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Moot Court Coaching

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Appellate Advocacy Coaching Packet

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PDF version

I. I

The moot court competition is the equivalent of an appeal being heard before an appellate

court such as the Fifth Circuit or United States Supreme Court.

II. P

In moot court, there are two sides which go by different names depending upon the court

that is hearing the appeal.

Example:

Party Name Party Name

U.S. Supreme Court Petitioner Respondent

TX Court of Criminal Appeals Appellant Appellee

U.S. Court of Appeals Petitioner Respondent

The Petitioner/ Appellant is the party bringing the appeal. The Respondent/ Appellee is

the party that is responding to the appeal–sometimes this party is called the government.

III. P

/ R

Step One: Identify the issues.

Moot Court consists of two issues or questions presented. Most often the problem

will easily identify the issues for you. The issues should be divided between

Speaker One and Speaker Two.

Step Two: RESEARCH!

Thoroughly research the issues presented. If you are competing on a “closed

problem”, all the cases you are permitted to research will be listed at the end of

the problem. KNOW ALL OF THESE CASES. If you are competing on an

“open problem”, it will be up tp you and your partner to identify the important

and relevant cases or authorities.

Step Three: Outline Your Argument.

Before you even prepare your oral argument, outline a rough argument using your

research. The goal of moot court is to present a clear, persuasive argument for the

issue presented.

Step Four: Prepare an Oral Argument

Draft an oral argument. After you’ve researched and discovered the relevant

authorities, prepare an oral argument on paper.

Tips:

•

DO NOT type out every word you plan to use. (This competition is

not about reading off a sheet of paper or memorizing a speech.)

•

Use key words or phrases in an outline format. Use things that will

jog your memory to an idea.

•

Create a framework or roadmap for your argument. This will keep

you on point.

IV. O

A

1. Before Oral Argument:

a). Moving party sits on the left & responding party sits on the right (when you

are facing the judges.

b). Rise when the judge enters the courtroom and remain standing until she asks

you to make your announcements. Announcements should go as follows:

Chief Justice: The Court will now hear Jones v. Day. Will the parties

announce their appearances?

Appellant/Petitioner: Johnny Depp and Orlando Bloom representing the

appellant/petitioner.

Appellee/ Respondent: Victoria Beckham and Katie Holmes for the

respondent/ appellee.

2. Oral Argument: (Appellant/Petitioner always speaks first).

a). Speaker Order:

i. Appellant Speaker 1 (address Issue 1)

ii. Appellant Speaker 2 (address Issue 2)

iii. Appellee Speaker 1 (address Issue 1)

iv. Appellee Speaker 2 (address Issue 2)

v. Rebuttal–a speaker for the Appellant will BRIEFLY address/ rebutt

Issues 1 & 2.

b). Introduction: “May it please the court. My name is ___________. My

co-counsel is ____________. Together we represent the Appellant or Appellee

_________. Of the two issues before the court, I will address the first

issue______________, while my co-counsel will address the second issue of

whether___________________.

c). Give the Facts: Only the FIRST speaker for each side will need to give a brief

version of the facts. NEVER, NEVER ask the court if they want to hear

the facts. ALWAYS assume that they do if you are the first speaker for

your team.

d).Roadmap:

After the introduction and facts (if necessary), give the roadmap to your

argument.

“There are 3 reasons this court should reverse/affirm the judgment

of the Fifth Circuit. First, _______________. Second,

______________________. Finally, ____________.”

NOTE: The roadmap should include your main headings. Your argument will

work best if you divide it–like an outline–into 3 parts, each with a heading. These

are the “reasons” that you are giving the court to decide for you early on before

jumping into your argument.

e). Present your argument. Be prepared to answer judges questions, but try to

follow the roadmap that your presented at the beginning of your argument.

f). Answering Questions:

•

Front-load questions where possible. Example: “Yes, your honor

because....”

•

Use authority wherever possible in your answers. “No, your honor.

As this court pointed out in Smith v. Smith...”

•

ALWAYS answer a judges question. NEVER say, “I will address that

later in my argument.” If the judge points you to any area of your

argument, go with it.

g). Conclusion:

•

Tell the court exactly what you want it to do when you conclude.

Example: “For these reasons, this court should reverse the

judgment of the lower court and render a judgment of acquittal.”

•

NEVER, NEVER, NEVER use the word “pray” in your conclusion.

Do not say, “We pray that this court...” Just don’t do it. Never ask if

you may “briefly pray.” (Only the Fifth Circuit still recognizes this

type of conclusion.)

h). Rebuttal:

- Pick one or two points that the respondent addressed and rebut them.

- Tell the court why the respondent is wrong on those few points.

- DO NOT try to address their entire argument or go through your entire

argument again.

- Request your relief again.

V. T

a). Cite the record and case law as much as possible.

b). KNOW the record and all relevant case law.

c). DO NOT bring cases up to the lecturn to reference and flip through.

d). Take as few papers to the lecturn as possible. The fewer the better.

e). Make a list of cases if you think you will forget one.

f). Maintain EYE CONTACT with all the judges.

g). Think. When asked a question, it is ok to think for a moment about your response.

h). DO NOT use statements such as “I believe.” “I think.” “I feel.”

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TIPS FOR BECOMING A BETTER APPELLATE ADVOCATE—

ORAL ARGUMENT

By Donald Capparella and Amy J. Farrar*

I. DOES ORAL ARGUMENT REALLY MATTER?

Can you change a judge's mind at oral argument? If you are committed to

doing

one, the only attitude to take is that you can; any other assumption is both

risky and

counterproductive. One writer stated that "oral arguments are as useless

today as the

judges during my clerkship considered them….Oral arguments have become

little more

than a moot court exercise….At the end of the day, you may have picked up

points for

style, but you have still lost your case."

