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Moot Court Coaching
__________________________________________________________
Appellate Advocacy Coaching Packet
__________________________________________________________
PDF version

I. INTRODUCTION

The moot court competition is the equivalent of an appeal being heard before an appellate
court such as the Fifth Circuit or United States Supreme Court.

II. PARTIES

In moot court, there are two sides which go by different names depending upon the court
that is hearing the appeal.
Example:
Party Name Party Name

U.S. Supreme Court Petitioner Respondent

TX Court of Criminal Appeals Appellant Appellee

TX Court of Appeals Appellant Appellee


U.S. Court of Appeals Petitioner Respondent

The Petitioner/ Appellant is the party bringing the appeal. The Respondent/ Appellee is
the party that is responding to the appeal–sometimes this party is called the government.

III. PREPARATION/ RESEARCH

Step One: Identify the issues.


Moot Court consists of two issues or questions presented. Most often the problem
will easily identify the issues for you. The issues should be divided between
Speaker One and Speaker Two.

Step Two: RESEARCH!


Thoroughly research the issues presented. If you are competing on a “closed
problem”, all the cases you are permitted to research will be listed at the end of
the problem. KNOW ALL OF THESE CASES. If you are competing on an
“open problem”, it will be up tp you and your partner to identify the important
and relevant cases or authorities.

Step Three: Outline Your Argument.


Before you even prepare your oral argument, outline a rough argument using your
research. The goal of moot court is to present a clear, persuasive argument for the
issue presented.

Step Four: Prepare an Oral Argument


Draft an oral argument. After you’ve researched and discovered the relevant
authorities, prepare an oral argument on paper.

Tips:
• DO NOT type out every word you plan to use. (This competition is
not about reading off a sheet of paper or memorizing a speech.)
• Use key words or phrases in an outline format. Use things that will
jog your memory to an idea.
• Create a framework or roadmap for your argument. This will keep
you on point.

IV. ORAL ARGUMENT


1. Before Oral Argument:
a). Moving party sits on the left & responding party sits on the right (when you
are facing the judges.
b). Rise when the judge enters the courtroom and remain standing until she asks
you to make your announcements. Announcements should go as follows:

Chief Justice: The Court will now hear Jones v. Day. Will the parties
announce their appearances?
Appellant/Petitioner: Johnny Depp and Orlando Bloom representing the
appellant/petitioner.

Appellee/ Respondent: Victoria Beckham and Katie Holmes for the


respondent/ appellee.

2. Oral Argument: (Appellant/Petitioner always speaks first).


a). Speaker Order:
i. Appellant Speaker 1 (address Issue 1)
ii. Appellant Speaker 2 (address Issue 2)
iii. Appellee Speaker 1 (address Issue 1)
iv. Appellee Speaker 2 (address Issue 2)
v. Rebuttal–a speaker for the Appellant will BRIEFLY address/ rebutt
Issues 1 & 2.

b). Introduction: “May it please the court. My name is ___________. My co-


counsel is ____________. Together we represent the Appellant or Appellee
_________. Of the two issues before the court, I will address the first
issue______________, while my co-counsel will address the second issue of
whether___________________.

c). Give the Facts: Only the FIRST speaker for each side will need to give a brief
version of the facts. NEVER, NEVER ask the court if they want to hear
the facts. ALWAYS assume that they do if you are the first speaker for
your team.

d).Roadmap:
After the introduction and facts (if necessary), give the roadmap to your
argument.
“There are 3 reasons this court should reverse/affirm the judgment
of the Fifth Circuit. First, _______________. Second,
______________________. Finally, ____________.”

NOTE: The roadmap should include your main headings. Your argument will
work best if you divide it–like an outline–into 3 parts, each with a heading. These
are the “reasons” that you are giving the court to decide for you early on before
jumping into your argument.

e). Present your argument. Be prepared to answer judges questions, but try to
follow the roadmap that your presented at the beginning of your argument.

f). Answering Questions:


• Front-load questions where possible. Example: “Yes, your honor
because....”
• Use authority wherever possible in your answers. “No, your honor.
As this court pointed out in Smith v. Smith.....”
• ALWAYS answer a judges question. NEVER say, “I will address that
later in my argument.” If the judge points you to any area of your
argument, go with it.

g). Conclusion:
• Tell the court exactly what you want it to do when you conclude.
Example: “For these reasons, this court should reverse the
judgment of the lower court and render a judgment of acquittal.”
• NEVER, NEVER, NEVER use the word “pray” in your conclusion.
Do not say, “We pray that this court.....” Just don’t do it. Never ask if
you may “briefly pray.” (Only the Fifth Circuit still recognizes this
type of conclusion.)

h). Rebuttal:
- Pick one or two points that the respondent addressed and rebut them.
- Tell the court why the respondent is wrong on those few points.
- DO NOT try to address their entire argument or go through your entire
argument again.
- Request your relief again.

V. TIPS
a). Cite the record and case law as much as possible.
b). KNOW the record and all relevant case law.
c). DO NOT bring cases up to the lecturn to reference and flip through.
d). Take as few papers to the lecturn as possible. The fewer the better.
e). Make a list of cases if you think you will forget one.
f). Maintain EYE CONTACT with all the judges.
g). Think. When asked a question, it is ok to think for a moment about your response.
h). DO NOT use statements such as “I believe.” “I think.” “I feel.”

