Moot courts for real appeals.

• Author: Cope, Gerald B., Jr.
• Position: Florida

When leaving the appellate bench to return to law practice, I thought I might be asked to serve as a practice oral argument judge from time to time. That turned out to be true. I assumed the likely candidate for a practice argument would be someone who rarely did appeals and needed practice in how to do an oral argument. That was sometimes true.

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...