It should be noted that this was

written by

someone who represents criminal defendants in Texas. This kind of advice

does you no

good when you are standing up there and looking an appellate court panel in

the eye.

If the question is what percentage of the time is a judge's mind changed by

oral

argument, the answer seems to vary widely depending on the judge who is

asked. One

self-imposed poll of three 8

Circuit judges tracked their cases over a ten

month period

and found that their minds were changed 31%, 17% and 13% of the time

respectively.

This was after they had all read the briefs and reached a tentative conclusion

prior to oral

argument.

Another judge of the Illinois Court of Appeals met with sixteen of his

colleagues

and asked the following questions: (1) What percentage of those cases did

the oral

argument affect your decision concerning the outcome of the case? The

answers ranged

from 0% to 100%; (2) In those cases where your decision was somehow

affected, did the

oral argument cause you to change your mind about the way an issue in the

case should

be decided? One judge again said 0%, two judges 20%, and the rest were in

between.

My personal unscientific polling of certain members of the Tennessee Court

of

Appeals and Tennessee Supreme Court have stated that oral argument is

very important

to them. They have typically said that in as many as 20-25% of the cases

that oral

argument had a substantial impact on their decision-making process. They

do not agree

with the old saw that you cannot win a case on oral argument, but you can

surely lose it.

You can win a case on oral argument. You can also lose one. You can also

have no

impact whatsoever.

There is no question that the brief is by far the most important part of your

appeal.

One writer has suggested that an oral argument is like sales. It is a chance to

close a deal

with a buyer--the Court. Unfortunately, your competitor has also been

invited. The basic

sales pitch has been made with your brief. The oral argument gives you a

chance to

ascertain what more it will take to sell your position and close the deal.

II. A BAKER’S DOZEN: THIRTEEN THINGS YOU SHOULD BE PREPARED

FOR IN ORAL ARGUMENT

1. Be prepared for questions.

The phrase "oral argument" is a misnomer; it is not an argument, it is a

discussion. At its best, oral argument is a conversation. The court needs to

make a

decision, and they want your help. Do not attempt to create a dramatic

flourish or parade

around as a great orator. It is your understanding and knowledge of the case

that they are

after.

You should see yourself as an invaluable resource to the judges; you are

there to

help them. You should think of oral argument as if they have asked you to

come answer

their questions and resolve their concerns. A judge that is on your side will

often use you

to convince another judge who is on the fence. It is important to also realize

that they

are, in most cases, right on the brink of a decision. Appellate judges very

often leave the

bench to go vote on your case. Oral argument is your last chance to affect

their decisionmaking

process.

2. Know the law.

If you think of yourself as a resource, you can tell them why a particular case

is

distinguishable or why it is controlling; you can synthesize the law. Know the

statutory

scheme and what problem it was trying to address and the underlying policy

reasons

behind its passage. Try to be an intellectual peer of the judges.

3. Be prepared to concede points that hurt you.

Be ready to quickly turn weak points around to show that, despite the

problem

with your case, you still win. Remember, if you are on appeal, and you are

the appellant,

you have already lost once. There has to be a reason you lost, and you

cannot just blame

the trial judge or the jury. Be prepared for questions that ask you to concede

something,

earn credibility by admitting the concession, and be prepared to point out

something in

the case that cancels out the negative point, or makes it irrelevant. If you are

the appellee

and there was an error below, better to admit to it and show that it was

harmless.

4. Know your standards of review.

Standards of review are critical in oral argument. First, the standard of

review

will tell you which arguments on appeal are likely to be the subject of the

oral argument.

The issues on appeal may be very different than those that were the hardest

fought at

trial, and the reasons will likely be the standard of review. If you are

appealing a jury

trial, and there was a hard-fought factual issue, (e.g., who ran the red light),

that will not

be an important issue on appeal because the standard of review is the

material evidence

On the other hand, if one of your issues is a legal one, the standard of review

is de

novo. I have won caes where the court of appeals applies the abuse of

discretion

standard, but I was not expecting to win. Knowing the standard of review for

each issue

helps you focus on the decision-making process of the Court of Appeals, and

will make

you better prepared for their areas of inquiry.

5. Be prepared to listen.

Aside from engaging in a discussion with you directly, appellate judges are

also

engaging in a discussion with each other through you. Listen, and read the

judge's

questions and body language. Listening to the judges is just as important to

the appellee

as to the appellant. The appellee should pay special attention to the judge's

reaction to

appellant's arguments.

6. Have a theme that ties the parts of your case together.

The first five minutes (maybe the first 2 minutes) of your oral argument are

the

most important. This is true for both the appellant and the appellee. The

most dramatic

moment in an appellate argument is when the appellee rises to respond to

the appellant's

argument. If you are the appellee, do not be locked into your argument. Be

prepared to

tee off on something the appellant argued, or on something a judge said in

response to his

or her argument. The first few minutes of your time is when you have the

judges’ highest

level of attention. If you go over the facts or do background at that point, you

will lose

the court.

7. Do a mock oral argument.

This gives you a chance to "practice" law. Find one, two or three colleagues,

make them read the briefs, and sit there for fifteen minutes (or more) and

have them ask

you questions. It will raise your confidence level immensely. It will also

prepare you to

answer the tough questions in a more prepared way. Tape yourself if you

dare. If you do

not do a mock argument, pretend you are the judge and anticipate the

questions that they

would ask; practice answering them on your feet and out loud. We sound

better in our

heads than we sound out loud.

8. Think about your demeanor.

I think it helps to smile (appropriately). Show no fear of their inquiry. Try to

be

thoughtful when they ask a question. Do not be afraid to stand there and

think for a little

bit before answering a question; be wide open, show no defensiveness. Eye

contact with

the entire panel is important.

