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The term "moot court" is derived from the term "moot," which is defined as follows: "to argue a case at law (as a hypothetical case) as a student in a law school." Moot court competitions are, simply put, re-creations of arguments that take place in appellate courts. Competitions can last anywhere from a single day to an entire school year and provide what many law students describe as the most intellectually challenging activity of their law school careers. Before discussing the ins and outs of moot court competitions, let's look at the step-by-step process involved.
Step 1 Receiving the Record
A moot court competition begins with either one or two students receiving a copy of a record around which the moot court competition will revolve. The record consists of a fictitious fact pattern, much like the factual record one would receive from a real trial court. The record contains documents relating to a legal action brought by one party against another party, and the students will be told which side they represent. In addition to factual material about the substance of the suit, the record will usually contain a motion for summary judgment or motion to dismiss filed by the defending party, as well as a motion to deny the first motion filed by the party who brought the original action.
As mentioned earlier, a moot court competition is a re-creation of an appellate argument. While trial advocacy competitions re-create a courtroom setting, moot court competitions simulate how an argument would be put forth in an appellate court. Therefore, for a case to be tried before an appellate court, there has to have been some decision at the district court level for the loser to appeal. The record may also contain a decision from an intermediate appellate court. The final part of the record usually contains the motion to appeal filed by the losing side, along with an order granting the appeal from the appropriate appellate court. The record will usually end with this grant of appeal, listing the specific issues to be addressed. These one or two issues are the issues that the competitors will argue.
Step 2 Writing the Brief
After receiving the record, the competitors will usually receive a packet of information regarding the brief. The brief is the competitors' written argument to the appellate court laying out the appropriate facts and law in support of their side of the argument. Over the course of law students' careers, most will write several briefs, and there are a host of books devoted to the art of brief writing. For our purposes, it is enough to say that the writing of the brief is the second step of the process. The competitors will research the legal issues presented in the record and explain why their side should win. Most moot court competitions supply competitors with a list of guidelines covering the technical requirements of the brief, including page limits, font sizes, section names, and heading labels.
Different moot court competitions vary in the emphasis placed on the brief in relation to the competitors' scores in the competition. Whether the brief is weighted heavily or not, it is of primary importance in laying the foundation for the next phase of the moot court competition: oral argument.
Step 3 Making the Oral Argument
Okay, here's where it gets interesting. For those students looking for the "competition" part of moot court, look no further. During oral arguments, the two sides (the side bringing the appeal, called the petitioner or appellant, and the side defending against the appeal, called the respondent or appellee) argue against each other on the certified issues in front of a panel of anywhere from two to nine judges.
The formalities involved in moot court competitions are extensive. Each judge is given a grading sheet listing categories under which the student's oral presentation should be analyzed. These categories can include: persuasiveness, technique, quality of argument, knowledge of the law, and confidence of the arguer. Oral arguments usually begin with the petitioner coming to a podium and beginning the presentation to the court. The judges will then ask the petitioner questions regarding the law and facts in the argument presented. Panels are usually described in terms of temperature: If there is a cold bench, the panelists ask very few questions, and you are left quoting large parts of your argument to the panel; if there is a hot bench, the questions are coming at you like wildfire, and you barely have time to breathe. The length of the petitioner's argument is usually 15 minutes, after which the respondent comes to the podium and is subject to questioning for the same length of time. When the respondent is finished, the petitioner may come back to the podium, usually for one to three minutes. This period, called rebuttal, allows the petitioner to get the last word on any issues of concern to the panel.
Competitors know how much time they have remaining by looking at time cards flashed at them by a clerk of the court. At the end of all the oral arguments, the panel usually sends the competitors out of the room, allowing the judges to complete their grading forms for each of the participants. After several minutes, the competitors are brought back into the room, where the judges inform them which side won and critique their oral arguments.
These three elements appear in all moot court competitions held in law schools across the country. There are variations among the competitions: Some are set in an appeals court, some in a supreme court; some allow two competitors per side, some allow three. But the three elements listed above are fairly standard in every moot court competition you will encounter.
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