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September 01, 2017

How to Construct an Effective Moot Court

A moot court allows counsel to frame an argument, respond to questions, and convey a client’s position most effectively.

Dori Bernstein

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Many advocates consider a moot court a highly effective, if not indispensable, component of preparing for an appellate argument. Because most appellate courts hear oral argument only in those cases raising novel, difficult, or complex issues, counsel often encounter a well-prepared and active bench. Appellate judges routinely interrupt advocates (and occasionally one another) to ask questions, raise concerns, and pose hypotheticals that test the limits of each party’s position. While scripting an argument, composing written responses to potential questions, and rehearsing in front of a mirror are useful preparation methods, they cannot replicate the spontaneous give-and-take that occurs in court. A moot court allows counsel to practice engaging in a conversation responsive to the judges’ concerns—the hallmark of effective oral advocacy.

As an advocate, you may simultaneously know both too much and too little to be optimally effective at oral argument. Having briefed the case, mastered the record, and marshaled legal support for your position, you run the risk of larding your oral presentation with too much detail, thereby squandering the opportunity to make your strongest points simply and succinctly. At the same time, immersion in your own case can lead to tunnel vision, limiting your ability to perceive weaknesses in your arguments or to devise an alternative or fallback position that might persuade a skeptical judge. Moot panelists provide necessary perspective by mirroring your target audience. Like the judges who will decide your case, moot panelists typically have a cursory familiarity with the record, an objective view of the law, and an unbiased perspective on each side’s arguments. Unlike real judges, however, they can advise you how to frame your argument, respond to questions, and convey your client’s position most effectively.

At its best, a moot court simulates the argument experience. It allows you to “test drive” and refine your oral presentation, better anticipate likely questions from the bench, formulate persuasive responses, and boost your confidence. Yet, as in most things, all moot courts are not created equal. A bad moot court can do more harm than good. A poorly prepared or inexperienced moot panelist may offer bad advice, while an overly aggressive or needlessly hostile panelist can leave counsel feeling demoralized or humiliated.

As director of the Supreme Court Institute at Georgetown University Law Center, I have arranged, observed, and participated in moot courts for counsel in nearly every case argued in the U.S. Supreme Court during the past seven terms—a grand total of more than 500 moot courts (and counting). Below are some tips, gleaned from experience, on how to avoid the pitfalls and achieve an effective moot court.

Finding the right panelists is the most critical task in planning a successful moot court. The best moot panelists are skilled advocates, ideally with experience practicing before the tribunal that will decide your case. These practitioners will be most familiar with the judges you’ll encounter—their personalities, legal philosophies, styles of questioning, and demeanor on the bench. Lawyers who argue regularly in the same court can better anticipate the judges’ questions and how they may react to your arguments. You might also consider asking someone with recent clerkship experience on that court to serve as a moot panelist and, if you know in advance the identity of the judges on your panel, try to recruit one of their former law clerks.

A moot panel should consist of at least three participants. If a larger panel of judges will hear your case (e.g., an en banc argument, or a case before the Supreme Court of a state or the United States), an additional moot panelist or two is optimal—but no more than a total of five or six. The goal is to have enough panelists to ensure the bases are covered—that all questions likely to arise during oral argument surface during the moot—yet not so many that each panelist is unable to participate meaningfully in the moot.

It takes significant effort to prepare for and conduct a moot. Panelists must read the lower court’s opinion, the parties’ briefs, any amicus curiae briefs raising significant issues, and the principal cases relied on by each party. They must become familiar with applicable statutory or regulatory provisions. In addition, moot panelists should prepare in advance a list of questions and hypotheticals to ask during the moot and think about how to counter the strongest arguments of the opposing party. Having devoted substantial time and energy in preparation, a panelist who can’t get a word in edgewise at the moot will be frustrated and dissatisfied with the experience. Volunteer panelists will be less inclined to participate, or may not prepare as thoroughly, if they don’t expect an opportunity to make a valuable contribution. And if moot panelists are compensated, you want to get your money’s worth by giving them a chance to ask their questions and offer their views.

Most appellate arguments are heard by courts of general jurisdiction. Unless you’re preparing for an argument in a specialized tribunal (e.g., the Patent Trial and Appeal Board), your moot panel should not consist of subject matter experts. While it can be helpful to include a panel member who practices in the substantive area of your case, an entire panel of specialists is inadvisable. A mixed panel will more likely generate the type and range of questions you’ll face in court and provide a fresher perspective on your arguments. A practitioner who specializes in another area of law may perceive parallels or analogies in your case that could be very helpful. Judges are generally inclined to pursue uniformity across legal disciplines, and an argument that the position you advance is better aligned with precedent arising in another legal context can be very persuasive. Conversely, it’s best to be prepared to explain why the court should adopt a rule in your case that differs from the rule applicable in other contexts.

Ideological diversity on a moot panel is likewise highly desirable. It’s always best to include at least one panelist who agrees with your opponent’s position—particularly if your case is politically charged or raises controversial, sensitive, or divisive issues. But no matter what your case is about, mooting in an echo chamber does not help you prepare. If you represent a plaintiff employee or consumer, find a moot panelist who regularly defends business interests; if your client is a criminal defendant, recruit a former prosecutor. The panelist who shares your opponent’s viewpoint is best able to spot the weaknesses in your argument and the downsides of ruling in your favor—and will ask the tough questions you may face from a hostile judge. Equally important, the adverse panelist can tell you which of your arguments he or she finds most convincing or suggest what (if anything) might persuade him or her to rule in your favor.

