Affirmative Litigation: Securing Justice and Changing the World
This document contains preliminary information for this training, covering the following topics:
I. Overview of the Training
II. Confidentiality
III. Preparing for the Training
IV. Training Materials
V. Training Agenda
We ask that participants read these materials before the training, and participate in a telephone/Skype orientation that will provide more information and answer questions. We will be in touch with registered participants to set up the telephone discussion.
I. Overview of the Training
This two-session training provides a step-by-step overview of affirmative litigation and a mock law and motion session with oral advocacy practice. In this first installment an experienced panel of litigators will help to demystify the litigation process, from filing and seeking emergency relief to securing justice for your clients. Part II provides an opportunity for advocates to present written and oral arguments in mock motions, with supportive and helpful feedback from a learned panel of judges.
Both sessions are hands-on, with participants actively engaged. The format is designed to support the development of real-world, practical skills that you can use in litigation and oral advocacy in your job.
II. Confidentiality
The training includes an expectation of confidentiality, to allow participants to practice skills without concern about real-world repercussions in their jobs. Neither participants nor trainers/judges should comment to employers or supervisors about others’ performance at the training.
We will do our best to pair participants with trainers/judges and other participants whom they do not work closely with, in order to honor confidentiality.
III. Preparing for the Training
The training materials will be circulated before the training. Reading the materials and participating in the telephone orientation before the training is the best way of getting the most out of the training.
Between the first and second day of the training, participants will have to prepare for an oral argument, outlining their argument and practicing delivery. This work will be considerably easier with advance preparation before the training.
IV. Training Materials
The following materials are being distributed for pre-reading:
1. This Summary
2. Complaint Drafting from the Five-Purpose Perspective
3. Annotated Complaint in K.J. v. Premera Blue Cross
4. Complaint in Sakuma Case
5. Motion for TRO in Sakuma Case
6. Opposition to Motion for TRO in Sakuma Case
7. Video time stamp and transcript for State v Trump
8. Benchmark Institute Seven Habits for Effective Law & Motion Practice, and Addendum re: Washington Motion Practice
9. Ten Tips for Selecting and Filing Affirmative Litigation
10. Affirmative Litigation Resources
V. Training Agenda
A. Day 1: Complaint drafting
Goals:
· Incorporate the five-purpose perspective into your complaint drafting
· Understand several key differences between federal and state requirements in civil litigation
· Prepare for mock arguments in Session 2
1. Purposes of a complaint and methods of achieving those purposes (50 min)
One or more of the facilitators will address complaint drafting from each of the five purposes.
(1)to commence litigation
(2)to tell a persuasive story to a varied audience
(3)to sufficiently set forth the jurisdictional, factual, and legal bases of the case to avoid or limit the possibility of a motion to dismiss
(4)to enhance the usefulness of the defendant’s answer to the complaint and the ability to obtain useful information though formal and informal discovery
(5)to lay the groundwork for the resolution of the case through settlement.
2. Hands-on complaint review exercise (15 minutes)
a. Think like a defendant to identify avoidable drafting errors
b. Suggest improvements
c. Comment on parts you find particularly effective
d. Identify which of the purposes the complaint you review serves
3. Group discussion (15 minutes)
4. Prep for tomorrow’s session (10 minutes)
a. Review Sakuma complaint and motion
Day 2, Motion Practice:
1. Welcome, introductions to judges (10 minutes)
2. Logistical Instructions (5 minutes)
3. Practice law and motion exercise (55 minutes)
4. Feedback from judges and from participants (15 minutes)
5. Wrap-up (5 minutes)
VI. Giving and Receiving Feedback During the Training: Feedback Rubric for Law and Motion Exercise
This rubric lays out the criteria that trainers (for the complaint portion of the workshop) and moot court judges (for the law and motion part of the workshop) will use in providing feedback to participants.
Individualized Feedback, NOT Grading or Ranking
As noted above, the training is designed to provide individualized, targeted feedback on participants’ performance. Participants will receive affirming feedback about the skills they displayed effectively, and corrective feedback about skills that require further development.
This training contains no scoring sheet. No grades will be given, and participants will not be ranked or compared with each other.
Tailoring feedback to participants includes remembering the level of experience of participants. A new lawyer who is nervous about the exercise and has never argued a motion may need different feedback than a more-confident lawyer with experience. That said, developmental feedback is critical to skills development.
Judge’s Demeanor and Behavior During Oral Argument
Judges will attempt to put participants at ease and give them a realistic forum to practice oral advocacy skills.
Judges will not intimidate or be harsh with participants. The purpose of this training is to develop real-world skills. Participants who want to try advanced skills (like argument before a harsh, inattentive, or otherwise unreceptive judge) may convey this request before the training. We will make an effort to dial up a judging demeanor that helps all participants learn.
In keeping with the limited time for oral argument and the learning goals of the training, judges will make an effort to avoid lengthy question which would keep a participant from completing an argument.
Judges may allow participants to complete their argument before asking questions, or may interrupt with questions. They will use their judgment about what questions to ask, and how many questions to ask.
During the feedback session, some judges may provide general comments, while others may provide detailed feedback. When providing corrective feedback, judges should also provide specific suggestions about how to do better.
Feedback About Performance, NOT Merits
Trainers and judges will provide feedback to participants based on their performance in the exercise, not on the merits of the case. The case scenario is set up to have compelling arguments on both sides.
Feedback About Performance, NOT Research
The training exercise includes all the reading and research that participants are expected to do. Participants should read the materials carefully and prepare for their presentation in the law and motion scenario. They should NOT do additional research.
Diversity of Participants
Participants are diverse legal services attorneys from across the State of Washington. For example, some may speak English as a second language, and some may have disabilities. Judges should take this diversity into account during oral arguments.
Areas of Focus for Feedback
Court Etiquette:
Introduce him/herself and briefly summarize the argument to be made?
Address the judge(s) properly?
Responsive to judge(s) questions?
Respectful to the judge without kissing up?
Respectful to opposing counsel?
Rebuttal limited to the opposing argument?
Put away electronic devices, including laptops, cell phones, or tablets?
Clarity and Confidence of Delivery:
Is style and delivery persuasive?
Effective body language?
Effective tone of voice?
Fluent and articulate?
Self-confident?
Pacing of argument (e.g., too fast, too slow, or just right)?
Effective use of the allotted time?
Does the argument begin and end on a clear, high note?
Quality of the legal argument:
Display a solid understanding of the legal and factual issues in the case, and cite sources and legal authority?
Succinct summary of the law and facts?
Is the argument credible, persuasive, and well structured?
Well organized?
Candid about weaknesses of the case, paired with effectively defusing weaknesses?
Are the participant’s arguments relevant?
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