How to Please the Court

Acknowledgments

The authors wish to acknowledge the love and support that we have been blessed to receive from our families and friends. We have been fortunate to have had great moot court mentors who have inspired us and ultimately passed the proverbial torch to us so that we might inspire others. These are Daryl R. Fair, Don Gregory, and Don Smith.

Our moot courts have benefited tremendously from many of our colleagues who serve in academia and/or are members of the bar themselves. We would particularly like to thank Carolyn Barros, Keith Glenny, Sean Goodlett, Chris Lund, and Beth Walsh.

Moot court projects such as this book would not be possible without the assistance and support of the many fine office staff that have assisted us throughout the years. We owe a debt of gratitude to Lisa Blakeley, Jerilyn Doss, Cece Hannah, Tina Kelley, Amelia Marquez, Nancy St. Martin, and Karen Valeri.

The authors offer a special word of thanks to the many students who have enriched our lives through their participation in moot court. In particular, we would like to thank and acknowledge those students who offered valuable and insightful feedback and commentary related to the materials in this book. These are: Anastasia Benzel, Alyne Butland, Jacqueline Coley, Leiza Dolghih, Briana Finley, Mary Gallant, Mike Galvin, Nicole Gerson, Josh Godbey, Keith Griener, Andrew Lang, Patricia Link, Ann Lyons, Brian Miller, Gladis Molina, Alice Montestruc, Ryan Rollo, Guy Sereff, Shanni Smith, Phil Stauffer, Vonda Spinks, Kelly Verdin, Ashley Vinson, Allison Vowles, and Victoria White.

Finally, a special thanks to the finest court marshal a diet beverage can buy, Douglas Brattebo. ← vii | viii → ← viii | 1 →

CHAPTER ONE

Moot Court: Commitment and Rewards

Lewis Ringel and Charles Knerr

Do You WANT TO BE A “MOOTER?”

Here is the thing: there is a decision to be made and it is yours to make. You are a student justice considering the facts of a court case in an appellate simulation known as moot court. A moot court is an academic exercise in which students “try” a legal case before an appellate court. This is not to be confused with a mock trial. In a mock trial, students try facts before a trial court. To try facts is to judge innocence or guilt or, in a civil matter, to decide if a party, such as a corporation, is liable for an action or if a party, such as a government, exceeded its powers or violated some civil law. There is a prosecution and a defense team, comprised of students, who deliver opening statements, examine and cross-examine witnesses, and deliver closing statements. In a moot court, there is no trial. The trial has already occurred; someone or something has already been found innocent or guilty, someone or something has already had a civil issue settled, or someone or something has already been told that their or its actions violate some section of a constitution. In a moot court, someone or something is protesting the validity of a trial court decision. The issue is not did the trial court misconstrue the facts. Appellate courts do not try facts. The question is did a trial court make any errors in how it interpreted or applied the law. Lawyers argue for some set time period before a panel of judges, which may ask questions before retiring to talk among themselves and render a verdict. This decision may be accompanied by a written opinion that explains the rationale or justi ← 1 | 2 → fication for the decision and provides some direction for future courts deliberating similar issues.

You have participated in an hour-long question-and-answer session with other students known as oral argument. In this session, two legal teams, comprised of students, presented their argument and answered whatever questions you and your peers asked. Now, you are in a secret conference with your fellow students and your instructor for the purpose of deciding the case and arriving at some common rationale for your decision. The court is deadlocked. You hold the decisive vote. If this were a real decision it would affect the nation; perhaps the world. The issue might be whether to free a man from jail or whether the death penalty is constitutional. The case might require you to judge whether certain words or ideas can be censored. The decision might compel you to define the president’s war powers in the case of a terrorist attack or whether some act of Congress intended to promote racial or gender equality compromises states’ rights or individual property rights. Want to experience what making such a decision might be like? This is your chance.

Fancy yourself a player? Does being a judge sound too much like being a referee? Perhaps you would prefer to be a moot court litigator, developing an argument and supporting it, answering questions, and rebutting your opponents. Sound good? This is your chance.

Perhaps you like writing and research and thinking up arguments but you do not want to appear before the court to make an argument or answer questions? Do not worry. Few real lawyers are litigators. Moot court needs lawyers to perform research that assists their team to develop their case and anticipate the other side’s arguments. Depending on your instructor, you may be able to participate in your group without speaking in oral argument. Sound good? This is your chance.

SO YOU THINK YOU WANT TO BE A “MOOTER?”

If you answered “yes” to any of the questions in Section I of this chapter then chances are you want to be a “mooter.” What is a “mooter?” “Mooter” is the non-technical term for devotees of moot court. There is no single form of moot court. Some are in-class simulations that find student lawyers arguing before a student-run court. ← 2 | 3 → Some moot courts involve a tournament. Courts in such tournaments often consist of non-student justices such as lawyers, professors, or members of the state or federal bench. In a tournament, courts may select the best team rather than deciding the merits of the case itself. The cases used in moot courts can be fictional or real. The court is usually one of last resort like a state supreme court or the United States Supreme Court. They are called courts of last resort because they are the final arbiter when it comes to issues within their jurisdiction such as questions of state or federal law.¹ Because they have the final word over matters exclusive to their domain, the judges in your moot court cannot pass the buck to a higher court to resolve the issue at a later date.² This fact should add a degree of gravity for the lawyers and judges. Sounds good does it not?

WHAT IS MOOT COURT?

Simulations of appellate court proceedings, also known as “moot court” or “mock Supreme Court,” have been a feature of the legal education landscape for hundreds of years, with origins in pre- medieval England. Moot court is widely utilized around the world as an educational tool. Intercollegiate moot court tournaments are currently conducted in a number of European countries including Austria, France, and Germany. Undergraduate tournaments are also ← 3 | 4 → regularly organized in Australia, Canada, and New Zealand, and in other areas of the world. Moot court is required in the curriculum of all American law schools. Inter-collegiate tournaments are regularly organized concerning a variety of legal issues: communication law, environmental law, the First Amendment, mass media law, and so forth.

Two fundamental forms of American undergraduate moot court coexist: in scholastic moot court students of a single undergraduate class, such as constitutional, international, or business law, or a communications/speech class (among other academic subjects), are required to participate as a condition of successfully completing that class. This may take various forms ranging from simulating the arguments in an actual case to dealing with a hypothetical set of circumstances. Some classroom models will be more sophisticated than others and more true to form of a legal dispute. The second form of undergraduate moot court is the tournament, involving undergraduate students voluntarily competing for trophies or other personal rewards. More than a dozen campuswide, statewide, regional, or national tournaments are regularly organized across the United States. In these tournaments, students play the role of attorneys and argue before actual attorneys and judges as if they were in a court of law. All of the rules and protocols of a regular appellate courtroom are followed in tournament competition. Students must respond to questioning from judges and forcefully advocate for their client. Additionally, in tournament competition, students will argue both sides of a case in order to test their skills and ensure fairness in the process.