Sometimes the advocate’s skill level is an important consideration in selecting moot court panelists. Highly experienced counsel will benefit most from the assistance of similarly skilled panelists, who are best able to offer more nuanced or sophisticated insights. Some experienced panelists, however, may be ill-suited to moot a new attorney preparing for his or her first argument. For a less seasoned advocate, it’s important to have moot panelists who are able to provide advice that counsel can absorb and implement. An experienced panelist who becomes impatient, frustrated, or simply “checks out” if he believes the advocate is ineffective won’t improve counsel’s performance and can make the moot a painful exercise for everyone. Finally, all moot panelists (and anyone present to observe the moot) must ensure that they have no affiliation with an opposing party, counsel, or amicus curiae that could pose a conflict of interest. All in attendance should be reminded that anything said during the moot court must remain strictly confidential.

Moot Court Structure

Moot courts are typically divided into two parts: question-and-answer (Q&A) and feedback/discussion. During the Q&A, participants are “in role”: The advocate presents the argument as if he or she were in court, and the panelists act as judges, asking questions, probing weaknesses, pushing the strongest points supporting the opposing side, and testing the limits of the litigant’s position. In effect, Q&A functions as a deconstruction of counsel’s argument, which can then be reconstructed during the feedback portion of the moot.

Moot courts should last longer than the actual appellate argument. Oral arguments in the U.S. Supreme Court are limited to 30 minutes per side, and most federal and state appellate courts allow each side only 10–20 minutes of argument time. Moots require additional time so that all areas of inquiry likely to surface during the argument can be explored. Unlike oral argument, moreover, where a judge may interrupt counsel’s response to a previous question, moot panelists should allow the advocate to complete each answer. By hearing counsel’s full response, panelists can better evaluate whether the answer is effective or suggest a more persuasive alternative.

One panelist—preferably a seasoned advocate with substantial mooting experience—should be designated as the chief judge or justice (CJ) to preside over the moot court. The CJ will explain the ground rules to all participants and ensure that the moot runs smoothly. At the outset, the CJ should remind panelists to allow the advocate to give complete answers and to share the questioning. The CJ may also want to ask panelists to wait before jumping in with questions so that counsel can rehearse a prepared opening that panelists can later critique. During the moot, if one panelist is dominating the questioning, the CJ should intercede to ensure that everyone can participate fully.

Finally, it’s a good idea for the CJ to encourage panelists to maintain a civil tone during questioning. Tough questions can be asked politely, and there’s nothing to be gained from badgering the advocate. If counsel is unable to answer a question to a panelist’s satisfaction, it’s neither helpful nor productive to hammer away at the same question. Better to move on and address the issue when offering feedback on counsel’s argument.

When questioning peters out, becomes repetitive, or ceases to be productive, the CJ should conclude the Q&A. There’s no point in prolonging the exercise if the advocate seems to be flagging. The CJ should allow any panelist who has a final question to ask it, and a follow-up if warranted, and then transition to feedback/discussion.

Panelist Feedback

This second phase of the moot court is an opportunity for panelists to share their reactions to counsel’s presentation. Panelists critique form as well as substance. Inexperienced appellate advocates may need to be coached on style points. Attorneys who typically appear before juries, for instance, may be advised to tone down their dramatic flair and adjust their demeanor to the expectations of appellate judges. Other common correctives include reminders not to interrupt or talk over a judge, to refrain from gesticulating at the lectern (which can be distracting), to maintain a respectful tone (even when responding to a combative or hostile questioner), to answer questions calling for a yes or no response directly, to keep answers crisp and succinct, and not to evade hypotheticals by pointing out that the case before the court is different. Suggestions on tone and demeanor, however, are best reserved for appellate novices. Veteran advocates often use the moot to elicit reactions to the substance of their argument rather than as a dress rehearsal. Those who appear regularly are aware of how to comport themselves in court and will adjust their demeanor accordingly.

There are a couple of ways to conduct the feedback/discussion portion of the moot court. The traditional and most common practice is for the CJ to start at one end of the “bench” and solicit the comments of each panelist in turn. An alternative approach is for the CJ to ask one panelist to raise a single issue or concern that arose during the questioning and invite each panelist to weigh in on that particular subject. Once all panelists have addressed the first topic raised, the CJ will call on the next panelist in line to raise another issue or concern that everyone can address.

The alternative method has a couple of notable advantages. Under the traditional approach, the final panelist to offer feedback often has little to add because everything he or she was planning to say has already been covered by someone else. Asking each panelist in turn to raise a single issue for general discussion offers everyone a chance to participate more fully. At its best, this practice fosters a collaborative discussion that can yield far more productive advice for the advocate. Panelists are encouraged to build on the suggestions of others, or to point out a potential downside to a colleague’s proposal. If panelists disagree on the best way to address a particular issue, a discussion among all participants may lead to consensus on the optimal approach and, in any event, will allow counsel to assess the pros and cons of divergent viewpoints.

Before concluding the moot court, the CJ should give the advocate a final opportunity to solicit the panelists’ advice or insights on any other aspect of the argument. And, of course, the advocate should thank the panelists for their time and efforts—and offer to return the favor by serving as a panelist in the future.

Moot courts are a great opportunity for practitioners to serve the legal community, the courts, and the public by improving the quality of oral advocacy. By following these recommendations, practitioners can most effectively use moot courts to increase their chances of success in their appellate arguments.

Dori Bernstein

The author is the director of the Supreme Court Institute at Georgetown University Law Center.