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TIPS FOR BECOMING A BETTER APPELLATE ADVOCATE—
ORAL ARGUMENT
By Donald Capparella and Amy J. Farrar*
I. DOES ORAL ARGUMENT REALLY MATTER?i
Can you change a judge's mind at oral argument? If you are committed to
doing
one, the only attitude to take is that you can; any other assumption is both
risky and
counterproductive. One writer stated that "oral arguments are as useless
today as the
judges during my clerkship considered them….Oral arguments have become
little more
than a moot court exercise….At the end of the day, you may have picked up
points for
style, but you have still lost your case."ii It should be noted that this was
written by
someone who represents criminal defendants in Texas. This kind of advice
does you no
good when you are standing up there and looking an appellate court panel in
the eye.
If the question is what percentage of the time is a judge's mind changed by
oral
argument, the answer seems to vary widely depending on the judge who is
asked. One
self-imposed poll of three 8th Circuit judges tracked their cases over a ten
month period
and found that their minds were changed 31%, 17% and 13% of the time
respectively.
This was after they had all read the briefs and reached a tentative conclusion
prior to oral
argument.
Another judge of the Illinois Court of Appeals met with sixteen of his
colleagues
and asked the following questions: (1) What percentage of those cases did
the oral
argument affect your decision concerning the outcome of the case? The
answers ranged
from 0% to 100%; (2) In those cases where your decision was somehow
affected, did the
oral argument cause you to change your mind about the way an issue in the
case should
be decided? One judge again said 0%, two judges 20%, and the rest were in
between.
My personal unscientific polling of certain members of the Tennessee Court
of
Appeals and Tennessee Supreme Court have stated that oral argument is
very important
to them. They have typically said that in as many as 20-25% of the cases
that oral
argument had a substantial impact on their decision-making process. They
do not agree
with the old saw that you cannot win a case on oral argument, but you can
surely lose it.
You can win a case on oral argument. You can also lose one. You can also
have no
impact whatsoever.
There is no question that the brief is by far the most important part of your
appeal.
One writer has suggested that an oral argument is like sales. It is a chance to
close a deal
with a buyer--the Court. Unfortunately, your competitor has also been
invited. The basic
sales pitch has been made with your brief. The oral argument gives you a
chance to
ascertain what more it will take to sell your position and close the deal.
II. A BAKER’S DOZEN: THIRTEEN THINGS YOU SHOULD BE PREPARED
FOR IN ORAL ARGUMENT
1. Be prepared for questions.
The phrase "oral argument" is a misnomer; it is not an argument, it is a
discussion. At its best, oral argument is a conversation. The court needs to
make a
decision, and they want your help. Do not attempt to create a dramatic
flourish or parade
around as a great orator. It is your understanding and knowledge of the case
that they are
after.
You should see yourself as an invaluable resource to the judges; you are
there to
help them. You should think of oral argument as if they have asked you to
come answer
their questions and resolve their concerns. A judge that is on your side will
often use you
to convince another judge who is on the fence. It is important to also realize
that they
are, in most cases, right on the brink of a decision. Appellate judges very
often leave the
bench to go vote on your case. Oral argument is your last chance to affect
their decisionmaking
process.
2. Know the law.
If you think of yourself as a resource, you can tell them why a particular case
is
distinguishable or why it is controlling; you can synthesize the law. Know the
statutory
scheme and what problem it was trying to address and the underlying policy
reasons
behind its passage. Try to be an intellectual peer of the judges.
3. Be prepared to concede points that hurt you.
Be ready to quickly turn weak points around to show that, despite the
problem
with your case, you still win. Remember, if you are on appeal, and you are
the appellant,
you have already lost once. There has to be a reason you lost, and you
cannot just blame
the trial judge or the jury. Be prepared for questions that ask you to concede
something,
earn credibility by admitting the concession, and be prepared to point out
something in
the case that cancels out the negative point, or makes it irrelevant. If you are
the appellee
and there was an error below, better to admit to it and show that it was
harmless.
4. Know your standards of review.
Standards of review are critical in oral argument. First, the standard of
review
will tell you which arguments on appeal are likely to be the subject of the
oral argument.
The issues on appeal may be very different than those that were the hardest
fought at
trial, and the reasons will likely be the standard of review. If you are
appealing a jury
trial, and there was a hard-fought factual issue, (e.g., who ran the red light),
that will not
be an important issue on appeal because the standard of review is the
material evidence
rule. Very few jury verdicts are overturned for lack of material evidence.
On the other hand, if one of your issues is a legal one, the standard of review
is de
novo. I have won caes where the court of appeals applies the abuse of
discretion
standard, but I was not expecting to win. Knowing the standard of review for
each issue
helps you focus on the decision-making process of the Court of Appeals, and
will make
you better prepared for their areas of inquiry.
5. Be prepared to listen.
Aside from engaging in a discussion with you directly, appellate judges are
also
engaging in a discussion with each other through you. Listen, and read the
judge's
questions and body language. Listening to the judges is just as important to
the appellee
as to the appellant. The appellee should pay special attention to the judge's
reaction to
appellant's arguments.
6. Have a theme that ties the parts of your case together.
The first five minutes (maybe the first 2 minutes) of your oral argument are
the
most important. This is true for both the appellant and the appellee. The
most dramatic
moment in an appellate argument is when the appellee rises to respond to
the appellant's
argument. If you are the appellee, do not be locked into your argument. Be
prepared to
tee off on something the appellant argued, or on something a judge said in
response to his
or her argument. The first few minutes of your time is when you have the
judges’ highest
level of attention. If you go over the facts or do background at that point, you
will lose
the court.
7. Do a mock oral argument.
This gives you a chance to "practice" law. Find one, two or three colleagues,
make them read the briefs, and sit there for fifteen minutes (or more) and
have them ask
you questions. It will raise your confidence level immensely. It will also
prepare you to
answer the tough questions in a more prepared way. Tape yourself if you
dare. If you do
not do a mock argument, pretend you are the judge and anticipate the
questions that they
would ask; practice answering them on your feet and out loud. We sound
better in our
heads than we sound out loud.
8. Think about your demeanor.
I think it helps to smile (appropriately). Show no fear of their inquiry. Try to
be
thoughtful when they ask a question. Do not be afraid to stand there and
think for a little
bit before answering a question; be wide open, show no defensiveness. Eye
contact with
the entire panel is important.
9. Do an outline of your argument.
Make sure your argument outline fits on one page; it is there to trigger your
memory about the structure of your argument should amnesia or nerves hit
you. One
writer said you must be thorough and flexible. I think you cannot be flexible
unless you
are thorough. An outline helps you get back on track if you are asked a lot of
questions.
For example, create prepared concise statements on: (1) the procedural
posture of case;
(e.g., "This is an appeal of the trial court's grant of summary judgment on
statute of
limitations grounds." or "This is an appeal of a jury verdict where the plaintiff
was
awarded damages in the amount $150,000 for medical malpractice."); (2)
each issue in
the case; Use simplified language, do not remain wedded to the issues as
stated in the
brief. (3) the critical facts of the case.
10. Know what you want.
Be prepared for the court to ask you the following questions: If you could
craft
the rule that you want this court to adopt, what would it be? Is there a
compromise rule
that will satisfy you? What are the underlying policy grounds and good sense
that
support the result you want? Why is it good for others than just your client?
11. Keep rebuttal brief and to the point.
There should be no more than three points for rebuttal, and it should always
come
from discussion during appellee's argument, not a repeat of what you said in
your
argument. Save no more than three minutes for rebuttal; be prepared not to
use it.
12. Use visual aid if necessary.
In rare cases, demonstrative exhibits are helpful. I try and imbed them in my
brief, e.g. a key letter or timeline that is quoted. I then ask the court to look
at the
language with me together. Do not use a demonstrative exhibit as a crutch;
only use it if
it really helps. If a case turns on some language, a statute, or a letter some
people think it
is helpful blow up the language so it can be in front of everyone while it is
discussed. Be
careful to make it big enough! Some judges have poor eyesight.
13. Make certain the law you cite is current.
Read slip opinions (TAM) before oral argument. Shepardize your cases to
make
sure they are still good law
III. TEN THINGS YOU SHOULD NOT DO IN ORAL ARGUMENT
1. Do not be a lifeless lawyer who parrots a mediocre brief. You must not be
boring--do not read your brief or simply repeat yourself; sound like you care.
2. Don't argue your weak issues; if they have to be in the brief at all, don't
raise
them yourself.
3. Do not miscite the record or authority, and if your opponent does, point it
out
respectfully (and you better be right!).
4. When you are asked a question, never say "I will get to that in a minute."
Answer questions directly, completely and immediately.
5. Don't make jury arguments, make subtle appeals to emotion. Judges are
human, and want to do the right thing as they interpret it. Find out what is
right in their world and restate your position to fit.
6. All you have is your credibility, you must live to fight another day, so
always
be credible with your positions and citations.
7. Don't rush. Keep your poise, go with all deliberate speed.
8. Wear proper attire!!
9. Don't guess. If they ask you a question you really can't answer, admit it.
Try
and make sure this does not happen by knowing every question they might
answer. If necessary, offer to write a supplemental brief if it would help the
Court.
10. Don't introduce your client to the court.
*Donald Capparella has been an attorney of record in over sixty appeals in
both
federal and state court. He also teaches Legal Writing at the Nashville School
of
Law, and is current Chair of the Nashville Bar Association’s Appellate Practice
Committee. Donald handles all types of civil cases at the trial level, and
appeals
in both civil and criminal law. He also consults with other lawyers at the trial
level when significant or difficult issues arise.
Amy J. Farrar is an attorney with Dodson, Parker & Behm, P.C., focusing her
practice on Appellate Advocacy and Civil Litigation. She served as a law clerk
to
the Honorable Cornelia A. Clark, of the Tennessee Supreme Court, and
serves as
the Vice-Chair for the Nashville Bar Association’s Appellate Practice
Committee.
i Other sources for this article include:
Hon. Joseph W. Hatchett, Robert J. Telfer, III, The Importance of Appellate
Oral
Argument, 33 Stetson L. Rev. 139 (Fall 2003).
Oral Argument: Does It Matter? 35 Ind. L. Rev. 451 (2002).
How to litigate successfully in the United States Court of Appeals for the
Eleventh
Circuit? 29 Cumb. L. Rev. 1 (1998).
Hon. Joseph W. Hatchett, Robert J. Telfer, III, The Importance of Appellate
ii
Oral
Argument, 33 Stetson L. Rev. 139 (Fall 2003).

