Winning the Moot Court Oral Argument: A Guide for Intramural and Intermural Moot Court Competitors

Author:Gerald Lebovits - Drew Gewuerz - Christopher Hunker
Position:New York City judge since 2001 - Trial attorney at Irwin & Streiner, LLC, a general-practice law firm in Manhasset, New York - Bankruptcy and restructuring associate at Hahn & Hessen, LLP, in New York, New York
Pages:887-948
 
FREE EXCERPT
WINNING THE MOOT COURT ORAL ARGUMENT:
A GUIDE FOR INTRAMURAL AND INTERMURAL
MOOT COURT COMPETITORS
GERALD LEBOVITS, DREW GEWUERZ, AND CHRISTOPHER HUNKER*
Chief Justice, Your Honors, and may it please the Court:
We represent all those whose lives were changed by moot court. Chief
Justice, we respectfully request two minutes for rebuttal. In our time
before the Court, we will argue that competing in moot court can be law
school’s best experience, especially when the student-advocate’s goal is to
succeed in competition.
First, moot court hones the most formative skills that law school can
impart. Second, moot court gives student-advocates unparalleled
opportunities to advance their careers, regardless whether they intend to
litigate.1 Given moot court’s benefits to student-advocates, to legal
Copyright © 2013, Gerald Lebovits, Drew Gewuerz, and Christopher Hunker.
* The Honorable Gerald Lebovits, who won the intramural moot court award for best
speaker and best brief in law school, has been a New York City judge since 2001. An
adjunct professor of law at Columbia Law School, Fordham University School of Law, and
New York University School of Law, Judge Lebovits’s moot court students at Columbia
Law School, St. John’s University School of Law, and New York Law School won more
than 100 first-place awards (best teams, speakers, and briefs) in regio nal and national
intermural competition from 1991 to 2012.
Drew Gewuerz is a trial attorney at Irwin & Streiner, LLC, a general-practice law firm
in Manhasset, New York. He graduated in 2010 from St. John’s University School of Law,
where he served on the Moot Court Hono r Society Executive Board and coached th e 2010
championship team at Fordham’s Irving R. Kaufman Securities Law Moot Court
Competition.
Christopher Hunker is a bankruptcy and restructuring associate at Hahn & Hessen, LLP,
in New York, New York. He graduated in 2010 from St. John’s University School of Law,
where served as the Moot Court Honor Society’s Executive Director.
The authors thank Judge Lebovits’s judicial interns—Brendan Kelly, an undergraduate
Presidential Scholar at Boston College, and Andrea Abudayeh, a student at New York Law
School—for their research assistance.
1 MICHAEL D. MURR AY & CHRI STY H. DESANCTIS, ADVANCED LEGAL WRITING AND
ORAL ADVOCACY: TRIALS, APPEALS, AND MOOT COURT 469 (2009) (arguing that moot court
teaches “important skills in advocacy that will carry on into your practice regardless of
what type of practice you do.”); John T. Gaubatz, Moot Court in the Modern Law School,
31 J. LEGAL EDUC. 87, 87 (1981) (explaining that moot court develops persuasion skills that
prepare students to argue in any court); Mich ael V. Hernandez, In Defense of Moot Court: A
Response to “In Praise of Moot CourtNot!, 17 REV. LITIG. 69, 79 (1998).
888 CAPITAL UNIVERSITY LAW REVIEW [41:887
education, and to the profession, we ask this Court to consider our
strategies for winning a moot court oral argument.2
* * *
For nearly every law student, moot court3 is a new, exciting, and
unforgettable experience4 rooted firmly in real-world advocacy. Moot
court is the genesis of a legal career that, regardless of practice area,
requires excellent advocacy. An excellent advocate is knowledgeable
about the law, masterful in marshalling facts, skilled in the forensic arts,
respectful of decorum, compliant with proper procedure, mindful of due
process, fair with adversaries, devoted to the client, helpful to the court,
honest with everyone, and above all, persuasive.
The process of becoming an excellent advocate is a career-long
journey that begins in law school’s first-year legal-writing course. Legal-
writing courses, which culminate in writing a brief and conducting a moot
court-like oral argument, teach students to think like lawyers—a skill
fundamental to the practice of law and a necessary attribute to the good
