Appellate Advocacy—Fall, 2012
Wednesday—9:00 am—10:50 am, Room 445
Allen H. Feldman, Adjunct Associate Professor of Law
Cell: 202-255-6373
E-mail: allenhfeldman@gmail.com
SYLLABUS AND COURSE INFORMATION
The Course:
The course covers appellate advocacy in civil cases, with an emphasis on federal
courts. The bulk of the course is devoted to brief writing and oral argument
techniques. During the semester, students will write an entire brief, either as
appellant or appellee, based on a record to be distributed in class. Towards the
end of the semester, each student will have an opportunity to present his/her side
of the case in a moot court before a panel of three experienced appellate
practitioners who will serve as judges. Throughout the course, there will be
discussion of the most important of the Federal Rules of Appellate Procedure
(FRAP) as well as an introduction to concepts that are particularly important to
the appellate practitioner, such as jurisdiction, finality, the collateral order
doctrine, interlocutory appeals, mandamus, standards of review, and issue
preservation and harmless error.
Required Text: Aldisert, Winning on Appeal, 2nd edition (NITA 2003); James A.
Gardner, Legal Argument: the structure and language of effective advocacy, 2 nd
edition (LexisNexis 2007).
Office Hours: During the semester, I will arrange to meet individually with
students to discuss their writing. I am available for discussion or questions both
by e-mail and cell phone. See above.
Grades: Grades will be based primarily on your work on the brief (55-60%) and
the oral argument (20-25%). There will be a short quiz---the date will be
announced at least a week in advance---in the early part of the semester testing
your knowledge of the material presented in the first few lectures. The quiz will
count for 5-7.5% of the grade. The remainder of your grade (7.5-15%) will be
based on any additional written assignments given during the semester, as well
as class participation and performance. It should be understood that your “work
on the brief” includes not only the final product, but the quality of each of the
preliminary drafts you are required to hand in, their timeliness, and an
assessment of your ability to integrate the professor’s comments and
suggestions into your writing.
Assignments—
Assignments will consist of a combination of reading and writing assignments.
Although reading assignments will come largely from the required texts, there will
be other supplemental reading as well, including cases. I will try not to vary the
syllabus in any substantial way but, inevitably, there will be some changes in the
assignments, and the pace at which we go through them. For this, I apologize in
advance.
August 22----Introduction—When, Where, What, How and Why to Appeal
Reading: Aldisert: Chapter 1, Appellate Review: A Panorama; Chapter 2, The
Purpose of Briefwriting; Chapter 4, Jurisdiction; Gardner, Chapt. 16; Federal
Rules of Appellate Procedure (FRAP), Rules 3,4(a),(d),5(a), 8, 18,21, 27 and 28;
28 usc 1291; 28 usc 1292(a),(b); 5 usc 701-706; Mohawk Industries, Inc. v.
Carpenter, 130 S.Ct. 599 (2009); Abbott Laboratories v. Gardner, 387 U.S. 136
(1967).
August 29--- Standards of Review (District Court Decisions)
Reading: Aldisert: Chapter 5, Issue Preservation and Standards of Review
Appendix A. Writing:—Motion for Extension of Time due
At this class, I will hand out the briefwriting problem.
September 5----Standards of Review (Agency Decisions).
Reading: 5 U.S.C. 701-706; Chevron U.S.A. Inc. v. NRDC Inc., 467 U.S. 837
(1984); Motor Vehicle Manufacturers Association etc., v. State Farm, etc., 463
U.S. 29, 40-50(1983).
September 12---Beginning Your Brief
Reading: Aldisert, Chapt. 9, The Brief: How Many Issues; Chapt. 10, The Brief:
Stating the Issues; Chapt. 11,The Brief: Statements of the Case; Chapt. 12; The
Brief: Statement of Facts;
September 19—Developing the Argument
Reading: Gardner, Legal Argument---Part 1, The Syllogism Model; Determining
Your Conclusion From Your Position; Building the Premises.; Grounding the
Premises. Aldersert Chapter 16---The Required Logical Form for Each Issue –
September 26—No Class
October 3—Developing the Argument
Reading: Gardner, Part 2, The Major Premise, The Minor Premise, Summary of
Method. ----- Aldisert, Chapter 20, The Brief, Formal and Informal Fallacies.
Writing: the brief up to, but not including, summary of argument.
October 10----Writing the Argument—
Reading: Aldisert, Chapter 7: Research and Use of Authorities; Chapt. 8, Finding
the Argument that will Win; Chapt. 18, The Brief: Write to Persuade
Meetings with Students during week
October 17—Writing the Argument:
Reading: Aldersert Chapter 19---The Brief, Perfecting the Argument; Writing:
first Argument section due
October 24—
Reading: Aldisert, Chapt 21, A Compendium of Advice; discussion of Summary
of Argument and Reply Briefs
Meetings with Students during week
October 31---- Oral Argument: Preparing for the Argument
Reading: Aldisert Chapt. 22, Preparing for Oral Argument; and Chapt. 23, How
Top Flight Lawyers Prepare. Writing: rest of Argument, and summary of
argument due
November 7---Oral Argument: Delivering the Argument
Reading: Aldisert, Chapter 24, Delivering Oral Argument
November 14---Oral Argument: In Class Moot Court with Student Panels
Meetings with Students during week
November 19, 20----Oral Arguments before “judges”.
November 21---No Class
November 28—Wrap-up. –Reply Brief due