9. Do an outline of your argument.

Make sure your argument outline fits on one page; it is there to trigger your

memory about the structure of your argument should amnesia or nerves hit

you. One

writer said you must be thorough and flexible. I think you cannot be flexible

unless you

are thorough. An outline helps you get back on track if you are asked a lot of

questions.

For example, create prepared concise statements on: (1) the procedural

posture of case;

(e.g., "This is an appeal of the trial court's grant of summary judgment on

statute of

limitations grounds." or "This is an appeal of a jury verdict where the plaintiff

was

awarded damages in the amount $150,000 for medical malpractice."); (2)

each issue in

the case; Use simplified language, do not remain wedded to the issues as

stated in the

brief. (3) the critical facts of the case.

10. Know what you want.

Be prepared for the court to ask you the following questions: If you could

craft

the rule that you want this court to adopt, what would it be? Is there a

compromise rule

that will satisfy you? What are the underlying policy grounds and good sense

that

support the result you want? Why is it good for others than just your client?

11. Keep rebuttal brief and to the point.

There should be no more than three points for rebuttal, and it should always

come

from discussion during appellee's argument, not a repeat of what you said in

your

argument. Save no more than three minutes for rebuttal; be prepared not to

use it.

In rare cases, demonstrative exhibits are helpful. I try and imbed them in my

brief, e.g. a key letter or timeline that is quoted. I then ask the court to look

at the

language with me together. Do not use a demonstrative exhibit as a crutch;

only use it if

it really helps. If a case turns on some language, a statute, or a letter some

people think it

is helpful blow up the language so it can be in front of everyone while it is

discussed. Be

careful to make it big enough! Some judges have poor eyesight.

13. Make certain the law you cite is current.

Read slip opinions (TAM) before oral argument. Shepardize your cases to

make

sure they are still good law

III. TEN THINGS YOU SHOULD NOT DO IN ORAL ARGUMENT

1. Do not be a lifeless lawyer who parrots a mediocre brief. You must not be

boring--do not read your brief or simply repeat yourself; sound like you care.

2. Don't argue your weak issues; if they have to be in the brief at all, don't

raise

them yourself.

3. Do not miscite the record or authority, and if your opponent does, point it

out

respectfully (and you better be right!).

4. When you are asked a question, never say "I will get to that in a minute."

Answer questions directly, completely and immediately.

5. Don't make jury arguments, make subtle appeals to emotion. Judges are

human, and want to do the right thing as they interpret it. Find out what is

right in their world and restate your position to fit.

6. All you have is your credibility, you must live to fight another day, so

always

be credible with your positions and citations.

7. Don't rush. Keep your poise, go with all deliberate speed.

8. Wear proper attire!!

9. Don't guess. If they ask you a question you really can't answer, admit it.

Try

and make sure this does not happen by knowing every question they might

answer. If necessary, offer to write a supplemental brief if it would help the

Court.

10. Don't introduce your client to the court.

*Donald Capparella has been an attorney of record in over sixty appeals in

both

federal and state court. He also teaches Legal Writing at the Nashville School

of

Law, and is current Chair of the Nashville Bar Association’s Appellate Practice

Committee. Donald handles all types of civil cases at the trial level, and

appeals

in both civil and criminal law. He also consults with other lawyers at the trial

level when significant or difficult issues arise.

Amy J. Farrar is an attorney with Dodson, Parker & Behm, P.C., focusing her

practice on Appellate Advocacy and Civil Litigation. She served as a law clerk

to

the Honorable Cornelia A. Clark, of the Tennessee Supreme Court, and

serves as

the Vice-Chair for the Nashville Bar Association’s Appellate Practice

Committee.

i

Other sources for this article include:

Hon. Joseph W. Hatchett, Robert J. Telfer, III, The Importance of Appellate

Oral

Argument, 33 Stetson L. Rev. 139 (Fall 2003).

Oral Argument: Does It Matter? 35 Ind. L. Rev. 451 (2002).

How to litigate successfully in the United States Court of Appeals for the

Eleventh

Circuit? 29 Cumb. L. Rev. 1 (1998).

ii

Hon. Joseph W. Hatchett, Robert J. Telfer, III, The Importance of Appellate

Oral

Argument, 33 Stetson L. Rev. 139 (Fall 2003).

Performing Your First Appellate Oral Argument

Oral arguments can be one of the most anxiety-producing,

challenging, and at the same time, fun, experience for law

students and

litigators. Many students who initially fear this experience walk

away with

exhilaration because of the intensity of the intellectual challenge.

Although

an oral argument consists of the advocate standing up in front of

a panel of

judges and talking, it is quite different from your typical “public

speech.” A

student who may think that he or she hates to speak in public will

realize that

the ultimate success of an appellate advocate depends much

more on

understanding the law and facts of one’s case, anticipating and

addressing

questions from the court, and developing a coherent theme for

one’s case.

Therefore, do not fret if you do not think of yourself as a “good

public

speaker” because effective oral advocacy can be achieved by

preparation

focused on areas other than pure speaking ability.

This article will provide many pointers in how to achieve success

in

your oral argument, by walking you through preparing for the

argument,

explaining what happens at oral argument, and warning of

potential pitfalls.

1 Judge E. Barrett Prettyman gives the following advice for success in appellate advocacy: “The answer is

quite simple. It is: By work…. There is not other road to success at the law. Work. More work. Then

more work.” E. Barrett Prettyman, Some Observations Concerning Appellate Advocacy, 39 Va. L. Rev.

285, 301 (1953).

2

A) Importance of Oral Argument

Oral arguments at the appellate level have undergone many

changes

since the original arguments at the U.S. Supreme Court. For

example, before

1849, the Supreme Court did not limit the length of oral

argument. Daniel

Webster, Luther Martin, and their colleagues are said to have

argued for six

days in McCullough v. Maryland.

