April 07, 2021 Practice Points

Tips for Conducting “Moot” Practice Sessions for Virtual Litigation Proceedings

Dry runs will help your actual proceedings go smoother and more successfully.

By Alex M. Bein

After the upheaval caused by the sudden transition to virtual legal practice during the COVID pandemic, many attorneys have now become accustomed to the idea of virtual legal proceedings. Oral arguments and depositions that took place in the courtroom or conference room now routinely take place from our home offices. While the pandemic is bound to end at some point and the world will reopen, the trend toward a more virtual and remote-capable legal profession is here to stay. Why not make the most of it!

Practice and preparation sessions for such virtual litigation proceedings have never been easier to set up or participate in. With a few clicks of the mouse, attorneys, witnesses, and clients from across the country can gather in a single virtual room to address an upcoming deposition, hearing, trial. or even an appellate argument. Clients who were unwilling to pay for travel (or for more than one attorney to travel) in connection with hearing preparation can now get additional prep time with outside counsel without such added expense. As a result, counsel now have increased opportunities for dry runs, or “moots,” of their upcoming proceedings. Indeed, clients may now insist on observing at least one such virtual moot to ensure their own comfort with this relatively new format.

Below are a few things to keep in mind when planning a virtual moot session.

  • Many virtual proceedings utilize special features of Zoom, Microsoft Teams and other programs for displaying and sharing evidence; even those who now conduct virtual business meetings on a regular basis may be unfamiliar or uncomfortable with the unique characteristics of the virtual legal proceeding. A full, or even partial dry-run of the virtual proceeding can resolve such issues before the real thing, and can even raise and resolve new issues that had not been considered beforehand.
  • If the actual virtual proceeding is expected to be a long one, consider splitting a full moot into multiple sessions on different days. This will provide those involved with the opportunity to digest and incorporate lessons learned while minimizing the need for repetition.
  • Consider scheduling virtual moot sessions as close to the actual proceeding as possible. Opportunities for practice may be limited even in the virtual world, and lessons learned in a moot session may fade with time.
  • Too many pauses for feedback or advice during a moot may be counterproductive, so consider taking careful notes and saving feedback until the end of the session to allow participants to practice getting into the “flow” of the legal proceeding.
  • A virtual moot can provide new opportunities for junior attorneys who may have traditionally been kept from preparation sessions to minimize cost. Clients may be more amenable to the participation of multiple attorneys in virtual prep sessions, and senior attorneys can use this opportunity to get their young associates invaluable “stand-up” experience taking and defending mock depositions or arguing before a mock judge.

Attorneys should not simply “get used to” the concept of regular virtual proceedings—we should dive in and embrace the benefits and opportunities afforded by this new format. Virtual depositions, hearings and trials present time and cost-saving features that can be appreciated by witnesses, clients, senior attorneys, and junior attorneys alike. Nowhere are these benefits more apparent than in the conducting of dry runs, or “moots,” to better prepare for such upcoming virtual proceedings.

Alex M. Bein is an associate with Carlton Fields in New York City, New York.

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