What is Moot Court?
General Appellate Procedure
A moot court competition is based upon the presentation of a fictitious case to an appellate court. Appellate procedure differs greatly from the trial of the case with which the general public is more familiar.
Following the trial, the losing party has a right to challenge the result in a higher court. This is done by presenting specific challenges to the rulings of the trial court or to the manner in which the lower court interpreted the law in reaching the result that it did. These challenges are supported by precedent, decisions of other courts in similar cases. The appellate court considers the precedents and arguments presented by the losing party to determine if the judgment of the lower court was erroneous. If it finds error, the appellate court may reverse the decision of the lower court and remand the case for a new trial or it may render the judgment that it believes the trial court should have rendered under a proper interpretation of the law. If the appellate court determines that the record of the trial reveals no error, it will affirm the judgment under review.
The majority of the work actually done by the appellate court is handled behind closed doors with a close study of the written record of the trial. The losing party, called the appellant or the petitioner, files with the court a transcription of all testimony, documents and exhibits presented to the trial contains a detailed list of those actions or legal interpretations made during the trial which the petitioner believes were erroneous. The arguments in the written brief are supported with reference to other decisions of the appellate courts that demonstrate the validity of the position taken. The party who won in the trial court, now called the appellee or respondent, is then given the opportunity to present a written brief in opposition to the arguments made by the petitioner.
The court studies all these written documents and then sets the case for oral argument. Counsel for both parties appear before the court and within a restricted time frame present their most persuasive arguments to a panel of judges. Because the court is generally well prepared and has discussed the case in detail before the argument, counsel usually find that the majority of their time is spent replying to specific questions posed by the judges. When the argument is completed, the court adjourns to consider its decision which is generally forthcoming within the next few weeks or months. The decision of the court is written in the form of an opinion that is sent to the attorneys and published for use as precedent by later litigants.
The first appeal is a matter of right and usually is presented to an intermediate appellate court that sits in three judge panels. Whichever party loses at this level has the option to seek yet another appeal before the highest appellate court within its jurisdiction, usually a nine judge panel. At this level, the jurisdiction of the higher appellate court is discretionary. It picks and chooses which cases it will entertain and, if it decides to accept a case, will often designate the specific issues that it is willing to consider. The parties present their positions first in writing and then in oral argument before the entire court. Again at argument, the court has ready and considered all the written materials and generally has specific questions to pose to counsel.
Law School Moot Court
Law schools have traditionally encouraged all their first year students to engage in a moot court competition in which a fictitious case is presented either to an intermediate or high appellate court. These exercises require both the preparation of an appellate brief and presentation of oral argument before practicing attorneys. At an advanced level, law schools sponsor their students in national moot court competition.
At the undergraduate level, students with an interest in public speaking or in a postgraduate education in law are sometimes given the opportunity to participate in a modified version of this law school moot court experience. The undergraduate competition focuses on the techniques of oral advocacy, but does not incorporate the research skills required to prepare the written briefs necessary for later competitions. The fictitious case generally is presented to the high court that has determined in its discretionary jurisdiction the specific points that it will consider. The opinion of the intermediate court is provided along with the precedent cases upon which the court based its decision and the construction of the argument is limited to these sources. The position of petitioner and respondent is presented by teams of two students, rather than the sole advocates who compete in law school tournaments. Competitions are judged by attorneys or experienced law students who can share valuable experience with the students participating.
The outline of the basic argument can be found in the opinion of the intermediate appellate court. Students must be aware that they will be required to argue both sides of the case and to refute all arguments presented by their opposition. The opinion of the appellate court will present a pattern of argument in support of both positions. The majority opinion of the intermediate court will support the basic argument of the respondent who won the case in that court. At least one judge will dissent or disagree with the majority opinion and provide the outline for the petitioner's position. The majority and dissenting opinions will discuss the interpretation of the precedent cases that support each argument. If the case is based on a lower court decision, a single opinion will address both arguments, accepting one and rejecting the other. The opinion provides the students with a basic understanding of the case and should lead to a close study of the precedents. The competition opinion will always present two different ways
to interpret and apply these precedent cases.
Once the students have grasped the issues through a thorough understanding of the fictitious case, their attention should shift to the precedent cases. These must be completely understood before individual arguments can be drafted and refined. At this point students can profit from learning the process of dissecting a court's opinion into a case brief.
The case brief contains several major sections: the procedural history of the case, the relevant facts of the case, each issue addressed by the court writing the opinion, the holding or decision of the court on each issue, and the reasoning of the court which supports each holding. Once the case brief is completed, each issue in the precedent cases can be compared to the issues presented by the fictitious case to support or refute the position espoused.
With basic preparation completed, the students may then begin to construct effective arguments on each side of the case. The arguments presented by the majority and minority opinions of the problem case can be expanded and refined and new arguments developed. The precedent cases must be woven into these arguments to make them persuasive in court. In the successful argument, the process of using precedent cases must include not only quoting some applicable phrase, but also comparing and contrasting
the facts, holding and reasoning of the court to the issues at hand. The constructed arguments must also have some flexibility; because the students do not know what structure their opponents may use to defeat them.
One unique challenge presented by the undergraduate competition is the division of the aspects of the argument between the two-team members. Most moot court problems are constructed to present two issues that the court has chosen to address and students generally like to divide their presentation by assigning one issue to each team member. This can be a successful approach, but each team member must also be fully prepared on his partner's phase of the argument. This is because the issues are often closely
aligned and judges may ask a question of one team member that is more specifically addressed to the other advocate's presentation. Rather than refuse to answer such a question by stating ignorance of the subject matter and referring it to the later argument of the partner, the question should be answered and the other team member should adjust his presentation to address the question in more detail when and if he has another opportunity to address the court.
