Considered a vanishing breed, skilled practitioners of the oral argument command attention from Moot Court to the Supreme Court

Powell, Devin

English

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The Argument for Oral Advocacy

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ZWB Moot Court Champion Brian Robiaon The crowd of spectawrs in the cherry- paneled courtroom listens intently to the details of the gruesome case: A man has been found guilry of raping his 8-year-old stepdaughter aml leaving her unconscious, bleeding, and requiring emergency surgery. All eyes are on Erin Frazee, advocate for the state, who is expkining the const~tuuonalit~ of Rurherford Harrison's death sentence and why it should not be ~verturned on appeal. It's uue, she argues calmly and forcefully, that the death penalry was ruled unconstlhltiond for cases of adult rape by the 1977 Supreme Court case Cokcr Y. Gmrgta; but in the wake of this deusion, six states have either kept or enacted new statutes in favor of main- taining the extreme punishment for the horrific act of child tape. "The trend," Frazee says w ~ t h  an emphatic chop of the hand, "is pronounced." But not all three judges seem convinced. Cutting Frazee off in mid- sentence, the judge sporting the purple polka-docted bowtie-Robert M. Bell, Chief Judge of Maryland's highest court--comments, "Here you have a sltuatlon m which SIX states have moved in this direction rather recently ... when does that become the trend?* Brian Robinson, w-munsel Eor the petitioner, sees h b  oppartuniry. While the state continua its argument, he quietly flips through the stack of case law I Robinson and runner-up Aaron Gavant wait the judges' decision. that he printed out in preparation for hi day in mu=. As the state wraps up its argument, be approaches the podium for his rebuttal. "You have a minute and a half," the Hon. John Bates says. "Use those 90 seconds well." laughter breaks the tension in the courtroom. Robinson smiles. *Opposing caunsel addressed the consensus among the states and the trend," he begins. "I would also note that there are a number of states that have considered the issue and gone the other way-among these are Virginia, Pennsylvania, and several other states." The judges don't Interrupt h m ;  they nod. In fact, they later laud his sharp rebuttal when they name hi the winner of the day's psocee&ngs. It would have been a great day in' wurt for Rutherford I-Earrisan, with a . victory that would have put Robmson's name m national headlines. Though based loosely on a U.S. Supreme Court case from lart term, Kennedy v Lou~s~ana, Harrlson 1s fictional. The state-Allvlta- doesn't exist. The case took place In the ceremon~al murttopm at the U~lverslty of Maryland School of law, during the final round of the 2008 Morns Brown Myerow~tz Moot Court Compennon. Frazee and Rob~nson are second-year law students, and thls was their first time arguing in such a public setting. But you would be forgiven for mistak- mg them for the real thing, says Judge Deborah Eyler '81, one of this year's volunteer judges. Eyler, who won the Myerowia compe- tition herself in 1980, usually spends her days presrding over cases in the Mayland Court of Special Appeals. She was impressed by this year's four finalists (honed from an initial pool of 16), she says, and "wowed" by how composed and articulate they'were. "They demonstrated all of the qualtties of oral advocacy we'd want to see." In fact, Eyler adds, they often d ~ d  a better job than the career lawyers who argue In her court on a daily b a a .  Eyler's sentiment h~nts  at what some critics describe as a growing problem In the legal profession. The art of oral advo- cacy, they worry, 1s In danger. The abiliry to bu~ld a logical argument not on paper but verbally, In front of a live courtroom, has become a shll that 1s m short supply among many of today's lawyers. 'X lot of lawyers can wrire well, but lawyers who can effect~vely communicate orally are hard to find," says crimlnal defense attorney Ken Ravenell '85, who has successfully argued a series of high- profile cases, ~ncludlng a Miranda hghts case that took h ~ m  before the Supreme Court In 2005. Dunng hls 20-plus years as an attorney, J D  FALL 2008 Ravenell has notlced a dechne In the ability of advocates to command the spo- ken word. The most common problem, says Ravenell: a tendency to speak in the same style used for writing. Many lawyers structure their verhal arguments carefully, including every detail in an effort to buttress their point. Instead, s a p  Ravenell, they lose the attention of their captive audience-- whether that audience is a panel of the spot. "The Socratic Method used to mean that a single student stood up and faced questions on a given topic," he says. "Now, professors toss out questions to the classroom as a whole and wait for raised hands." Jerome Deise, the school's National Trial Team coach, agrees that the educational system needs to place more emphasis on the oral argument, thouih he sees the problem in a different light. Jerome Deise says courtroom appeals to pathos (emotion) are replacing the intellectual logos (logic) of an argument. appellate judges or the jury of a crim~nal trial. 