Many appellate lawyers practice their oral arguments at moot courts. A moot court lets you try out your arguments and get some helpful feedback from a panel of ersatz judges.
Lawyers usually schedule moot courts soon after the court sends them a notice that oral argument has been set for a certain date.
Helpful, but only rarely does it help you win the appeal. The problem is this: 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.
If you represent the appellant, a moot court can be much more useful if you schedule it earlier: 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 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 affect 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 pretty 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 to them a bit earlier, and send them the Respondent’s Brief as soon as you get it. (If there’s a trial court opinion or Statement of Decision, send them that too – because that’s the first thing the real appellate court will review.)
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.
Moskovitz Appellate Team has three retired appellate Justices who are very experienced at providing this kind of feedback. If we can help you, give us a call.
by M.A.T. Legal Director Myron Moskovitz