THE ART OF ORAL ARGUMENTTips and Strategies for Effective Appellate Advocacy:

Moot Court and Beyond

TOPICS TO BE DISCUSSED:

Basic structure of the competition argument. Presentation of the argument. Strategies to win moot court points. Attire.

REMEMBER: IT’S MOOT COURT WORLD

Moot Court is a competition, a game. Score points for hitting certain markers.

“May it please the court” Road Map “Your Honor” Conclusion Prayer for Relief

Substance of your argument is certainly important.

Also very concerned with style/presentation.

STRUCTURE OF A ROUND

• Each side has a total of 10 minutes to argue.• Appellant/Petitioner begins

– May reserve 1-2 minutes for rebuttal at beginning of argument. (1 minute is recommended.)

– If competitor concludes early, may reserve remaining time for rebuttal.

• Appellee/Respondent responds for the full 10 minutes. – Is not permitted surrebuttal. – If concluded argument but time remains, may

yield the time back to the court.• Appellant/Petitioner Rebuts.

BEFORE THE ROUND

If there are people inside your Room when it is time for your scheduled round to begin, please knock ONE TIME and wait for the room to clear.

As soon as the previous Round’s competitors leave, enter the room.

Competitors should wait in the room for the panel of judges to knock on the door and enter.

When the judges enter the room, both competitors must stand.

After the judges are seated, Appellant/Petitioner should approach the lectern and await the Chief Justice’s signal to begin.

STRUCTURE OF AN ARGUMENT

Introduction Roadmap (Facts) Issue One Issue Two Conclusion Rebuttal – Appellant/Petitioner Only

INTRODUCTION

Begin with: “May it please the court, my name is Thurgood Marshall, counsel for the Petitioner, Oliver L. Brown.” Petitioner/Respondent

– When appealing to the Supreme Court– Use this during Rounds 2 & 3 of Hardt Cup– Address the Court as “Mr./Madam Chief Justice and

may it please the court…” Appellant/Appellee

– When appealing to Federal Circuit Court– Address the judges as “Judge”

RESERVE TIME FOR REBUTTAL

Petitioner should now ask to reserve time for rebuttal: “With the court’s permission, I would like to

reserve 1 minute for rebuttal.”

THIS CASE IS ABOUT…Your chance to frame the issue, without

misstating it.Appellant/Petitioner

“This case is about the inherent inequality of segregated school systems, which stamp a badge of inferiority upon minority children.”

Appellee/Respondent “This case is about the principles of federalism

and stare decisis, which counsel this court to affirm its precedent in Plessy v. Ferguson that states may operate separate facilities of equal condition.”

PRAYER FOR RELIEF AND ROADMAP

o “This court should Reverse the lower court. . .”– “Procedural” aspect; Reverse/Affirm

o “and hold that the Arkansas statute is unconstitutional for two main reasons: . . .”– “Legal” aspect

o “First, because segregated schools can never be equal AND”– AND will be OR if you could win on either point

o Second, because segregated schools violate the equal protection clause of the 14th Amendment to the United States Constitution.”

(FACTS)

• If you are Appellant/Petitioner, you should offer to recite the facts to your judges.– “Would the court care for a brief recitation of the

facts?”– Most judges will say “No.”– This should come after you read your roadmap

and before you begin Issue One.• No longer than 30 seconds; Three most

important facts.• Appellee/Respondent:

– offer facts if Appellant/Petitioner made serious error with LEGAL significance.

BODY OF THE ARGUMENT

• Repeat your opening, adding a bit more detail• “First, schools separated on the basis of race

can never be equal because segregation ingrains in minority children a deeply harmful sense of inferiority.”

• [Substance of your argument]• Detail for 3-4 minutes• Facts• Case Law

• Transition to Second Point• “Second, segregated school systems violate the

Equal Protection Clause of the 14th Amendment as articulated by this court in Bolling v. Sharpe.”

TIME KEEPING• During Rounds 1, 2, and 3

– The Associate Justice will keep time.– The Associate Justice will hold up a card at 5 minutes

remaining (“5”), 1 minute remaining (“1”), and at the conclusion of time (“Stop”).

– When your time lapses, you must stop and ask permission to conclude.• If you are in the middle of a statement, ask, “Your honor, I

see that my time has expired. May I briefly conclude?”• If a judge is asking you a question, say, “Your honor, I see

that my time has expired. May I answer and then briefly conclude?”

• Answer the question as quickly as possible and then wrap it up. You will be docked points for dragging on here.

• During Out Rounds: A bailiff will keep time• Look at the timekeeper to acknowledge the

timecard but do not nod or thank her. This is distracting to the panel.

