This three-hour credit, drafting course is designed to provide practical experience and substantial feedback in written and oral appellate advocacy focused on the field of federal Indian law. This will include review of actual cases pending in appellate courts during the semester and preparation of briefs for one such case as well as practice oral advocacy. Overall, this course will help students to improve brief writing and oral argument ability, gain substantive, contemporary knowledge in the field of federal Indian law, and develop strategic skills for appellate advocacy generally.
The course will meet once a week, beginning with a review of general appellate advocacy principles and best practices, and then will focus for the remainder of the semester on pending cases presenting significant federal Indian law issues. The latter will involve discussion of the background and Indian law, appellate advocacy, and other substantive and procedural legal issues involved. Students will review, evaluate, and discuss actual decisions, certiorari petitions, and briefs filed in pending cases, as available. Based in part on this review and discussion, each student will research for and prepare a complete brief on appeal for a pending case in compliance with applicable court rules, which will represent at least 75% of the course grade, such that the course will qualify for the Law School’s drafting course requirement. Brief outlines, drafts, and issues will be discussed and provided feedback over the course of the semester before final submission of briefs for a grade.
Depending on the case, issues, timing, and availability of appropriate clients, the briefs will be either moot briefs prepared as if on behalf of actual parties to the case or draft amicus curiae briefs that may ultimately be filed with the relevant court. If feasible, the students also may speak with attorneys involved in briefed cases. Students also will prepare for and participate in moot oral advocacy for the case briefed. Moot court will be held before judges of the relevant type of court, if possible. If scheduling and location permits, the students also may help prepare for or attend actual oral arguments for the case addressed. For example, the first time this course was taught, students reviewed filings in Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S.Ct. 2709 (2008), and prepared a mock reply brief under applicable rules at the same time as the actual reply brief in the case, which the students then reviewed. The students also provided questions for and attended a moot court session for the attorney who argued the case, and then discussed the actual oral argument transcript. The second time that this course was taught involved review of certiorari issues and preparation of amicus briefs and moot court arguments for United States v. Jicarilla Apache Nation, 131 S.Ct. 2313 (2011), in advance of that case’s consideration by the Supreme Court.
Dan Rey-Bear, a partner at Nordhaus Law Firm, LLP, has substantial experience in the fields of Indian law and appellate advocacy, including representation of tribal clients before all levels of federal, tribal, and state courts. He previously served as a Staff Attorney for the United States Court of Appeals for the Eleventh Circuit.