2007 ACS Constance Baker Motley National Moot Court Competition in Constitutional Law Training Session: Oral Argument

The Process: Getting There Get to your courtroom at least 10 minutes early Bring: –Your notes Do not bring anything other than your notes to the podium –Water! –A copy of your brief –A pen to add to your notes Do not bring print-outs of all the cases or other superfluous items

The Process: Getting Started There will be two or three judges Once in the room, advocates should stand at their seats until told to be seated The order of argument will be as follows: New York Tribune Petitioner for Question 1, United States Respondent for Question 1, Tribune Question 1 Rebuttal (if time reserved); United States Petitioner for Question 2, New York Tribune Respondent for Question 2, United States Question 2 Rebuttal (if time reserved) Each competitor must speak for a minimum of 10 minutes. Each team is allotted thirty minutes maximum, with no less than 10 minutes allotted to each question. The first counsel to appear for either party must inform the bailiff of how time will be apportioned between team members, including any rebuttal time for the Tribune on Question 1 or the US on Question 2.

The Process: Getting Started When the judges indicate, the first advocate should go to the podium Always begin, “May it please the court, my name is [blank] and I represent [blank].” –Note: after this point, don’t refer to yourself as “I,” but rather by your party The first advocate for a party should begin by saying something such as: “May it please the court, my name is [blank] and this is my co-counsel [blank]. We are here on behalf of [party] to ask your Honors to [reverse/affirm] the lower court’s ruling. Your Honors, there are two issues before the Court today; my co-counsel will address the [blank] issue and I will address the [blank] issue.” –Note: the second advocate will still need to begin “May it please the court…” and say what issue he or she is addressing

The Process: Getting Started After introducing themselves, the first counsel to appear for either party may ask to reserve a portion of their time for rebuttal. –Do not reserve more than 2-3 minutes If you make a rebuttal, be concise and reply to the arguments made by the Respondents –This is not a time to restate your arguments or raise new ones –Remember to begin with “May it please the court” –Conclude with a thank you

The Process: Getting Started Briefly state the issue you will be addressing –This should be one sentence Lay out a clear ROADMAP of what you will be arguing, ideally in terms of “first…, second…, etc.) –Ex: The issue before the court today is whether a defendant charged with murder has a right to a jury trial. The answer must be yes for three reasons: First, … Second,… and Third, … –State the reasons in order from strongest to weakest Do not list more than ~3 reasons –This part, too, should be brief Memorize your opening and roadmap

The Process: Getting Started If you are the Petitioner, ask if the judges would like a brief recitation of the facts –The judge will likely say no, but be prepared to give a very brief recitation, just in case –If the Petitioner makes a mistake or leaves out an important fact, Respondent can later (when it’s his or her turn to speak) briefly offer a correction. This should be done only if there was an extreme error. Move on the first issue on your roadmap –Try to move from your strongest to weakest arguments, since it’s preferable to run out of time during the latter

Fielding Questions Be prepared to be asked questions at any point, even during your introduction A “hot” bench may keep you answering questions the whole time, while a “cold” or “dead” bench may let you give a ten-minute speech –Be prepared for both possibilities Judge’s questions may not follow your roadmap! –Never say that you’ll address a question later in your presentation –Answer the question, then transition back to the point you were trying to make, or perhaps to the issue on your roadmap to which the judge made you jump –One of the biggest challenges is “controlling the bench” and getting to all of your roadmap points. This requires flexibility and thinking on your feet!

Fielding Questions Answer the question carefully and don’t try to evade it –It is permissible to ask a judge to rephrase or repeat a question It is OK to pause to think about a question before answering it Be careful about what you concede! –Consider what a concession might mean for the rest of your argument –However, failing to concede a point when appropriate may be interpreted as a lack of confidence in your position and damage your credibility

Fielding Questions If possible, begin your answer with “yes” or “no,” and then elaborate Don’t compliment a judge for asking a “good question” Don’t support your answer (or argument) with facts not in the Record Once you’ve answered a question, do not wait for a go-ahead from the judges to proceed. Just transition back to your argument

Types of Questions to Expect Fact Questions –Ex: What evidence is offered that shows irreparable harm? Authority Questions –Ex: Have any courts adopted that position? –Ex: Isn’t New York Times controlling on this issue? Try to distinguish the case if it doesn’t support your position If you don’t know the case, admit that and don’t make up an answer

