professor Martineau's suggestion that there is little skill, ifany, gained from the moot court experience is overbroad. Neverthe-less, the history of moot courts in legal education provides a veryuseful perspective. The historical concept and purpose of "mootcourt" is rarely, if ever, explained to law students prior to their par-ticipation in it.Martineau describes the evolution of moot court, beginning withits earliest days in fifteenth century England. At that time, "moots"were hypothetical questions raised by "readers" during their lec-tures to students.' The students would argue based upon the moots,to give them practice in oral pleading.' Moots were the forerunnersof the socratic-method classroom discussion. 8 The role of moots de-clined in England in the sixteenth and seventeenth century.Moot courts first appeared in American legal education in thelate 1700's. They consisted of students arguing hypothetical casesbefore student judges, the decisions being reviewed by faculty. Theirpurpose was primarily to teach the substantive law.In 1820, Harvard Law School's program included moot court asa means of generating student interest and a vehicle to teach sub-stantive law as well. With the growth of student law clubs, the use of3. Id. at 4-5.4. Id. at 12-24.5. Id. at 25.6. Id. at 27.7. Id. at 28.8. Id.9. Id.19861The John Marshall Law Reviewmoot courts at Harvard continued to flourish but the students them-selves conducted the moot courts. The system was formalized in1910 when the faculty voted to establish a board of third year stu-dents to serve as advisors to first year students. Later, a moot courtcompetition between law clubs developed. It was the forerunner ofthe modern moot court competition. 0Professor Martineau describes the history of moot court in sev-eral other nationally recognized law schools as well." He concludesthat moot courts were useful because they strengthened student in-terest; provided experience in brief writing and oral argument; anddeveloped legal reasoning skills. Martineau maintains, however, thatthe exclusion from moot court of the procedural and practical as-pects of an appeal is fatal to effective skills training in advocacy. 2Three other features of the book are worth noting. First, inchapter seven, there is an excellent discussion of standard of review.The subject is often confusing to students and one which the courtsfail to define clearly. Professor Martineau explains logically both theimportance of the standard of review and the various degrees of def-erence that reviewing courts give to different types of questions onappeal.' 3 Standards of review are rarely, if ever, thoroughly ad-dressed in other appellate advocacy texts. For these reasons, thetopic is an important portion of the book and would be an outstand-ing contribution to course materials.Martineau's opposition to monolithic approaches to appellateadvocacy is also an exceptional feature of the book. For example, inChapter Seven, he suggests that there is more than one approach tobrief writing.'4 This suggestion is often ignored entirely in appellateadvocacy classes, giving students the false impression that briefwriting is an exact science and that there is only one correct way towrite a persuasive brief. Unfortunately, that false impression pro-vides no educational benefit but instead generates frustration. Byexposing students to multiple approaches, the book will help pre-vent the false impression and resulting frustration.Finally, throughout the book, Professor Martineau continuallydistinguishes "real appeals" from "moot courts." For example, hedistinguishes the "law development" issues typically addressed inmoot court competitions from the "error correction" issues that areusually addressed in the majority of appeals heard by intermediatereviewing courts.'5 Another example is his explanation of the differ-10. Id. at 30.11. Id. at 31-34.12. Id. at 35.13. Id. at 131-139.14. Id. at 141-42.15. Id. at 24.[Vol. 19:541Book Reviewences between records typically used in appellate advocacy classesand actual appellate records. He characterizes the absence of realis-tic records as the single greatest defect in moot court competitions,creating little more than exercises in solving abstract legal issues.'6Professor Martineau notes than in contrast to the "real world,"moot court misplaces emphasis on certain aspects of oral argument,including personality, technique, and persuasion, at the expense ofemphasis on the brief.17 He notes that student preparation for mootcourt, making one practice argument after another, is entirely dis-similar from preparation for a real appeal.'" He also suggests thatthe moot court custom of having two persons argue is unrealisticand undesirable in practice.' 9The foregoing examples and many more appear throughout thetext and are comparisons that should be presented in every appel-late advocacy, or moot court, class. Awareness of the differences be-tween "moot court" and a "real" appeal will help prepare studentsfor practice, whether their careers focus primarily on appellate prac-tice or include only a small number of appeals.Professor Martineau's approach to appellate advocacy isunique. He has brought to the forefront aspects of appellate practicethat have customarily been ignored in appellate advocacy classes.Although the book's emphasis on procedure makes it best suited fora course focused primarily on appellate procedure, Fundamentals ofModern Appellate Advocacy presents an enlightening and informa-tive perspective for the appellate advocacy student to consider.16. Id. at 89.17. Id. at 172-173.18. Id. at 180.19. Id. at 188.1986]

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Fundamentals of Modern Appellate Advocacy, 19 J. Marshall L. Rev. 541 (1986)

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