Sunday, June 13, 2021
Moot Court is an important class in law school because it teaches students the skills necessary to be effective appellate advocates. Below are five rules that moot court students – and practicing appellate advocates – should follow when arguing before an appellate court.
1. Start strong
First, begin with a powerful opening sentence that captures the court’s attention. Of course, don’t be too general or overly dramatic. Instead, ask yourself how you would describe in one sentence why you should win. The answer should be your opening sentence.
Second, use the Rule of Three. After your opening sentence, immediately and concisely provide the court with three reasons supporting the outcome you seek. Be sure that they are clearly delineated and supported by the record and relevant law.
Third, tell the court what remedy that you are seeking and the rule you would like the court to adopt. The court needs to know what you want and why giving you what you want would result in a workable rule that can be applied fairly and consistently to future cases. Put simply, the beginning of your argument is a roadmap for the court to follow that will lead to a ruling in your favor.
Consider the following examples by attorneys who are appealing a district court’s decision to dismiss via summary judgment their client’s defamation case on the ground that the alleged defamatory statements were constitutionally protected opinion:
May it please the court. The First Amendment is sacrosanct in our society. Ensuring a robust marketplace of ideas is essential to a democratic society. To that end, unpopular ideas are protected from government censure and even the most distasteful comments warrant First Amendment protection. But sometimes, people cross the line and say things that neither the First Amendment nor common decency should countenance. The founders did not intend for any speech, no matter how harmful, to receive First Amendment protection, as the United States Supreme Court has recognized in cases like Miller v. California and Brandenburg v. Ohio. This is one of those cases. The harm caused to my client by the statements made against him is actionable under federal law.
What nonsense. If I was the client and listened to this opening, I would cringe and possibly run out of the courtroom. Now consider this example:
May it please the court. The appellee’s statement implied underlying false facts, was defamatory as a matter of law, and caused severe reputational harm. First, the statement that my client was “a disgusting person and attorney who would lie to any client to make money,” implied that my client was an incompetent and unethical lawyer. Under United States Supreme Court jurisprudence, these statements are actionable and defamatory. Second, the statement is verifiably false. As demonstrated in the over fifty reviews by former clients, my client's inclusion in the Best Lawyers in America for the past ten years, and his selection as the Lawyer of the Year last year, the statement is untrue. Third, the statement has subjected my client to harm and ridicule in the community. Several clients have fired him. Many have sent him offensive emails. He has been suspended from the State Ethics Committee on which he served. For these reasons, we respectfully request that this court overturn the district court’s grant of summary judgment by applying the well-settled principle that opinions implying underlying facts can – and often are – defamatory.
The difference should be obvious.
2. Answer the judges’ questions.
Perhaps the most important part of an oral argument at the appellate level is the judges’ questions. Those questions provide insight into, for example, concerns the judges may have about one or more of your arguments or the rule that you would like them to adopt. They are also an opportunity – indeed the best opportunity – to make your case to the judges.
To do so, you should follow two basic rules. First, answer the questions directly. Do not try to avoid them or give answers that may sound persuasive but that aren't responsive. You are a lawyer, not a politician. If you give evasive answers, you will lose credibility with the judges. You will show that you lack effective responses to the judges' concerns. And that will undermine the strength of your argument. Thus, be sure to answer the questions directly. Those answers may require you to acknowledge weaknesses in your case, such as unfavorable facts or law. Who cares. The best attorneys concede these points and explain why they do not affect the outcome they seek.
Second, the best attorneys pivot seamlessly from the question back to their argument and thus continue the argument with excellent organization and flow. Consider the following examples:
Judge: Counselor, as bad as this statement may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: Well, the real issue here is about the harm. My client’s reputation has been severely and, perhaps, irreparably harmed by this statement. And the record amply supports that fact. So, the technical distinction between pure opinions and opinions implying underlying facts is really just an argument about semantics.
Judge: Let me try this one more time. What criteria would you use to distinguish pure opinions from opinions implying underlying facts?
Attorney: With all due respect your honor, that is not the question in this case. The question is whether my client was defamed. The answer is yes.
That is simply terrible. Now consider this example.
Judge: Counselor, as bad as these statements may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: The distinction is verifiability. Pure opinions cannot be proven to be factually false. For example, if a person says, “the New York Yankees are a bad team,” that would be a pure opinion because what one considers ‘bad’ is subjective. But if a person said, “The New York Yankees are only a good team because of the stuff their players take to enhance their performance,” that would be an opinion that implies underlying facts because it can be proven that the players do not take performance-enhancing substances. In this case, the appellee did not simply say that my client was a ‘disgusting person.’ He said that he was a ‘disgusting person and attorney who would lie to any client to make money.' We can verify, through affidavits and sworn testimony, that he never lied to a single client about any matter pertaining directly or indirectly to their representation. And that is why the rule we ask this court to adopt is neither novel nor unworkable. We simply ask that you apply well-settled precedent stating that opinions implying underlying false facts can be defamatory. Indeed, in this case, they most certainly were defamatory.
Again, the difference should be obvious.
3. Have a conversation with the court
During an oral argument, you should be yourself and have a conversation, not a confrontation, with the court. The judges are not your enemies. They are simply trying to reach the fairest outcome that is consistent with the law and justified by the facts. Thus, you should be friendly and respectful, realizing that, as an advocate and as an officer of the court, your responsibility is to help the judges reach the best result while remaining faithful to your client’s objectives.
The best way to do this is to provide the court with a practical and workable legal rule that can be applied fairly and consistently to future cases. Remember that appellate judges are not focused exclusively or even primarily on your client. They are focused on whether the outcome they reach and the rule they adopt will provide workable and just in future cases, both as a matter of law and policy. For this reason, the best appellate lawyers advocate fiercely on their clients' behalf but also propose legal rules that the court believes will provide clarity, fairness, consistency, and predictability in future cases.
4. Don’t screw up on the basic aspects of appellate practice
Never make the basic mistakes, namely, the ‘red flag’ errors that undermine your credibility and your case. For example:
- Know the record
- Know the law (and please make sure your legal authority remains valid law)
- Know the standard of review
- Write an outstanding – and concise – appellate brief and remember that the brief is more important than the oral argument
- Never be disrespectful to the lower or appellate court, or the adversary
- Follow the federal or state rules, and the local rules
- Don’t make weak arguments
- Cite cases and other authority
- Know the difference between binding and persuasive authority
- Have realistic expectations and communicate those expectations to your client
- Don’t use notes at oral argument
- Be honest
- Don’t be a jerk
This list is certainly not exhaustive. But if you violate one of these rules, your chances of winning will be compromised – as will your reputation.
5. Have a short list of ‘non-negotiable’ legal arguments
It’s difficult to predict what will happen in an oral argument. Some appellate panels ask many questions, which is known as a ‘hot’ bench. Some ask few questions. Sometimes, the judges raise issues that you don't expect or ask questions that you have difficulty answering. Regardless of what happens at an oral argument, you should always have a list in your mind of the arguments that are so essential that you must communicate them to the court, no matter what the direction or focus of the argument.
And remember, there are some things that cannot be taught or that require significant practice. Those are a lawyer's: (1) charisma; (2) personality; and (3) persuasiveness. The best appellate advocates have all three.