A strict division of separate issues between the two-team members is not essential to success. Other approaches can work just as effectively depending on the nature of the problem and how closely aligned the issues are.
Most law school moot court coaches agree that a single, memorized presentation will succeed no more in moot court than it does in the actual presentation of a case to an appellate court. The presentation will be interrupted by questioning from the court and it is critical to success that these questions be clearly addressed, turned to the advantage of the advocate and then used as a transition back into the argument that the speaker wishes to make. This is the flexibility that must be built into the initial presentation.
Most coaches also agree that the successful competitor should be so well prepared that he need not take a bundle of papers and notes to the podium when it is time to speak. The universal suggestion is a single file folder, the left side containing the argument for petitioner and the right the argument for respondent. As a practical matter, within the ten-minute framework that bounds each speaker, there is little time to look up a case reference or find an answer within voluminous notes.
Court Room Presentation
The judges' impression of the competitors is formed from the moment that they enter the courtroom. Twenty-five points of each speaker's totally score are based on courtroom demeanor: proper attire, respect for the court and an attitude helpful to the court. Business-like attire is appropriate. Blue jeans, tennis shoes, mini-skirts, or shirts with rolled up sleeves fail to demonstrate sufficient respect for the court. Competitors will be judged in this category, not only while they speak, but also when they sit at counsel table. Counsel should sit listening attentively to other arguments with feet flat on the floor. Conversation between team members while the opposition speaks is inappropriate. If a note must be passed is should be done discreetly.
Speakers must always show the utmost respect for the court. They should not begin to speak until signaled by the court to do so and then should begin with the phrase, "may it please the court." During the presentation, the speakers should expect to be interrupted by a judge's question or comment and should cease to speak whenever the judge is speaking. Never try to "speak over" the court or appear irritated at a judge's interruption. When the speaker sees that his time is about to expire, he should conclude his thought, wait a moment to see if the court has any other questions and then sit down. The speaker will be penalized if he speaks over his allotted time or asks for additional time. The court, however, may hold him longer to respond to a question. The answer should be brief and direct and conclude the presentation.
Twenty-five points of the total score are allocated to presentation skills: tone should be relaxed, confident, reasonable, and believable. A speaker should demonstrate good eye contact, gestures and poise. While never forgetting to be respectful to the court, the competitor should realize that during oral argument, the court is seeking his assistance in reaching a correct decision in the case. The tone should reflect a belief and confidence in the position argued and an understanding of the issues that trouble the court.
Walking away from the podium, overbroad gestures, finger pointing or nervous gestures can detract from the total score. Good eye contact is an essential part in this category. Competitors will lose points in this category by reading a pre-prepared speech or digging through notes rather than looking at and speaking to the judges.
The proper manner of answering the court's questions will constitute another twenty-five points of the total score. The speaker should be responsive, support his answer with reference to the precedents or the record, think quickly and then return smoothly to the argument planned. His manner should anticipate and appear to welcome the court's inquiry. The competitor should stop speaking the instant a judge begins to pose a question. He should listen carefully to the question and respond directly. If the question lends
itself to a "yes or no" answer, the speaker should answer in that manner and then explain further if indicated. The speaker should remember that the judge will frequently follow up his question with another and be prepared to again stop speaking to consider the question.
Perhaps the most difficult aspect of this category of judging is the ability to return to the presentation of a cohesive argument after an interruption for questioning. The questions will frequently draw the speaker into another aspect of the issue and may leave him wondering where to resume. Herein lies the importance of preparing a flexible argument. It is essential that the speaker resume control of the presentation. If possible, a transition from the issue presented by the question back to the place where the
prepared argument was interrupted can be very effective. The speaker should also be aware of the nature of the questions posed both to his team and to the opposition. The best argument is the one that satisfies the concerns of the court and leads them in the direction of the position advocated. Again flexibility will pay off.
Another judging category is knowledge of the subject matter. Does the advocate use reason and logic, and is he completely prepared on the record and the precedents? Success in this category goes back to the previous section on case preparation. In preparing an argument, the competitors should realize that they will be tested upon the application of all the precedents, not just those they choose to incorporate into the presentation.
It should also be remembered that the court is equally prepared. Time is short and should not be wasted with an extensive recapitulation of the facts of the case. This may actually irritate the judges by indicating the competitor's belief that the court is not aware of the facts and issues. A statement of the record should be very brief.
Competitors should also remember that they are advocates arguing the case on behalf of a client. The successful argument should directly address the relief which counsel seeks before the court. Recall that an appellate court has the power to affirm or reverse the decision in the lower court. If reversed, the court has the power to render a new judgment or order a new trial. Depending upon the position being argued, this is the relief that the client and his counsel seek and it should be asked of the court. Counsel is not before the court to argue a philosophical principle of law, but to obtain result for their client.
A good presentation in a moot court competition incorporates both forensic skills and fundamental legal analysis and is founded upon the quality of pre-argument preparation. Students can work together in preparation to test each other's knowledge of the cases and record, to prepare for potential questions posed by the court and to get the feel of competing against another team. For this reason TUMCA encourages multiple entrants from participating schools and will only limit the number of teams a school may enter when absolutely necessary.
An undergraduate moot court competition can be an exciting learning experience for those who participate. The competition between schools is keen, but provides an opportunity to meet other students with similar goals and interests. The best advice for those who choose to participate is to work hard and have a good time.
DONNA M. BOBBITT, J.D.-All rights reserved 1994- COPYRIGHT 1994 UNIVERSITY OF HOUSTON-CLEAR LAKE