Moot Court Memorial Note, Study notes of Mock Trial and Moot Court

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WINNING THE MOOT COURT ORAL ARGUMENT: A GUIDE FOR INTRA- AND INTERMURAL

MOOT COURT COMPETITORS

By Gerald Lebovits, Drew Gewuerz, and Christopher Hunker*

Chief Justice, Your Honors, and may it please the Court:

We represent all those whose lives were changed by moot court.

Chief Justice, we respectfully request two minutes for rebuttal.

In our time before the Court, we will argue that competing in moot court can be law

school’s best experience, especially when the student-advocate’s goal is to succeed in

competition.

First, moot court hones the most formative skills that law school can impart.

Second, moot court gives student-advocates unparalleled opportunities to advance their

careers, whether or not they intend to litigate.

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Given moot court’s benefits to student-advocates, to legal education, and to the

profession, we ask this Court to consider our strategies for winning a moot court oral

argument.^2

* * *

For nearly every law student, moot court

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is a new, exciting, and unforgettable

experience,

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one rooted firmly in real-world advocacy. Moot court is the genesis of a legal

• Hon. Gerald Lebovits, who won the intramural moot court award for best speaker and best brief in law school, has been a New York City judge since 2001. A lecturer-in-law at Columbia Law School and an adjunct professor of law at Fordham University School of Law and New York University School of Law, he will coach moot court teams at Pace University School of Law beginning in 2012. From 1991-2012, Judge Lebovits’s moot court students at Columbia Law School, New York Law School, and St. John’s University School of Law won more than 100 first-place awards (best teams, speakers, and briefs) in regional and national intermural competition. Drew Gewuerz is a trial attorney at Irwin & Streiner LLC, a general-practice law firm in Manhasset, New York. He graduated in 2010 from St. John’s University School of Law, where he served on the Moot Court Honor Society Executive Board and coached the 2010 championship team at Fordham’s Irving R. Kaufman Securities Law Moot Court Competition. Christopher Hunker is a bankruptcy and restructuring associate at Hahn & Hessen, LLP, in New York, New York. He graduated in 2010 from St. John’s University School of Law, where served as the Moot Court

Honor Society’s Executive Director. The authors thank Judge Lebovits’s judicial interns ─Brendan Kelly, an undergraduate Presidential Scholar at Boston College, and Andrea Abudayeh, a second-year student at New York

Law School ─for their research assistance. 1 Michael V. Hernandez, In Defense of Moot Court: A Response to “In Praise of Moot Court ─ Not! , ” 17 REV. LITIG. 69, 79 (1998); MICHAEL D. MURRAY & CHRISTY H. DESANCTIS, ADVANCED LEGAL WRITING AND ORAL ADVOCACY: TRIALS, APPEALS, AND MOOT COURT 469 (2009) (arguing that moot court teaches “important skills in advocacy that will carry on into practice regardless of what type of practice you do”) [hereinafter MURRAY & DESANCTIS I]; John T. Gaubatz, Moot Court in the Modern Law School , 31 J. LEGAL EDUC. 87, 87 (1981) (explaining that moot court develops persuasion skills that prepare students to argue in any court). (^2) For a discussion in the style of oral argument extolling moot court’s virtues, see Darby Dickerson, In Re Moot

Court , 29 STETSON L. REV. 1217 (2000). (^3) “Moot” as in “moot court” is different from “academic.” “Something ‘academic’ is no longer relevant.

Something ‘moot’ is debatable.... Moot Court is offered by academia, and often sponsored by academicians, but

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career that, regardless of practice area, requires excellence in advocacy. An excellent advocate

is knowledgeable on the law, masterful in marshalling facts, skilled in the forensic arts,

respectful of decorum, compliant with proper procedure, mindful of due process, fair with

adversaries, devoted to the client, helpful to the court, honest with everyone, and, above all,

persuasive.

The process of becoming an excellent advocate is a career-long journey that begins in

law school’s first-year legal-writing course. Legal-writing courses, which culminate in writing a

moot court brief and conducting a moot court oral argument, teach students to think like

lawyers, a skill fundamental to practicing law and a necessary attribute to the good

administration of justice. That thought process requires first-year law students to read and

write in a new language,

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the language of the law. But instead of thinking, speaking, and writing

in legal jargon, “thinking like a lawyer” involves understanding how asking and answering

questions can address and resolve uncertainties and ambiguities.

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Moot court, the highlight of

every first-year legal-writing course, teaches students advocacy skills to solve legal problems.

Moot court enhances the three most important skills that law schools offer their

students: starting an argument with a conclusion, differentiating fact from opinion, and

organizing a legal argument by issue rather than by a chronological narrative of the facts. Moot

court also teaches students professionalism and ethics, to apply law to fact, to structure and

rank a legal argument by strength, and not to assert losing propositions. By giving law students

opportunities to improve their legal writing, legal research, and oral advocacy in a competitive

environment that prepares students for a competitive world, the moot court experience is

unlike any other in law school. It is, perhaps, the law-school activity that most fully develops the

skill every lawyer must possess: advocacy. Regardless of practice area, all lawyers must

communicate in a way that advances their client’s interests, whether in a courtroom or

boardroom. Most important, moot court builds character. Every student competitor “will be a

better lawyer, and a better person, because of the moot court experience.”

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This article discusses the principles of a successful oral argument and offers strategies

for success in a moot court competition, which we define as an appellate-advocacy

competition.^8 The article is designed to help moot court advocates create and deliver a winning

oral argument in the context of a moot court competition. The guidance in this article is based

Moot Court covers debatable points, not irrelevant ones.” Gerald Lebovits, Problem Words and Pairs in Legal Writing—Part I , 77 N.Y. St. B.J. 64, 64 (Feb. 2005). (^4) Amy E. Sloan, Foreword, Appellate Fruit Salad and Other Concepts: A Short Course in Appellate Process , 35 U.

BALT. L. REV. 43, 43 (2005) (“Lawyers may recall their moot court experience with joy and exhilaration, terror and anguish, or anything in between, but no one forgets it.”). (^5) Judith Wegner , Better Writing, Better Thinking: Thinking Like a Lawyer , 10 LEGAL WRITING: J. LEGAL WRITING INST.

9, 15 (2004). (^6) Id. at 14. (^7) Hernandez, supra note 1, at 78. (^8) We exclude as a non-moot court competition a trial, interviewing, counseling, or negotiating competition.

on what is effective most of the time in the highly subjective and often unfair world that is

competitive moot court. For every five moot court judges, one will disagree with the advice in

this article, and one will not notice the technique or care at all. But, we believe, three will

notice, care, and agree. This article explains how to appeal to the majority of judges by

providing step-by-step instruction to winning the oral round, beginning when the moot court

problem is released and finishing post-oral argument.

Some have observed that teaching appellate advocacy is different from coaching a

winning moot court team.^9 To the extent that they are right, this article teaches how to win a

moot court competition.

I. INTRODUCTION TO MOOT COURT

To win at moot court, a student-advocate must appreciate its values and understand its

detriments.

At most law schools, success in the first-year legal-writing program or in an internal, or

intramural, moot court competition is the gateway that allows students to join the law school’s

Moot Court Board as a candidate or member and then to be selected to join an outside, or

intermural, moot court team.

Moot court competitions, whether intramural or intermural, are not easy; nor are they

intended to be. The hosting law school or bar association designs the competition to challenge

the competitors in a number of ways, both obvious and subtle. An obvious challenge is to

submit a timely written brief and deliver an oral argument under pressure. Other obvious

challenges are working with teammates and confronting nervousness. But the more subtle

challenges are the hardest of all.

For example, most competition hosts create problems based on imaginary opinions

from trial or intermediate appellate courts and do not include a full trial record. These fact

patterns, typically much shorter than full records, force advocates to organize an incomplete

set of fictional facts into two distinct arguments─one for each speaker (because most

competitions have two speakers for each side)─and often omit the nuanced details available

from a full trial. This limitation, though, is logistically necessary in administering moot court

competitions. Moot court judges need short fact patterns because, as busy professors,

practitioners, and sitting judges, they have little time to study even the fact patterns and bench

(^9) See, e.g. , William H. Kenety, Observations on Teaching Appellate Advocacy , 45 J. LEG. EDUC. 582, 582 (1995) (“I

have become convinced that what I, and perhaps many others, have been teaching is really not Appellate Advocacy, but rather How to Win Law School Moot Court Competitions.”); Michael Vitiello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach , 75 MISS. L.J. 869, 882 (lamenting that “too many competitions reward style over substance”) [hereinafter Vitiello I]; Report and Recommendations of the Committee on Appellate Skills Training, Appellate Judges’ Conf., Judicial Administration Div., Am. B. Ass’n, Appellate Litigation Skills Training: The Role of the Law , 54 U. CINN. L. REV. 129, 146 (arguing that moot court does not teach appellate advocacy and recommending that it do so). But the solution is simple. Law schools may offer separate courses in appellate advocacy and clinical classes in appellate advocacy without eliminating their involvement in moot court.

briefs the hosts prepare for them,^10 let alone a lengthy trial record, which contains massive

amounts of detail irrelevant to the issues before the moot court. Moreover, those who draft

the problem for a competition and participate in the scoring and judging—students, professors,

and practicing attorneys, depending on the competition—also have no time to prepare and

read 100-page factual records. This limitation is unique to moot court; practicing appellate

attorneys are accustomed to reviewing comprehensive, lengthy, and full trial records. But moot

court’s unique difficulty─some might say negative─permits participants to focus closely on

the competition’s legal issues in formulating their arguments.