administration of justice. That thought process requires first-year law
students to read and write in a new language:5 the language of the law.
Instead of thinking, speaking, and writing in legal jargon, “thinking like a
lawyer” involves understanding how asking and answering questions can
address and resolve uncertainties and ambiguities.6 Oral arguments, a
highlight of first-year legal-writing courses, teach students advocacy skills
to solve legal problems.
2 For a discussion in the style of oral argument extolling moot court’s virtues, see Darby
Dickerson, In Re Moot Court, 29 STETSON L. REV. 1217 (2000).
3 “Moot” as in “moot court” is different from “academic.” “So mething ‘academic’ is no
longer relevant. Something ‘moot’ is debatabl e . . . . Moot Court is offered by academia,
and often sponsored by academicians, but Moot Court covers debatable points, not
irrelevant ones.” Gerald Lebovits, Problem Words and Pairs in Legal Writing—Part I, 77
N.Y. ST. B. ASSN J. 64, 64 (Feb. 2005).
4 Amy E. Sloan, Appellate Fruit Salad and Other Concepts: A Short Course in
Appellate Process, 35 U. BALT. L. REV. 43, 43 (2005) (“Lawyers may recall their moot
court experience with joy and exhilaration, terror and anguish, or anything in between, but
no one forgets it.”).
5 Judith Wegner, Better Writing, Better Thinking: Thinking Like a Lawyer, 10 LEG AL
WRITING: J. LEGAL WRITING INST. 9, 15 (2004).
6 Id. at 14.
2013] WINNING THE MOOT COURT ORAL ARGUMENT 889
Moot court enhances the three most important skills that law schools
offer their students: starting an argument with a conclusion, differentiating
fact from opinion, and organizing a legal argument by issue rather than by
a chronological narrative of the facts. Moot court also teaches students to
act professionally and ethically, to apply law to fact, to structure and rank a
legal argument by strength, and not to assert losing propositions. By
giving law students opportunities to improve their legal research, legal
writing, and oral advocacy in a competitive environment, the moot court
experience is unlike any other in law school: It prepares students for a
competitive world. It is also, perhaps, the law-school activity that most
fully develops the skill every lawyer must possess: advocacy. Regardless
of practice area, all lawyers must communicate in a way that advances
their client’s interests, whether in a courtroom or boardroom. Most
important, moot court builds character. Every student competitor “will be
a better lawyer, and a better person, because of the moot court
experience.”7
This Article discusses the principles of a successful oral argument and
offers strategies for success in a moot court competition, which we define
as an appellate-advocacy competition.8 The guidance in this Article is
based on what is usually effective in the highly subjective and often unfair
world that is competitive moot court. For every five moot court judges,
one will disagree with the advice in this Article, and one will not notice the
technique or care at all. We believe, however, that three judges will notice,
care, and agree. This Article explains how to appeal to the majority of
judges by providing step-by-step instruction to winning the oral round,
beginning when the moot court problem is released and finishing post-oral
argument.
Some professors, practitioners, and moot court experts have observed
that teaching appellate advocacy is different from coaching a winning moot
court team.9 To the extent that is correct, this Article advises law students
how to win a moot court competition.
7 Hernandez, supra note 1, at 78.
8 We exclude as a non-moot court competition a trial, interviewing, counseling, or
negotiating competition.
9 See, e.g., William H. Kenety, Observations on Teaching Appellate Advocacy, 45 J.
LEGAL EDUC. 582, 582 (1995) (“I have become convinced that what I, and perhaps many
others, have been teaching is really not Appel late Advocacy, but rather How to Win Law
School Moot Court Competitions.”); Michael Vitiello, Teaching Effective Oral Argument
Skills: Forget About the Drama Coach, 75 MISS. L.J. 869, 882 (2006) (“[T]oo many
competitions reward style over substance.”); Report & Recommendations of the Comm. on
(continued)

To continue reading

FREE SIGN UP