Writing to Persuade in Trial Practice

Professor Rick Rossein

Student "lawyers" in the fourth-semester Trial Practice seminar examine the tactics and techniques used by the trial attorney to persuade the finder of facts that a particular version of the facts should be believed and that the law favors her client. Although the oral skills of presenting a compelling story on behalf of the "lawyers'" client are stressed, the students also learn the critical importance of strong written advocacy as the litigation moves through the various pre-trial and trial stages. All the student "lawyers" begin the semester by researching the law of the Second Circuit concerning the legal claims of the prospective clients (plaintiff or defendant) and then draft an intra-office objective memorandum. The memo first is used to prepare for and structure the interview to learn the relevant facts and then to participate in an intra-office meeting with the "senior partner" to determine whether the "law office" will represent the prospective client. All students receive written feedback and in some cases oral feedback on their writing in this memo. After students conduct the initial informal and formal discovery, they incorporate into the memo relevant facts learned during discovery. Toward the end of the semester, students in collaboration with their "co-counsel" rework the memorandum into an advocacy piece as part of the pre-trial memorandum submitted to the court. This pre-trial memorandum includes other important written trial documents including a motion in limine and supporting memorandum of law (concerning admissibility of evidence) and a proposed annotated jury instruction. A class is devoted to discussing the elements of this type of written advocacy to the court.

In addition, throughout the semester the students use small memos and charts to assist in developing their legal and factual theories and organizing the voluminous evidence, eventually preparing litigation charts, exhibit lists, and demonstrative exhibits. These demonstrative trial exhibits require a creative use of words and visuals. Every week the students write informal reflective memos concerning the trial skills used that week in role, such as taking depositions or conducting a cross-examination. The seminar's Teaching Assistants read and give feedback on these memos. In this seminar, students both develop written advocacy skills and also use writing to hone their performance of other lawyering tasks related to preparing for trial.