Performing Your First Appellate Oral Argument


Oral arguments can be one of the most anxiety-producing,
challenging, and at the same time, fun, experience for law
students and
litigators. Many students who initially fear this experience walk
away with
exhilaration because of the intensity of the intellectual challenge.
Although
an oral argument consists of the advocate standing up in front of
a panel of
judges and talking, it is quite different from your typical “public
speech.” A
student who may think that he or she hates to speak in public will
realize that
the ultimate success of an appellate advocate depends much
more on
understanding the law and facts of one’s case, anticipating and
addressing
questions from the court, and developing a coherent theme for
one’s case.
Therefore, do not fret if you do not think of yourself as a “good
public
speaker” because effective oral advocacy can be achieved by
preparation
focused on areas other than pure speaking ability.1
This article will provide many pointers in how to achieve success
in
your oral argument, by walking you through preparing for the
argument,
explaining what happens at oral argument, and warning of
potential pitfalls.
1Judge E. Barrett Prettyman gives the following advice for success in appellate advocacy:
“The answer is
quite simple. It is: By work…. There is not other road to success at the law. Work. More work.
Then
more work.” E. Barrett Prettyman, Some Observations Concerning Appellate Advocacy, 39
Va. L. Rev.
285, 301 (1953).
2
A) Importance of Oral Argument
Oral arguments at the appellate level have undergone many
changes
since the original arguments at the U.S. Supreme Court. For
example, before
1849, the Supreme Court did not limit the length of oral
argument. Daniel
Webster, Luther Martin, and their colleagues are said to have
argued for six
days in McCullough v. Maryland.2 The importance of oral
arguments during
that time period was further emphasized because up until 1821,
the Supreme
Court did not even require written briefs.3
Although the written appellate brief has much more prominence
in
presenting facts and legal issues to a court in current appeals
than it did in
the days of Daniel Webster,4 the oral argument serves to clarify
issues that
are troublesome to the court. Chief Justice William Rehnquist
reminds
lawyers that in the appellate system, the oral argument “is the
only
opportunity that you will have to confront face to face the …
Court who will
ponder and decide your case. The opportunity to convince [the
Court] of the
merits of your position is at its highpoint….”5 Justice Ginsburg
explains that
2 Nancy Winkelman, Just a Brief Writer, 29 NO. 4 Litigation 50, 51 (Summer 2003).
3 Id.
4 According to records kept by the Administrative Office of the United States Courts, for the
12-month
period ending September 30, 2002, 67.1 percent of appeals that were terminated on the
merits in the 12
circuit courts of appeals were decided on the briefs alone, without oral argument. See id. at
51; see also
Henry Gabriel and Sidney Powell, Federal Appellate Practice Guide: Fifth Circuit 7-1 (5th ed.
1998) citing
Judicial Workload Statistics, United States Court of Appeals for the Fifth Circuit, Clerk’s
Annual Report
(1996) (In 1996, the United States Court of Appeals for the Fifth Circuit granted oral
argument in only 28
percent of the cases.)
5 Chief Justice William Rehnquist, Oral Advocacy, 27 S. Tex. L. Rev. 289, 303 (1986).