The importance of oral

arguments during

that time period was further emphasized because up until 1821,

the Supreme

Court did not even require written briefs.

Although the written appellate brief has much more prominence

in

presenting facts and legal issues to a court in current appeals

than it did in

the days of Daniel Webster,

the oral argument serves to clarify

issues that

are troublesome to the court. Chief Justice William Rehnquist

reminds

lawyers that in the appellate system, the oral argument “is the

only

opportunity that you will have to confront face to face the …

Court who will

ponder and decide your case. The opportunity to convince [the

Court] of the

merits of your position is at its highpoint….”

Justice Ginsburg

explains that

2 Nancy Winkelman, Just a Brief Writer, 29 NO. 4 Litigation 50, 51 (Summer 2003). 3 Id.

4 According to records kept by the Administrative Office of the United States Courts, for the 12-month

period ending September 30, 2002, 67.1 percent of appeals that were terminated on the merits in the 12

circuit courts of appeals were decided on the briefs alone, without oral argument. See id. at 51; see also

Henry Gabriel and Sidney Powell, Federal Appellate Practice Guide: Fifth Circuit 7-1 (5th ed. 1998) citing

Judicial Workload Statistics, United States Court of Appeals for the Fifth Circuit, Clerk’s Annual Report

(1996) (In 1996, the United States Court of Appeals for the Fifth Circuit granted oral argument in only 28

percent of the cases.)

5 Chief Justice William Rehnquist, Oral Advocacy, 27 S. Tex. L. Rev. 289, 303 (1986).

3

“several potential winners become losers in whole or in part

because of

clarification elicited at argument.”

According to Judges Myron

Bright and

Richard Arnold of the United States Court of Appeals for the

Eighth Circuit,

oral argument was “helpful” in decided cases about eighty

percent of the

time, in terms of assisting with the framing of the issues and

clarification of

reasoning.

Judge Bright said that the oral argument actually

mind in thirty-one percent of the cases, and Judge Arnold said it

did in

seventeen percent.

So “while various estimates suggest that oral

argument

influences the decision in far fewer than half of all cases, judges

agree that

oral arguments influence them in a significant number of cases.”

B) Preparation for the Oral Argument

In the days and weeks leading up to the first oral argument of

your

law school career, you may think about or hear some of the

following:

“So how are we supposed to prepare for this oral argument”?

“How do I deal with being so nervous”?

“I hate speaking in public. I will never be a good lawyer.”

First of all, to debunk a few myths:

6 Ginsburg, Remarks on Appellate Advocacy, 50 S.C. Law R. 567 at 570.

7 Myron H. Bright & Richard S. Arnold, Oral Argument? It May Be Crucial!, 70 A.B.A. . J. 68, Sept.

1984. 8 Id. at 70

9 Michael Fontham, Micahel Vitiello, and David W. Miller, Persuasive Written and Oral

Advocacy in Trail

and Appellate Courts, p. 154 (2002)

4

You CAN prepare for this experience and you WILL get better

with preparation and practice.

EVERYONE is nervous. Nobody can tell that you are more or

less

nervous than the person who went before or after you. And there

are

ways to deal with this.

The skills, knowledge, and understanding needed to deliver an

oral

argument are much different than simply being a good public

speaker.

Do not be so hard on yourself even if doing oral arguments

doesn’t

come easy at first. First of all, not all lawyers even do oral

arguments at

the appellate level; and secondly, even if you are not comfortable

at first,

you will get better.

How, then, should you plan for and achieve the successful

argument?

1) Re-read the briefs. This will allow you to re-familiarize yourself

with

the major legal and factual points of the case. Your oral argument

will then allow you to state your best points more persuasively

and

forcefully, to clarify points you did not make so well, and will allow

you to address points made in your opponent’s brief that you did

now

anticipate when writing your original brief.

2) Review the record and KNOW the facts of the case. It is

amazing how

much one can forget about the crucial facts of the case between

initial

review of the record, writing the brief, revising the brief, and then

having to deliver an oral argument on the same set of facts.

Several

weeks will pass in the semester (and even longer in real-life)

between

your initial introduction to the facts and your final oral argument.

5

Also, remember that during oral argument, you should be the

expert

on the facts and will have to answer questions from the panel on

these

facts.

3) Reread the important authorities relied upon by each side.

Judges

will most likely be familiar with these authorities, so be prepared

for

many questions on the holdings of these cases as well as the

reasoning

behind the relevant holdings. Also, be sure to update the

authorities.

Make sure that the authorities relied upon in your brief are still

“good

law” and check for any recent developments which may affect

your

ultimate argument. You can be sure that your opponent will do

the

same.

4) Create a theme that will unify the points of your argument.

Choose a

central theme to focus and strengthen your argument. If you can

tie

the issues into an overriding reason that your side deserves to

win,

you will be able to deliver a clear and concise message

throughout the

little time that you have during oral argument. This theme not

only

sets the tone for the oral argument at the beginning, but as an

advocate, you will be able to come back to it as you answer

questions,

permitting you to always get back to a central message.

Furthermore,

6

using a theme allows you to conclude with a final message to

leave

the court with the strength of your case.

5) Anticipate and prepare responses to likely questions. More

discussion

will be given to the type of questions you are likely to face and

how to

deal with them later, but in your preparation stage, you should go

through your brief and play “devil’s advocate.” What are your

weak

points? What, in your opponent’s brief has given you most

difficulty

in answering? What questions do you dread? Although this may

sound a bit masochistic, it is certainly better to spend additional

time

BEFORE the argument preparing candid answers to these types of

questions than it would be to look flustered during the actual

question.

Also, nothing looks better than giving a great answer to a

question

that the judge thinks is going to stump you. Also, nothing feels

better

than having a ready answer and watching the judge nod in

approval to

dealing with a potentially hostile situation.

