Moot Court Directions
Attorneys
1.
Research your case (see web links)
2.
Write a brief brief:
3.
Prepare your oral argument using your
brief as a guide
1. Petitioners present a brief introduction summarizing the lower court’s decision and why they are appealing it
2.
Defendants give a brief introduction as to
why they believe the lower court was correct
3.
Petitioners present their main argument.
Remember, examples and previous court decisions greatly strengthen your
argument in the eyes of the Justices
4.
Defendant does the same
5.
Petitioners summarizes their argument and
rebuts Defendant’s
6.
Defendant summarizes their argument and
rebuts Petitioners’s
7.
Justices retire to deliberate
8.
Justices
may and should ask questions of the attorneys throughout the proceedings
Candor and fairness. There are combative trial lawyers whose briefs are violently partisan, and so extravagant in their contentions and assertions as to irritate a court trying to find a solution to the problem. It is much better to state problems honestly, indicate contrary authorities and answer them, and to avoid, broad, sweeping generalizations either of fact or law which cannot be fully supported by the record or the authorities. This does not mean that the brief should be a weak, spineless impartial presentation; it should be a strong argument, but its strength should lie in well supported propositions and not in loose talk.
Concise and clear. Whether your style is a severely academic as Williston's or as colorful as Prosser's, try to say what you have to say in language which is understood at first reading, and which avoids repetitive restatement of the same thought.
Grammar and Punctuation. I have seen Moot Court Briefs which were obviously not read after typing – full of mistakes in spelling, grammar and punctuation. This is something to be avoided always; and the way to avoid it is to read over the whole damn thing before you file it.
The handling of cases. An appellate court dislikes extra work as much as you do; hence a brief which cites in miscellaneous form 200-300 cases and other authorities is a pain in the neck. The same is true of repetitive longwinded quotations from opinions, where the quotes are not in any particularly significant style. The court must eventually write an opinion, and usually relies heavily on the briefs; try to write your brief in a form which will give the appellate court the most help, and you will reap rewards in an opinion which does not overlook any of your important points. Sift out the main cases – the better reasoned, the more authoritative, the "root" or leading cases, those with facts which are closely in point or highly persuasive, those which can give excerpts of great value in establishing important principles or policies. Hightlight them – with a good introductory sentence or phrase, or with a concluding comment tying them into your case, or both. Subordinate to mere additional citation the less significant cases: those which merely support the point, and show weight of authority or spread of jurisdictions, or which show that the leading case is still followed by late cases. And don't clutter up the brief with a long list of cases of this character: substitute an encyclopedic or textbook citation or A.L.R. note, with the observation that it lists many other cases to the same effect.
Logical order and climax. How do you determine the sequence of points in a brief? About the simplest and least effective way is to list and argue them in the order in which you dig them out of the transcript or agreed statement of facts. All other methods are harder but better. Some lawyers prefer to make their strongest point first, and follow in descending scale to their makeweight arguments at the end. Others prefer climax, with the last point the strongest. Still others organize along logical lines the fact points and the legal points without regard to climax. There is no universally preferred method.
The Statement of Facts. In Moot Courts you are generally given a dehydrated statement of facts which appears in about the same form in the briefs of each side. But in actual appeals the facts are derived from a study of the transcript, are presented in partisan fashion, and differ radically in the opposing brief. Here is something to remember: You are an advocate, and the facts are often as important or more important than the law. You must therefore select with skill, and weave together a coherent picture of what happened, in such a way that it lays the groundwork for your argument and predisposes the appellate court to your side of the case. But, in doing so, you must be scrupulously accurate with the record in whatever you set forth as a fact, and you must be honest and fair in not omitting anything which is a significant fact and which affects the matters which you include, even if it is against you. You can't bury the disagreeable facts; your opponent will bring them in, and your omission will then not only have served no purpose but will discredit the whole statement and vitiate any favorable impression of the justice of your case. By putting in the whole picture, you can exercise your ingenuity in balancing the favorable and the unfavorable matters to lead to a conclusion, after your argument, that the significant facts are predominantly on your side.
The Conclusion. Some weary brief writers at the end of their product put in a heading called "Conclusion" and say that they respectfully submit that the judgment should be Affirmed or Reversed. I think this misses a big forensic opportunity. The conclusion is a place where you have immense freedom – you don't have to state facts impartially and you don't have to cite authorities. You are merely adding a final persuasive statement of your view as an advocate, and in it you can not only urge the justice of your side but the policy considerations which should govern the court in writing an opinion which will be a precedent. Us this opportunity to full advantage, but do not make it a stump speech full of extravagant claims.