Legal Commentary

To teach MGM v. Grokster in my Copyright class, I adopted a technique from Doug Lichtman, who taught Copyright at Chicago when I was a student. As a class, we worked through the audio recording of the oral argument before the Ninth Circuit, stopping the recording each time one of the judges on panel asked a pertinent question. At each juncture, we considering why the judge asked the question, what potential missteps could be made, and how counsel might both respond to the judge's question and maneuver back to the key points necessary to win the case for their respective clients.

In my initial post-class assessment, I felt like this was a productive opportunity for students to consider, in a cooperative fashion, how to frame an appellate argument, and how to prepare for the questions one might be asked in any face-to-face interaction with a judge, arbitrator, client, opposing counsel, or contracting party. The students had a keen ear for where counsel went off the rails, and which counsel best used the questions as a spring board to get to the important points on which they wanted to focus. These skills are not unique to appellate argument, but the oral argument was a useful vehicle for the process, and one distinct from the archaeological exhumation of law from the written opinion. The recording was also readily available, which saved me the effort of crafting a new tool from scratch.  (I briefly considered this Monty Python sketch, but quickly reconsidered).

I am sensitive, however, to the critique that law schools are too focused on appellate decisions and the appellate process, which brings me the question: what other tools have you used to invite students to think about how to properly develop and defend an argument? What has worked well, what has failed to work, and what do you hope to try next?