THE ART OF MOOT
by Colin MacMillan ('07)

As usual, Mr. Bleweiss did an excellent job describing the 1L Moot Court ("MC") rounds, so I will mainly give you my perspective as a participant. Keep in mind that I have no idea how you are being graded for your writing class and these are just my thoughts at succeeding in MC. I think the only change that has been made since he wrote the original blog entry is that in your qualifying rounds (the second time you argue) there will be five judges (3 from MC, 1 Writing Fellow, and your writing Prof.).

RANKING THE HONORS PROGRAMS

By now you have probably caught on to the fact that the ranking process for the honors programs is much like the mysterious black box of the 1L curve. You will never find out how you were scored for MC or the write on. There is some strategy as to how you rank the programs, since you will be invited to participate in the program that you ranked the highest and that you qualify for, assuming it is not already full. Keep in mind that if your preferences change (i.e. during the write on), you do have a short period of time to email Kyle Jones with an updated list.

THE PRESTIGE FACTOR: Since conventional wisdom says that Law Review is the most prestigious program, the question for many 1Ls is whether MC is more prestigious than the other two journals. My take is that it is probably a wash, but you might get more mileage out of MC if you make at least one cut.

I personally ranked MC first, but I did the write on as insurance. I thought MC would be more interesting and practical. Blue booking and cite checking did not sound appealing to me, but props to everyone who just finished their notes.

MOOT COURT ADVICE

MC is what it is…a game. It is not decided on the merits of the case, but rather the subjective criteria of the judges – whoever they happen to be. My advice is to view it as a game, and play along.

STYLE: If the instructions you are given are anything like the ones we received, you will quickly be turned into a Moot Court robot – try to avoid that. You will be most effective playing the game with your own style. To get to USC you must have been doing something right, so just keep that up.

• I found that a very informal/conversational style worked best for me. I viewed oral arguments as a time to chat with the judges about the case and fill them in on my perspective.
  

THEORY: I found it helpful to develop a theory/theme for the case I was arguing in order to set the tone for the judges. If you can, try to tell a story through your opening and subsequent arguments, such that at the end of your round the Judges will be able to summarize your position back to you in a sentence or two.

THE GAME: The game is to try to tell your story of the case while thoughtfully but strategically answering the judges’ questions. Keep in mind that questions from MC judges (especially in the 1L rounds) are probably not the result of thoughtful preparation, but rather an attempt to trip you up, a question just for the sake of asking a question, or possibly a means of clarifying a point that is unclear in the case.

• Cases - You know this case better than most of us judging you for MC. I will be judging some of you in less than five days and I have yet to receive any information on the case. How much prep do you think your 2L judges will be doing over the weekend? That said, you will have 2 judges in the qualifying round (your writing Prof. and Fellow) who will know the cases better than you, so it will be a bit different from the practice round and you will need to have a solid command of the leading cases.

TO SUCCEED AT THE GAME:

• Confidence – Even if you don’t know what you’re talking about, pretend that you do, or quickly get to something you do know about. The ability to project confidence will go a long way even if you don’t feel like you have (or can recall) the most ingenious arguments.

• Composure – Don’t let yourself get flustered. Try to keep a consistent composure throughout. Most MC cases will have compelling arguments on both sides. Play along with the judges’ questions. Don’t be afraid to concede small points in order to deflect tough questions, but don’t give away the store.

• Strength of Argument – This is listed last because I think it can often take a subordinated role in MC evaluation. Since the cases are written with equality of arguments in mind, scores often come down to the delivery and not the content. That said, creative arguments can often score you easy points and save you from some tough questions. But be careful that your arguments are not too complicated or attenuated such that the judges get confused and take you off topic. Try to keep them fact specific – just using the facts in creative new ways.

THE ROADMAP: You will hear from most people that you should make a MC roadmap, and I think you should as well, but mostly for the process of organizing and articulating your thoughts. Chances are that you won’t use it much, if at all, during oral arguments, but constantly revising my roadmap was my main preparation for oral arguments.

• Use Notes & Annotations – I would caution you against writing out the roadmap word for word, and rather just list your key points and key phrases to trigger your memory so that you engage in a conversation with the judges and not a lecture

• Introduction – Some people say to memorize it. Some say you don’t need to. I memorized a couple of quick sentences in order to make a good first impression on the judges, but you don’t have to.

TALKING POINTS: I found it helpful to develop 3 – 4 interesting thoughts about the case that the judges probably won’t pick up on. At times these were only tangentially related, but they were designed to direct attention away from a particularly difficult line of questioning from the Judges or to make me appear articulate and knowledgeable about the case while running out the clock on stuff I felt comfortable talking about.

REBUTTAL: This will be different every time. Don’t be afraid to point out weaknesses or contradictions in your opponent’s argument. If the judges cornered the other side into making concessions that are quite favorable to your position, don’t hesitate to highlight them in your rebuttal.

I never had a scripted rebuttal – I just made notes while the other side was arguing and tried to pick up on the direction that the judges were headed or any opportunities presented by my opponents’ arguments. If you are at a loss for what to say, put yourself in the shoes of the judges – after the case is argued, they would have to go back and make an actual decision. With this in mind, unless it directly related to a concession made by my opponent, I found the most success in keeping my rebuttals broad since at that point the judges would be in the mindset of summing up the case.

NEXT YEAR...

If you are selected for MC, you will have a busy fall, but you do get 3 units out of it. You are basically on your own to research and write an appellate brief (it’s back!), which for us was conveniently due during OCI. You do have a MC Board member as your editor, but like your writing profs, they don’t want to give any particular person an advantage. Our record was very well written and contained most of the information we needed for the brief, so there wasn’t too much outside research necessary. The brief will also count as your upper division writing requirement.

ARGUMENTS: There are two practice rounds. The first round is “On Brief,” where you argue the side of the case that you wrote your brief on. The second round is “Off Brief,” where you argue the other side. There are two preliminary rounds that are structured the same way, which take place a week or two after the practice rounds. All 40 participants are required to argue in the practice and preliminary rounds. The judges are usually local attorneys and alums, so the questions are usually predictable and very factually based.

SECOND SEMESTER: After the two preliminary rounds, the field is cut to 16 participants for the Quarterfinal Round, 8 for the Semifinal Round, and 4 for the Final Round. The oral arguments (as opposed to the briefs) increase in weight for advancement purposes. I think the arguments are weighted 67% to get to the quarterfinal round, 75% to get to the semifinal round, 90% to get to the final round. The MC champion is selected solely based on oral arguments in the final round.

IN SUM

Try to get mooted a couple of times – the MC Board or participants are always willing to help, just let us know. 10 minutes will fly by, and you’ll only get to half of what you’ve prepared. Stay calm and focus on the strengths of your case. Remember it’s all moot!

Colin MacMillan was a Finalist in the Hale Moot Court Honors Competition this year. Feel free to contact Colin with any questions at cmacmillan@sbcglobal.net