6) Prepare a BRIEF outline of your argument. This outline should

be on

a single sheet of paper, or some professors and lawyers suggest

using

the interior of a manila folder that you can open up before you on

the

podium. You simply want to put your major points on the outline

and

use it as a quick reference. Your oral presentation to the court will

be

7

conversational and persuasive. Although you should outline your

arguments, you should not read from your brief;

nor should you

write out your oral argument in its entirety and think that you

should

read from it or even consider that you will be able to memorize

it.

The oral argument is constant interchange of ideas between the

bench

and the advocate. Therefore, you want to maintain as much eye

contact as possible and remain flexible enough to engage in

dialogue

with the court. If you like, you can write out your introduction.

Sometimes it is helpful to memorize this first minute or so

because it

helps get you settled at the very beginning. The contents of the

beginning portions of your oral argument are discussed in part C

below.

7) Practice. Once you prepare and study your outline, you are

ready to

practice giving the oral argument. At first, you may want to

deliver

the argument by yourself without any interruptions or observers.

This

will help give you an idea of what really works, what sounds good,

and it will increase your comfort level and confidence. As you

practice, you may find the need to revise your outline. As a

matter of

10 “The oral argument you make must necessarily be structured by what is covered by your brief, but under

no circumstances should you simply recite, summarize, or selectively read from your brief and consider it a

satisfactory oral argument.” Rehnquist, Oral Advocacy, 27 S. Tex. L. Rev. 289, 298 (1986). 11 “Oral argument from a prepared text is not favored.” Sup.Ct.R. 28.1

8

fact, you will very likely revamp your outline completely by the

time

your actual oral argument is scheduled. After practicing the

argument

a couple of times alone, you need to rehearse in front of a friend

or

colleague, even if the individual is not associated with law school.

Encourage feedback and suggestions. Finally, you should

videotape

your rehearsal and watch yourself on videotape. As a part of the

classroom or even practice for a moot court competition, you will

be

likely videotaped at least once. Watching yourself on videotape

may

not sound like fun, but it sometimes is the only way for you to

correct

problems.

Now, you have some of the ways to begin the preparation process

in

becoming an effective oral advocate. What exactly does the oral

argument

entail? What should you expect when you stand up for the first

time and

deliver the argument? The next few sections will describe the

actual

presentation and will try to prepare you for what this experience

will be like.

1) The Opening

So where do you begin? At the beginning of the argument, you

simply introduce yourself, who you are representing, and in what

capacity.

The traditional opening self-introduction is:

9

“May it please the Court, my name is _________, and I represent

the

appellant ______.”

2) Brief Description of Why You are Here/ Statement of the Issues

Then, you briefly describe the case in way that explains the issues

to

the judges and then simply state the reasons why you should win.

This

introduction of the issues and reasons for winning should only last

one

minute at most. This first minute should stimulate the interest of

the court

and should create the theme for your entire case. This theme will

then be

weaved throughout the remainder of your argument. If at all

possible, avoid

“legalese” at this point. Try to go beyond the technical, legal

points of the

case and appeal to the judges’ common sense, fair play, and

logic. One

technique that may work at this point is to ask yourself the

question, “How

would I tell a friend about this case?”

This portion of your argument may sound something like:

“This cases raises the issue of whether (frame issue) and because

the

appellant in this case (describe significant facts necessary to set

up

issue and main reason why you should win), the decision of the

lower

court should be reversed.”

3) Roadmap or Overview of Argument

12 Michael Fontham, Micahel Vitiello, and David W. Miller, Persuasive Written and Oral

Trial and Appellate Courts, p. 182 (2002)

10

After describing the case in this manner and setting forth the

essential

theme of your arguments, create a “roadmap” for your argument.

This

overview will again lay the foundation for the theme of your case.

Also, it

helps the court know where you are going with your argument.

So, if you or

the judges ever get distracted, having the organization laid out at

the

beginning will make it easier to get refocused.

Be careful not to go into too much depth on each of your points.

You

do not want to get into the “meat” of your argument at this point;

you are

simply mapping out where you are going to go. The overview

should only

be a couple of sentences and may sound something like this:

“I would like to discuss three main points with the court today.

First,

______. Second, ___________. And third, ___________.”

4) Facts

Lawyers and judges disagree on how much time should be spent

reviewing the “Facts.” For example, students often wonder if they

should

re-tell all of the facts that are included in the brief before moving

into any

real discussion of the “law.” A couple of words of advice on this

matter:

Generally, you will be short on time to get through all of the

substantive arguments you want to make, so your presentation

should

13 Id. at 183.

11

focus on the reasons you should win. Keep in mind that the

“reasons you

should win” may be very fact intensive.

wants to hear a fuller discussion, or if the judges have not had the

opportunity to read the briefs – they may tell you. Some courts’

rules, for

example the Fifth Circuit, state explicitly that the attorneys should

assume the court has read the briefs and are familiar with the

facts.

Obviously, you want to observe these rules when applicable. By

analogy, in the classroom or moot court setting, you should defer

to the

instructions of your professor or to the custom of that particular

moot

court competition as to how much time should be devoted to the

facts.

However, no matter what the rules of your particular court, be

sure

to include the facts that are relevant and crucial to setting up the

issue,

otherwise, your discussion of the legal issues will have no context

or

framework. In particular, the appellant should provide enough

facts so

that the court can understand the issues.

5) Jump Right Into Your First Issue

After introducing yourself, the relevant facts, the legal issues, and

why you should win, be prepared to jump right into the first issue.

12

But keep in mind that the bench may re-direct your argument

with

questions.

6) Customs of the Courtroom, including Questions from the Bench

Appellate oral arguments are much different than most other

speeches or oral presentation because the listener actually

engages in

the presentation with several questions. The presentation

becomes

much more like a conversation at this point with the attorney

addressing each one of the concerns that a judge expresses.