Also singularly difficult is that most moot court teams are composed of either two

advocates who argue both sides of an issue or of teams of three, in which the “swing” argues

both sides. This does not prepare students to argue from both sides of their mouths. Rather, it

compels student-advocates to learn the opposing side’s case thoroughly, making them better

able to defend their positions and structure their affirmative points in a way that undercuts

their adversary’s position.

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Through this difficult form of Devil’s advocacy, advocates will see

the flaws in their own positions and learn to think objectively, skeptically, and honestly.

Moot court topics, too, are difficult, often more difficult than some lawyers will ever

handle during their careers. But the difficult, big-issue, and controversial topics that one sees in

moot court require policy discussion along with legal reasoning, and they lead to impassioned

advocacy and interactive learning.

Despite the benefits of moot court, it has some critics. Critics argue that moot court’s

rules and scoring methods, which vary among competitions, are sometimes unfair.

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Critics

note that moot court judges as a group are inconsistent in their scoring; some score on the

(^10) Hernandez, supra note 1, at 84. (^11) Id. at 74. (^12) Not all moot court competitions are created equally, and some are run poorly. The better competitions have

(1) three or four preliminary rounds, not merely two, to make scoring more fair and to enhance the competition’s educational mission by not sending students home too quickly; (2) head-to-head scoring, not cumulative-point scoring, in which teams advance based on the number of wins and then, in the event of a tie, by win-loss point differential; (3) power ranking for the advanced rounds; (4) a high number of teams going to advanced rounds ( e.g ., not a twenty-team competition cut to a four-team semi-final round); (5) scoring in which no one judge can skew the results by reversing the majority, an event possible if the entire panel of judges does not agree on a score for each team or if each judge scores each advocate separately and the competition host simply adds up the scores; (6) opportunities for each team to see every brief, not just those against which they are competing; (7) at least three judges in a round; (8) bench briefs written after the authors have read the competition briefs, so that the competition host will explain the law to its judges accurately and also encourage its judges to ask competitors the right questions and those that the competitors will really argue; (9) prepared and competent bailiffs (sometimes called clerks or timekeepers), and (10) honesty-promoting rules that require the host immediately after the competition to give every team every judges’ oral argument and brief scores of every speaker and team. The better competitions (1) do not allow their hosts to compete; (2) remind their judges repeatedly not to score on the merits or to give higher or lower scores to the team with the legal position they perceive as harder; (3) encourage their judges to ask only short and relevant questions; (4) have two distinct and balanced moot court problems, one for each speaker, both arising from a related set of facts and a plausibly realistic procedural posture; and (5) award lots of nice plaques and hardware to lots of teams and individuals.

merits despite rules prohibiting judging on the merits, while other moot court judges are

unprepared, disinterested, unskilled, focused on the irrelevant, or overly aggressive in their

questioning.^13 Critics argue that moot court makes individual merit irrelevant because

advocates argue in teams and therefore that unprepared or ineffective partners hinder well-

prepared and effective ones. Critics also argue that membership on a moot court team is an

insignificant boost to a resume compared to membership on law review or a journal.

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Other skeptics argue that moot court does not prepare students for “real life” appellate

advocacy.^15 In his critique of moot court, Ninth Circuit Chief Judge Alex Kozinski contends that

requiring moot court judges to evaluate students on their advocacy skills and not the merits of

the case “is a drastic departure from the way things happen in real life.”

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Judge Kozinski also

notes that because moot courters must argue both on- and off-brief,

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they have no emotional

investment in their client’s hypothetical case—an important motivator in real appellate

advocacy.

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Judge Kozinski chides moot court programs for not preparing students to deal with

“the most important part of any case: the record.”^19 Many moot court fact patterns, he

believes, invite policy arguments rather than arguments based on law.

Some of Judge Kozinski’s contentions are valid, but moot court is worth the effort. Moot

court will not teach many aspects of appellate advocacy, such as pre- and post-argument

appellate motion practice, the sequential (non-simultaneous) submission of briefs, writing reply

briefs, and many other things. But “[m]oot court oral arguments closely simulate appellate

arguments in the real world”^20 and teach the skills required for success at lawyering. And moot

(^13) See, e.g. , Hernandez, supra note 1, at 84 (“I have witnesses a fair amount of substandard, even atrocious,

judging. Some judges are completely unprepared and spend the first minutes of the argument flipping through the problem and bench brief (usually to the detriment of the first advocate’s score).”). Moot court has other critics as well. One critic has even noted that moot court judges’ critiques, particularly of advocates’ clothing and speaking style, may be gender-biased and thus discourage women from litigating. See Mairi N. Morrison, May It Please Whose Court? How Moot Court Perpetuates Gender Bias in the “Real World” of Practice , 6 UCLA WOMEN’S L.J. 49, 62-64 (1995). Another disfavors teaching moot court during a first-year legal-writing class “because, as the capstone of the first-year writing program, it certainly reinforced a ‘litigation bias’” that contradicts alternative dispute resolution. See Kate O’Neill, Symposium: Dispute Resolution in the Law School Curriculum: Opportunities and Challenges, Part I, Adding an Alternative Dispute Resolution (ADR) Perspective to a Traditional Legal Writing Course , 50 FLA. L. REV. 709, 715 (1998). On the other hand, getting high-school students involved in competitive moot court is the among the best ways to teach law and engage in community outreach. See, e.g. , Maryam Ahranjani, High School to Law School: Marshall-Brennan and Moot Court , available at ssrn.com/abstract= (last visited September 4, 2012). (^14) Alex Kozinski, In Praise of Moot Court—Not! , 97 COLUM. L. REV. 178, 180 (1997). (^15) See, e.g. , Robert J. Martineau, Moot Court: Too Much Moot and Not Enough Court , 67 A.B.A. J. 1294 (1981),

reprinted in ROBERT J. MARTINEAU, FUNDAMENTALS OF MODERN APPELLATE ADVOCACY 207-09 (1985). (^16) Kozinski, supra note 14, at 181. (^17) “On-brief” means that a competitor is arguing an issue from the perspective in the competitor’s brief. “Off-

brief” means that a competitor is arguing the issue from the perspective opposite that of the brief. (^18) Kozinski, supra note 14, at 185-86. (^19) Id. at 188. (^20) Hernandez, supra note 1, at 73.

court might be condemned for stressing form over substance─writing and speaking rather

than which side has the more meritorious case. As one judge noted, “Moot court judges grade

advocates. Court of appeals judges decide cases. The difference is vast.”^21 But as that same

judge conceded, “the skill of an advocate sometimes does determine a decision.”^22 Every law

school in America trains students those winning skills in the moot court tradition. Not every law

school can be wrong.

To the extent that moot court is subjective and unjust, our response is “welcome to the

real world,” a world in which lawyers must strive to improve those things that are good, not to

discard them altogether.

Despite the difficulties and problems with moot court, many benefits accrue to student

competitors, who are essentially the law school’s football team and carry the law school’s flag

onto the field. Among the perks are travel to competitions paid by the law school, networking

and scholarship opportunities, awards and other recognition, and accomplishments to list on a

résumé for life. Membership in the Order of Barristers, a national honor society for participants

in moot court organizations akin to Phi Beta Kappa for undergraduates and the Order of the

Coif for high grade-point achievers in law school, is an additional recognition for students who

excel in written and oral advocacy.^23

Legal education also benefits from moot court. Law schools use competitions to show

off their institutions to other schools and to their moot court judges. Law schools also promote

themselves by highlighting the success achieved by their moot court teams, and moot court

successes increase recruiting and fundraising. Law schools look with pride on their moot

courters after graduation; moot courters tend to be among the schools’ most loyal alumni.

Among other things, moot courters return to their alma maters to coach moot court teams and

judge competitions.^24 Although law review is generally regarded as the “best” extra- or co-

curricular credential, employers know that successful moot courters are a “double threat” as

effective writers and speakers.

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Moot courters gain experience preparing the types of

documents produced by litigation firms and thus are attractive new hires because their learning

curve is less steep than non-moot courters’.

