To prepare for competition, athletes simulate the competitive environment. They generally accomplish this in two ways. First, athletes practice on their field of play. Basketball players practice on a basketball court, soccer players practice on a soccer field, chess masters practice on a chess board. Second, just as iron sharpens iron, athletes hone their competitive edge through scrimmages or exhibition games.
Effective appellate advocacy is no different. Drafting the briefs, creating an outline of your key points, and even practicing your arguments aloud is generally not enough to ensure success at oral argument. Simulating the appellate courtroom environment in a moot argument can be a crucial step in your preparation. Below are seven suggestions to help maximize your moots.
Select a diverse panel of judges. Your panel of moot judges should generally check four boxes. Some participants can and often will check more than one box, but it can be helpful to have the following bases covered. Consider inviting at least one person who is an experienced, local appellate attorney. Someone who is familiar with the rules of appellate procedure, local practice, courtroom decorum, and the judges on your panel. This person can often offer invaluable insight on the individual judges on your panel and how each is likely to approach oral argument in your case. They can also provide helpful guidance and constructive criticism on your style, pitfalls to avoid, and practical advice about logistics (such as where to park, when to arrive, and how to adjust the podium height).1
Second, you will want to include someone who is well versed in the substantive area of law. This person will be able to probe you on the cases cited in the briefs, how your case and arguments fit within the existing legal landscape, and any broader policy concerns the court might have.
Third, it is often helpful to have a person on your panel who is not familiar with the substantive area of law at issue in your appeal. Appellate judges come to the bench with a wide variety of prior legal experiences and most consider themselves generalists. Indeed, it is very likely that none of the judges on your assigned panel will have deep experience in the subject matter at issue. Therefore, you will want someone on your panel who will be reading the briefs and analyzing the issues through the same lens.
Finally, if possible, you should include someone familiar with the record and procedural history of the case, such as the trial counsel who handled the case below or the associate or colleague who helped draft the briefs. This person will be able to test your knowledge of the record by asking specific, nuanced questions that might not be obvious from the briefs alone. They can also be helpful in refining substantive answers asked during the moot, and tracking down case or record cites that you will want at your fingertips the day of oral argument.
Prepare the judges, so they can prepare you. It is your job to prepare the panel for the moot court. The packet of materials you send your moot judges should include the order being appealed from, the briefs submitted to the appellate court, and any appendices or addenda. It may also be helpful to include copies of any key cases, especially if you anticipate those cases being discussed at argument.
Don’t worry about the clock. Although you will have a set amount of time at the podium on the day of your argument, there is no need to impose rigid time constraints during your moot. Instead, block at least an hour or two, and use that time to really test your arguments. Allow the judges time to ask every question they can think of. You do not want to be surprised by a question for the first time at argument. You will also want ample time during the moot to test and refine your responses. Because your time at the podium is limited on the day of your argument, it is essential to have ample time during the moot to craft answers that are concise, precise, and compelling. That said, at least one time during your moot, consider “running from the top” and having someone on your panel keep time so you know how long your actual argument period is against your planned points and issues, so you can adjust and prioritize as needed.
Test your introduction. Although this is not always the case, you will generally have two to three minutes of uninterrupted time at the beginning of your argument. Do not waste this precious time reciting facts or providing background. Instead, assume the judges are well-prepared and write out a powerful introduction that packs a punch. Then, test this introduction at your moot. Allow each panelist to comment on its effectiveness. Once you have a final, polished introduction, try your best to memorize it, so you can make a strong first impression with the judges on the day of argument.
Stay open minded. By the time you get to a moot argument, you should know your case better than anyone. But guard against pride or arrogance getting in the way of receiving constructive feedback on your arguments or delivery. The perspectives of your moot judges, especially those who are not well-versed in your case or the area of law, are likely to be similar to how the appellate judges on your panel will react to your arguments. This insight is invaluable. Feedback can also come to you through self-reflection. Were there arguments that felt weak or unnatural? What arguments landed well? Be honest with yourself. You can also consider recording the moot, which will allow you to catch things you might miss such as distracting tics or your use of fillers such as “ums” and “ahs.”
Moot the case more than once. If possible, put yourself through more than one moot argument. This will pay off enormously in terms of generating familiarity with the types of questions the judges on your panel are likely to ask. The more you practice in a moot setting, the more you will internalize your answers, making your delivery all the more smooth, direct, and concise.
Consider inviting someone to argue the other side. Generally, it is not necessary to have someone argue the other side in order to adequately prepare for oral argument. That said, there can be some benefit in doing so if your client’s budget will allow it. Hearing strong arguments against your position may influence how you present your argument, especially for your response (if you are respondent) or your rebuttal (if you are appellant).
Bottom line, conducting a moot argument is well worth your time and the client’s money. By incorporating these seven tips, you will be well positioned to achieve the best results for your client.
Erica Holzer is a partner and co-chair of the Appellate Practice Group at Maslon LLP, where she represents clients in complex commercial disputes, products liability litigation, and insurance coverage actions.
Katie Barrett Wiik is a partner in the Minneapolis office of Saul Ewing LLP and a Vice-Chair of the firm’s national appellate practice group. Her practice focuses on appeals and commercial litigation.
Tyler “TJ” Bowman is a law student at the University of St. Thomas School of Law and a summer associate at Maslon LLP.
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