Everything You Wanted to Know about Moot Court

Moot court is generally an extracurricular activity in law school (although some law schools have a mandatory version of this activity as part of the first-year curricula). A legal question or issue is said to be moot when it presents no actual controversy, or where the issue has ceased to exist. Thus, moot court is a forum for law students to argue moot or hypothetical cases.

Participating in moot court requires researching and writing a brief, and then presenting oral argument before "judges" who will render a decision. Moot court is structured as a competition, which means that you will be arguing against other students and that one side "wins" and the other "loses." In some cases, there are additional levels of competition, up to the national level.


Moot court is valuable in the sense that the participants are doing things that real lawyers do; this aspect distinguishes it from most law school activities. Moot court presents law students with an opportunity to engage in the functional equivalent of handling a case on appeal following a trial court's judgment. Additionally, it provides students with experience in legal research, legal writing, and oral argument, which are all applicable to the more general practice of law.

Participants are paired and given certain basic materials, including the factual record and the decision that is the subject of the appeal. This is somewhat artificial in that a lawyer handling an appellate matter is required to have command of much more extensive materials, including all the papers and pleadings filed in the court below, transcripts of hearings, trial transcripts, trial exhibits, and jury instructions. It is necessary to use an abbreviated record to keep moot court manageable for law students.

Participants usually get to choose what side they want to represent, subject to the limitation that the exercise requires an equal number of appellants (the party appealing from the decision below) and appellees or respondents (the party that won in the lower court). Cynics maintain that selecting the politically correct party to represent increases your chances of doing well in moot court, which ultimately involves the exercise of subjective judgments. We would like to think otherwise.

Once you and your partner have settled on a side to represent, you will need to divide the issues on appeal for researching, writing, and arguing. The issues are normally well-defined by the materials you are given. If you are representing the appellee, this process is different from a real appeal because you are not responding to a particular appellant s opening brief; instead you are briefing the issues in a vacuum.

Legal research is a skill you will learn, use, and refine throughout your legal career. Researching your moot court brief provides you with an opportunity to practice that skill. If it seems like drudgery, be content with the knowledge that (unless you are one of those individuals who simply love it) legal research is and always will be drudgery to some extent.

There is no one right way to conduct legal research. The materials you are given will get you started. Hopefully, the issues involved will necessitate dealing with a limited number of important cases. The Shepard's citations system will give you other cases that have cited your initial cases for the same point of law. Those cases will lead you to other cases. Unless the issue is fairly abstruse, you can spend an infinite amount of time going from case to case by "shepardizing." Stop when you reach the point of diminishing returns or when you start coming back to the same cases.

Treatises, digests, statutory annotations, and the computer research networks LEXIS and WestLaw can broaden your research and give you additional starting points. Fortunately, today virtually every first-year law student learns how to use the computer research networks. Both LEXIS and WestLaw have data bases of almost every published case and permit users to conduct key word searches to hopefully find pertinent cases quickly.

The format used for writing the briefs is drawn from the Handbook of Appellate Advocacy or a similar text. The organization of appellate briefs follows a commonly accepted structure, and it should be adhered to even if certain sections seem redundant or unnecessary. Style is important. Some appellate courts strike briefs that do not conform to the required format. (When a court strikes something, it means that it is of no legal effect and is not to be considered.)

Citation format should be based upon A Uniform System of Citation or the Harvard Blue Book (discussed previously in connection with law review). This may seem overly formalistic, and perhaps it is. However, when you are attempting to persuade an appellate court by referring to a particular case, the court must be able to find the case before it can read it to see whether it supports your argument. It hurts your chances of winning if the court cannot readily find the case to which you are referring because you eschew conventional citation form.

Aside from adhering to proper appellate brief organization and proper citation format, the essence of legal writing is the art of persuasion. You bring the reader to the desired conclusion by logic, analogy, rhetoric, emotional appeal, and policy considerations. Your sentences should be short, clear, and in the active tense. Budget your time so that you can blend your polished sections with those written by your partner, and then revise and finalize the completed brief. You will not have an acceptable product if you attempt to knock out the first and final draft the night before it is due.

After the briefs are turned in, you and your partner are matched to an opposing team. You will be provided with your opponents' brief and an opportunity to research their cases and to prepare for oral argument. The Handbook of Appellate Advocacy deals extensively with preparing for and conducting oral argument, and this chapter is not designed as a substitute. However, a few good points are worth stressing.

1. Know the facts cold. You have the advantage of an abbreviated record, so gain complete command of the factual background.
    
2. Master the legal principles involved and the major cases cited in your brief and in your opponents' brief.
    
3. Prepare an outline for your argument. Do not simply repeat your brief and do not attempt to read from a verbatim written script. Your outline needs to be flexible enough to permit you to return to the thread of your argument after being interrupted to answer a question from the "court."
    
4. Practice your argument. That is not to say you should memorize it, but become comfortable with it. This is a great excuse for those who habitually walk around talking to themselves-now, you are just practicing oral argument.
    
5. Work with your partner to practice fielding hostile questions. You have to be able to deal with the points raised in your opponents' brief, and to persuade the "judge" that your position should prevail. Further, questions should be answered and not evaded. Nothing is more likely to annoy a judge than evading her questions.
    
6. At oral argument itself, conduct yourself as an officer of the court. Your dress and behavior should be appropriate and in keeping with the decorum of the court. You should always treat your opponents and the judges with professional courtesy. Anything less will detract from your stature as an advocate and from the effectiveness of your argument.

The resume value of moot court is debatable. It will not compensate for poor grades and is not equal in value to law review. Conversely, if you have good grades, the absence of moot court experience will not hurt you. However, it is a positive factor, especially if you progress to higher levels. If your grades are fair to mediocre, having moot court on your resume might be helpful in tipping the balance between getting and not getting a job offer.