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Moot court also develops students’ ability to work collaboratively with their teammates

and other lawyers. The moot court process requires students to work as a team in formulating

(^21) Alvin B. Rubin, Book Review What Appeals to the Court , 67 TEX. L. REV. 225, 225 (1988) (reviewing MICHAEL E.

TIGAR, FEDERAL APPEALS: JURISDICTION AND PRACTICE). (^22) Id. (^23) See The Order of Barristers, http://www.utexas.edu/law/advocacy/boa/barristers.html (last visited

September 4, 2012). (^24) Not to disparage student journals and law reviews, but how often have we heard of their alumni returning

for an evening or two each year to help junior editors Bluebook citations? (^25) Dickerson, supra note 2, at 1226. (^26) Id.

legal arguments, an important talent for practicing attorneys. Competitors working in teams

should work together to write a cohesive brief, even when teammates write different sections

of the brief. Teammates should work together to review, edit, and revise the brief until it is the

best piece of writing the team can collectively draft. By teaching that a team is only as good as

its weakest link, moot court forces teammates to teach one another, and all participants learn

as a result. Then, moot court participants, together, will work tirelessly to develop their

arguments and practice, practice, practice.

Despite its inability to replicate real appellate advocacy directly, moot court is the

clearest window (other, perhaps, than a course in pure appellate advocacy or clinical appellate-

advocacy course) into appellate practice that law students can get. Furthermore, moot court is

a chance to argue seminal issues of law before leading academics, practitioners, and judges.

The best moot court competitions feature prominent state and federal judges who evaluate

advocates’ skills and suggest ways to improve those skills. Aside from the substantive

experience students gain from practicing oral argument, students receive valuable feedback

from those who have the most experience in crafting and delivering oral argument. And near

the end of many competitions is a banquet at which students can network with the attorneys

and judges involved in the competition. These networking opportunities can set the foundation

of a successful career: getting a good first job.

To get the best possible experience from moot court and win a moot court competition

in the process, student-advocates must understand the benefits and challenges of the moot

court experience.

Winning the competition starts with being familiar with the competition itself. The moot

court process begins with the legal brief. The brief is the first opportunity that moot court

competitors have to show their ability to comprehend the issues presented in a competition.

The brief tests the competitors’ ability to analyze the legal field’s uncertainties and provide

thoughtful answers to them. The brief allows competitors to show the competition’s brief-

scoring judges that they can and do think like lawyers.

As competitors research and write, they should ask themselves questions like “What

elements of the case have been addressed by case law and statutes?”and “What legal theory

can be crafted to address both the facts of the case and the relevant authorities?” Competitors

should spend considerable time researching and drafting the brief, including multiple iterations

and revisions,

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to ensure that their writing reflects their understanding of the issues presented

and that their assertions are comprehensive and coherent. Writing a good brief saves time

researching the legal issues during the oral-argument practice phase, and a brief must score

well for the advocate’s team to win. It is a rare competition in which a team with a losing brief

ranks first in the competition overall. That is as it should be. One cannot be a moot courter’s

(^27) It is often helpful to take a day or two away from the brief after a revision before returning to it. This helps

writers catch mistakes and include additional perspective to the argument.

moot courter without being a good writer and a good speaker, just like one cannot be a

lawyer’s lawyer without being a good writer and a good speaker.

The second component of the moot court experience, oral argument, is an opportunity

for competitors to elaborate on their written submissions and further explain how they worked

through the uncertainties of the case to arrive at their conclusions. In this regard, competitors

must be prepared to assist the moot court judges, who are themselves working through the

uncertainties, by offering succinct and direct responses to the judges’ questions. To accomplish

this task, competitors need to be much more than clever, superficial orators highlighting the

key points of their brief and stressing form over substance. They must be responsive,

forthcoming, clear, fluid, professional, convincing, and likeable. And while respecting the judges

personally and their dominance over all things procedural and the courtroom, they must assert

control and be dominant on and confident about all matters concerning the facts and legal

arguments of their cases.

In a typical moot court oral argument, three to seven judges will have ten to twenty

minutes, depending on the competition and whether the advocate reserves rebuttal time, to

get answers to their questions. Advocates do not manage the parameters of the argument─at

its best, really a conversation and dialogue between advocate and judge─as directly as they do

in their briefs. Instead, in oral argument, the panel of judges directs the argument. Judges might

ask prepared and organized questions or ones that are spontaneous and only tangentially

relevant to the case.^28 The questions could be friendly, meaning that the judges support the

advocate’s position and ask questions that are not especially challenging. Conversely, the

questions could be confrontational and hostile to the advocate’s position. The questions might

be ones that real judges would ask, or they might be ones designed to test the student

advocates’ “moot court skills.”

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Excellent advocates must therefore meticulously prepare and

rehearse answers to countless questions the moot court will and will not pose.

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As with any appellate presentation, excellent advocates must be both well-prepared

and persuasive.^31 Persuasiveness is affected by several factors, including appearance, body

(^28) See Timothy S. Bishop, Oral Argument in the Roberts Court , 35 LITIG. 2, 6 (2009) (noting that a court may ask

anything it believes could be helpful in deciding the case). At oral argument in Holly Farms Corp. v. Nat’l Labor Relations Bd., 517 U.S. 392 (1996), for example, a case about a contractual dispute, Justice Scalia asked the petitioner, “Why do they debeak chickens?” Transcript of Oral Argument at 56, Holly Farms (1996) (No. 95-210). (^29) See Barbara Kritchevsky, Judging: The Missing Piece of the Moot Court Puzzle , 37 U. MEM. L. REV. 45, 53

(2006). As this article explains, some skill sets are unique to moot court. Seasoned moot court judges ask questions that test the participants’ knowledge of moot court protocol. (^30) Bishop, supra note 28, at 8 (“In 30 minutes, the Court may pose 60 to 80 questions, but be ready to answer

hundreds more.”). (^31) See Gerald Lebovits, Effective Oral Argument: 15 Points in 15 Minutes , [2008] THE ADVOCATE, Spring/Summer,

4, 4 (“The advocate’s goal... is to win. To win is to persuade.”) [hereinafter Lebovits I], available at http://works.bepress.com/gerald_lebovits/122/ (last visited September 4, 2012); James D. Dimitri, Stepping Up to

language, argument structure, delivery, and responsiveness. To argue persuasively, advocates

should argue their positions under the assumption that the moot court will decide the

hypothetical case.^32 This assumption should be tempered by the fact that moot court judges

cannot and generally do not prepare for oral argument in the same way that real appellate

judges do.

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Although moot court judges receive materials that guide them through the parties’

respective arguments,

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the judges will not be as educated about the case and the issues as real

appellate judges, who, before oral argument, review the parties’ briefs, the record below, and

their law clerk’s bench memorandums.^35 As a result of their preparation, real appellate judges

ask sophisticated and focused questions. In contrast, the scope of moot court judges’

preparation is limited. Moot courts are composed of judges with various levels of knowledge of

the moot court problem and understanding of its legal issues.

An advocate’s ability to convey points clearly and persuasively to the judges is crucial to

a winning oral argument. Persuasive oral argument requires advocates to be attentive to

judges’ concerns about their legal reasoning. Excellent advocates satisfy doubts that arise in the

judges’ minds. They demonstrate, by the substance and manner of their presentation, that they

are knowledgeable, credible, and candid.^36 Advocates demonstrate this by persuasively framing

the legal issues in a strategic yet logical way,

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thinking on their feet, adapting in the moment,

and projecting confidence. Excellent advocates answer questions clearly and directly, tell the

court exactly what it should do, and make the judges like them.

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To win a moot court oral argument while learning the most from the experience,

advocates must prepare meticulously, sharpen their public speaking skills tirelessly, and

alleviate the moot court’s concerns by satisfactorily answering questions. Winning moot court

advocates compete enthusiastically, follow appellate-advocacy traditions, and comply with

the Podium with Confidence: A Primer for Law Students on Preparing and Delivering an Appellate Oral Argument , 38 STETSON L. REV. 76, 78 (2008) (stating that the “first purpose of oral argument” is persuasion). (^32) See generally Kritchevsky, supra note 29, at 57 (encouraging moot court judges to assume that they will

actually have to decide the case) (citing Louis J. Sirico, Jr., Teaching Oral Argument , 7 PERSP. TEACHING LEGAL RES. & WRITING 17, 18 (1998) ("We should encourage the moot court judge to role-play the real judge.")). (^33) Kritchevsky, supra note 29, at 55 (noting that moot court judges cannot prepare the same way real judges

do). (^34) Id. at 55-56 (listing the materials given to moot court judges, such as the problem/record, a bench brief,

outlines of the expected arguments, and copies of key statutes and cases). 35 See Mark R. Kravitz, Oral Argument Before the Second Circuit , 71 CONN B.J. 204, 204 (June 1997) (stating that before oral argument, the judges will have read the briefs, thought through the issues, and discussed the case with their law clerks); Albert J. Engel, Oral Advocacy at the Appellate Level , 12 U. TOL. L. REV. 463, 465 (1981) (emphasizing that judges read every brief and reply brief); but see Kritchevsky, supra note 29, at 55-56 (noting that moot court judges rarely see the briefs before the oral arguments and receive only a packet containing the record and a bench memo to guide the judges through the oral argument). (^36) See ANTONIN SCALIA & BRYAN A. GARNER, MAKING YOUR CASE: THE ART OF PERSUADING JUDGES 141 (2008). (^37) See id. at 41 (“The most rigorous form of logic, and hence the most persuasive, is the syllogism.... [T]he

clearer the syllogistic progression, the better.”). Syllogism is reasoning from the general to the specific. (^38) Kritchevsky, supra note 29, at 65.

moot court protocol. Perhaps most important, winning moot court advocates appreciate that

moot court judges score advocates well when the judges not only like the advocates but also

believe that the advocates like them. Judges in every court, real and moot, want to be liked.

