To Moot or not to Moot: What was the Question?
When you deliver an appellate argument to an appellate court, it sure shouldn’t be the first time that the arguments come out of your mouth.
August 11, 2016
I do a lot of moot courts. I do them in cases I am arguing, and I do them in cases that other lawyers are arguing. I do them for law students and competitive law school teams who are trying to win medals and other awards in moot court competitions.
Over the years, I have formed a number of opinions concerning moot courts, their value, and how they can help and hinder the appellate advocate.
First, let me start by saying this: When you deliver an appellate argument to an appellate court, it sure shouldn’t be the first time that the arguments come out of your mouth. Even the most skilled appellate advocate needs to have practiced, practiced and then practiced some more delivering the salient points of his or her client’s case and honing the persuasive quality of that presentation.
Sometimes, it’s enough to practice in front of the mirror at home, while in the shower or while lying in bed unable to sleep the night before the actual argument. But most of the time, feedback will significantly improve the quality of the presentation, because it isn’t what you mean to say, and it isn’t what you actually say, but it’s what people hear you say that carries the day. So it’s important to get some insight into what people hear when you deliver your argument.
The moot court experience for a practicing lawyer should not be confused with the sometimes highly artificial moot courts to which law students are subjected. As to those, I commend to everyone that they read the article by 9th Circuit Judge Alex Kozinski titled “In Praise of Moot Court—Not!” 97 COLUM. L. REV. 178, 186 (1997) and the counterpoint by Michael V. Hernandez, “In Defense of Moot Court: A Response to ‘In Praise of Moot Court—Not!’” 17 REV. LITIG. 69, 71-73 (1998).
Both articles are discussed, and put in a broader context, by Barbara Kritchevsky, “Judging: The Missing Piece of the Moot Court Puzzle,” 37 U. Mem. L. Rev. 45 (2006): “Judge Kozinski criticizes moot court for failing adequately to align the advocate’s and imaginary client’s interests. While the client’s and advocate’s interests are united in actual litigation, moot court advocates must argue both sides of the issue and ‘cannot become too committed to one side of the litigation because doing so will undermine her confidence when she argues the opposing side.’ … Professor Hernandez responds that arguing both sides of a case helps advocates ‘maintain professional objectivity’ and not become ‘too emotionally attached to the client’s position.’”
Whichever side of the debate you come down on, it is fair to say that law school moot court is a lot different from moot court in practice.
In the real world, lawyers aren’t looking for high scores on debating points. Instead, they want to win the case for their client. A good moot court will help in that effort.
First, a moot court will force early preparation, and confrontation of the tough issues in the case. As I prepare for an argument, I am constantly writing notes to myself, including questions that I think the court may ask, and my best answer to each question. For me, the mark of a good oral argument is that I am never asked a question to which I haven’t already written down the answer. Many questions are obvious, although sometimes the answers aren’t.
The moot court also helps knock the edges off any nervousness that you might have. If you can get through a tough moot court, it makes the actual experience less intimating. I remember working a number of years ago with a lawyer in Chicago who was preparing for an important 8th Circuit argument. The client compiled a moot court panel that consisted of William Webster, a former 8th Circuit judge and past director of both the FBI and the CIA; George Pratt, a retired 2nd Circuit judge; and Ken Starr, a former solicitor general and federal appellate judge. To say that this panel was formidable would be a gross understatement. They grilled the lawyer for well over an hour as he presented his argument and answered their probing and detailed questions. By the time he got to the 8th Circuit and presented his 15 minute argument to a panel of judges who were hearing five or six other cases that day, it was a walk in the park.
That brings me to another point. Moot court judges may not be experienced appellate judges, but they often make up for that by being able to spend more time preparing for the case than the actual panel might. It’s simply a function of resources.
When I am asked to do a moot court in a case, it’s the only case that I have that day. On the other hand, an appellate judge may hear several cases on the same day and arguments on several consecutive days. The amount of time that the judge can spend is often not nearly as great as the time a private-practice lawyer can devote to prepare as a moot court judge. But most appellate judges before whom I appear are prepared enough to make the lawyers work. They make up for the time pressures with experience — they know how to get to the meat of a case in short order.
Another great benefit of a moot court is that it requires the advocate to explain a case to a group of relative strangers. That mimics the actual oral argument experience. It’s not nearly as helpful to discuss the case, and possible arguments, with colleagues who themselves have lived through the case with you. Everyone is simply too close to the issues to have the same perspective that an appellate panel will have. Lawyers intimately familiar with the case may ask really smart questions, but they often will not be questions indicating a struggle to understand the basic facts of the case, or to learn legal principles with which they are not familiar. The new perspective of a relatively fresh moot court panel will give the advocate a lot of information about the points of a case that, while clear to him or her, are not likely clear to the court.
Finally, a moot court not only helps the advocate practice answering difficult questions about arcane points, but provides a real opportunity for the advocate to step back and consider the big picture. This is essential in developing the theme, the elevator speech, the succinct statement of what it is they want and why they should get it that is the hallmark of many successful appellate arguments.
So if you want a moot court, whom do you ask? Friends, colleagues in your firm, or other lawyers you know all may be sources of moot court panels. In our firm, the appellate practice group regularly provides moot court services for both a fee and on a pro bono basis, depending upon the case. We routinely are asked to assemble a panel of judges to help someone with an upcoming argument.
At the end of the day, while not every case deserves a full-blown moot court, every appellate argument benefits from being previewed to a stranger or group of strangers, from being tested with questions that are both thoughtful and uninformed, and from the advocate being forced to practice. After all, if practice doesn’t make perfect, it certainly does make better.
Reprinted with permission of Minnesota Lawyer ©2016
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