'X good oral argument commands and controls a courtroom," he says. Ravenell blames a shift in legal educa- tion for the dearrh of good orators. Twenty years ago, law students spent a significant amount of time honing their verbal skill. The focus of many law schools today, he says, has shifted to written forms of communication; even the bar examination does not include an oral section. He prefers pedagogies that put students on There is a growing awareness, he says, that lawyen rely too much on intuit~on and anecdotal stories in their oral advocacy and not enough on solid, well-structured argumentation. In the parlance of Socrates, appeals to pathos (emotion) ate replacing the intellectual 1 0 ~ 0 s  (logic) of an argument. During his 30 years as a trial lawyer, Deise has witnessed this shift from logic to emotion in courtrooms across America, where plaintiffs in criminal trials often guilt trip their juries, calliILs y o n  jurors to do their "patriotic duty" in the "war on crime." He has noticed it in the pre-trial discovery process, where lawyers are becoming increasingly disagreeable and at times combative toward judges, trying to "obfuscate" and "misstate the object" instead of convincing through honest argumentation. "The extent to which lawyers arle unable to recognize . logically fallacious arguments boggles the mind," says Deise, who teaches a Criminal Defense Clinic and a course in Trial Evidence at the school. This shift in the legal profession is only a reflection of a larger cultural phe- nomenon, Deise believes. We are trained, he says, to accept rhetoric and sloppy logic; television commercials, for example, are able to convince us that we should buy a product simply by showing a famous person holding it and smiling. When our rhetoric is challenged, says Deise, we tend to fall back on the line, "rm entitled to my own opinion," instead of debadng the evidence. This strategy effectively cuts off any possibility of honest argumentation. At its worst, this behavior devolves into what Deise calls "the Jerry Springer Syndrome"-lacking the skills to settle disputes with their words, two parties in conflict may resort simply to violence. J D  FALL 2008 l u u l  Myerowltr runner-up lnalla Sunaart The Makings of an Advocate Against this backdrop, the opportunities provided by moot court competitions like the Myerowitz are more important than ever, say Deise and others. These competitions prov~de a rare opportunity for fledgling lawyers to face off toe-to- toe in front of a panel of judges and to straightforward." If the judges know that an advocate is there to present a well-prepared, thought-out argument firmly grounded in case law, he's found they'll listen. Student Brian Robinson knew that he was doing well during this year's compe- tition when his interactions with the , - learn to think on their feet. (( The exoerience can be terrifvine for Not everv case I z " first-timers; the verbal sparring that goes on berween a lawyer and a judge is something that takes time to master, says Marc DeSimone '04, who won the Myerowitz five years ago. But jumping in feer first is vital. "If you wanted to learn how to play guitar, you can't just read a book," he says. "You have to pick up a guitar, build up the calluses, and scare the neighbor's cat." In his current job as a public defender for the Maryland Court of Special Appeals, DeSimone works ro establish a "rapport" with the judges, to "build a relationship" both within the context of a specific case and across years of arguing cases in front of the same judges. The first step in building this connec- tion is to establish credibility, DeSimone says. "Not every case I argue is a winner ... hut I m  always honest, forthright and I argue is a I winner," says DeSimone, "but I'm always honest, forthright and straightforward." judges felt llke a "heated conversation"; the room full of specrators at h ~ s  back disappeared from h ~ s  consciousness as he focused on his three interrogators. He grew accusromed to being interrupted, to the quick back-and-forth that , differenriates an oral argument from a written one. By the end of the comperi- tion, in fact, he expected only to be able to speak in small, focused chunk;. "In one of my rounds the judges stopped interrupting me and let me speak for close to a minute," he recalls. "That made me nervous; I couldn't rell if they were agreeing or disagreeing with me." Faculty member Susan Hankin, who coaches the school's moot court team, is quick to note that rhe skills of persua- sion her students hone in competition will serve them well. "Wridng and speaking are the bread and butter of being a lawyer," she says. The good advocate doesn't spend all of his time communicating with a judge; he has ro know how ro talk to his client, and to 307 Bert Brief winner Jennifer A p z m t s  the ZQO8 award to Keny k & n  his peers. ' Some past winners of the Myerowitz remember their day in moot court as a pivotal moment in their lives. Sometimes it's a moment in which they discover how much they like thinking on their feet; sometimes it's their introduction to future colleagues. Marc DeSimone, for example, earned his first clerkship by impressing Vanessa Cruz, one of his Myerowitz judges. Judge Deborah Eyler, wrapping up the final round of the 2008 Myerowitz, told the competitors that she still has never been as nervous in court as she was during her final round of the moot court competition. "I don't think you will ever be this nervous again in your whole life," she said, "even trying cases and arguing in front of the Court of Appeals." J D  FALL 2008 

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The Argument for Oral Advocacy

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