3
“several potential winners become losers in whole or in part
because of
clarification elicited at argument.”6 According to Judges Myron
Bright and
Richard Arnold of the United States Court of Appeals for the
Eighth Circuit,
oral argument was “helpful” in decided cases about eighty
percent of the
time, in terms of assisting with the framing of the issues and
clarification of
reasoning.7 Judge Bright said that the oral argument actually
changed his
mind in thirty-one percent of the cases, and Judge Arnold said it
did in
seventeen percent.8 So “while various estimates suggest that oral
argument
influences the decision in far fewer than half of all cases, judges
agree that
oral arguments influence them in a significant number of cases.”9
B) Preparation for the Oral Argument
In the days and weeks leading up to the first oral argument of
your
law school career, you may think about or hear some of the
following:
“So how are we supposed to prepare for this oral argument”?
“How do I deal with being so nervous”?
“I hate speaking in public. I will never be a good lawyer.”
First of all, to debunk a few myths:
6 Ginsburg, Remarks on Appellate Advocacy, 50 S.C. Law R. 567 at 570.
7 Myron H. Bright & Richard S. Arnold, Oral Argument? It May Be Crucial!, 70 A.B.A. . J. 68,
Sept.
1984.
8 Id. at 70
9 Michael Fontham, Micahel Vitiello, and David W. Miller, Persuasive Written and Oral
Advocacy in Trail
and Appellate Courts, p. 154 (2002)
4
You CAN prepare for this experience and you WILL get better
with preparation and practice.
EVERYONE is nervous. Nobody can tell that you are more or
less
nervous than the person who went before or after you. And there
are
ways to deal with this.
The skills, knowledge, and understanding needed to deliver an
oral
argument are much different than simply being a good public
speaker.
Do not be so hard on yourself even if doing oral arguments
doesn’t
come easy at first. First of all, not all lawyers even do oral
arguments at
the appellate level; and secondly, even if you are not comfortable
at first,
you will get better.
How, then, should you plan for and achieve the successful
argument?
1) Re-read the briefs. This will allow you to re-familiarize yourself
with
the major legal and factual points of the case. Your oral argument
will then allow you to state your best points more persuasively
and
forcefully, to clarify points you did not make so well, and will allow
you to address points made in your opponent’s brief that you did
now
anticipate when writing your original brief.
2) Review the record and KNOW the facts of the case. It is
amazing how
much one can forget about the crucial facts of the case between
initial
review of the record, writing the brief, revising the brief, and then
having to deliver an oral argument on the same set of facts.
Several
weeks will pass in the semester (and even longer in real-life)
between
your initial introduction to the facts and your final oral argument.
5
Also, remember that during oral argument, you should be the
expert
on the facts and will have to answer questions from the panel on
these
facts.
3) Reread the important authorities relied upon by each side.
Judges
will most likely be familiar with these authorities, so be prepared
for
many questions on the holdings of these cases as well as the
reasoning
behind the relevant holdings. Also, be sure to update the
authorities.
Make sure that the authorities relied upon in your brief are still
“good
law” and check for any recent developments which may affect
your
ultimate argument. You can be sure that your opponent will do
the
same.
4) Create a theme that will unify the points of your argument.
Choose a
central theme to focus and strengthen your argument. If you can
tie
the issues into an overriding reason that your side deserves to
win,
you will be able to deliver a clear and concise message
throughout the
little time that you have during oral argument. This theme not
only
sets the tone for the oral argument at the beginning, but as an
advocate, you will be able to come back to it as you answer
questions,
permitting you to always get back to a central message.
Furthermore,
6
using a theme allows you to conclude with a final message to
leave
the court with the strength of your case.
5) Anticipate and prepare responses to likely questions. More
discussion
will be given to the type of questions you are likely to face and
how to
deal with them later, but in your preparation stage, you should go
through your brief and play “devil’s advocate.” What are your
weak
points? What, in your opponent’s brief has given you most
difficulty
in answering? What questions do you dread? Although this may
sound a bit masochistic, it is certainly better to spend additional
time
BEFORE the argument preparing candid answers to these types of
questions than it would be to look flustered during the actual
question.
Also, nothing looks better than giving a great answer to a
question
that the judge thinks is going to stump you. Also, nothing feels
better
than having a ready answer and watching the judge nod in
approval to
dealing with a potentially hostile situation.
6) Prepare a BRIEF outline of your argument. This outline should
be on
a single sheet of paper, or some professors and lawyers suggest
using
the interior of a manila folder that you can open up before you on
the
podium. You simply want to put your major points on the outline
and
use it as a quick reference. Your oral presentation to the court will
be
7
conversational and persuasive. Although you should outline your
arguments, you should not read from your brief;10 nor should you
write out your oral argument in its entirety and think that you
should
read from it or even consider that you will be able to memorize
it.11
The oral argument is constant interchange of ideas between the
bench
and the advocate. Therefore, you want to maintain as much eye
contact as possible and remain flexible enough to engage in
dialogue
with the court. If you like, you can write out your introduction.
Sometimes it is helpful to memorize this first minute or so
because it
helps get you settled at the very beginning. The contents of the
beginning portions of your oral argument are discussed in part C
below.
7) Practice. Once you prepare and study your outline, you are
ready to
practice giving the oral argument. At first, you may want to
deliver
the argument by yourself without any interruptions or observers.
This
will help give you an idea of what really works, what sounds good,
and it will increase your comfort level and confidence. As you
practice, you may find the need to revise your outline. As a
matter of
10 “The oral argument you make must necessarily be structured by what is covered by your
brief, but under
no circumstances should you simply recite, summarize, or selectively read from your brief
and consider it a
satisfactory oral argument.” Rehnquist, Oral Advocacy, 27 S. Tex. L. Rev. 289, 298 (1986).
11 “Oral argument from a prepared text is not favored.” Sup.Ct.R. 28.1

