Lessons from Monday Night Mooting
by Colin MacMillan ('07)

After mooting a few of you tonight, I have a few additional thoughts for you and it seems like you weren’t given much direction on the flow of the proceedings.

THE FLOW

Stating Your Appearance
If the Judges ask you to state your appearance, simply stand up where you are (no need to go to the podium) and say something like:

“Good evening your honors, my name is Jesse Fu, counsel for the Petitioner Marie Dosman.”

“Good evening your honors, my name is Reggie Bush, counsel for the Respondent Maneely Enterprises.”

The Arguments
After this the Petitioner should approach the podium and wait to be acknowledged by the judges and begin by saying:

o “Good evening your honors, Jesse Fu for the Petitioner Marie Dosman.”

o “At this time I would like to reserve one minute for rebuttal” [Wait for your request to be granted by the judges, and then begin your argument.]

o “This evening I will argue that the trial court erred in sustaining a demurrer…” [or whatever]

After the Petitioner has left the podium, the Respondent should approach the podium and wait to be acknowledged by the judges, then begin your argument by stating:

o “Good evening your honors, Reggie Bush for the Respondent, Maneely Enterprises. The issue in this case is …”

Ending Your Argument
When you see the zero card held up, and before you run back to your seat, you need to gracefully end your argument. Think of it as a conversation with the judges. Most people don’t just end a conversation by walking away, and there are a few things you should say so that you at least look like you know what you are doing. Here’s my advice for what to do when your time expires when:

You are speaking – Finish your thought, don’t just stop speaking mid sentence or even mid thought. You may need to abbreviate your point, and limit yourself to a sentence or two, but make sure that it is a coherent statement. Then go into the Short Conclusion below.

If you are answering a question – Finish answering the judge’s question and say, “Your Honors, I see our time has expired…[see Short Conclusion below]."

If a judge is asking a question – When the judge has finished asking the question, say, “Your Honors, I see our time has expired, I will answer your question and briefly conclude.” Don’t bother asking permission, because it creates an awkward situation because they will always grant your request. Feel free to answer the question fully, and even turn it in to an argument point if it’s a logical transition, but don’t get too far away from the original question.

If there is silence – Say, “Your Honors, I see our time has expired, [see Short Conclusion below]."

SHORT CONCLUSION: You should have a one to two sentence conclusion memorized that should be used after you acknowledge that your time has expired. It should go something like this for the Petitioner, “Your Honors, I see our time has expired. The Petitioner urges this court to overrule the action of the trial court and find that Ms. Dosman was closely related to Mr. Cosack either under a theory of exceptional circumstances, or in the alternative by logically finding that step children are close family relatives. Thank you, Your Honors.”

Rebuttal
When the Respondent is done arguing, the Petitioner should approach the podium and wait to be acknowledged by the judges. Some people like to start their rebuttal with something like, “By way of rebuttal, the Petitioner would like to …” I personally don’t like that language. You are obviously the Petitioner and you are obviously on rebuttal. Since it is only a minute long, I liked to just start by saying “Your Honors…[and then jumping right into my attack of the other side, clarifying a point or two (max), or summarizing my theory of the case]. I would memorize or adlib the rebuttal and always end by making direct eye contact with the judges and saying, “Thank you, your Honors.”

On rare occasions, you may get asked a question on rebuttal. Just go with it and if there is time try to get back to your original point. If not see the section above on Ending your Argument.

ADVICE

Formality
Adding a degree of formality to your language, tone and mannerisms will go a long way in conveying a sense of confidence and presence in the court room. The graders seemed interested in this.

Cases

Since you are graded this year, be sure to distinguish or analogize between the facts of the main cases (Moon, Thing, Rodriguez, Eldon etc). Your Fellow and most likely Prof will want to see some command of those cases and the ability to base some of your legal arguments on them.

Petitioners – Talk about the trajectory of the case law, and don’t be afraid to make strong public policy arguments that favor your side. Also, pepper your arguments with favorable facts from the case.

Respondents – The existing case law is in your favor. Don’t be afraid to use it and argue that based on same your client was entitled to the Demurrer as a matter of law.

Hand Motions

Just grab the podium with both hands and don’t let go until you are done…this will solve that problem.

Rebuttal

We were asked if the Petitioner is required to do one. The official answer is no, but the graders seem to be looking for it, so do it.

Responding to Questions

Every time you answer a question, begin by saying, “Your Honor…” It may sound redundant to you, but it will go along way with the judges.

Ending Early

We were asked if there was ever a time that you should end early. Again the official answer is that it is up to you, and again the graders would mostly likely wonder why you couldn’t find more to talk about, so keep talking.

Silence

We heard a lot of silence tonight. If the judges stop answering questions, you should immediately have something in mind to talk about. That’s were the development of the Roadmap can be helpful part of your preparation. Or, better yet, develop a few talking points, as outlined in my original post, in order to keep the conversation flowing and give yourself the chance to speak intelligently on something you’ve prepared.

Don’t worry about this too much, since there will be a whopping total of 5 judges at your rounds next week. In all likelihood you probably didn’t spend that much time preparing for the practice round, and you will know how to do this much better by next week.

Keep Arguing

Stay composed and keep talking about the case. Even if the judges are going after you or have you cornered, don’t worry about it, argue back or move on. Remember it’s not all about the merits of the case, and you will be given significant style points for transitioning gracefully out of a tight spot.

Try to get mooted once or twice before next week and you’ll start to feel more comfortable with the process and your arguments.

Roadmap: A few people have asked about the infamous Roadmap. Click here for a sample. See my original post for my thoughts on its use.

Good luck!