Advocates are persuasive when they are confident of their case and of themselves, yet cordial

and deferential to the judges.

2. PREPARATION

A. Knowing the Rules

Preparation for oral argument in a moot court competition starts with studying the

competition’s rules and format for oral argument. Just like practicing attorneys, who must

operate within courts’ rules, moot court advocates must operate within their competition’s

rules or risk penalty or disqualification.

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The advocate must read and comprehend the rules in

their entirety the moment they are released. Advocates should discuss the rules with

teammates, coaches, and faculty advisors to ensure that the entire team understands the

parameters.^40 Among other things, the rules typically provide for an allocation of time for

argument, how that allocation may be distributed between or among the advocates, and how

much time may be reserved for rebuttal or, in a very few and select competitions, sur-rebuttal.

The rules regulate the number of teams that may represent a school, the number of students

who may serve on each team, and whether schools with more than one team will argue against

one another. The rules also disclose how competitors will be scored individually and as a team,

the scoring allocation between briefs and oral scores,^41 and the procedure for advancing to

higher rounds.

The need to learn and follow the rules cannot be understated. Moot court competitions

are like any other competition, with points and penalties. The goal, perhaps obviously, is to

accumulate the most points and win. Making foolish mistakes by disregarding or overlooking

the rules will result in penalties, some severe. In nearly every competition, a team that

otherwise might advance past the preliminary rounds will not advance because it will fail to

follow the rules, either in writing the brief or in conducting oral argument.

The first step in maximizing a team’s chances of winning is to comply with the rules.

Once advocates are familiar with their competitions’ procedural rules, they can prepare their

substantive arguments, beginning with the brief. The second and more strategic step is to take

advantage of the rules. For example, better advocates should speak a bit longer than less skilled

ones, if the rules allow speakers to split their time unevenly. That way the team as a whole will

score well. And if the rules include oral scoring sheets that tell the judges to reward particular

39 MICHAEL D. MURRAY & CHRISTY H. DESANCTIS, ADVERSARIAL LEGAL WRITING AND ORAL ARGUMENT 282 (2006)

[hereinafter MURRAY & DESANCTIS II]. (^40) Id. (^41) For example, the rules might state that a team’s overall score is equal to the sum of X% of oral argument

scores and X% of brief scores. In most competitions, the brief scores are worth less in the higher rounds and count for nothing in the final round.

skills or aspects of a presentation (such as a conclusion), advocates should emphasize those

skills and aspects of presentation to get high scores, even when doing so will contradict

otherwise accepted moot court advice.

B. Building the Argument: Theme and Roadmap

The process of creating arguments begins with the briefs.

42

Advocates should use their

briefs to structure their arguments. During the brief-writing phase and in advance of submitting

their briefs, advocates should conduct a few oral-argument practice rounds. Practice rounds

during brief-writing enable competitors to see and address the strengths and holes in their

arguments; advocates can then address these issues in the brief. A strong brief makes

preparation for oral argument significantly easier. A winning brief might even allow a team to

win a round it lost in oral scores─a reversal, in moot court parlance─and advance despite

poor oral scores.

In many competitions, especially the larger and better ones, the briefs that teams

submit are posted on a competition website or mailed to the competitors. Advocates should

study these briefs to supplement their arguments and spot weaknesses in their own briefs.

When preparing to argue off-brief, competitor briefs are especially helpful in formulating

substantive arguments. Advocates should read every team’s brief, identify the best briefs, and

incorporate into their own arguments the best teams’ strongest arguments and citations.

In terms of preparing the substantive argument, moot court advocates should view oral

argument as an opportunity to discuss with the moot court judges the resolution of difficult

legal issues.

43

The goal of the presentation is to persuade the moot court judges to resolve the

issues in the advocate’s favor^44 ─and to score better than the other team. To help persuade the

judges to rule in their favor, advocates should prepare and develop a theme for their side of the

case. A good theme will persuade a moot court that an advocate’s position is correct.

45

The

theme should be as simple as possible (preferably one sentence long) and summarize an

advocate’s position without being outrageous or inflammatory.^46 It should be based on

(^42) Compare Coleen M. Barger, How to Make the Losing Oral Argument , 41 Ark. Law. 16, 16 (2006) (observing

that preparation limited to “a quick skim of your own briefs” is the first step to failure in a moot court argument). 43 See Kritchevsky, supra note 29, at 72. (^44) Dimitri, supra note 31, at 78 (“This role [as an advocate] requires you to attempt to convince the court that

your client should win the appeal.”). (^45) Id. at 80-81 (stating that identifying a theme and conveying it to the court fulfills an advocate’s obligation to

persuade the court that the client’s position is the correct one); Stephanie A. Vaughan, Persuasion is an Art... But it is Also an Invaluable Tool in Advocacy , 61 BAYLOR L. REV. 635, 648-49 (2009) (“A theme has a great effect in persuading the tribunal to side with the advocate... [and] gives the tribunal a reason to apply the law in the advocate’s favor.”). (^46) Vaughan, supra note 45, at 649 (“A theme should not be outrageous or inflammatory but should be

anchored in common sense [and] reason... .”).

favorable law and fact and appeal to common-sense notions of fairness and justice.^47 It should

condense the issue before the court into a right-wrong question that begs a decision.^48 This

question should reflect the key facts of the case but ought not include detail about the relevant

law or statutory interpretations; this information is meaningless unless the advocate first

provides context and a framework. The theme, which a smart high-school student should

understand, should suggest that justice will suffer if the judge does not rule for the advocate on

at least some issues^49 and that the court can fix an injustice committed against the client.

The type of theme chosen depends on the relief the advocate is seeking and which side

the advocate is arguing. If the petitioner/appellant seeks substantive relief, the theme could be

rooted in the notion of “equity,” arguing that the trial court’s ruling has harmed the client. By

contrast, a respondent/appellee whose case rests on precedent might choose “legal stability”

as the theme.

50

Advocates should imagine themselves in the position of their client, the trial

court, and the appellate court when formulating a theme.

51

Adopting the client’s perspective allows advocates to access the emotional dimension of

the case and perhaps construct a theme of “fair substance,” which articulates to the court how

the law has wronged the client. If the trial attorney encountered problems admitting or

excluding evidence, the petitioner/appellant could focus on the theme of “fair process.”

52

Advocates who represent the respondents/appellees should consider the trial court’s position

and the discretionary rulings it made. Discretionary rulings result from the leeway that must be

accorded to a trial court so that it can function effectively.^53 The harmless-error doctrine

prevents frivolous appeals by requiring harm to a party’s substantial rights at the trial level

before a court reverses or modifies the judgment below.^54 The theme here might be

“protecting the viability of the judicial process.”^55 Appellate courts always consider how their

decisions affect public policy and future cases. A winning theme addresses the positive policy

implications of a ruling in the advocate’s favor.

In addition to being a persuasive tool, themes help advocates remember key points and

respond to questions, particularly when advocates are unsure of the answer.^56 Advocates who

(^47) See BRADLEY G. CLARY, SHARON REICH PAULSEN & MICHAEL J. VANSELOW, ADVOCACY ON APPEAL 60-61 (3d ed. 2008)

(discussing the importance of a legally sound theme). (^48) JOHN T. GAUBATZ & TAYLOR MATTIS, THE MOOT COURT BOOK: A STUDENT GUIDE TO APPELLATE ADVOCACY § 4.2, at 86 (3d

ed. 1994). (^49) Id. § 2.5, at 35. (^50) Id. (^51) Id. § 2.5, at 36. (^52) Id. (^53) Id. (^54) Fed. R. Civ. P. 61. (^55) GAUBATZ & MATTIS, supra note 48, § 2.5, at 36. (^56) See Lebovits I, supra note 31, at 5 (“If you have a theme of your case, you will never get stuck answering a

question.”).

return to the theme of the argument will give themselves direction and moot court judges a

sense of the big picture.

