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March 13, 2015 by Victor A. AfanadorDownload PDF

Categories: Appellate Law

After all these years, let's get back to Moot Court!Victor A. Afanador

So each year around this time I get drafted by the Director/Professor in charge of the Seton Hall University School of Law’s Interscholastic Moot Court program to “coach” a competing moot court team. The position is more akin to a hands-on clinical adjunct professor position.   I am assigned a few students and, along with a co-coach or the director of the program, we assist the students in crafting their oral arguments and in preparing answers to judges’ questions for a Moot Court competition against other law schools across the country.  Despite a busy schedule and a clamoring of “no time for this,” I find myself year in and year out committing to the endeavor.  Why? 

Well, it grounds me as an advocate and as an orator.  It helps me become better as a trial attorney, appellate advocate, and a litigator analyzing complex legal issues.  It guides me in understanding how to zealously become an advocate for my clients, be they municipal corporations, small businesses, or individual clients struggling with a criminal or civil matter dealing with myriad of legal topics.  It reminds me of the essential elements for presenting an argument (written and oral) and my lifelong view that a lawyer should never be a specialist but research and learn the issues presented to him by his clients.  Many of us tend to forget these valued goals as accomplished lawyers.  So while possibly remedial - I blog onward in an effort to remind us all of these seminal rules:

  • Draft and deliver a road map of your arguments.  A road map seems simplistic to an established practitioner and something best left to the law student.  A road map, however, lays a foundation for the court. It also allows the court to guide your argument if it chooses.  The court may direct you to point two of your argument, which should be welcomed.  It should be welcomed because it means the court wants to have a conversation on that topic or point.  If that happens you are having a real dialogue and a real dialogue leads to persuasion. It reflects a meeting of minds and can ultimately assist in convincing the court that your position is the way to go.
  • You don’t have to get through all the material.  You are the material. You as the orator are the biggest piece of demonstrative and persuasive evidence for your oral argument. Do not feel rushed to get through everything in your outline.  Gauge the judges and use their questions to establish your persuasive argument. 
  • May it please the Court.  State auto accident discovery motion, criminal suppression hearing, summary judgment motion, or Rule 16 conference. These simple little words are forgotten by the established practitioner.  Why?  Is it too lawschoolish? It should not be.  This mundane, tedious practice should be refreshed by your initial presentation to the court no matter what vicinage, state, or level you appear before.  It immediately thanks the women and men serving as our judges for their public service and reaffirms our respect for our court system.  Use it. 
  • Be prepared.  Read all the materials. Understand the facts.  Understand the law and understand your client’s position and goals.  It is always best to start the process in asking a basic yet essential question “what does my client want?”
  • Develop a theme of your argument.  The statutory law can be direct and the common law malleable.  A theme will soften and provide direction to both.  It will be the backdrop to your legal argument and color in the effect the court’s decision will provide. 
  • Know your audience.   What court are you in? What standard of review is at issue? How many judges are you addressing?
  • Speak slowly and clearly.  This is a common mistake by all of us.  The more direct and clearly you speak the easier it is to follow the argument and create an open dialogue with the court.
  • Always have good eye contact. When you meet someone for the first time how do you introduce yourself to them?  You extend your hand and look right into their eyes.  It is a basic method of human communication.  In the same fashion, you should stand at the podium or by the counsel table and look directly into the eyes of the judges in an effort to immediately create a mode of communication.  The most effective oral arguments are those that minimize reading and maximize creating a conversation or point of communication with the court.
  • Answer the question asked.  Never ignore the question.  Oral argument is not meant to regurgitate your legal brief but to highlight nuances within the argument and address the concerns of the court.  Tackle every question head on no matter how hard it is to answer.  It helps push the conversation with the court forward to establish a resolution to the argument’s conflict.  You would be surprised how many arguments are won despite an apparent hostile give and take in the questioning process.  Embrace it and let your internal oral advocate shine just as you would in negotiating with your significant other which movie is best to spend your already limited amount of time watching.    
  • Create a conversation with the court and maintain a conversational tone.  The most skilled advocates are those that draw the court in and boil down the most complex legal arguments into a coffee time conversation.  The give and take is more like a Monday morning dialogue about the weather or the daily sports scores.   A pure presentational style will never invite a conversation with the court and thus, not create a direct mode of communication.  Instead, it will essence reduce your persuasive ability. 

I hope these quick remedial reminders are well embraced as I get ready to embark on my next journey of oral advocacy tutelage.  Maybe at some point I will learn to practice what I preach.