8
fact, you will very likely revamp your outline completely by the
time
your actual oral argument is scheduled. After practicing the
argument
a couple of times alone, you need to rehearse in front of a friend
or
colleague, even if the individual is not associated with law school.
Encourage feedback and suggestions. Finally, you should
videotape
your rehearsal and watch yourself on videotape. As a part of the
classroom or even practice for a moot court competition, you will
be
likely videotaped at least once. Watching yourself on videotape
may
not sound like fun, but it sometimes is the only way for you to
correct
problems.
Now, you have some of the ways to begin the preparation process
in
becoming an effective oral advocate. What exactly does the oral
argument
entail? What should you expect when you stand up for the first
time and
deliver the argument? The next few sections will describe the
actual
presentation and will try to prepare you for what this experience
will be like.
C) Delivering the Oral Argument
1) The Opening
So where do you begin? At the beginning of the argument, you
simply introduce yourself, who you are representing, and in what
capacity.
The traditional opening self-introduction is:
9
“May it please the Court, my name is _________, and I represent
the
appellant ______.”
2) Brief Description of Why You are Here/ Statement of the Issues
Then, you briefly describe the case in way that explains the issues
to
the judges and then simply state the reasons why you should win.
This
introduction of the issues and reasons for winning should only last
one
minute at most. This first minute should stimulate the interest of
the court
and should create the theme for your entire case. This theme will
then be
weaved throughout the remainder of your argument. If at all
possible, avoid
“legalese” at this point. Try to go beyond the technical, legal
points of the
case and appeal to the judges’ common sense, fair play, and
logic. One
technique that may work at this point is to ask yourself the
question, “How
would I tell a friend about this case?”12
This portion of your argument may sound something like:
“This cases raises the issue of whether (frame issue) and because
the
appellant in this case (describe significant facts necessary to set
up
issue and main reason why you should win), the decision of the
lower
court should be reversed.”
3) Roadmap or Overview of Argument
12Michael Fontham, Micahel Vitiello, and David W. Miller, Persuasive Written and Oral
Advocacy in
Trial and Appellate Courts, p. 182 (2002)
10
After describing the case in this manner and setting forth the
essential
theme of your arguments, create a “roadmap” for your argument.
This
overview will again lay the foundation for the theme of your case.
Also, it
helps the court know where you are going with your argument.
So, if you or
the judges ever get distracted, having the organization laid out at
the
beginning will make it easier to get refocused.13
Be careful not to go into too much depth on each of your points.
You
do not want to get into the “meat” of your argument at this point;
you are
simply mapping out where you are going to go. The overview
should only
be a couple of sentences and may sound something like this:
“I would like to discuss three main points with the court today.
First,
______. Second, ___________. And third, ___________.”
4) Facts
Lawyers and judges disagree on how much time should be spent
reviewing the “Facts.” For example, students often wonder if they
should
re-tell all of the facts that are included in the brief before moving
into any
real discussion of the “law.” A couple of words of advice on this
matter:
Generally, you will be short on time to get through all of the
substantive arguments you want to make, so your presentation
should
13 Id. at 183.
11
focus on the reasons you should win. Keep in mind that the
“reasons you
should win” may be very fact intensive.
The facts have already been set out in the brief; so if the court
wants to hear a fuller discussion, or if the judges have not had the
opportunity to read the briefs – they may tell you. Some courts’
rules, for
example the Fifth Circuit, state explicitly that the attorneys should
assume the court has read the briefs and are familiar with the
facts.
Obviously, you want to observe these rules when applicable. By
analogy, in the classroom or moot court setting, you should defer
to the
instructions of your professor or to the custom of that particular
moot
court competition as to how much time should be devoted to the
facts.
However, no matter what the rules of your particular court, be
sure
to include the facts that are relevant and crucial to setting up the
issue,
otherwise, your discussion of the legal issues will have no context
or
framework. In particular, the appellant should provide enough
facts so
that the court can understand the issues.
5) Jump Right Into Your First Issue
After introducing yourself, the relevant facts, the legal issues, and
why you should win, be prepared to jump right into the first issue.
12
But keep in mind that the bench may re-direct your argument
with
questions.
6) Customs of the Courtroom, including Questions from the Bench
Appellate oral arguments are much different than most other
speeches or oral presentation because the listener actually
engages in
the presentation with several questions. The presentation
becomes
much more like a conversation at this point with the attorney
addressing each one of the concerns that a judge expresses.
Not all of these questions are adversarial. Many students get on
the defensive as soon as a judge raises an issue. Although many
judges will play this role of devil’s advocate and try to get the
attorney to focus on the weak part of the case, some judges
merely are
curious about certain facts or procedural details. Furthermore,
some
judges are asking questions to “help you along” either by
providing
some structure if you seem disorganized or by “throwing a
softball”
so that you can get back on track. Do not mistake this to think
that
lack of preparation will be rescued by your panel, but at the same
time, do not get on the defensive with the onset of a question.
So, how do you respond to these questions?14
14Id. at 196. According to Fontham, et al., “[t]he ability to handle questions is often the key
to effective
argument.” They offer the 6 tips that are highlighted here.
13
1. Listen to the question. This may seem obvious, but many
attorneys want to respond to a question they wish they had been
asked rather than the one actually posed. Nervous students who
have memorized or who are reading an argument will often
have trouble answering questions because it is not the next
matter on the “script.”
2. Answer the question immediately. If you wait to answer
the
question or if you communicate that “I’ll get to that later,” you
will irritate the judge or you will simply create a situation
where the judge tunes you out until you answer.
3. Answer the question directly. Do not try to explain an
answer
before giving a direct response. If the question requires a “yes”
or “no,” the next word out of your mouth should generally be
“yes” or “no.” Of course, you can then explain or qualify your
answer.
4. Be candid. Your argument will have weaknesses and your
client’s position will have areas where your opponent has
stronger legal footing. At times, you may have to concede a
“bad point,” but you still have the opportunity to explain why
that point is not controlling.
14
5. Follow through. This is probably the most difficult task of an
oral argument. After answering a question and explaining your
answer, you must lead back into your planned presentation.
The oral advocate who can do this communicates command of
the argument. Although this skill takes time to develop, the
best oral arguments will transition smoothly and effortlessly
from question and answer back to the affirmative presentation.
As you write your outline, try to anticipate the questions and
prepare your answers in a way that will make this transition
most natural.
6. Avoid being caught in a hostile dialogue. Some judges will
try to get you to concede certain points through persistent
questioning. This process can oftentimes be extremely
annoying and hostile. But you always want to remain polite,
firm, and simply “keep to your guns” in a way that is respectful
to the judge. Do not abandon key points in your argument
simply because a judge asks a question that attempts to extract
concessions. Simply try to move on. After answering a
question, try to “Follow through” to the next point of your
argument. Hesitating and silence only invites more questioning.
15
A few notes about Rebuttal
The appellant will have an opportunity to respond to statements
from the appellee for purposes of your oral arguments. This
rebuttal
portion of the presentation should be brief and should respond to
specific points raised by your opponent. This is not a time to
summarize or re-state your earlier argument. Although this will
require quick thinking as you need to respond to specific
arguments,
proper preparation will allow you to anticipate the points your
opponent raised and your expected response.
Live Oral Arguments
Besides listening to recordings of oral arguments, students may
also be interested in watching a live oral argument. All students
should try to take a “field trip” to an actual appellate court to
watch
attorneys present an oral argument. Furthermore, students may
want
to attend any of the “moot court” activities sponsored by their law
school.
16
Oral Argument Checklist
Always introduce yourself and who you represent
Memorize the first 2 or 3 minutes: identify issue and articulate
the
fundamental reasons your client should win; memorize a
conclusion
Although it is important to consider and discuss policy
arguments;
you always want to give the court the legal basis for making their
decision; i.e. what statute? what case? etc. And if your opponent
overuses policy, be sure to counter with strong use of actual law
Think through the implications of your major arguments so as
to
anticipate questions and counterarguments (same goes for
written
brief)
Using analogies to make your point; can be very strong, but be
careful not to go off on a tangent or invite questions that are
irrelevant
to your main argument
DO NOT ask rhetorical questions such as “Does the Court really
want to …?”
Stay behind the podium during appellate argument; more
formal
than an opening statement at trial where counsel has much more
freedom to move around the court, etc.
Don’t point at client or opponent
Pick your two or three major points and try to emphasize those
points; choose order that you want to present these arguments.
Use outline; do not memorize entire speech; do not use note
cards;
try to come back to outline after a question is asked. Anticipate
the
order that is most important to judges. A roadmap at beginning of
argument can be helpful (part of your first 2 or 3 memorized
minutes)
Watch your pace: most people need to slow down!!! But at the
same time, you have a lot of information to get through in a short
period of time.
Maintain eye contact. DO NOT read from a script.
No hands in pocket; No shifting feet
DO NOT twirl pen
Be professional. Humor can be ok, but generally not
encouraged
(oftentimes depends on relationship one has with panel of judges)
DO NOT simply go through each case one by one; again just
like
writing brief; pull principles from case law and organize argument
around those principles
BE PREPARED. KNOW every case and every fact
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○ Brief Formatting Rules
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Phillip C. Jessup International Law Competition


AN INTRODUCTION
The Phillip C. Jessup International Law Moot Court Competition is organized by the
International Law Students Association and takes place in the spring of each year. At the
regional level, students in the United States compete against approximately a dozen other
schools. Regional champions advance to the to the international rounds held each spring in
Washington, D.C. in conjunction with the annual meeting of the American Society of
International Law (ASIL). In Washington, D.C., the various U.S. regional champions compete
against each other, and then against national champions from Jessup Competitions held
throughout the world to determine the Jessup Competition World Champions.
The Jessup Competition began in 1959 as an advocacy competition between law students from
Harvard, Columbia, and the University of Virginia. Since that time, the "Jessup Cup," in which
students argue before a mock International Court of Justice, has grown to become the largest and
most prestigious international law moot court competition in the world. Today, approximately
1500 students from more than 600 law schools and well over 100 nations participate in the
Jessup Cup.
Duke Law has an excellent history at the Jessup Cup, both at the regional and international levels
of the competition. The Duke Law Jessup Team prevailed as the Jessup Competition World
Champions in the late 1960's. The 2000 Duke Law Jessup Team captured a regional
championship and went on to Washington, D.C. to become the United States Jessup Champions,
where they lost in the World Competition quarter-finals to the Jessup team from Ireland. Last
year's team won the East Regional Championship before being eliminated in the International
Rounds.
THE JESSUP TEAM SELECTION PROCESS
(return to Table of Contents)
The Duke Law Jessup Team is typically comprised of four or five students chosen on the basis of
tryouts conducted in the early fall. Any 2L's, 3L's, and L.L.M.'s**, including current members
of the Moot Court Board -- may try out for a spot on the Jessup Team. Knowledge of
International Law and/or past or current enrollment in International Law courses, although
helpful, is not a prerequisite for the team.
Students trying out will be given a sample memorial to prepare for the tryouts. From the time
they receive their materials until the time of their tryouts, students will have approximately 24
hours to prepare. In this time, they are expected to prepare an oral argument up to 12 minutes
long (see "A Primer to Oral Argument," below) based on the arguments contained within the
memorial they receive. While no problem-specific research is required, those who are less
experienced with international law might want to, and are permitted, to conduct outside
research. At their assigned times, each student will present their oral argument to members of
the Moot Court Board.
Click here to view the scoring criteria by which competitors will be judged.
Students invited to participate on the Jessup team will also be invited to join the Moot Court
Board. The Jessup Team will begin doing very preliminary research on the Compromis (i.e., fact
pattern) this fall semester. Additionally, each member of the Jessup Team will be expected to
return to campus shortly after the new year (and before classes resume for the spring semester)
for a intense, week-long, team research and writing session. This is when the team will complete
the bulk of their written work; participation that week is mandatory for all team members. The
team will then schedule oral argument practice sessions (around members' class schedules) and
begin practicing shortly after the spring semester begins. Regional rounds of the competition
commence in early February.
A PRIMER TO ORAL ARGUMENT
(return to Table of Contents)
With only minor exceptions, oral arguments presented for the Jessup Cup tryouts should be
conducted as in most other moot court competitions. For those yet unfamiliar with the in's and
out's of moot court oral argument, the following should serve as a guide. For further guidance,
consult a member of the Moot Court Board and/or ask to view a video recording of past Hardt
Cup or Dean's Cup finals.
Structure & Sequence
(return to Table of Contents)
1. Opening
Competitors should wait quietly in the hallway outside of the room to which
they are assigned for tryouts until the judges ask them to enter. Competitors
may be seated after the judges sit down. When the judges indicate that they
are ready, the student should rise and approach the podium or lectern.