Because theme is crucial for a successful oral argument, it is important to develop the

theme while writing the brief. The theme will affect what arguments are included and excluded

and how much weight and emphasis to give those that are included.

57

The theme should flow

throughout the brief, such that the reader will never forget the point of the argument. Although

appellate courts frown on oral arguments not grounded in the brief, judges in most moot court

competitions are not given the briefs (or, if they are, few judges will read them before the oral

argument). Instead, the judges typically rely on a bench memorandum prepared by the moot

court board or bar association hosting the competition. Once an advocate identifies a theme

and its supportive facts and legal arguments, the advocate should outline the argument in a

way that fits within the theme.

Advocates should focus the moot court on the two or three reasons why they should

win and relate those reasons to their theme.^58 Advocates should identify which issues are

necessary to vindicate their argument, which were included in their briefs merely as canned

reasons the judges could use to rule in their favor, and which are simple red herrings─or even

mistakes in the fact pattern. For purposes of oral argument, advocates should choose two or

three of the former and discard the latter.^59 More than two or three reasons will dilute the

argument, diffuse the panel’s attention, cause the advocate to run out of time, and lead to

arguing non-meritorious claims. These two or three reasons will constitute the roadmap, or

outline, of the argument and must be stated early in the oral presentation─in the first forty-

five to sixty seconds of the presentation. Giving judges a roadmap helps advocates structure

the argument and immediately introduces judges to the issues the advocate will address. The

roadmap also allows the advocate to outline the major, relevant reasons to support the

argument. Each prong of the roadmap should function as a heading that crystallizes the

reasoning into a single persuasive sentence. The reasons outlined in the roadmap should be

organized by importance, but threshold procedural or substantive issues, such as standing or

statute of limitations, should go before the merits.

C. Accounting for Standards of Review

As in real appellate advocacy, advocates must know the standards of review applicable

to their arguments. Skillful organization of the substantive issues and an impressive oral

delivery are not enough to win relief for a client. Many real-life appellate courts require

advocates to note in the written brief what standard applies to the issues at hand.^60 The

(^57) GAUBATZ & MATTIS, supra note 48, § 4.2, at 88. (^58) Dimitri, supra note 31, at 81 (noting that advocates have a short amount of time to present their case and

should concentrate on two or three points). (^59) GAUBATZ & MATTIS, supra note 48, § 4.2, at 88. (^60) URSULA BENTELE, EVE CARY & MARY R. FALK, APPELLATE ADVOCACY: PRINCIPLES AND PRACTICE 109 (5th ed. 2012)

standard of review can have a significant impact on what arguments are included in the brief.^61

For most appellate judges, the standard of review is a key concern as the court prepares to hear

a case.^62 Advocates must know the extent of deference, if any, that an appellate court will give

to the initial decision-maker.

63

The appellate court decides questions of law de novo—as if the issue were being

decided for the first time on appeal. On issues of fact, however, the trial court is accorded

significant deference. Only on rare occasions is the appellate court bothered enough by the trial

court’s factual findings to reverse the decision on that basis; the trial court’s findings, under the

federal standard of review, must be clearly erroneous for the appellate court to reject them.^64 A

clearly erroneous factual finding should stand out in the record or fact pattern; if advocates

believe that they have identified an error of fact, they should check the law of their jurisdiction

to see whether the courts have previously identified the error as an error warranting reversal.

65

The difficulty for even the experienced advocate is that many issues are not either purely

questions of law or purely questions of fact but are a mixture of both.^66 Furthermore, the

language some courts use to set the standard of review is ambiguous and inconsistent. Most

moot court competitions focus on issues of law to be decided de novo; rarely will a moot

courter have to challenge a trial court’s findings of fact.

The question of the applicable standard should not be skirted. In some cases, it is an

advocate’s most compelling argument. Even when it is not compelling, advocates must know

the standard because many moot court judges ask about them to test the advocates’

knowledge of legal method or because they do not know what else to ask.

In those competitions that address administrative law, advocates must be aware of

standards of review for particular issues of administrative law and regulation. They should

know the standard of review that courts use to evaluate the decisions of administrative

tribunals, whose decisions are accorded substantial deference. In considering the

constitutionality of administrative regulations under federal law, courts apply the Chevron

standard.^67 Both the substantial-deference standard and the Chevron standard recognize the

significant role administrative tribunals and agencies play in shaping the law. Administrative

agencies spend considerable time implementing and enforcing their own statutes and thus

(^61) Id. 62 ALAN L. DWORSKY, THE LITTLE BOOK ON ORAL ARGUMENT 48 (1991). (^63) Id. (^64) BENTELE ET AL., supra note 60, at 110. (^65) MURRAY & DESANCTIS II, supra note 39, at 291. (^66) BENTELE ET AL., supra note 60, at 110. (^67) An appellate court that reviews an agency’s construction of a statute first investigates whether Congress has

weighed in on the issue at hand. If Congress has not spoken on an agency’s interpretation of a statute it administers, an appellate court cannot impose its own interpretation of the statute. Instead, “the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984).

have more experience than appellate courts in interpreting the statutes.^68 Federal judges, who

“have no constituency” to whom they must answer,^69 should not resolve the public-policy

concerns inherent in administrative statutes.

Motion standards of review and doctrines concerning error preservation also influence

the outcome of appeals. Motion standards of review vary with the type of motion, but one of

the most common in moot court fact patterns is an appeal from a motion court’s decision on a

motion to dismiss for failure to state a cause of action.^70 When judges consider a motion to

dismiss, they assume all facts in the complaint to be true.^71 Similarly, when considering a

summary-judgment motion—another typical platform for moot court competitions—the “mere

existence of some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment.”

72

Summary judgment must be denied,

however, if there is a dispute over material fact.

73

Advocates must also understand the

harmless-error doctrine, which prevents appellate courts from becoming clogged with appeals

in which the trial court erred but in which the results would not have changed had the trial

court ruled correctly. At the federal level, the court must disregard any error at trial that does

not infringe upon the parties’ substantial rights.^74

Advocates should also consider the preservation doctrine. With some notable

exceptions of which advocates must be aware, legal issues raised on appeal must first have

been presented to the trial court.

75

In this way, the trial court can consider the objection, the

opposing party can respond, and the error can be corrected without wasting judicial resources

on an appeal.^76 If the moot court fact pattern contains enough material for advocates to

determine whether the issues were preserved, advocates should cite the fact pattern to prove

that the issues they are arguing were indeed raised before the trial court.^77 Some moot court

fact patterns, however, will explicitly note that “this issue was properly raised at trial and

preserved for appeal.”

78

When the fact pattern does not provide enough facts for advocates to

(^68) Bradley Lipton, Accountability, Deference, and the Skidmore Doctrine , 119 YALE L.J. 2096, 2121 (2010). (^69) See Chevron, 467 U.S. at 866; accord Lipton, supra note 68, at 2122. (^70) See Fed. R. Civ. P. 12(b)(6). (^71) Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). 72 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). (^73) Id. (^74) See Fed. R. Civ. P. 61; Fed. R. Crim. P. 52(a). The degree to which a trial error affected a party’s substantial

rights depends on a variety of factors. For instance, an error that affected a defendant’s constitutional rights might be more harmful than an error that impacted rights guaranteed by statute or common law. See BENTELE ET AL., supra note 60, at 224. (^75) BENTELE ET AL., supra note 60, at 60. (^76) Id. at 61. (^77) MURRAY & DESANCTIS II, supra note 39, at 291. (^78) Id.

determine whether an issue was preserved, they should assume that, for the purposes of moot

court, the issue was properly preserved.^79

D. Studying the Record

Advocates should have a good familiarity with the record from writing the brief. But at

oral argument they must know the record and procedural history of the case intimately. Even

though the moot court might (or might not) know the record well, advocates should have the

best knowledge of the case and be able to cite particular facts of the fact pattern on demand.^80

If judges question advocates on a fact, advocates should be prepared to cite the page on which

the fact appears. This includes memorizing the facts that support the strengths and weaknesses

of an advocate’s case, the opportunities to advance their interests, and the threats to their

case.

81

Intimate knowledge of the record combined with substantial legal authority to support

the argument and a cohesive theme enable advocates to answer almost any question during

oral argument. It also allows advocates to showcase their knowledge of the facts and law to will

impress the judges and lead to high scores. One of the most important goals is to make the

judges aware of facts that the judges might have forgotten or missed when initially reading the

brief or, in the case of a moot court, the fact pattern and bench memorandum.^82 Advocates

who can correctly and confidently refer the judges to the location of specific facts in the record

show that they are well-prepared and knowledgeable.

