Like many law students at Pace, I will never forget my experience with the 1L Moot Court Competition. In some ways, it was memorable for less savory reasons due to the onset of the Covid-19 pandemic but nonetheless – still a law school memory. While I didn’t excel in the competition, it didn’t discourage me from trying out for moot court which then yielded an amazing opportunity for me to participate on the Jessup Moot Court team for two years as the writer and on the Stetson Pretrial team last fall in 2021. This article is aimed at 1L students in anticipation for their first experience with moot court in the Louis V. Fasulo 1L Moot Court Competition.
Appellate Practice and Moot Court
Distinguishable from mock trial, moot court simulates appellate practice (apart from competitions that involve motions or other hearings) usually in front of a prestigious court like the United States Supreme Court or the International Court of Justice. There are no objections or examinations, rather, an appellant and an appellee submit their arguments to a panel of judges for an allotted amount of time to persuade the court to rule in their favor. Appellate decisions create our common law; many cases in our law school casebooks are decisions that came about through the appeals process. To me, this system allows the courts to make decisions in line with modern times and bridge the gap between everyday citizens and their respective legislative body.
Assuming you’ve written your appellate brief for class, you should already be familiar with the controlling cases on your issue and how they work with your facts and record. While practicing your argument is an important step of your preparation, there is no substitute for knowing your brief cold. This doesn’t necessarily mean knowing what your brief says on a specific page, but instead, you should focus on how you used the cases and facts in your argument and why. Knowing the how and why will allow you to make more coherent arguments with the court and respond to questions. This will serve as a foundation for the rest of your preparation.
The Little Things That Matter
Dress for success on the day of your argument. Dress how you would for a job interview if you applied for a job at a law office. This also includes being well groomed and personable. The room’s impression of you begins when you walk through the door. Greet the staff and be friendly. This will not only serve as a professional and kind representation of yourself, but it can also boost your mood on your big day.
While you should avoid reading your argument from a script, it is still okay to have notes with you when you are at the podium. All of your notes should fit onto one page typed or you can use the manila folder method of writing or typing what you need into a manila folder and bringing it up to the podium with you.
If you decide to go with the manila folder method here’s how to do it:
What you bring up should have what you think you will need while arguing. In preparing, you will know what needs to go on this paper or folder but just remember that the more you put, the harder it will be to find what you need when arguing.
The First 45 and Road Map
If you were going to a dinner party in your honor and you were going to speak, you’d likely want an introduction before getting to the microphone instead of going up cold. The same applies in moot court, only you will be doing all the talking and you will have to introduce two people: yourself and your client. The introduction sets the stage; it allows the court to get a taste of your style before you begin your argument and more substantively, the court will know your name and who you represent. Dedicate the first 45 seconds of your argument to introducing yourself, who you represent, and what you will be speaking about.
It should go something like this if the moot court is simulating the United States Supreme Court:
That was only the introduction. You should also touch on what you will be arguing by stating your position and reasons for it in a few short sentences to the court and then turn to the first issue you will be presenting.
Predictable Questions and Anticipating the Oppositions Argument
Throughout the writing process, I’m sure you picked up on what the main issues are or what the case really boils down to. If not, reread the controlling cases and try to figure out how the controlling law disposes of or interacts with the facts you have. This can help you get an idea of what the judges may want to know at oral argument. Prepare for this and anticipate what they will ask. Doing this can generate “free points” in the sense that you knew the answer to the question before it was even asked and will be able to answer with grace and confidence.
It is also important to think of how you will defend your weakest points and respond to your adversary’s strongest arguments. The judge will probably want to know your position on these points and you should be prepared. You may also need to concede to some things your adversary argues. Concede when appropriate to maintain credibility with the court. Make sure to know all you can about the appeal before argument too. Know the standard of review and what it means to your appeal, all the courts the case proceeded through (district or state level, and circuit or lower appellate), and other small details you might see fit. Preparation as nuanced as this and in general will give you a confidence boost when arguing because you’ll know in your mind “I prepared and did what I needed to do.”
Order of Argument
Try to think of three main points you need to argue and if you cannot, apply the following formula to what you have. Lead with your strongest point. This makes sense because in essence, you can end the argument without going further if the law says you should win. Why wait until the end of your argument to tell the court the best law in the scenario and that it helps you? Capitalize on the opportunity to start strong. Do your best with the weaker points and be ready to defend against your adversary’s strongest argument. We put these in the middle so we can finish on a stronger point with our second strongest argument.
Deference to the Court
The bench is higher than the podium for a reason so be sure to always remain respectful and professional. There are some nuances to respecting the court such as addressing the judge or justices as “your honor” or “judge” before responding to one of their questions. Be sure to stop speaking when the judge begins to speak and when asked a question, be sure to answer it fully and completely to the best of your ability. Your job is to assist the court in making a decision so try to be as helpful as possible. This includes making sure your answers are clear and easy to follow. In the instance that a judge asks more than one question at a time, identify the question you are asking when responding. If the question requires an answer in multiple parts, tell the court before you answer like this, “Judge, I would like to answer your question in 2 parts. First…” This is the only instance where you should use “I” and refer to yourself.
It is more professional and credible to use “it’s the appellant’s or appellee’s position” instead of saying “I think.” The court wants to hear the law and how you apply it in your argument more than your opinion on the matter. Guide them with the law and show respect to earn it.
Conclusion of Argument
Now that you’ve presented, and you are finished or see that time will be running out soon, you should conclude. You’ve made a great argument so make sure to ask the court for the relief you want. It should go like this:
Enjoy this new experience and consider trying out for a moot court team afterwards. Even if you are not interested in participating in the Advocacy Program or ever stepping foot into a courtroom, try to make the most of this experience and learn something from it. I’m sure you worked hard and prepared and you should be proud of yourself for that.