Moot courts for real appeals.
What surprised me is the frequency with which a practice oral argument --a "moot"--is requested by an experienced advocate who has argued appeals many times. The experienced advocate already knows how to do an argument. The advocate wants to sharpen and refine the oral argument for his or her specific case: What are the appellate judges likely to ask, and which specific arguments are most likely to make headway with the court?
As one former appellate judge put it, "Oral advocacy is an art. But similar to the art of hitting a baseball, it requires extensive practice and some idea of what a pitcher is about to throw." (1)
Appeals Are Different
In the trial court, a lawyer normally has multiple chances to educate the court about a case, and the trial judge learns the specifics of the case over a period of time. But appeals are different.
An appeal is much more of a onetime encounter. One set of briefs, one argument (if granted), and the advocate is done. The appellate judges have been randomly assigned to the case and are seeing it for the first time. What the judges know about the case they learn by reading the briefs, the key authorities cited, and possibly portions of the record.
Oral argument gives the advocate a single chance to address the appellate panel. Time allotments are short --usually 10 to 30 minutes per side --and after argument, it is up to the panel to decide the case. There are no other opportunities to interact face-to-face with the panel such as typically exist at the trial court level.
So when argument is granted, the advocate must prepare for it. The late Justice Antonin Scalia said:
No preparation for oral argument is as valuable as a moot court in which you're interrogated by lawyers as familiar with your case as the court is likely to be. Nothing, absolutely nothing, is so effective in bringing to your attention issues that have not occurred to you and in revealing the flaws in your responses to issues you have been aware of. (2)
Florida's Second District Court of Appeal suggests, "It is always a good idea to practice oral argument with a colleague prior to appearing before the court. This can help sharpen counsel's responses to likely questions, as well as help to identify questions that might be raised during oral argument." (3)
Each advocate must find his or her own best way to prepare for oral argument. "[T]he current Chief Justice, John Roberts, Jr., ... as a practicing lawyer, never appeared before an appellate court without holding at least one moot court[.]" (4) Commentary by appellate practitioners shows considerable interest in moot courts as part of the advocate's preparation.
The Moot Panel
In this writer's view, the goal in selecting the principal members of the moot panel is to emulate the real appellate panel in its knowledge of, and preparation for, the case.
* If possible, select former appellate judges, experienced appellate lawyers familiar with the court, or a combination.
* The principal members of the moot panel should have no prior knowledge about the case, and the appellate team should not discuss the case with the moot judges ahead of time.
* The moot panel must read the briefs, key cases, and order or opinion being reviewed.
* The panel members should be prepared to be active questioners.
* Three moot judges is usual for a practice session, but a moot can be done with fewer, or more, practice panel members.
* The moot panel can include lawyers who have worked on the case, but they should be careful to defer to the "outside" moot judges until the "outside" judges' questioning has concluded. It can also include lawyers who know the issues but not the case. (5)
The goal is to have a moot panel --or at least, the principal members --equipped with exactly the same information as the real appellate panel. The actual judges will rely on the briefs and the key authorities. So should the moot panel members. "Lawyers who know nothing about the case except what is in the briefs often spot issues that counsel immersed in the case have missed." (6)
Appellate advocates tend to assume the appellate judges will be experts in the subject matter and thoroughly conversant with every nook and cranny of the applicable law. But appellate judges would be the first to say that they are generalists, not specialists. When dealing with specialized areas of the law, the advocate must explain the law in an understandable way. (7)
Attendees at the moot should include trial counsel and co-counsel, if any. The client, or client representatives, are generally invited to attend, and often do. (8) When travel time or budget is a constraint, attendance by video link, or conference telephone, may be useful.
At the Moot
There is no standard format for a moot. The point of the moot is to help the advocate prepare, and the moot should be tailored as the advocate prefers.
One common format has three phases:
First, the advocate presents an initial argument without interruption. The advocate is "in role," arguing just as he or she would do before the real appellate panel. This initial argument is timed for length and assures that the advocate has remarks ready in the event the real panel asks no questions --which happens on occasion. The moot judges can comment after this presentation or save their comments for later.
Second, the advocate begins the presentation again, this time with interruption by questions from the moot panel. The session continues until the moot panel runs out of questions, and in the author's experience the session can run from a half hour to two hours.
Third, there is a roundtable discussion between the advocate and moot panel about what aspects of the oral argument worked, what didn't work, what improvements or modifications may be needed, and how to deal with problematic issues in the case. (9)
Some advocates prefer to skip the first step and go straight to questions by the moot panel. If that is the advocate's preference, so be it. The moot is for the benefit of the advocate, and should be flexibly structured in a way he or she finds most helpful.
It is important that the moot judges allow the advocate to complete his or her answer before interrupting with another question. (10) It is impossible for the moot panel to engage in a meaningful evaluation of the advocate's answers if he or she is interrupted before being able to complete a response. Further, the moot and the post-moot roundtable offer the advocate an opportunity to polish his or her responses to questions from the panel or even restructure the argument.