2. Introduction
The very first statement out of moot court competitors' mouths should always
be, "May it please the Court, my name is _____, counsel for the appellant [ or
respondent], _____." It is very important to remember to say, "May it please
the Court;" it is simply a well-established formality of moot court competition,
to which you should adhere.

3. Statement of the Case


You should always begin your argument with a clear and persuasive
statement explaining the essence of your case. This statement should be
confident, succinct, and, to the extent possible, slanted in favor of your
version of the case. For example, in a case where police allegedly used
excessive force in apprehending a suspected drug dealer, counsel for the
government might state the case in the following way: "This is a case about
the proper and lawful use of police power to address the significant threats
posed by drug trafficking in our city."

4. "Roadmap"
After introducing yourself and your case, but before making any further
argument, identify the TWO or THREE (but no more than three) issues you
will discuss. Make these issues clear and straightforward. For example, "This
Court should find in favor of the appellant [or respondent] for two reasons...."
You should then list your main arguments. For example, "...First, because
this Court does not have jurisdiction; and Second, because customary
international law is applicable in this case and is on the side of the appellant
[or respondent]."

If you think of (and/or organize) your oral argument in outline form, the two
or three reasons contained within your roadmap should be the highest levels
of your outline (below the conclusion you want the Court to reach). The body
of your argument should expand below the reasons you list in your roadmap.
The roadmap gives judges an overarching picture of the more nuanced
argument that will follow.

Memorize your opening and your roadmap. The most successful oral
advocates memorize their opening roadmap and maintain eye contact with
the judges throughout. This is the best way to make a good first impression
of confidence and preparedness.

5. Facts
Briefly outline the relevant facts of your case, taking care to highlight those
that support your position, but without arguing your position. Keep your facts
short (no more than two minutes) and focus on the critical elements of your
case. Be forewarned that the Court might interrupt and ask you to skip the
facts. If they do, proceed with your argument. Don't assume that this will
happen, though; it's the Court's decision. Bottom line: prepare the facts.

6. Order of Argument
Begin the body of your argument by discussing the first issue in your
roadmap. Make your argument, and then proceed directly to your second
issue. There is no need to pause or to solicit questions. The judges will
interrupt you with questions as they wish. Answer their questions directly
and use your roadmap and outline to find an appropriate place at which to
continue arguing.

7. Conclusion
When you have finished your argument, end with a clear statement of what
you are asking the Court to do (a "prayer for relief"). For example, "...For the
foregoing reasons, I respectfully request that the Court find in favor of the
appellant / respondent and [take whatever specific action is specified in the
memorials]."
Etiquette & Style
(return to Table of Contents)
• At all times, judges are to be referred to as "Your Excellency," with respect
and deference.

• Do not bring pens, pencils, or loose watches with you to the podium.

• Be aware that at any time during your argument, the judges can and will
interrupt you with questions. It is vital that you fully answer the question to
the best of your ability when the judge asks it. Do not tell a judge that you
will answer that particular question later in your argument. Go where the
judge leads you, even if that means not following the argument that you
planned. Don't let this aspect of moot court competition frustrate or distract
you. Part of the challenge is adapting to and taking into consideration the
judges' concerns, while finding the time and opportunity to still voice the
important parts of your argument.

• If you do not understand the question a judge asks, you should ask him or her
to explain or clarify their inquiry. It is fully acceptable to ask for clarification
and almost always preferable to answering a question the judge did not really
ask.

• Approach your oral argument as a conversation with, not a lecture to, the
judges. Engage in an exchange of ideas with the judges and respond to their
concerns. Don't read a speech to them.

• If a judge asks a "yes" or "no" question, answer first with "yes" or "no" -- then
elaborate. For example, reply with, "Yes, Your Excellency, in fact ...," or "No,
Your Excellency, rather ...."

• Never speak over a judge. When a judge starts talking, you should stop
talking immediately, even if he or she has interrupted you mid-sentence (or
even mid-word).

• It is okay to stand firm in respectful disagreement with a judge as long as you


can back up your position with a well-reasoned argument.

• You will have 12 minutes to present your oral argument. At the end of your
presentation, the judges or bailiff (if one is present) will show you a "STOP"
card. Once you see the "STOP" card, immediately stop speaking. If you are
still speaking when you see the "STOP" card is presented, ask the Court if you
may finish your thought or answer. If the Court says, "Yes," then finish your
thought or answer, but do not take advantage of the Court's generosity:
Finish only that thought or answer, and then retire. Do not make new
arguments.

• When you finish your argument (or run out of time), thank the Court and sit
down.
Preparing Your Oral Argument
(return to Table of Contents)
• Know your arguments completely. In planning your presentation, make sure
to highlight and make a theme of your case's merits. But also anticipate
problems for your side and prepare responses to questions the judges are
likely to ask or to issues that opposing counsel is likely to raise in his or her
presentation.

• Pay attention to the major cases referenced in the materials. You need not
memorize all of the cases cited, but make sure you understand the
connections between the cases cited and your argument.

• Focus on the two most important arguments in the problem. They should
constitute your entire argument. Oral arguments are brief, so you must delve
into only the most important (and convincing) arguments available to your
side. With the 12 minutes that you have, do not attempt to argue all the
points raised in the memorial or all the potential issues you have anticipated
having to discuss in response to the judges' questions.

• Always focus on why your side is right, rather than on why the other side is
wrong. When crafting your argument, put yourself in the judges' position.
Look for the weaknesses in your argument, anticipate the questions judges
might ask, and plan responses that transition to the merits of your position.