CONCLUSION• If you see one minute remaining, try to move to your

concise conclusion.– Incorporate your legal conclusions into the result you seek:

• “Thus, segregated school systems are unconstitutional regardless of the quality of the buildings and comparability of the teachers’ salaries. It is the inherent inequality of the separation itself which violates the mandate of the 14th Amendment. For these reasons, this court should reverse the court below and hold that the Arkansas statute is unconstitutional. Thank you.”

• If your time elapses, say: “I see that my time has expired. May I briefly conclude?”– Conclude BRIEFLY: One Sentence; or simply, “For the

foregoing reasons, Appellant asks this court to Reverse the holding of the court below. Thank you.”

• Include your Prayer for Relief here!• Thank the court and sit down.

REBUTTAL• The Achilles Heel of many oralists.• 1-2 Minutes.

– With such a short round, advised to take only 1 Minute.• Keep it simple; focus on the main issues.• Begin with, “May it please the court, [Appellee

argues]”– Respond to major legal flaws or implications of

Appellee’s position.• Advisable to have one or two points scripted out in

advance.– You have a general idea of what opponent will say;

prep responses.– Do not make a list which you feel pressured to get

through.– BE RESPONSIVE !

ANSWERING QUESTIONS• At its heart, Appellate Argument is a conversation with the

court. Go where the judge takes you with a question.– Don’t say, “I’ll answer that later in my argument.” – Part of the skill set is the ability to answer a question directly

and then circle back to your outlined argument.• Begin your answer with “Yes” or “No” whenever possible.

• Don’t be evasive. Know what you can concede and don’t be afraid to do so. Judges are testing the limits of your argument.

• You are under time constraints so be concise.• Try to make transitions back to your argument fluid.• Ask for clarification if you don’t understand the judge’s

question.• One trick is to say, “As I understand your question, Justice

Feistritzer…” and then restate the question. This buys you time to think of an answer.

MANNER TO THE COURT

• Be deferential!– Judges can and will interrupt you at will.– If a judge begins to speak or you are certain she

is about to, STOP. Do not talk over a judge.– Judges can often be belligerent, they are testing

your ability to remain poised.– Wherever possible, address a judge by name,

“Yes, Judge/Justice Feistritzer, you make a good point.”

– Say “Your honor” if you don’t know the judge’s name.

– Wait until the panel is ready before you begin your argument.

RESPECT TO YOUR OPPONENT

Please be polite when referring to your opponent. “Opposing Counsel…” “Petitioner/Respondent characterizes this case

as…” Please do not accuse your opponent of lying. Please do not attack your opponent

personally.

STANCE AT THE LECTERN

• The goal is for the court to focus on your argument, not you.

• Stand up straight.• Be steady.• Place your hands on the sides of the lectern

but do not lean on them.• Some gesturing is acceptable but only to

enhance a particularly compelling point. Otherwise, it’s distracting.

PACE, STYLE OF PRESENTATION

Focus on speaking clearly and slowly, without sounding unnatural or forced.

Maintain eye contact whenever possible. Hold eye contact with a judge for a sentence or two,

then move to the next judge. When responding to a judge’s question, make eye

contact with the entire panel. Have your opening and conclusion MEMORIZED.

Employ a formal, respectful manner of speaking.

ATTIRE

• Business attire.• Men:

– Suit, dress shirt, tie, dress shoes.• Women:

– Suit, dress shirt, dress shoes.• Everyone:

– Style your hair out of your face/eyes.– Again, you want to be remembered for your

argument, not your rad, hot-pink Converse and yellow Wayfarers.

PREPARING YOUR ARGUMENT

Practice explaining your case out loud, in simple terms.

Focus on making positive points for your side rather than ranting about why the other side is wrong.

Outline your points on 1 or 2 pieces of paper. KEEP IT SIMPLE. Place this outline in your folder and refer to it as

needed. Try not to look down if you can avoid it. This is a conversation, not a speech! Anticipate questions on the weak points in

your argument.

PREPARING YOUR ARGUMENT, CONT’D

Use the cases! Use the cases to build your interpretation of the

law. Describe case facts to make comparisons,

analogies. Refer to cases by name: “As the 4th Circuit held

in Pittman v. Hardt…” When referring to precedent in the sitting court,

say, “As this court held in Duke Law v. Vandenberg School of Dance…”

Say the full name of the case the first time, then the shortened version throughout the remainder of your argument. “Pittman directly addressed this issue and concluded…”

PREPARING YOUR ARGUMENT: WHAT TO BRING UP WITH YOU

Big Font! Bullet Points Avoid writing full sentences, you will read from

your paper instead of engaging with the judges

Ideas: Table of Authorities from Appellate Brief Short case summaries with key facts List of facts from your case Don’t worry too much about cites to the record,

just know your facts Roman numerals and/or numbers, to keep

your bearings if you get lost!

PREPARING YOUR ARGUMENT, CONT’D

Practice saying your Introduction and Conclusion aloud.

Get in the habit of speaking slowly and clearly.

Relax and have fun!