If the advocate wants to be sure the moot panel covers a specific topic, he or she should make that clear. (11) Usually the moot judges' questions will jump from issue to issue, as occurs in an actual oral argument, but the advocate may specify that the panel should exhaust one issue before moving to another. (12)
Commonly the moot proceeds without assigning someone to play the role of opposing appellate counsel. The theory is that at the real argument, opposing counsel will have to adhere to the presentation already made in the brief, and the time and energy of the moot panel will be better used by concentrating on the advocate, not the opponent. (13) This is not a unanimous view. One commentary suggests, "If you can recruit someone to argue the other side, it can be incredibly valuable." (14)
What has been outlined so far is a formal moot court, but there are a number of variations on this theme. Some experienced advocates prefer to dispense with formal moot courts and instead convene their "judges" and co-counsel for practice question-and-answer sessions ... but the floor remains open for brainstorming about the best answers. Some advocates hold such a brainstorming session early in their preparation, after which they. hold a more formal moot court. There is no one-size-fits all formula. (15)
Another commentator adds, "Your brain trust for these roundtables should be people who will push you and test you, not merely agree with you." (16) Assemble "a diverse panel, not a claque." (17)
For a formal moot, the most common panel size is three moot judges --which is the most common panel size in courts of appeal. It has been suggested, however, that when the argument will be before a larger panel --a supreme court or a court of appeal sitting en banc--the advocate may want to assemble a larger panel that approximates the size of the actual court hearing the argument. (18)
Some advocates recommend videotaping the moot to enable the advocate to evaluate all aspects of the moot, from substance to style. (19)
Some advocates prefer doing a formal moot as late as possible, on the eve of the argument. More typically the moot is held a few days to 10 days ahead. (20) This allows a window of time after the moot in which the advocate can make needed adjustments to the argument and follow up on suggestions made at the moot, whether these be questions about what is in the record, or suggestions requiring further study of the cited authorities. It allows time to "revise, rethink, reorganize, and relax." (21) One colleague explains that she does a mock argument because, if she does so, she can sleep the night before the real argument.
In a complex matter the advocate may prefer to do more than one moot court. (22) In such cases, the timing of the moots must be adjusted accordingly. In the rarified atmosphere of U.S. Supreme Court arguments, multiple moots are common. Specialized moot resources exist, including the well-known Georgetown University Supreme Court Institute, public interest organizations, and Supreme Court clinics in a number of law schools. (23)
There is a tendency to think of a moot as being like a law school exercise with all participants in a single room. Many moots are performed that way.
But technology creates other options. If a moot judge, appellate team member, or the client representative is in a distant city, the moot can be conducted using videoconferencing for the remote participant. If acceptable to the advocate, this can be effective in minimizing travel time and expense, and it can make participation feasible for those whose schedules would otherwise not allow them to travel to the site of the moot. Remote participation can also be done by conference telephone, but that is less satisfactory. For the moot judges themselves, visual contact is important and should be accomplished by video link or attendance in person.
When there are retained moot court judges, as a practical matter, the cost for a moot boils down to the fee charged by the moot judges. Doing the moot generally does not add additional attorney time for the advocate because the advocate must prepare for oral argument in any event. Attorney preparation, including rehearsal of the argument, is already built in--whether or not there is a moot.
When there are retained moot judges, some clients will be comfortable with hourly billing, while others may prefer a flat fee. For cases that are particularly price sensitive, it is, of course, possible to conduct a moot with one or two "outside" moot judges, instead of three, and fill in with counsel from the appellate team.
In some practice areas, such as contingency fee and criminal defense cases, it may be customary for counsel to participate in each other's moots as a courtesy. Some public agencies conduct moots using in-house attorneys. (24) Specialized bar associations may be a resource, and in appropriate cases, counsel may assist charities or nonprofit organizations on a pro bono basis. The Pro Bono Committee of The Florida Bar's Appellate Practice Section regularly has attorney volunteers moot legal aid attorneys who are preparing for oral argument.
In the early days of the republic, there were no time limits on oral argument in the U.S. Supreme Court, no questions from the bench, and arguments "sometimes lasted as long as  days." (25) Those days are--thankfully --gone.
Today, oral argument time is at a premium and most appellate courts pepper counsel with questions. The advocate must thoroughly prepare in order to make the essential argument points, and respond effectively to the court's questions, in the limited time available. My colleague, former 11th Circuit Chief Judge Joseph Hatchett, has said that "an appellate attorney who receives oral argument should treat the situation with the importance that the appellate court has accorded it." (26)
Moot courts can be an incredibly valuable tool for oral argument preparation. "[I]t is far better to face the intense questioning of friends and colleagues than to appear unprepared in a public argument ..." (27)
Moot courts are intended to assist the advocate in whatever way the advocate will find most useful. The format of the moot should be structured to achieve that goal. "The essential thing is to employ a process that will test the advocate's positions and help in formulating succinct and effective answers." (28)
(1) Timothy K. Lewis & Nancy Winkelman, The Benefits of Moot Courts: Perspectives of an Arguing Attorney and a Judge, For the Defense 44, 45 (Nov. 2010) [hereinafter Benefits of Moot Courts].