Advocates also need to be aware of the legal authorities on which their own and their

adversaries’ cases rest. They must be able to explain in detail the cases that support their

position and distinguish cases harmful to their argument. It is critical that an advocate review

an adversary’s brief and identify cases that might be used against the advocate. Relying

exclusively on their own written briefs as preparation for oral argument will not make

advocates sufficiently familiar with the case. Nor will it allow advocates to synthesize the facts

with the relevant case law, including that used by an adversary.

83

E. Preparing Notes for the Argument

Advocates should expound in outline format each issue in the roadmap. Arguments

supporting each issue should cite legal authority and facts from the record. Although the

outline’s level of detail is up to the advocate, the outline should be short, concise, and

(^79) Id. (^80) Vaughan, supra note 45, at 668-69 (“Even if the tribunal knows the law well, it is the advocate who has the

most in-depth knowledge of the case.”). (^81) Id. at 643 (recommending that advocates use the “SWOT analysis” when reviewing the record: identifying

the strengths of a party’s case, the weaknesses of a party’s case, the opportunities to advance the interests of the party, and the threats to the party’s case). (^82) BENTELE ET AL., supra note 60, at 356. (^83) BOARD OF STUDENT ADVISERS OF HARVARD LAW SCHOOL, INTRODUCTION TO ADVOCACY: BRIEFWRITING AND ORAL ARGUMENT

IN MOOT COURT 70 (7th ed. 2002).

uncomplicated.^84 In addition to stating the issues and supporting arguments, it should also

objectively list favorable and unfavorable facts. Within the outline should be mini-outlines of

the principal cases relied on by the advocates, their opponents in their briefs, and the lower

court(s) in the record by listing the cases’ holdings, reasoning, and key facts. In outlining their

argument, advocates should avoid exhaustive discussion of precedents. Advocates may explain

what the holdings are, but they should not elaborate on them unless the bench has questions.

85

Advocates should be prepared not just to recite the facts to the court but to organize them in a

way that supports their case. Advocates should articulate the point they believe the facts

illustrate and not assume that the judges will infer the same meaning the advocate does.^86

Advocates should avoid the temptation to lecture on academic issues of law.

87

Nor should

advocates dwell on well-established principles or detail the history of a legal proposition unless

doing so is necessary to make a concise, comprehensible argument or to show a split in the

courts on a legal question. As they prepare their arguments, advocates should not lose sight of

their theme, the crucial facts of the case, and the relief sought.

In drafting the outline, advocates should evaluate the importance and merits of the

arguments supporting their key issues. Advocates need to identify which supporting arguments

are required to win an issue. Advocates should also identify each issue’s weakest arguments─

about which the court is likely to have questions─and develop responses in advance. As they

did when constructing a theme, advocates need to think about public-policy considerations that

could affect the court’s acceptance or rejection of a particular argument. Advocates should be

aware of how the argument relates to current trends in the law and how the argument would

affect the real-world legal landscape.

88

Advocates should take their adversaries’ arguments

seriously, recognizing that the court will likely question them in reference to those points.

89

The

shrewd advocate will be prepared not only to defend the weak points of an argument but also

to concede an argument or adverse case when necessary. At times, conceding is a better use of

time than defending a dead argument not crucial to victory,^90 and conceding can often help

strengthen the advocate’s credibility with the judges. Conceding may be appropriate, for

example, on a threshold issue such as standing or jurisdiction. But advocates should never

concede an argument required to win,

91

even when the judges seem to want that concession

(^84) See Dimitri, supra note 31, at 85 (suggesting a short and concise outline with bullet points, buzz phrases, or

key words to describe points); but see Vaughan, supra note 45, at 669 (suggesting that advocates not be concerned with an argument’s length at this stage). (^85) SCALIA & GARNER, supra note 36, at 171. (^86) UCLA MOOT COURT HONORS PROGRAM, HANDBOOK OF APPELLATE ADVOCACY 30 (Lawrence Brennan et al. eds., 3d ed.

1993). (^87) GAUBATZ & MATTIS, supra note 48, § 4.2, at 91. (^88) BOARD OF STUDENT ADVISERS OF HARVARD LAW SCHOOL, supra note 83, at 72. (^89) Id. (^90) Id. (^91) MARY BETH BEAZLEY, A PRACTICAL GUIDE TO APPELLATE ADVOCACY 258 (3d ed. 2010).

and even when the advocate has exhausted all alternative points. If that happens, the advocate

should transition quickly to a new point, without ever conceding.

Although there is no single way to prepare for oral argument, advocates should be

aware of some ways to sabotage their own arguments. Some suggest that advocates write out

the entire argument in its totality during the preparation stage. But oral argument is supposed

to be a conversation between the advocate and judges. Appellate and moot courts frown on

the reading of a prepared text during oral argument. Doing so is one of the most serious

mistakes an advocate can make. Attorneys and moot court alumni who advise writing the full

argument (again, while knowing that it cannot be read to the bench) believe that doing so

reveals to the advocates what they do and do not know. It is also a way to identify awkward

transitions between issues and to help advocates structure their arguments effectively.

92

But

most moot court veterans—and the authors of this article—fear that a written argument will be

memorized by an advocate, who (even if the advocate avoids the mistake of reciting it to the

bench) will be unable to respond to unexpected questions smoothly, comprehensively, and

conversationally.^93 For these reasons, a detailed outline of arguments rather than a prepared

narrative is an advocate’s best friend during the preparation phase. Many advocates find it

useful to memorize only their introduction and roadmap. Doing so reduces nervousness by

opening on a confident note and allows the advocate to make eye contact with the judges from

the argument’s onset.

Because each bench is different, advocates should prepare two different outlines.

Advocates must be prepared to speak with a “cold bench” that asks very few questions and to

speak with a “hot bench” that constantly interrupts with questions and comments.^94 Both

versions should be identical through the roadmap, but once the roadmap ends, the versions

should differ in detail, transitions, and case discussions. When dealing with a hot bench, it is

likely that the bench’s questions will force advocates to address points out of order and at the

level of detail the questions elicit. Judges on a hot bench are likely well-versed with the record

and the law and will ask probing questions related to the policy implications of what the

advocate is urging.^95 When dealing with a cold bench, it will be up to the advocate to determine

how much time to spend on each point and how to make natural transitions between points.

Sometimes a bench is cold because it is unfamiliar with the bench memo or brief. In this case,

the advocate must develop the facts thoroughly so the court has a foundation on which to

consider the issues.

At oral argument, advocates may approach the lectern or podium with notes, although

they should use them sparingly, and if they are skilled enough, not at all. As one moot court

(^92) CAROLE C. BERRY, EFFECTIVE APPELLATE ADVOCACY: BRIEF WRITING AND ORAL ARGUMENT § 9.35, at 166 (4th. ed. 2009)

(noting that “[s]ome advocates feel it is best to write the argument in its totality”). (^93) Id. (^94) See SCALIA & GARNER, supra note 36, at 154. (^95) BOARD OF STUDENT ADVISERS OF HARVARD LAW SCHOOL, supra note 83, at 108.

coach explains, “[i]n competition, judges often seem to give credit to teams [that] do not use

notes, so our teams usually work without notes.”^96 If they use notes, the notes should not

include so much detail as to tempt the advocate to read from them or even rely on them.

Outlines should not be in complete sentences; bullet points and headings work well. They can

also be words or phrases that remind the advocate of the nature of the case, key facts, and

roadmap of the issues with important supporting cases.

97

By the time of delivery, most

information, including the cases’ holdings and the courts’ reasoning, will be second nature to

the advocates. But it is useful to have phrases, particularly if the cases use well-known,

recognizable phrases, to jog the memory if nervousness overcomes the advocate. Notes should

be large enough to read without straining the eyes. They should be typed onto paper taped into

the two inside pages on a file folder cut smaller so that it can fit on any small podium or lectern.

A file folder that spills out from a podium or lectern creates a bad impression.

Advocates should anticipate questions that the moot court judges might ask, such as

policy questions that both sides of the problem raise and hypotheticals that test the

consequences of the desired holding, and include point-form responses to them in the

outline.^98 Answering questions from the bench without diverging from the major points an

advocate intends to make is one of moot court’s most demanding challenges.

99

The advocate

should view questions as an opportunity to engage the panel and alleviate any concern a judge

has about the advocate’s argument. Early in the preparation phase, advocates should have

begun imagining every possible judicial question. While reading the briefs, advocates should be

attuned to factual inconsistencies, loose interpretations of the law, and adverse rulings in

similar cases.^100 For national moot court competitions, at which the judges may be prominent

state and federal judges known to the competitors in advance, advocates should, if feasible,

research the judges’ rulings on similar issues. Practicing appellate advocates almost always

research the opinions of the judges before whom they will appear.

101

Moot courters should,

too.