Not all of these questions are adversarial. Many students get on

the defensive as soon as a judge raises an issue. Although many

judges will play this role of devil’s advocate and try to get the

attorney to focus on the weak part of the case, some judges

merely are

curious about certain facts or procedural details. Furthermore,

some

judges are asking questions to “help you along” either by

providing

some structure if you seem disorganized or by “throwing a

softball”

so that you can get back on track. Do not mistake this to think

that

lack of preparation will be rescued by your panel, but at the same

time, do not get on the defensive with the onset of a question.

So, how do you respond to these questions?

14 Id. at 196. According to Fontham, et al., “[t]he ability to handle questions is often the key to effective

argument.” They offer the 6 tips that are highlighted here.

13

1. Listen to the question. This may seem obvious, but many

attorneys want to respond to a question they wish they had been

asked rather than the one actually posed. Nervous students who

have memorized or who are reading an argument will often

have trouble answering questions because it is not the next

matter on the “script.”

2. Answer the question immediately. If you wait to answer

the

question or if you communicate that “I’ll get to that later,” you

will irritate the judge or you will simply create a situation

where the judge tunes you out until you answer.

3. Answer the question directly. Do not try to explain an

answer

before giving a direct response. If the question requires a “yes”

or “no,” the next word out of your mouth should generally be

“yes” or “no.” Of course, you can then explain or qualify your

answer.

4. Be candid. Your argument will have weaknesses and your

client’s position will have areas where your opponent has

stronger legal footing. At times, you may have to concede a

“bad point,” but you still have the opportunity to explain why

that point is not controlling.

14

5. Follow through. This is probably the most difficult task of an

oral argument. After answering a question and explaining your

answer, you must lead back into your planned presentation.

The oral advocate who can do this communicates command of

the argument. Although this skill takes time to develop, the

best oral arguments will transition smoothly and effortlessly

from question and answer back to the affirmative presentation.

As you write your outline, try to anticipate the questions and

prepare your answers in a way that will make this transition

most natural.

6. Avoid being caught in a hostile dialogue. Some judges will

try to get you to concede certain points through persistent

questioning. This process can oftentimes be extremely

annoying and hostile. But you always want to remain polite,

firm, and simply “keep to your guns” in a way that is respectful

to the judge. Do not abandon key points in your argument

simply because a judge asks a question that attempts to extract

concessions. Simply try to move on. After answering a

question, try to “Follow through” to the next point of your

argument. Hesitating and silence only invites more questioning.

15

A few notes about Rebuttal

The appellant will have an opportunity to respond to statements

from the appellee for purposes of your oral arguments. This

rebuttal

portion of the presentation should be brief and should respond to

specific points raised by your opponent. This is not a time to

summarize or re-state your earlier argument. Although this will

require quick thinking as you need to respond to specific

arguments,

proper preparation will allow you to anticipate the points your

opponent raised and your expected response.

Live Oral Arguments

Besides listening to recordings of oral arguments, students may

also be interested in watching a live oral argument. All students

should try to take a “field trip” to an actual appellate court to

watch

attorneys present an oral argument. Furthermore, students may

want

to attend any of the “moot court” activities sponsored by their law

school.

16

Oral Argument Checklist

Always introduce yourself and who you represent

Memorize the first 2 or 3 minutes: identify issue and articulate

the

fundamental reasons your client should win; memorize a

conclusion

Although it is important to consider and discuss policy

arguments;

you always want to give the court the legal basis for making their

decision; i.e. what statute? what case? etc. And if your opponent

overuses policy, be sure to counter with strong use of actual law

Think through the implications of your major arguments so as

to

anticipate questions and counterarguments (same goes for

written

brief)

Using analogies to make your point; can be very strong, but be

careful not to go off on a tangent or invite questions that are

irrelevant

to your main argument

DO NOT ask rhetorical questions such as “Does the Court really

want to …?”

Stay behind the podium during appellate argument; more

formal

than an opening statement at trial where counsel has much more

freedom to move around the court, etc.

Don’t point at client or opponent

Pick your two or three major points and try to emphasize those

points; choose order that you want to present these arguments.

Use outline; do not memorize entire speech; do not use note

cards;

try to come back to outline after a question is asked. Anticipate

the

order that is most important to judges. A roadmap at beginning of

argument can be helpful (part of your first 2 or 3 memorized

Watch your pace: most people need to slow down!!! But at the

same time, you have a lot of information to get through in a short

period of time.

Maintain eye contact. DO NOT read from a script.

No hands in pocket; No shifting feet

DO NOT twirl pen

Be professional. Humor can be ok, but generally not

encouraged

(oftentimes depends on relationship one has with panel of judges)

DO NOT simply go through each case one by one; again just

like

writing brief; pull principles from case law and organize argument

around those principles

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• Phillip C. Jessup International Law Competition • Interscholastic Moot Court Competitions

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Phillip C. Jessup International Law Competition

A

I

The Phillip C. Jessup International Law Moot Court Competition is organized by the

International Law Students Association

and takes place in the spring of each year. At the

regional level, students in the United States compete against approximately a dozen other

schools. Regional champions advance to the to the international rounds held each spring in

Washington, D.C. in conjunction with the annual meeting of the

American Society of

International Law

(ASIL). In Washington, D.C., the various U.S. regional champions compete

against each other, and then against national champions from Jessup Competitions held

throughout the world to determine the Jessup Competition World Champions.

The Jessup Competition began in 1959 as an advocacy competition between law students from

Harvard, Columbia, and the University of Virginia. Since that time, the "Jessup Cup," in which

students argue before a mock International Court of Justice, has grown to become the largest and

most prestigious international law moot court competition in the world. Today, approximately

1500 students from more than 600 law schools and well over 100 nations participate in the

Jessup Cup.

