The Appellate Classroom

June 12th, 2015 / By Deborah J. Merritt

Critics of legal education often note the primacy of appellate law in law school classrooms. Our doctrinal courses, after all, rest primarily on appellate opinions. But the focus on appellate advocacy is even more pervasive than this: Our “Socratic” questioning follows the cadence of an appellate argument.

The professor stands at the front of the room, often on an elevated platform. She poses a question, which a single student addresses. Some questions involve the facts of the underlying case; others address application of the legal principle to other alternative fact patterns. After the student answers, the professor poses another question.

If you doubt the similarity to an appellate argument, try this experiment: Attend an appellate argument in a local courthouse, then witness a traditional law school class later the same day. I once did this, entirely by accident, and I was astounded by the similarities.

Preparation for Lawyering

Our doctrinal courses thus give students repeated practice for appellate lawyering. Their raw materials are appellate cases, and classroom discussion resembles oral argument. The legal reasoning conducted in doctrinal classes consists of reconciling precedents and applying them to new fact patterns.

Some of my colleagues argue that the latter task prepares students for other types of practice. We may, for example, ask a student: “How would you counsel your client to respond to this decision?” Or, “what if you advised a client to do X? Would that fall within the court’s holding here?”

These questions, however, are like the ones that appellate judges ask as they probe the doctrinal reach of a possible holding. The substance is the same as questions asking “if I accept your argument, how would that affect individuals who do X?” Or, “how will clients change their practices if we adopt your interpretation of the statute?”

These questions about “advising clients” do not give students practice in client counseling. If a lawyer were representing a real client, the answer to the above classroom questions would be something like: “It depends how much the client has to spend, both on legal representation and on modifications to her business. It also depends on how much the client cares about Y rather than Z. I’d also need to ask the client about potential alternatives.”

Experiential Education

It’s essential to recognize these facts about doctrinal classes as law schools embrace more experiential types of learning. Many types of experiential learning aid doctrinal understanding; I use simulations and other exercises in my Evidence course for just that purpose.

Most of these exercises, however, do not redress the appellate tilt in our classrooms. We need much more fundamental shifts in doctrinal courses to accomplish that. Alternatively, we need to expand the time devoted to simulations and clinics that focus on lawyering outside the appellate practice.

Very few law school graduates find work as appellate lawyers. Most clients need other types of assistance. In order to serve both those students and their clients, legal educators need to reduce the dominance of appellate lawyering in our curriculum. How do lawyers use doctrine and interact with client outside of that setting? That question lies at the root of constructive pedagogic change.

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