(2) Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 158 (2008).
(3) Florida Second District Court of Appeal, Practice Preferences 6, available at http:// www.2dca.org/.
(4) Lewis & Winkelman, Benefits of Moot Courts at 48 ("[M]oot courts are a best practice for even the most experienced appellate lawyer.").
(5) See Eric J. Magnuson & David F. Herr, Federal Appeals [section]10.8, 565 (2016).
(6) Stephen M. Shapiro, et al., Supreme Court Practice [section]14.13, 796 (10th ed. 2013).
(7) See David C. Frederick, Supreme Court and Appellate Advocacy [section]5.1, 130 (2d ed. 2010).
(8) Lewis & Winkelman, Benefits of Moot Courts at 46.
(9) See Mayer Brown, Federal Appellate Practice Ch. 12.5(f) at 485 (2d ed. 2013); Joseph W. Hatchett & Robert J. Telfer III, The Importance of Appellate Oral Argument, 33 Stetson L. Rev. 139, 150 (2003).
(10) Frederick, Supreme Court and Appellate Advocacy [section][section]5.3-5.4 at 134, 137.
(11) Id. at [section]5.3 at 134.
(13) Lewis & Winkelman, Benefits of Moot Courts at 47.
(14) Susan E. Provenzano, et al., Advanced Appellate Advocacy [section]2.7, 369 (2016); see also Magnuson & Herr, Federal Appeals [section]10.8 at 565.
(15) Brown, Federal Appellate Practice Ch. 12.5(f) at 485; see also Magnuson & Herr, Federal Appeals [section]10.8 at 566-67 (suggesting preparation through small group meetings followed by one or more moot arguments); Frederick, Supreme Court and Appellate Advocacy [section][section]5.3-5.4 at 132-36 (informal moot followed by formal moot court).
(16) Provenzano, et al., Advanced Appellate Advocacy [section]2.7 at 369.
(17) Scalia and Garner, Making Your Case: The Art of Persuading Judges at 158.
(18) Lewis & Winkelman, Benefits of Moot Courts at 46-47.
(19) Frederick, Supreme Court and Appellate Advocacy [section]5.4 at 136 ("The videotape will also refresh the advocate's memory of when certain questions were posed, and the relationship of some questions to others."); Scalia & Garner, Making Your Case: The Art of Persuading Judges at 159; Provenzano, et al., Advanced Appellate Advocacy [section]2.7 at 369.
(20) See Lewis & Winkelman, Benefits of Moot Courts at 45-46.
(21) Id. at 46; Hatchett & Telfer, The Importance of Appellate Oral Argument, 33 Stetson L. Rev. 139 at 150; see also Magnuson & Herr, Federal Appeals [section]10.8 at 567.
(22) Brown, Federal Appellate Practice Ch. 12.5(f) at 485; Lewis & Winkelman, Benefits of Moot Courts at 46; Hatchett & Telfer, The Importance of Appellate Oral Argument, 33 Stetson L. Rev. 139 at 150.
(23) See Frederick, Supreme Court and Appellate Advocacy [section]5.10 at 148.
(24) Id. at [section]5.2 at 131-32.
(25) Steven M. Shapiro, Oral Argument in the Supreme Court: The Felt Necessities of the Time [section]2, available at https://www. mayerbrown.com/ Oral-Argument-in-theSupreme-Court-The-Felt-Necessities-of -the-Time/ (address before the Supreme Court Historical Society). Chief Justice John Marshall "complained of simple boredom, quipping that the 'acme of judicial distinction' consists in 'the ability to look a lawyer straight in the eyes for two hours and not hear a damned word he says.'" Id. at [section]3.
(26) Hatchett & Telfer, The Importance of Appellate Oral Argument, 33 Stetson L. Rev. 139 at 150.
(27) See Frederick, Supreme Court and Appellate Advocacy [section]5.3 at 133.
(28) Brown, Federal Appellate Practice Ch. 12.5(f) at 486.
Gerald B. Cope, Jr., is co-chair of appellate practice for Akerman LLP, in its Miami office, and conducts moot courts as part of Akerman Bench, which includes former appellate judges and appellate attorneys. He also is an arbitrator and mediator. A former chief judge of Florida's Third District Court of Appeal, he holds a B.A. from Yale University, a J.D. from Florida State University College of Law, and an LL.M. from the University of Virginia School of Law.
This column is submitted on behalf of the Appellate Practice Section, Duane Daiker, chair, and Brandon Christian and Thomas Seider, editors.
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|Author:||Cope, Gerald B., Jr.|
|Publication:||Florida Bar Journal|
|Date:||Nov 1, 2016|
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