(^96) Ronald J. Rychlak, Effective Appellate Advocacy: Tips from the Teams , 66 MISS. L.J. 527, 537 (1997).

Advocates who speak without notes should brag about it. They should approach the lectern or podium in a way that even obtuse judges will see their lack of notes. They should make the judges see that they are holding nothing (such as notes) by slowly pushing in their chairs with both hands, buttoning their jackets with both hands, beginning their opening making strong eye-contact (which shows that the speaker is not reading), and showing the judges their hands by gesturing with palms upward. (^97) EDWARD D. RE & JOSEPH R. RE, BRIEF WRITING AND ORAL ARGUMENT 152 (2005). (^98) See Henry D. Gabriel, Preparation and Delivery of Oral Argument in Appellate Courts , 22 AM. J. TRIAL. ADVOC.

571, 578 (1999) (explaining that advocates should anticipate questions like “[s]tate the rule of law as you would have us make it”); see generally Kritchevsky, supra note 29, at 57 (encouraging moot court judges to prepare policy questions and hypotheticals to test the arguments). (^99) BOARD OF STUDENT ADVISERS OF HARVARD LAW SCHOOL, supra note 83, at 81. (^100) UCLA MOOT COURT HONORS PROGRAM, supra note 86, at 19. (^101) BENTELE ET AL., supra note 60, at 358.

Without attempting to memorize canned responses to questions, and in a way that will

not lead to a robotic delivery, advocates should consider how to make their responses fit into

the thrust of the overall argument. Once the theme has been identified and the argument has

been outlined, advocates are ready to begin developing and practicing the full argument. By

creating an outline in this manner and then studying it, advocates are ready to practice their

oral arguments.

III. PRACTICE

The most valuable part of preparing for oral argument, real and moot, is completing

practice rounds, 102 a process called mooting, although some call the entire process, including

the real round, mooting. Practice connects the initial stages of preparation—developing a

theme and creating an outline—with delivering a cohesive, smooth, and fluid argument. Ideally,

the mooting process should begin before the brief is submitted. Doing so will (1) improve the

quality of the written arguments by helping advocates identify where they must clarify the

presentation of their issues and sharpen their arguments and (2) jump-start advocates’ oral-

advocacy skills.

Whether before or after the brief is submitted, advocates should moot as early and as

often as possible with as many different judges as possible. Constant mooting allows advocates

to master the substance of their arguments and become comfortable delivering their points.

Arguing in front of different people with various levels of knowledge and experiences enables

advocates to anticipate the questions that the judges might ask during the competition,^103 to

discover issues that have not occurred to them, and to see the flaws in their responses to issues

of which they are aware.^104 Ideally, practice-rounds should include not only teammates,

student and alumni coaches, faculty advisors, and members of the moot court organization at

the advocate’s law school, but also judges, professors, practitioners, and anyone else who

might have some insight on the substantive law or proper style for delivering a moot court oral

argument. Attorneys are often better moot court judges during practice rounds than real

judges because they are less willing to listen and more likely to press advocates with hard

questions.^105 Advocates should argue before as many different judges as possible so that they

may hear every possible question. If possible, advocates should arrange for a high school

(^102) SCALIA & GARNER, supra note 36, at 158 (“No preparation for oral argument is as valuable as a moot court...

.”). (^103) See Michael Vitiello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach , 75 MISS. L.J.

869, 890 (2006) (noting that “through preparation counsel should be able to anticipate most questions and have thoughtful answers” during the competition) [hereinafter Vitiello II]. (^104) See SCALIA & GARNER, supra note 36, at 158. (^105) MURRAY & DESANCTIS II, supra note 39, at 263-64; John G. Roberts, Jr., Thoughts on Presenting an Effective

Oral Argument , [1997] SCH. L. IN REV. 7-1 (“Be particularly skeptical of advice on how to argue an appeal from appellate judges.... Judges have no interest in the court[‘s] reaching a ‘wrong’ result, but fifty percent of clients do.”); contra Randall T. Shepard, The Special Professional Challenges of Appellate Judging , 35 IND. L. REV. 381, 391 (2002) (arguing that real judges are often more aggressive in moot court than in actual oral argument).

student, friend, or family member—anyone unfamiliar with the law—to hear a practice round.

If they understand the arguments, so will the judges in a moot court round.

When a moot court team practices, the coach and faculty advisor ─the better

intermural teams have both, and, if lucky, a shadow team and an alumni advisor as

well─should write down the questions to ensure that the advocates further research them

after the practice round. Coaches should encourage moot courters to look at videotaped final

rounds from past competitions. Depending on the competition, the videos might be available

online or available for purchase. Coaches should also encourage advocates to videotape their

practice rounds and use the footage to spot weaknesses in their delivery and distracting

posture and body-language.

106

For substantive issues, advocates should have their coaches and

faculty advisors contact expert law professors and practitioners in the field through alumni

networks.^107 Advocates should try to find practice-round judges who are unsympathetic to their

positions and who will encourage them to develop challenging hypotheticals and questions.^108

Many practicing litigators are hostile, combative, and aggressive—and that is exactly what the

advocate needs at this phase. An advocate who can survive a tough practice round will survive

a moot court competition round. The coach should give the practice-round judges the best

competition briefs other than the team’s own brief to use as aids during questioning. The judge

can use a petitioner/appellant brief to question respondent/appellee and vice versa. Advocates

should also argue their adversaries’ positions during practice to identify weak arguments that

could be exploited.^109 This is done as a matter of course in moot court competitions, in which

advocates must argue off-brief.

Practice rounds should be as real as possible. Advocates should follow court decorum,

stay in character, wait until the round ends to ask the judges questions about their

performance and how to answer questions, and speak to the mock judges as if they are real

moot court judges. Practicing in the room where the oral arguments will take place could be a

confidence boost to the advocate, although this might not be feasible if a competition is out-of-

town. At an out-of-town competition, if possible, advocates should scope out the moot court

room where they will argue, test the acoustics, and make sure their notes fit on the podium or

lectern, if there is one at the competition.

(^106) Noting that “[v]ideotapes are ruthlessly honest,” three authors recommend “videotaping a practice

argument” to get speakers to stop “fiddling with hair; waving glasses around; sucking on the bow of one’s glasses; rubbing the back of one’s neck or chin [; and the tendency... to put... hands in pockets and jingle... change or keys.” CLARY ET AL., supra note 47 at 127. (^107) If the competition has a criminal-law issue, for example, the advocate should consider asking an assistant

district attorney or criminal-defense lawyer to do practice rounds. It might even help to ask law-enforcement officials to do practice rounds to provide a perspective on how the substantive issues might arise in the real world. (^108) SCALIA & GARNER, supra note 36, at 158. (^109) GAUBATZ & MATTIS, supra note 48, § 4.4, at 108.

Advocates who are nervous should jog in place during their practice deliveries to

accustom themselves to a high heart rate. Lowering a heart rate by running in place will not

work for everyone, but it will work better than taking a shot of vodka before a round, a crutch

of which we wholly disapprove. Although many of us are too afraid of public speaking to

succeed at moot court, nervousness for the rest of us should decrease with practice and with

the confidence of knowing that the advocate will know more about the facts and law of the

case than the judges by the time the competition starts.

Wherever they practice, advocates should practice with both hot and cold benches to

prepare themselves for hot and cold rounds. Advocates should practice standing close to and

far from the judges to practice projecting their voices. It is important to practice within a

competition’s time limits, but it is also beneficial to hold some untimed practice rounds.

Untimed practices allow advocates to hear as many questions as a bench has, to be questioned

on every part of their argument, and to receive feedback on their entire argument. Essential to

the process, too, is that advocates practice without notes to prevent over-reliance on them. As

advocates practice and refine their arguments, their points and responses will become clean,

clear, and precise. In an early practice round, it might take several minutes of speaking and

responding to questions before advocates convey the holding they want. After more practice

rounds, advocates will be able to state the desired holding clearly, without hesitation, and

quickly.

Advocates will also improve their ability to ask for relief succinctly by serving as judges

in their colleagues’ practice rounds; advocates thus come to appreciate what a judge wants and

can structure their responses to questions accordingly.^110 Advocates should listen carefully to

the feedback they receive from practice-round judges. Oftentimes, advocates will hear the

same critiques, which will enable advocates to rectify the persistent problems in their

presentations. By the final practice, advocates should be able to answer questions and

hypotheticals concisely, defend their answers confidently and without evasion, and transition

back to their points efficiently. Advocates who have completed practice rounds will also be

more likely to be in the moment during the competition—and avoid the flustered forgetfulness

one sometimes sees in competitors, in which they can forget for a few seconds even which side

they represent.