Duke Law has an excellent history at the Jessup Cup, both at the regional and international levels

of the competition. The Duke Law Jessup Team prevailed as the Jessup Competition World

Champions in the late 1960's. The 2000 Duke Law Jessup Team captured a regional

championship and went on to Washington, D.C. to become the United States Jessup Champions,

where they lost in the World Competition quarter-finals to the Jessup team from Ireland. Last

year's team won the East Regional Championship before being eliminated in the International

Rounds.

T

J

T

S

P

The Duke Law Jessup Team is typically comprised of four or five students chosen on the basis of

tryouts conducted in the early fall. Any 2L's, 3L's, and

L.L.M.'s**

, including current members

of the Moot Court Board -- may try out for a spot on the Jessup Team. Knowledge of

International Law and/or past or current enrollment in International Law courses, although

helpful, is not a prerequisite for the team.

Students trying out will be given a sample memorial to prepare for the tryouts. From the time

they receive their materials until the time of their tryouts, students will have approximately 24

hours to prepare. In this time, they are expected to prepare an oral argument up to 12 minutes

long (see "

A Primer to Oral Argument

," below) based on the arguments contained within the

memorial they receive. While no problem-specific research is required, those who are less

experienced with international law might want to, and are permitted, to conduct outside

research. At their assigned times, each student will present their oral argument to members of

the Moot Court Board.

Click here

to view the scoring criteria by which competitors will be judged.

Students invited to participate on the Jessup team will also be invited to join the Moot Court

Board. The Jessup Team will begin doing very preliminary research on the Compromis (i.e., fact

pattern) this fall semester. Additionally, each member of the Jessup Team will be expected to

return to campus shortly after the new year (and before classes resume for the spring semester)

for a intense, week-long, team research and writing session. This is when the team will complete

the bulk of their written work; participation that week is mandatory for all team members. The

team will then schedule oral argument practice sessions (around members' class schedules) and

begin practicing shortly after the spring semester begins. Regional rounds of the competition

commence in early February.

A P

O

A

With only minor exceptions, oral arguments presented for the Jessup Cup tryouts should be

conducted as in most other moot court competitions. For those yet unfamiliar with the in's and

out's of moot court oral argument, the following should serve as a guide. For further guidance,

consult a member of the Moot Court Board and/or ask to view a video recording of past Hardt

Cup or Dean's Cup finals.

Structure & Sequence

(return to Table of Contents)

1. Opening

Competitors should wait quietly in the hallway outside of the room to which they are assigned for tryouts until the judges ask them to enter. Competitors may be seated after the judges sit down. When the judges indicate that they are ready, the student should rise and approach the podium or lectern.

2. Introduction

The very first statement out of moot court competitors' mouths should always be, "May it please the Court, my name is _____, counsel for the appellant [ or respondent], _____." It is very important to remember to say, "May it please the Court;" it is simply a well-established formality of moot court competition, to which you should adhere.

3. Statement of the Case

You should always begin your argument with a clear and persuasive statement explaining the essence of your case. This statement should be confident, succinct, and, to the extent possible, slanted in favor of your

version of the case. For example, in a case where police allegedly used excessive force in apprehending a suspected drug dealer, counsel for the government might state the case in the following way: "This is a case about the proper and lawful use of police power to address the significant threats posed by drug trafficking in our city."

4. "Roadmap"

After introducing yourself and your case, but before making any further argument, identify the TWO or THREE (but no more than three) issues you will discuss. Make these issues clear and straightforward. For example, "This Court should find in favor of the appellant [or respondent] for two reasons...." You should then list your main arguments. For example, "...First, because this Court does not have jurisdiction; and Second, because customary

international law is applicable in this case and is on the side of the appellant [or respondent]."

If you think of (and/or organize) your oral argument in outline form, the two or three reasons contained within your roadmap should be the highest levels of your outline (below the conclusion you want the Court to reach). The body of your argument should expand below the reasons you list in your roadmap. The roadmap gives judges an overarching picture of the more nuanced

argument that will follow.

Memorize your opening and your roadmap. The most successful oral

advocates memorize their opening roadmap and maintain eye contact with the judges throughout. This is the best way to make a good first impression of confidence and preparedness.

5. Facts

Briefly outline the relevant facts of your case, taking care to highlight those that support your position, but without arguing your position. Keep your facts short (no more than two minutes) and focus on the critical elements of your case. Be forewarned that the Court might interrupt and ask you to skip the facts. If they do, proceed with your argument. Don't assume that this will happen, though; it's the Court's decision. Bottom line: prepare the facts. 6. Order of Argument

Begin the body of your argument by discussing the first issue in your roadmap. Make your argument, and then proceed directly to your second issue. There is no need to pause or to solicit questions. The judges will interrupt you with questions as they wish. Answer their questions directly and use your roadmap and outline to find an appropriate place at which to continue arguing.

7. Conclusion

When you have finished your argument, end with a clear statement of what you are asking the Court to do (a "prayer for relief"). For example, "...For the foregoing reasons, I respectfully request that the Court find in favor of the appellant / respondent and [take whatever specific action is specified in the memorials]."

Etiquette & Style

(return to Table of Contents)

• At all times, judges are to be referred to as "Your Excellency," with respect and deference.

• Do not bring pens, pencils, or loose watches with you to the podium. • Be aware that at any time during your argument, the judges can and will

interrupt you with questions. It is vital that you fully answer the question to the best of your ability when the judge asks it. Do not tell a judge that you will answer that particular question later in your argument. Go where the judge leads you, even if that means not following the argument that you planned. Don't let this aspect of moot court competition frustrate or distract you. Part of the challenge is adapting to and taking into consideration the judges' concerns, while finding the time and opportunity to still voice the important parts of your argument.

