14.4.2 Critiquing Your Teammates’ Work

First, you must decide how to conduct your critiques. Some team members trade briefs and read each others’ work separately, trading written comments with each other. Some teams find it more efficient to meet together and review each team member’s contribution as a group. A combination of these two approaches may be best. If the team members exchange their work and review it separately, someone with questions about the law or the facts may review the record or research a narrow point in order to answer the question before the team meets. This is much more efficient than interrupting the discussion to hop on line or run to get a book (although you may end up doing this anyway, as the critique progresses).

Second, you must decide when to conduct your critiques. Plan ahead, and be aware of each team member’s needs. While many teams are comfortable with the “all-nighter” method of collaboration, do not presume that this method will work for every member of the team. If one team member is on a law journal and has a deadline during the briefwriting time, plan around that date. If another team member has family responsibilities, plan to meet during the day if at all possible.

Finally, you must conduct the actual critiques with tact and respect. In practice, you will often be asked to critique the work of others (as well as deal with critiques of your own work).

In the alternative, critique by asking questions — questions that are as specific as possible about what is confusing you. Instead of saying, “This argument is wrong,” ask, “How does this argument support a reversal?” Hearing your teammate’s explanation may convince you of the validity of the argument and may inform all of you as to what further information needs to be included in the brief. On the other hand, if the argument is not valid, your teammate may recognize its weakness when trying to explain it to you. By talking each argument out among the three of you, the team can get a good idea of the strengths and weaknesses of the various arguments, and then revise accordingly.

In addition, you may wish to hold a practice moot during the writing process. Although most rules prohibit, or at least limit, coaching during the brief-writing process, nothing prevents the three members of a team from conducting an “internal moot.” Review the authorities relevant to your teammates’ issues, and question each teammate in turn. Challenge the assumptions inherent in their arguments, and probe their knowledge of the relevant authorities. You could even spur their research by asking about the existence of other relevant cases, e.g., “Is there any case in which the court has held... ?” You can identify categories of questions before you begin and try to ask at least one question in every category. Some of the categories may be generic (e.g., standard of review, mandatory authorities vs. lower court authorities, etc.) while others may be specific to the substance of the problem.

Although you must be polite to each other as you work on the brief, you also have an obligation to raise issues that are bothering you. Effective collaboration is a balancing act. Each member of the team must feel comfortable raising questions about anything that is troubling. Once, after a competition, I was discussing an issue that I thought had not been briefed effectively with one of the team members. He told me that he, too, had seen the problem, but was self-conscious about raising it, since “the other two seemed to think everything was okay.” Each team member has a responsibility to point out possible problems or mistakes. That is the best way to get the full benefit of three collaborators working on a brief.

On the other hand, you cannot beat an issue to death. After the team has fully considered a problem or concern and decided what action to take (or not to take), that should be the end of it. Even if you disagree with the outcome, don’t sulk, and don’t second-guess. Once the decision is made, it’s over, unless new evidence appears.