Setting Up A Moot Court

A good way to practice for an appellate oral argument is to hold a moot court. A moot court lets you try out your arguments and get some helpful feedback from a panel of "judges".

When I was a law professor, I started a program I called "Moot Court for Lawyers." Every week, a lawyer with a case pending in an appellate court (usually the California Supreme Court or 9th U.S. Circuit Court of Appeals) would argue to a panel that included myself, another experienced appellate lawyer, and a retired judge. The advocates found it very helpful, sometimes leading to victory in the real court. (I now hold similar moot courts, using former appellate judges in my law firm as panelists.)

The Basic Structure

You can do it one-sided, with only you presenting an argument. Or you can enlist a shill to present the other side, too.

I prefer it one-sided. It saves time and expense, and there's not much extra benefit in hearing the "opposing lawyer" if you select a panel willing to aggressively ask you tough questions.

Who Should Be on Your Panel?

It's best to recruit a panel of three lawyers, but if you're short of funds or friends, you can make do with two or even a single good one.

Pick people who are not likely to be sympathetic to your side. I once made the mistake of selecting a personal injury plaintiff's lawyer to hear an argument by another PI plaintiff's lawyer. "Yes, you're right!" said repeatedly really doesn't help much. And you can't expect many former PI plaintiff's lawyers to be on your panel of real judges.

It's tempting to select people who know a lot about the area of law you will be arguing, but this too is a mistake. The real judges will be generalists, not specialists. A panel of specialists will mislead you into an argument too arcane for a panel of generalists.

One time I sat with trust specialists on a moot court panel on a case involving a very complex trust transaction. They questioned the advocate about very sophisticated nuances of various documents and dealings. This lured the advocate into thinking that he should argue on that level. I later told them: "It's not likely that the real judges would ask those questions. They are not like you. They are not trust specialists. They are like me: a generalist who deals with all sorts of legal issues, both civil and criminal. To change their minds at oral argument, use simple justice arguments and analogies that relate to their own experiences. Persuade me, not the specialists." We then helped the lawyer structure that type of argument, and he won the appeal.

What to Tell Your Panel to Do

Before the moot court, the "judges" should read the key trial court documents (statement of decision, ruling on summary judgment, jury's special verdict, important contractual language, etc.) and the appellate briefs.

The briefs might persuade them to go your way. Nevertheless, ask them to go into the moot court with the following frame of mind: "I am leaning against you, and you have a tough uphill climb to talk me into ruling for you." That will give you the best experience trying to turn around a hostile court.

Tell them to grill you with questions just as the real court might. Out of courtesy, they might want to hold off their questions until after you've spoken for a while. Tell them not to do that. Real judges often interrupt at the outset, and you should be prepared to handle that.

The Argument

The lawyer should deliver her best opening and be prepared to answer tough questions. And be sure to develop a theme about injustice that cuts across all your particular arguments.

The Feedback Session

Immediately after the moot argument, hold a feedback session. Ask the "judges" to answer this question: "Did the argument turn you around?" Tell them to be brutally honest. Compliments might make you feel good, but the more important goal is to win the case. Then discuss ways to improve the argument.

Use what you learned at the feedback session to revise your planned argument. If you videotape the moot court, a review of the tape can help with your revision. It also tells you whether you have any distracting habits, such as saying "um" or "you know" frequently, tapping your pen, looking at the ceiling or leaning on the lectern.

The Best Time to Hold Your Moot Court

Lawyers usually schedule moot courts soon after the court sends them a notice that oral argument has been set for a certain date.

Useful, but only rarely does it help you win the appeal. Here's the problem: The judges have pretty much made up their minds before they even schedule oral argument. This is almost always the case in California appellate courts, where they've usually drafted the opinion before oral argument. The 9th Circuit doesn't go quite that far, but even there they've read the briefs and drafted some memos, so they've gone a long way towards making up their minds before oral argument.

Therefore, if you represent the appellant, a moot court can be much more useful if you schedule it for an earlier date: right after you receive the respondent's brief.

Why then? Because that's when you can get helpful feedback to use where it really counts: in drafting your reply brief. Since the judges will pretty much make up their minds after reading all the briefs, your reply brief is your last good chance to influence them. So make the most of it by getting some intelligent outside input right before you write it.

Setting up a moot court this way is tricky, because the timing window is small. After you receive the respondent's brief, the rules allow you only 20 days to file your reply brief. So try to get your moot court "judges" lined up before the respondent's brief is due. Get the appellant's opening brief and key trial documents to them a bit earlier, and send them the respondent's brief as soon as you get it.

Tell the moot court judges not to hold back any criticisms. If there's any chance that one or more of the respondent's arguments might hit home with the real court, you need to know it now. If your handling of an issue in your opening brief was weak, you need to know that too, while there's time to repair the damage in your reply brief.

Similarly, the respondent should try to hold a moot court after he has completed a draft of the respondent's brief - before filing it.

by M.A.T. Legal Director Myron Moskovitz