IV. DELIVERY

Thus far, advocates have been preparing to deliver a persuasive argument to the moot

court on substantive legal issues. After weeks of writing and oral argument practice, advocates

are well-versed on the legal issues and the record and are ready to deliver a persuasive legal

argument. But because a moot court tournament is a competition in which advocates are

graded on both the substance of the arguments they make and on their presentations of their

arguments, advocates are under a microscope from the moment the moot court judges enter

(^110) Id. § 4.4, at 108-09.

the room. Every movement and word has the potential to make a positive or negative

impression on the moot court judges.

To deliver a winning oral argument, advocates must strive to connect with their judges

positively. In other words, the judges must like the advocates. Although there is no formula to

being liked by a judge, the best practice is to behave and speak in a way that shows that the

advocate likes the judge. If the advocate succeeds in doing so, the judge in return will like the

advocate back, and will show it with a high score. Such is human nature: You like people if they

like you. To make a judge like an advocate, the advocate should dress appropriately, act

professionally, have good manners, 111 make eye contact, be passionate about the case, speak

slowly, smile charismatically from time to time, and engage in respectful yet engaging

conversation with the judges.

A. First Impressions

Because the judges will see the advocates before they hear them, advocates should

make strong first impressions by appearing ready for an intellectual and friendly conversation.

Advocates can do this by dressing well,^112 wearing dark, conservative colors and avoiding fancy,

heavy, or loose jewelry and other accoutrements that could distract the court or clang or the

lectern or podium. Advocates should wear their hair short,

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be neatly groomed, and carry

themselves in a way that conveys dignity and respect for the court. When the judges enter the

room, whether or not the clerk or bailiff begins with a few knocks on the door and an oyez,

advocates should rise from their respective counsel tables with jackets buttoned^114 and remain

standing until the chief justice/judge, clerk, or bailiff indicate they may sit down. When the

bailiff calls the case, the bailiff or judges might ask whether the advocates are ready to proceed.

All team members should stand and reply together and at the same time in the affirmative.^115 If

the court addresses the advocates in some other fashion or by some other inquiry, either

individually or as a team, advocates should always stand when the court addresses them.

If advocating for the petitioner/appellant, the first advocate to speak should

immediately approach the podium or lectern as the others take their seats. If advocating for the

(^111) Vaughan, supra note 45, at 669 (discussing the importance of treating the proceedings, panel, and

opposing counsel with respect) (citing GAUBATZ & MATTIS, supra note 48, § 4.3, 101-03). (^112) The advocate’s attire can directly affect success in a moot court round. See, e.g. , Dimitri, supra note 31, at

102 (stating that advocates should err on the side of caution by dressing in a dark, conservative business clothes and avoiding “provocative ties, shirts, blouses, and shoes”); Barger, supra note 42, at 16 (arguing that clothing and jewelry that attract the court’s attention is unhelpful in winning a moot court round). Conservative dress is ideal. It reflects a reverence for the court and will not distract the judges during the argument. (^113) Michael J. Higdon, Oral Argument and Impression Management: Harnessing the Power of Nonverbal

Persuasion for a Judicial Audience , 57 U. KAN L. REV. 631, 660 (2009) (“[A]ttorneys should be mindful that that speakers with short hair, regardless of gender, are generally perceived as more credible.”). Professor Higdon’s article is a must-read for all who care about oral advocacy. (^114) Suit jackets should always be buttoned when standing. (^115) Advocates are assessed not only on what they say but on how they say it. They should avoid informalisms

(“yeah”) and dialect (“ain’t”). SCALIA & GARNER, supra note 36, at 144.

respondent/appellee, the advocate should proceed to the podium as the second speaker for

the petitioner/appellant approaches his or her seat. Advocates must approach the podium or

lectern in a brisk but unhurried manner.^116 If necessary, advocates should adjust the lectern or

microphone, if there is one, before they begin to speak. They should stand erect with both feet

on the ground, usually about shoulder length apart. If height allows them to do so comfortably,

they should rest their hands on the lectern or podium. Advocates’ hands should not be in their

pockets. Once at the lectern podium, the advocate should await the chief justice’s or judge’s

instructions, or at least a nod, to begin the argument.^117 After getting the chief justice/judge’s

signal to begin, the advocate should pause briefly and, while pausing, make eye contact with all

the judges. Then, with a warm smile, the advocate should begin.

B. Professional Behavior and Good Manners

Moot court advocates are judged not only on how they address the court and how they

present themselves, but also on how they respond to opposing counsel. Good advocates treat

the bench and their adversaries with respect and dignity. Advocates must remain professional

during oral argument, even when the argument does not go as anticipated. They should not

raise controversy unnecessarily by including frivolous arguments. Advocates will lose points if

they personally attack or embarrass their moot court adversaries or even personalize the

argument by referring to their adversaries by name, even if with a title. Advocates should refer

to the opposing party instead of to their counsel ( e.g. , “respondent” rather than “respondent’s

counsel” or, worse, “my opponent”). Advocates should maintain a dignified and respectful

appearance while sitting, keeping still and silent while their co-counsel and adversaries speak.

They should not distract the bench or opposing counsel by excessively passing notes, reacting

negatively to opposing counsel’s argument ( e.g. , shaking head, rolling eyes, smiling derisively),

or sorting through papers.

118

While their adversary is speaking, opposing counsel should sit

upright and listen attentively to the argument, looking only at the speaker or the bench

119

and

never at the audience, lest anyone think that they are seeking a clue from someone in the

audience about whether to rebut. Their hands should be folded on the table or in their lap.

Advocates should write notes only to the extent necessary to prepare for a rebuttal.

Advocates should hydrate before they step up to the lectern or podium, but they may

bring water if they think they will get thirsty or need hydration to relieve a parched mouth, and

then drink only when they are asked a question so as not to interrupt the flow of their

(^116) Id. at 164. (^117) Advocates might be expressly told to begin, or they might get something as simple as a head nod or a smile

to indicate they should begin. (^118) SCALIA & GARNER, supra note 36, at 162. (^119) See Brian Wice, Oral Argument in Criminal Cases: 10 Tips for Winning the Moot Court Round , 69 TEX. B.J.

224, 227 (2006) (“It is considered intemperate to engage in whispering at counsel table while your opponent is arguing or to display any facial expressions calculated to show your contempt for or disbelief of your opponent’s remarks or the court’s questions.”).

argument. Nervous advocates should avoid water altogether while they argue, lest they spill

some on themselves during the round.

When the round has concluded and the judges have completed their decision or

evaluation/comments,

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advocates should congratulate their adversaries on their performance

and shake their hands. Advocates should also greet the judges, shake hands with them, and

thank them for serve as moot court judges. Advocates should not tell the judges which school

they are from unless they are overwhelmingly certain ─a rare occurrence until after the final

round─that it is permissible and honest to do so. Although these post-argument pleasantries

will not affect the scoring, they show professionalism and courtesy. In many competitions,

judges return from year-to-year and even judge later rounds in the same competition. It is

important that the judges remember advocates as professional and courteous. Advocates

should respond even to scathing critiques from judges with attentiveness and openness.

Professionalism reflects not only on the advocate but also on the school the advocate

represents.

C. Style

Another element of persuasion is style. Style involves body language, facial gestures,

speech inflections, pace, and eye contact. The effect of style on an advocate’s persuasiveness

begins before the formal argument begins. For example, after the advocates have taken their

seats at their respective tables^121 and the bailiff has called the court to order with the standard

moot court oyez opening, the petitioner/appellant should stand up, push in the chair, and

button the suit jacket while confidently approaching the lectern or podium. Although the

advocate has not spoken yet, the judges have likely begun their evaluation of the advocate, and

by implication the advocate’s argument, based on the advocate’s non-verbal conduct.

At the lectern or podium, advocates should have straight posture. Advocates should not

move their feet, sway, or shimmy while speaking or resting their weight on the podium.

Advocates should keep with both feet straight and even on the ground. Their feet should be

even with their shoulders. Advocates whose bodies sway, however, should place their feet

should be a few inches wider than their shoulders. Advocates should be aware of their body

(^120) Once the round is over, advocates should feel free to ask the judges questions in response to their

comments, but they should limit their questions to those that will elicit constructive criticism. Advocates should not make a judge feel defensive or argue with a judge’s comments or criticisms. (^121) When facing the bench, the petitioner/appellant sits at the table on the left, and the respondent/appellee

sits at the table on the right. The first speaker on each team ─petitioner/appellant I and respondent/appellee

I ─sits closest to the podium. The correct style, although one not calculated to keep the arguments and counter- arguments simple, is for the entire petitioner/appellant team to speak before the respondent/appellee team speaks. The logical, but incorrect, style is for the advocates to speak in the order of the moot court issue, with the petitioner/appellant I going first; then the respondent/appellee I; then the petitioner/appellant II; and finally the respondent/appellee II. Although that is the default format, advocates should what the host or judges want them to do and, as in all forms of successful advocacy, be flexible.