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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
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.
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.
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.
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.
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.”
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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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.
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).
• 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.
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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.
5. Stand-up straight and tall, with good posture. Do not lean on the
TOPIC: Moot Court
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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.
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.
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.
15. Only address the bench as, “Your Honor,” “Judge,” or “Justice,” – never
TOPIC: Moot Court
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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.
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.
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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.”
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.
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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.
APPELLANT
GREETING
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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ISSUE
4. “The issue before this court today is. . . [‘state issue on appeal in the
form of a question’]”
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:
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.]
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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“Appellee’s Argument Time”
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REBUTTAL
GREETING
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.’]”
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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.]
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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:
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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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.]
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. . ..”]
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