• 'Know when to hold 'em, know when to fold 'em, know when to walk away,
know when to run ....' Knowing when to make concessions without
weakening the core of your argument is an important skill of oral advocacy.
If both sides of the case did not both have real strengths and weaknesses, if
the case should have clearly been decided one way or another, it simply
wouldn't even be before the court. It is okay to stand firm in respectful
disagreement with a judge, and it is okay to admit a weakness in your case,
as long as it doesn't undermine the basis of your argument.

• DO NOT WRITE OUT AN ENTIRE SPEECH to deliver to the judges. Instead it is


a good idea to make a brief outline to help you remember the key arguments
and issues of your case, and to note key treatises and cases. Try to limit your
outline to one sheet of paper. Use key words and phrases to jog your
memory. While you should certainly have some idea of what your argument
sounds like -- what words you will use beyond your outline -- reading a
speech is simply not persuasive. Reading is one of the most common
mistakes made by inexperienced oral advocates. Approach your argument
as a conversation with, not a lecture to, the judges.
**Pursuant to the rules of the Jessup Competition, L.L.M. students may try out for and
participate as a member of the Jessup team, if they meet the following conditions: 1) they
entered the L.L.M. or equivalent program within eight (8) months after completing their primary
legal education; and 2) they did not, during the interim, engage in the practice of law or any work
of a nature which would provide the student a significant or unfair advantage over other students
participating in the Competition.
Contents
• An Introduction
• The Jessup Team Selection Process
• A Primer to Oral Argument
○ Structure & Sequence
○ Etiquette & Style
○ Preparing Your Oral Argument
Duke University School of Law
• Accessibility Statement
• Contact Duke Law
• Duke University Home

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#361

Tia A. Moot Court 2 Years, 11 Months ago Karma: 4


(User)
I have prepared an outline of tips and hints for moot court arguments and
little reminders on how the process works. I thought someone might find it
helpful, so, I decided to share it. I really made things much clearer for me
and easier when it came time to go through the process...Enjoy...
Senior
Boarder MOOT COURT MODUS OPERANDI

General Reminders, Hints & Tips


Posts:
72 1. Have a yellow pad and pen next to you at all times.

2. Take with you to the podium a vanilla folder and all cases cited or relied
upon, but refer only to notes in the vanilla folder if at all possible.

3. Take a deep breath before you engage the bench, and do not begin
until you are relaxed and ready.

4. Make eye contact as much as possible – all the time, if possible.


Address questions asked by specific judges to that judge, but general
points to the entire bench.

5. Stand-up straight and tall, with good posture. Do not lean on the
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podium – ever. Do not move or walk about. Keep your hands either at your
sides, or posed in front of your torso – never in your pockets or fiddling
with papers, pens, or other objects. Move your hands to make specific
points, but do so carefully and sparingly: you’re not guiding a 747 in for a
landing, so don’t act like it.

6. Show respect and give due deference to the bench at all times, and
never lose your cool – even if the bench intentionally provokes or tests
you.

7. Speak s-l-o-w-l-y, LOUDLY!, confidently, calmly, and take your time.


SLOW and STEADY – don’t speak until ready.

8. Class beats the smart-ass every time. And it’s better to over-dress for
success than under-dress and look like less.

9. Smile!  It’s a proven fact that doctors and lawyers who
smile are 50-70% less likely to incur malpractice suits. (This also implies
that smiling lawyers win more cases.)

10. You are presenting and projecting – not reading or relaxing, so act
accordingly. Remember: to sell meat, you have to sell the sizzle and the
steak.

11. Be aware of “red herring” or “white elephant” questions that may be


asked: avoid them, or acknowledge and dismiss them, but stay on track!

12. Lead the court: you are in control. Do not let the court guide you;
however, if the court asks you a question, answer it immediately and
definitively.

13. Watch your tone: how you say it is as important as what you say.

14. Pay attention to your time and keep on schedule.

15. Only address the bench as, “Your Honor,” “Judge,” or “Justice,” – never
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“sir” or “ma’am.”

16. Remember (or at least write down) the judges’ names.

17. Know the facts and parties of the case on appeal down cold.

18. As obvious as it sounds, make sure you know if you are appellant or
appellee.

19. Never use the word “I” – always “We,” or, “It is our position. . .,” or
“Appellant/Appellee requests. . .,” et cetera.

20. Know the names, cites, facts, and holdings of cases supporting your
position cold.

21. Listen very carefully to the question asked by the bench.

22. Listen very carefully to the comments made by the bench.

23. Answer only the question asked – never volunteer more information
than is necessary or required.

24. Avoid the past passive, present passive, and future passive tenses at
all costs. For example, never say, “It would have seemed . . ..” or “It would
seem . . ..” Employ active future, present, and then past tenses as much
as possible. For example, “It will be . . ..” or “It is . . ..” or “It was . . ..” Be
firm and assertive.

25. Remember that secondary authority has no mandatory judicial


application – this includes, treatises, law review articles, ABA opinions and
rules, restatements of the law, all other non-primary non-mandatory
authority, et cetera. But also remember that other primary, non-
mandatory authority is especially persuasive, particularly opinions from:
US Circuit Courts of Appeals; US District Courts of the Primary State; US
District Courts of Secondary States; State Supreme Courts; State Appellate
Courts; State Circuit Courts (virtually unpublished decisions); State District
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Courts (virtually unpublished decisions).

26. Be sure to distinguish – and be wary of – criminal versus civil case


citings.

27. If you don’t know the answer to a question, say so. A fantastic way to
dodge the answer to an unknown question is to say openly, “Your Honor, I
apologize but I am not privy to that information at this time; however, if it
please the Court, I would be happy to research and brief the issue, and
provide the Court with a copy of my findings by 9:00 a.m. tomorrow
morning.”

28. If you’re appellant, at the beginning or your argument always request


3-5 minutes of rebuttal time.

29. If you’re appellee, always begin your argument by answering


questions posed by the bench to the appellant.

30. Cite to the law first and public policy arguments second: remember,
the Court couldn’t care less what you think, so don’t! – Know your position
and stand your ground no matter what: don’t hypothesize about what
would, should, or could be.

31. When you receive the 3 or 2-minute warning, end your current point
and move to your conclusion immediately.

32. If time exhausts while you are still speaking, stop immediately, then
state: “If it please the Court, I recognize that my time has expired, yet I
respectfully request that the Court permit me to complete this final point.”
– If the Court permits you to continue, then make your point effectively
and efficiently; if the Court doesn’t permit you to continue, then say,
“Thank you,” and shut-up and sit down.

33. Pay very careful attention to ethics ramifications of (potential)


decisions and comments: judges love to hear about the ethical and moral
implications. But along those lines, also never let the bench force you to
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betray an ethical obligation you have to your client or the law – even if it
means losing the case, being told to answer or stand silent for the
duration of your time, or being held in contempt of court. A great response
may often times be, “I apologize to the Court, but due to ethical, loyalty,
and confidentiality requirements that I have to my client and the law, it is
inappropriate for me to disclose that information at this time.” If this
means you’re cuffed ‘n’ stuffed, then so be it.

34. Practice. PRACTICE! PRACTICE!!! – Know your shit, and KNOW you
know your shit. And, when you KNOW that KNOW that you KNOW. .
.PRACTICE SOME MORE!!!!! Over-preparation will guarantee that you’re
retired a multimillionaire and lounging on the beach by the time you’re 40;
under-preparation will guarantee that you work till 80 as a civil servant in
the inner city. Practice.

