Before coming to law school, I had no idea that there was such a thing as moot court or mock trial. To be quite honest, I thought they were interchangeable, and essentially the same thing! Instead, I came to learn (as everyone else did) when the 1L Louis V. Fasulo Moot Competition approached, that they are quite different. While they are not necessarily the exact same thing like I thought, they have many interchangeable skills that you can utilize when competing on any type of team.
Differences Between Mock & Moot
Any mock trial competition or trial advocacy course will essentially encompass a trial (either civil or criminal) from start to finish. At my mock trial competition, I gave an opening statement, conducted a direct examination, a cross-examination, and made the mid-trial motion. Your co-counsel will conduct the other examinations, a closing argument, and then one of you will argue motions in limine at the start of the trial. Motions in limine are motions to preclude evidence from being used during trial.
In a moot competition, you are simulating an oral argument before an appellate court bench. You stand up in front of a group of judges, and conduct a 10-15 minute oral argument, in which you make your case as to why those judges should rule in your client’s favor. At any given time, they may interject with questions. They could be a “hot bench” and attack you with questions, or a “cold bench” and ask questions sparingly. I find a hot bench more enjoyable and makes the experience more conversational.
Despite some major differences, there is a lot of overlap between the skills required for moot court and mock trial to be an effective advocate. Here are five interchangeable skills to work on that will improve your performance in either advocacy path you choose:
- Knowledge: Knowledge of Your Case and Knowledge of the Applicable Law. In both mock and moot, knowing the ins, outs, and everything in between is key to success. You need to be prepared to know every facet of your case, and your arguments. In mock, you must know every strong fact, and weak link of your case so you can be prepared for what your opposing counsel is going to do. It will prepare you for a stronger argument, theory of the case, and what opposing counsel will object to. It will prepare you for what they will bring out on their direct and cross examinations, and allow you to be flexible depending on the ebb and flow of the trial. This applies to moot just the same. If you know your case well, you can prepare for the weak arguments and attack them in your own argument, and you will know what your opposing counsel(s) will argue. Knowledge of the case is so important in moot. Judges will ask you at any moment about the facts of the case. Often, knowledge of the record is something you are specifically scored on. Additionally, knowledge of the applicable law is vital. Whether it is knowing the rules of evidence in mock trial, or knowing any applicable law for your moot oral argument, lack thereof can cause your case to crumble. You should be able to make and respond to objections on your feet in your mock trial, and know any applicable law from your bench brief or that the judge asks you about in your oral argument.
- Courtroom Manners. In both moot and mock, properly addressing and maintaining respect for the court at all times is what will make you and your team look perfectly polished. In moot competitions, you must begin with a proper greeting such as, “good morning your honors, and may it please the court.” If there is more than one judge, always say ‘honors.” If you only say honor, they could feel disrespected or a lack of acknowledgement. You should always immediately stop speaking when a judge begins to ask you a question. When you are ready to respond, always start with “yes your honor,” or “no your honor.” Additionally, when your time is up, do not keep speaking. A respectful conclusion is something along the lines of, “your honor, I see my time is up, may I briefly conclude?” and finish with a VERY brief conclusion. For example, “for the foregoing reasons, we ask you to affirm the lower court’s decision. Thank you.” Again, you need to respect them, their presence, and their time. Moot is all about deference to the court. You should always remain pleasant in demeanor with the judges, especially when they interrupt you, or ask you a difficult question. Take a breath if you need to. The last thing you should do is to not let any frustration show towards the judges. The same thing is applicable in mock trial. While you may interact with the presiding judge less often in mock trial, you must have the same deference as you would in moot. Always remain respectful, do not talk back, address them as “your honor” and do not make faces if they do not rule on an objection in your favor. Offer the presiding judge a copy of every piece of evidence. In general, for both moot and mock, even when you are not advocating but rather watching your opponent, the judges still see you. Keep calm, pleasant, and remember that you are always being judged. Be a good team player!
- Creativity. Have a theme, and think about how persuasive you can be. Your theme carries your case, it sticks in the jury members’, and the judges’, minds. It also shows creativity, and draws the audience in if it is something catchy and easy to comprehend. While moot is more formal and does not seem at surface level that you can be creative – the key here is thinking about every word you use. Use persuasive, loud, dramatic words during your argument. That is where your creativity can come in. Think about this: what sounds more dramatic, persuasive, or interesting? “The cat knocked the lamp over,” or “the cat suddenly jumped up, smacked into the lamp and caused it to shatter into pieces.” While moot may not offer as much room for a sparkly theme like in mock, you should still be creative in your word choices at all times, finding ways to captivate the bench. My AAA professor even suggested having a one sentence hook at the start of your First 45. Final easy tip: thesaurus.com is your friend.
- Confidence. This goes without saying, and this is something that every coach, teammate, or professor will say too – you must be confident. The more you practice, the more confident you become. It should become second nature. Plus, the more confident you are, the more flexible you can be. The key is to show that you want to be there, and that you are having fun (while maintaining the proper tone for the cause of action or charge). The judges will know you are enjoying yourself, which not only shows confidence in your skills, but also your knowledge of the case, and will ensure a better performance. Even if you mess up – do not show it! As a high school theater student, we were always taught that if you stay confident and do not show you messed up, the audience will have no idea. This is true for both moot and mock. Keep your composure and confidence, and the judges can be fooled. Respond to objections, do not give up on your own objections, and respectfully push back on any questions from the bench. You know your case more than they do.
- Listening. listen to opponents for your own argument, your case and rebuttals. This is KEY to winning your case for both moot and mock. Always be listening to your opponents. In mock, it allows you to prepare for all elements: your theme, flipping opposing counsel’s theme, your examinations, and rearranging anything if necessary. Additionally, you must listen to the opponent’s closing argument crucially to nail your rebuttal (if you have one). The judges at my competition directly emphasized that the worst thing you could do is get up and give a rebuttal that was essentially pointless. Your rebuttal should address issues directly made by your opponent. In moot, it is important to listen to your opponent so that you may directly approach the issues they brought up in your own argument, or rebuttal as well, for the exact same reasons. Not only does it make your case stronger and address what may be the weaker facts on your side; it shows that you are flexible and can take curveballs.
With a focus on these skills, you will succeed in whatever advocacy path you choose. No matter which type of advocacy you pursue, you certainly cannot go wrong with either – they are both extremely enjoyable, valuable, allow you to build networks and friendships, and most importantly: become an amazing advocate!