What goes into writing the perfect problem?

The Ranker wants to know: What goes into writing the perfect moot court problem? The Ranker questions Veterans Law comp's James Ridgway. Turns out, we're dealing with a problem-writer who's had substantial appellate experience. Who benefits from this know-how? You! You can register April 20th for Veterans Law! (http://www.vlaac.org)

What goes into drafting the perfect moot court problem? What are the considerations and concerns you're weighing/addressing? What's especially difficult in doing so? What's the goal in general? With a subject-matter comp?

James Ridgway weighs-in:

To answer your questions, in my view, drafting the perfect moot court problem requires making it accessible, substantial, and balanced. I think that when you are drafting a problem for a specialized area, there is a little more that goes into finding a problem that is accessible, but the principles are the same.

First, to make a problem accessible, you have to make sure it doesn't wade down in to the minutia that only an experienced practitioner can appreciate. I think you want to look for issues that have an aspect that law students will find familiar. For example, the 2009 VLAAC problem involves a soldier that suffers liver failure after drinking an excessive amount of alcohol during a drinking game at his unit's after-hours, deployment party. The issue of personal responsibility for alcohol use comes up in first-year criminal law and torts classes, so the problem was a chance to see how a familiar and thorny issue plays out once you add in the specific provisions and policy considerations behind veterans law. A good problem usually involves a fact pattern where there are important policies that are in tension. When you are dealing with a highly specialized area of law, you must make sure that students can relate to the policies involved and it often helps to have the policies of the specialized area in tension with more general policy considerations that students encounter in class. You can't expect students to immediately grasp the policy issues in a specialized area so you have to be especially sensitive that the opinions below in the problem and the materials give enough guidance and source material.

Making the problem accessible also involves developing a fact pattern that students can relate to. I don't think you need a Law-and-Order, ripped-from-the-headlines storyline, but it should be something that grabs students' attention and makes them think even before they start reading the cases involved. For example, the second part of the 2009 VLAAC question raised the issue of whether compensation benefits are available when a disability is caused in part by a soldier's refusal to consent to a recommended drug treatment on religious grounds because it was derived from pork products. While the facts are imaginary, they are plausible and echo problems students have heard about. Furthermore, you don't need to know anything about the law involved to start thinking about the potential policy issues involved. In writing facts, it also helps to have a number of relevant facts, so that there are several variables to adjust when considering hypothetical questions for oral argument.

Second, the perfect problem needs to be substantial. A problem is not just one issue for each team member, each issue has to break down into several issues of varying importance. Two of the key skills of being an advocate are organizing and prioritizing. You don't want a problem to be too overwhelming, but I think you want competitors to have to make decisions in brief writing and oral argument about what they want to focus on and how they make a narrative out of the materials. Each issue is going to have a couple of key points that both sides will have to address, but I think a problem should provide some optional points that give the competitors choices about what to address in detail and what order to organize points. I also like to throw in a few small points that competitors should be able to recognize are simply not worth investing time in. Advocacy is also about recognizing which battles you should be avoiding. Winning a case is not about winning every point.

I was an appellate prosecutor in Chicago for a number of years. I probably briefed 75-80 cases while I was there and argued 40-50 of them. I have a lot of experience with how fast 15 minutes can go by and I think the problem should force you to decide what your focus is and how best to articulate your big-picture view of the case rather than trying to cover everything. You need to be able to field any issue that gets thrown at you, but you have to assume that you'll only get to talk about a minority of the points and you want to get out your core theory regardless of which specific points the bench steers you toward. You also get more variety in arguments if there is more to cover than there is time to discuss. I also think you should feel a little cramped for space on the brief. You should be able to do a close analysis of the few cases you think are key, but you shouldn't have space to get into the details of all of them. You should be forced to decide what merits a sentence versus what merits a paragraph or a full page.

Finally, a good problem requires testing and feedback. You don't want to invest too much effort in any stage without getting feedback. If you get too attached to an idea, it can be hard to hear that your problem isn't balanced. Before I wrote anything for the 2009 problem, I pitched the general idea to several experienced practitioners. I quickly discovered that the core of a good idea was there, but most people thought it was too one sided. As I developed it, I kept showing pieces to people to get their impression. I even outlined the problem for some friends that do not practice in veterans law to see what kind of reactions the problem got from those unfamiliar with the area.

In the end, I had two VA attorneys, two veterans advocates, and a member of the Court's central legal staff who had no involvement in the development review the rough draft and prepare outlines of how they would argue the case. I was pretty pleased when the attorneys from the different sides disagreed which side was favored by which issue and what were the best strategies for approaching the case. However, their feed back made clear a few facts that needed to be tweaked or clarified and a some cases that really improved the closed library. Even if you do all this, I think it is still important to get feed back from the competitors. We got a great response from the students involved, but after reading their anonymous comments, there are still some additional changes I would make if anyone were to try to use the problem as an assignment in an appellate advocacy class. Problem writing is an acquired skill too, and I think you can't get closer to writing the perfect problem without admitting that you always have room for improvement.