Sunday, January 26, 2014
This is when it gets fun...and intense. As soon as the brief has been submitted to the competition chair, most teams immediately begin practicing their oral argument. The practices are usually conducted daily (sometimes even twice a day) for the entire 2-3 week period leading up to the competition travel date. This process usually begins with committing key portions of the brief submitted to memory, and then repeatedly tweaking it through Q&A sessions with the coach(es) until the argument is as close to perfect as it is going to get, and also far enough away from the initial draft that it will not be delivered in a robotic and memorized fashion.
The process is repeated as the advocates also have to learn the off-brief (or opposite) argument as well, due to the fact that competitions require the advocates to argue on both sides of the issue during the preliminary rounds. While some students cringe at the thought of this because they have usually grown to appreciate the side of the argument that corresponds with the brief they submitted, I see this as one of the most invaluable parts of the moot court experience. After all, once they leave the "moot" world and enter into practice, a lawyer should not have tunnel vision and only analyze and dissect the argument in a light favorable to his/her client. A good lawyer spends almost the equivalent amount of time assessing the opposing argument. This exercise helps the good lawyer deal with the holes in his/her case more effectively when dealing with motion practice and oral advocacy before the court.
Focusing back on the issue presented in this blog post, many schools prepare students for oral argument by using a faculty coach who leads the students through the entire practice process, perhaps bringing in other faculty, students, alums and other practitioners to periodically play the role of guest judge. While conventional wisdom suggests that the students should practice before as many practitioners and professors versed in the relevant area of law as much as possible, it is equally important to have the students practice a few times before novice judges unfamiliar with the law.
Don't Forget the Simple Concepts
For example, one year I spent a lot of time getting my students up-to-speed on the law in preparation for the Wagner labor and employment law competition. While I had them prepared to deal with virtually any question asked, I had not stopped to think about the simple questions. During the competition, one of the judges asked one of my students what the plaintiff/petitioner wanted. The student recognized this was a remedies question, but since the fact-pattern didn't provide a copy of the complaint or discuss what the terminated employee sought for relief, I neglected to go over such a simple premise with the students. Of course, the student's lack of experience working for corporations also meant it was not possible to easily to come up with an answer off-the-cuff. But the student tried, responding that the client sought reinstatement. The client "might" have wanted this, but what the student did not think about and the judge further inquired about (with a less than adequate response), was that important pot of gold called back wages and perhaps front pay. The money didn't cross the student's mind, only the loss of the job - because the job loss - and legal issues surrounding it - was all we focused on in practice. It was my fault. I was thinking too high-level in practices and didn't bring in the novice judges to ask the simple yet important questions that a novice judge at the competition might want to know.
On a final note, one thing that I have been seeing more of is students totally committing their arguments to memory. Indeed, at the competition they approach the podium with no folder containing the road map and a cheat-sheet to help them if they get caught with a question they were not 100% prepared to answer. In a competition format, this is very impressive to the judges when the student successfully responds to all the questions without looking down once. While this certainly is better than the student that takes too much material to the podium and mostly reads to the judges between questions, I wonder if this is preparing them for the realities of practice. While I see this memorization technique yearly at competitions, I have not seen this the non-moot court world. Even skilled advocates who know the argument inside and out still approach the podium with their folder of materials and are unafraid to periodically look down to find a key point that needs stressed before the court. I have not required this level of memorization of my students, thinking it is better to make sure they know 90+% of it (and certainly have the introduction and conclusion committed to memory, because it can be fatal when an advocate does not start or finish strong), and they can save the other 10% of their brain focusing on other law school courses during the moot court practice daily grind. However, sometimes I wonder if I should join the world of rote memorization. After all, while I do not think real judges expect this (but check out this post from Prof. Cleveland on reading to the court) , it seems to really impress moot court judges.