Types of Questions to Expect Policy Questions –Ex: Why should unelected judges who have no expertise in National Security be allowed to contradict the Government? Don’t shy away from policy questions. Recognize that judges often want to be mindful of the ramifications of how they will rule Hypothetical Questions –Ex: If a newspaper obtains info that they know with certainty would lead to U.S. service member casualties, does the newspaper have a First Amendment right to publish that? –Answer the question, but point out how the case at bar is different and why that is important

Types of Questions to Expect Extremely broad questions –Ex: What does the Constitution have to say about this? –Give a short answer, then transition back to the appropriate point on your roadmap Unanswerable questions –Ex: Has Al-Qaeda shifted their communications and encryption tactics to undermine the progress that the PFF program has made so far in tracking their activities since the publication of the article? –Don’t make anything up, just say that the Record does not address that question

Types of Questions to Expect Argumentative Questions –Ex: Isn’t the Tribune just trying to avoid responsibility for aiding Terrorist? –Have a strong response tying back to your core theory Friendly Questions –Ex: Isn’t this case distinguishable from New York Times because the risk to national security from revelation of the PFF program is more immediate than the publication of the Pentagon Papers? –Accept the gift!

If You’re Really Stuck Try hard to answer all questions, taking time to pause and consider them If you absolutely don’t know how to answer, admit that and offer to “file a supplementary brief on that issue later” Not being able to answer a question may make you less persuasive or credible, but so will a transparent effort to make-up an answer you don’t know

Concluding Your conclusion should be brief, but may be a few sentences long –End with, “Subject to your Honors’ further questions, this concludes [party’s name] argument.” If your teammate will follow you, you may want to add “…on this issue.” –Memorize your conclusion A judge or bailiff will indicate when you have 5 minutes, 1 minute, and no time left. –Try to finish in time, but if you have run out of time, you may ask for the opportunity to briefly conclude or to finish answering a question

Your Notes You may bring notes with you to the podium, but they should be much less extensive than your brief! –Oral argument is your opportunity to highlight your main and strongest points and to address judges’ concerns. Do not attempt to cover every detail in your brief Create a FLEXIBLE outline that will remind you of your main points and supporting cases –Write bullet points, NOT a script –Keep in mind that the oral argument should be a (formal) conversation, not a lecture

Your Notes If you are the Petitioner, anticipate some of the other side’s arguments, but focus on your own. If you are the Respondent, do break from your notes and refer to things the Petitioner said during his or her argument You may want to incorporate into your outline or list separately major cases (with brief notes) that you will rely on for support or may need to distinguish

Your Notes Use large headings and text –You’ll need to jump around without getting lost There is no single right way to organize your notes. Some people bring folders with pages tabbed or stapled to all sides of the folder, while some of the most successful advocates bring only a single sheet of paper

Etiquette and Form Always be respectful of the Court –Always address a judge as “Your Honor” –Dress formally and conservatively during the Scored Rounds Be confident and persuasive, but not pushy or combative NEVER interrupt or speak over a judge, even though they will interrupt you Even though you may know the issues better than the judges, who often have reviewed only a bench memo of the case, do not be patronizing

Etiquette and Form It is acceptable to disagree with a judge, but always do so respectfully and with support for your position Stop when your time has run out and, if necessary, ask for time to wrap up. If given extra time, conclude quickly and do not try to squeeze in additional points When finished, thank the Court and sit down –Don’t high-five your teammate

Etiquette and Form Keep your feet planted on the floor and don’t shift around too much Keep your hands on the podium at most times – don’t gesture during your entire argument, though occasional gestures can be effective Keep your hair out of your face so you don’t have to brush it away Don’t bring a pen or anything else that you might wave around to the podium

Etiquette and Form Speak slowly and enunciate! Don’t be monotonous – use inflection and volume to your advantage It’s ok to pause to collect your thoughts, but avoid “ums” and “uhs” Try to always look at the judges, not your notes or some corner of the ceiling, while speaking –Even if one judge asks a question, address your answer to all of them –Remember that this is a conversation, which involves both eye-contact and a formal but non-lecturing tone

Etiquette and Form Don’t exaggerate or be overly-dramatic, it will hurt your credibility Relax! –Looking tense will detract from your presentation, and you’ll think more clearly if you’re calm –Be prepared and know the material, but don’t over-practice If you want to watch a moot court session, videos are available at moot_court/video.html