• If you do not understand the question a judge asks, you should ask him or her to explain or clarify their inquiry. It is fully acceptable to ask for clarification and almost always preferable to answering a question the judge did not really ask.

• Approach your oral argument as a conversation with, not a lecture to, the judges. Engage in an exchange of ideas with the judges and respond to their concerns. Don't read a speech to them.

• If a judge asks a "yes" or "no" question, answer first with "yes" or "no" -- then elaborate. For example, reply with, "Yes, Your Excellency, in fact ...," or "No, Your Excellency, rather ...."

• Never speak over a judge. When a judge starts talking, you should stop

talking immediately, even if he or she has interrupted you mid-sentence (or even mid-word).

• It is okay to stand firm in respectful disagreement with a judge as long as you can back up your position with a well-reasoned argument.

• You will have 12 minutes to present your oral argument. At the end of your presentation, the judges or bailiff (if one is present) will show you a "STOP" card. Once you see the "STOP" card, immediately stop speaking. If you are still speaking when you see the "STOP" card is presented, ask the Court if you may finish your thought or answer. If the Court says, "Yes," then finish your thought or answer, but do not take advantage of the Court's generosity: Finish only that thought or answer, and then retire. Do not make new arguments.

• When you finish your argument (or run out of time), thank the Court and sit down.

Preparing Your Oral Argument

• Know your arguments completely. In planning your presentation, make sure to highlight and make a theme of your case's merits. But also anticipate problems for your side and prepare responses to questions the judges are likely to ask or to issues that opposing counsel is likely to raise in his or her presentation.

• Pay attention to the major cases referenced in the materials. You need not memorize all of the cases cited, but make sure you understand the

connections between the cases cited and your argument.

• Focus on the two most important arguments in the problem. They should constitute your entire argument. Oral arguments are brief, so you must delve into only the most important (and convincing) arguments available to your side. With the 12 minutes that you have, do not attempt to argue all the points raised in the memorial or all the potential issues you have anticipated having to discuss in response to the judges' questions.

• Always focus on why your side is right, rather than on why the other side is wrong. When crafting your argument, put yourself in the judges' position. Look for the weaknesses in your argument, anticipate the questions judges might ask, and plan responses that transition to the merits of your position. • 'Know when to hold 'em, know when to fold 'em, know when to walk away,

know when to run ....' Knowing when to make concessions without

weakening the core of your argument is an important skill of oral advocacy. If both sides of the case did not both have real strengths and weaknesses, if the case should have clearly been decided one way or another, it simply wouldn't even be before the court. It is okay to stand firm in respectful disagreement with a judge, and it is okay to admit a weakness in your case, as long as it doesn't undermine the basis of your argument.

• DO NOT WRITE OUT AN ENTIRE SPEECH to deliver to the judges. Instead it is a good idea to make a brief outline to help you remember the key arguments and issues of your case, and to note key treatises and cases. Try to limit your outline to one sheet of paper. Use key words and phrases to jog your

memory. While you should certainly have some idea of what your argument sounds like -- what words you will use beyond your outline -- reading a

speech is simply not persuasive. Reading is one of the most common mistakes made by inexperienced oral advocates. Approach your argument as a conversation with, not a lecture to, the judges.

**Pursuant to the rules of the Jessup Competition, L.L.M. students may try out for and

participate as a member of the Jessup team, if they meet the following conditions: 1) they

entered the L.L.M. or equivalent program within eight (8) months after completing their primary

legal education; and 2) they did not, during the interim, engage in the practice of law or any work

of a nature which would provide the student a significant or unfair advantage over other students

participating in the Competition.

Contents

• The Jessup Team Selection Process

• A Primer to Oral Argument

○ Structure & Sequence

○ Etiquette & Style

○ Preparing Your Oral Argument

Duke University School of Law

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#361 Tia A. (User) Senior Boarder Posts: 72

Moot Court 2 Years, 11 Months ago Karma: 4

I have prepared an outline of tips and hints for moot court arguments and little reminders on how the process works. I thought someone might find it helpful, so, I decided to share it. I really made things much clearer for me and easier when it came time to go through the process...Enjoy...

MOOT COURT MODUS OPERANDI General Reminders, Hints & Tips

1. Have a yellow pad and pen next to you at all times.

2. Take with you to the podium a vanilla folder and all cases cited or relied upon, but refer only to notes in the vanilla folder if at all possible.

3. Take a deep breath before you engage the bench, and do not begin until you are relaxed and ready.

4. Make eye contact as much as possible – all the time, if possible. Address questions asked by specific judges to that judge, but general points to the entire bench.

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podium – ever. Do not move or walk about. Keep your hands either at your sides, or posed in front of your torso – never in your pockets or fiddling with papers, pens, or other objects. Move your hands to make specific points, but do so carefully and sparingly: you’re not guiding a 747 in for a landing, so don’t act like it.

6. Show respect and give due deference to the bench at all times, and never lose your cool – even if the bench intentionally provokes or tests you.

7. Speak s-l-o-w-l-y, LOUDLY!, confidently, calmly, and take your time. SLOW and STEADY – don’t speak until ready.

8. Class beats the smart-ass every time. And it’s better to over-dress for success than under-dress and look like less.

9. Smile!  It’s a proven fact that doctors and lawyers who smile are 50-70% less likely to incur malpractice suits. (This also implies that smiling lawyers win more cases.)

10. You are presenting and projecting – not reading or relaxing, so act accordingly. Remember: to sell meat, you have to sell the sizzle and the steak.

11. Be aware of “red herring” or “white elephant” questions that may be asked: avoid them, or acknowledge and dismiss them, but stay on track! 12. Lead the court: you are in control. Do not let the court guide you; however, if the court asks you a question, answer it immediately and definitively.

13. Watch your tone: how you say it is as important as what you say. 14. Pay attention to your time and keep on schedule.