35. You are an advocate – championing a valid cause, embracing truth,


and promoting justice! Your opponent is the adversary – unsure,
incompetent, and a general cluster fuck. Thus, BEAT YOUR OPPONENT
AND PROVE YOUR POSITION! Losers say, “I tried my best,” and then go
home alone and cry in their milk and cookies. Winners say, “I am the best
and I just proved it!” and then go out with a group of friends, drink hard
liquor, eat lobster, and entertain offers from wanna-be’s all night. Don’t be
a loser. Be a winner. Believe you’re the winner; think like the winner; act
like the winner – be “The Winner.” As the saying goes, “Play like a
champion TODAY!”

APPELLANT

GREETING

1. “May It Please The Court?”

2. “Good Morning/Afternoon.”
“Todd Branch [‘insert your name’], representing the petitioner, [‘insert
client’s name’), in the case before the Court today.
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3. At this time, I respectfully request that I be granted 3 [‘or 4 or 5,
depending upon your preference – but never more than 5’] minutes for
rebuttal at the conclusion of appellee’s argument.

ISSUE

4. “The issue before this court today is. . . [‘state issue on appeal in the
form of a question’]”

5. “The answer to that question is an unequivocal ‘YES/NO’ [‘select one,


obviously’] And thus. . . [‘state what answer/resolution to question should
be’]

REQUEST

6. “We respectfully request that this Court REVERSE and REMAND the
Court of Appeals’ and the Lower Court’s holdings. We ask that the
Supreme Court find that. . . [‘state specific relief requested’]

FACTS

7. “Would the Court like a brief recitation of the facts of the case at this
time?”

[If “Yes,” then recite the facts – from memory – and state them in a light
most favorable to your position; if “No,” then proceed to the next section.]

INTRODUCTION

8. [Prepare a 1-3 minute introduction to acquaint the court with the basic
ideas of the case and explain in general terms why your position is the
correct one.]
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REASONS

9. Based upon these simple and apparent ideals, the Supreme Court
should OVERTURN the Lower Courts’ rulings for the following [‘state
number between 3 and 5’] reasons:

1. [Reason 1 – one sentence]

2. [Reason 2 – one sentence]

3. [Reason 3 – one sentence] et seq., if need be. . .

PERSUASIVE CASE LAW and GUIDING POLICIES

10. “Since there are no controlling cases in [‘state jurisdiction’], the


Supreme Court reviews this case as a matter of first impression. Thus,
Appellant respectfully requests that this Court seek guidance from [‘state
case name of strongest case, i.e., the one most on point – which usually
supporst “Reason 1” from above’].”

11. [Upon the completion of summarizing the first case’s facts, holdings,
and logic, move on to your second strongest case – which usually supports
“Reason 2” from above.]

12. [Upon the completion of summarizing the first case’s facts, holdings,
and logic, move on to your second strongest case – which usually supports
“Reason 3” from above.]

13. [et cetera, as the Court and time permits]

CONCLUSION

14. [State a 1-3 minute conclusion here, using facts of the case to support
your position, how your client’s position is well-aligned with the holdings
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and cases from other jurisdictions, and conclude by stating something
similar to: “Thus, for the reasons identified, Appellant once again requests
that this Court. . ..”]

15. “Thank you.”

--------------------------------------------------------------------------------------------------------
----
“Appellee’s Argument Time”
--------------------------------------------------------------------------------------------------------
----

REBUTTAL

16. [Listen carefully to Appellee’s arguments, and questions posed, then


use this time to address those points, then concluded with “Thank you.
The Appellant rests.”]
APPELLEE

GREETING

1. “May It Please The Court?”

2. “Good Morning/Afternoon.”
“Todd Branch [‘insert your name’], representing the respondent, [‘insert
client’s name’), in the case before the Court today.

ISSUE

3. “The issue before this court today really is. . . [‘state issue on appeal in
the form of a question, distinguishing it – if at all possible – from how
Appellant stated it, in a way which is more favorable to your client.’]”

4. “The answer to that question is an unequivocal ‘YES/NO’ [‘select one,


obviously’] And thus. . . [‘state what answer/resolution to question should
be’]
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REQUEST

5. “We respectfully request that this Court AFFIRM the Court of Appeals’
and the Lower Court’s holdings. [Make sure that the lower courts actually
do agree with your position: if not, then adjust the statement accordingly.]
We ask that the Supreme Court find that. . . [‘state specific relief
requested’]

FACTS

6. “Would the Court like a brief recitation of the facts of the case at this
time?”

[If Appellant has already stated the facts of the case, then ask the court if
they would like the facts re-stated again?”— If “Yes,” then recite the facts
– from memory – and state them in a light most favorable to your position.

If “No,” then proceed to the next section. Or, if “No,” then you may
request to add facts that the Appellant may have skewed or omitted in
order to make his client appear more favorable.

Thus, this means that it is imperative that you pay careful attention to any
and all facts that Appellant states during his/her argument; you need to
correct inaccuracies at this time.]

RESPOND to POINTS and QUESTIONS POSED by BENCH to APPELLANT

7. [Use the opportunity to address and answer specific questions asked to


Appellant that you can distinguish in a way that is more favorable to your
position. For example, you may begin by saying, “At this time, I would like
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to address the question asked by Judge ‘X’ about. . ..” Obviously, to pull
this off effectively, you need to have paid careful attention to the
questions and comments directed at the Appellant, as well as the Judge
who posed the question or made the comment. Note: if you can’t do it, i.e.
you lack the confidence or you didn’t pay close enough attention and take
the appropriate notes, then skip this part, otherwise you’ll screw yourself
royally.]

INTRODUCTION

8. [Prepare a 1-3 minute introduction to acquaint the court with the basic
ideas of the case and explain in general terms why your position is the
correct one.]

REASONS

9. Based upon these simple and apparent ideals, the Supreme Court
should UPHOLD the Lower Courts’ rulings for the following [‘state number
between 3 and 5’] reasons:

1. [Reason 1 – one sentence]

2. [Reason 2 – one sentence]

3. [Reason 3 – one sentence] et seq., if need be. . .

PERSUASIVE CASE LAW and GUIDING POLICIES

10. “Since there are no controlling cases in [‘state jurisdiction’], the


Supreme Court reviews this case as a matter of first impression. Thus,
Appellee respectfully requests that this Court seek guidance from [‘state
case name of strongest case, i.e., the one most on point – which usually
supporst “Reason 1” from above’].”

11. [Upon the completion of summarizing the first case’s facts, holdings,
and logic, move on to your second strongest case – which usually supports
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“Reason 2” from above.]

12. [Upon the completion of summarizing the first case’s facts, holdings,
and logic, move on to your second strongest case – which usually supports
“Reason 3” from above.]

13. [et cetera, as the Court and time permits]


CONCLUSION

14. [State a 1-3 minute conclusion here, using facts of the case to support
your position, how your client’s position is well-aligned with the holdings
and cases from other jurisdictions, and conclude by stating something
similar to: “Thus, for the reasons identified, Appellant once again requests
that this Court. . ..”]

15. “Thank you. The Appellee rests.”

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