Intercultural Critical Thinking: Oral Argument as a Stage of Brief Writing

In teaching legal composition, I strive to arm students with critical methods of learning how context and strategy inform the writing process. This presentation will use videotape to illustrate how to prepare Chinese LL.M students (who are lawyers and judges in their own country) for their most challenging assignment-- presenting oral argument before a panel of U.S. Federal Judges --and using that experience to help make their writing more persuasive. Two weeks before the scheduled oral arguments, students are assigned a simple search and seizure problem; the class is divided into prosecution and defense counsel. They are provided with the four Supreme Court cases needed to argue for or against a motion to suppress evidence. Most students have great difficulty using that authority to synthesize arguments in their client’s favor. I use oral argument to help the students understand the process of synthesizing case holdings into persuasive written argument. Before they begin drafting, the students watch a videotape of American lawyers presenting oral argument on the same search and seizure problem. The students then complete an initial draft of their briefs. In these drafts, the students often fail to synthesize and organize ideas in ways that their audience expects. Most cannot understand what an American judge expects from a persuasive document. This is primarily because of the dramatically different role of the judge as audience in China. In general, Chinese lawyers are not expected to paraphrase and synthesize the law as they would in the United States. They would not be held to attribution and citation standards as they would in the U.S. And most important, they would not be expected to persuade. In fact, they would not necessarily expect to be heard. Traditionally, lawyers present oral argument after they have finalized and submitted their briefs to the court. I reverse that order: before they have finalized their briefs, the students present oral argument to a “hot bench” of Federal Judges. This total immersion approach views persuasive writing as a series of important stages in critical thinking – a function of listening, speaking, reading, and writing. I find the oral argument most effective when seen as a stage of the writing process, rather than the final product. As the videotape presentation will show, the questions from the judges compel the students to understand that unless the case at bar is identical to the case being cited (and of course it never is), the students must learn to synthesize their analyses if their argument is to be persuasive. This method highlights the students’ need to paraphrase more, quote (or plagiarize) less, and anticipate and meet the needs of the audience in their final drafts. The oral argument, combined with critical reading and organizing strategies, help the students to understand the differences between an audience of Chinese judges, and an audience of U.S. judges. More importantly, the students come to understand how their writing must anticipate their audience if they are to improve their global communication skills. I premise this methodology on my belief that the differences in critical thinking displayed by American and Chinese students are far more complicated than commonly believed by the English for Specific Purposes community. The theoretical approach that best accommodates oral argument as a stage of the critical thinking and writing process is intercultural rhetoric research. Ilona Leki describes intercultural rhetoric research as “the study of differences or preferences in the pragmatic and strategic choices that writers make in response to external demands and cultural histories.” This eclectic, dialogical methodology uses critical reading strategies and oral argument “hot bench” questions and answers as stages of the writing process toward a more persuasive document.

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