Monday, April 29, 2019
Many of the characteristics of the best real-world briefs—clarity, strong theme, readability, focus—are critical in moot court, too. An appellate attorney and a moot court participant both want to produce a winning brief. But winning is defined differently in moot court. Rather than a panel of appellate judges or justices deciding the issues in a case, moot court briefs are scored on a point basis and compared to potentially dozens of other briefs on the same issue and even same side.
My plan over my next several posts is to compile advice for specific sections of Supreme Court briefs generally, then add some thoughts that specifically relate to moot court. I have scored moot court briefs for several national competitions and graded hundreds of students briefs over the years, and those experiences give me insights into common student pitfalls. I have also pulled score sheets from a variety of competitions to give concrete examples of moot court scoring criteria.*
We will start at the beginning with Questions Presented and Issue Statements. You know what they say about first impressions. . . It’s absolutely true for briefs. As a jumping off point and for reference, I compiled a list of many of the Issue Statement/Question Presented blog posts that have appeared on this blog.
From earlier this month, Chris Edwards on framing issues:
Tonya Kowalski’s series on (1) Deep Issue Statements:
(2) Streamlining longer issue statements: https://lawprofessors.typepad.com/appellate_advocacy/2014/01/streamlining-longer-issue-statements.html
(3) More Objective Deep Issue Statements:
Thomas Burch on which style of Issue Statement/Question Presented is used:
As you’ll see from these posts, there is not unanimity as to what format is used and preferred in actual Supreme Court briefs. But it’s helpful to get grounding in how practitioners are framing questions presented.
As for question presented scoring criteria from moot court competitions, here’s four examples with their respective point values:
Competition 1 - Are the questions posed to frame the issue(s) to be decided in a favorable manner without being
Is there a clear point of view? (5 points out of 100)
Competition 2- Do they clearly and accurately explain the issues before the court?
Are they persuasively phrased? (10 out of 100)
Competition 3- Correctly states issues
Articulates legal questions and includes relevant facts
Does not include legal arguments or conclusions
Succinct and concise (12 points out of 100)
Competition 4- Combine legal principles with key facts
Are persuasive but not conclusory
Are clear and succinct (4 points out of 100)
All of these criteria include persuasion, argumentation, or relevant facts. A neutral short framing would not fully comply. Instead, it’s likely that a well-written, Bryan Garner-esque Deep Issue, as described in the second post above, would be better scoring. My theory is the professors and students who run competitions and create score sheets have a preference for the more modern, persuasive, multiple-sentence Deep Issue. Though, I think a short, argumentative question presented with a few key facts could also score well.
Finally, there are a few key errors that will really impact the question presented score on a moot court brief. First, as a brief scorer, I gave very little credit for just copying the issue certified for appeal. That is not the task at hand. Don’t do it. Take the time to frame a well-written issue for the court. It’s possible you could lose 5-10% of your brief score by copying and pasting the issues certified for appeal.
Second, in moot court briefs there are usually two or three separate issues that need questions presented. Try to make them stylistically similar. It’s not cohesive to have one deep issue and one neutral short issue. Yes, this takes time and possibly teamwork. But your questions presented set the tone for the brief. If it’s obvious they were slapped together at the last minute, that’s not a good sign for the rest of the brief.
Third, on a technical note, do not rely on spell check for ALL CAPS in Word. If you type in ALL CAPS, spell check does not pick up spelling errors. Either proof read it carefully, or type it in regular font, then go to font and change it to the ALL CAPS. I see more typos in headings and questions presented than anywhere else because of this. A question presented with spelling errors also sets a poor tone.
Overall, students participating in moot court should start with the good advice in the posts above for practitioners about focusing and selecting the issues and framing them clearly and positively. But, since most competitions seem to prefer a persuasive style with concise inclusion of facts, I’d avoid a neutral short issue for questions presented in moot court competitions.
For those of you involved in moot court, do you have any other suggestions?
* Of course, students should try to find and refer to the score sheet of their own competition if it’s available.