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
http://organizations.lawschool.cornell.edu/
moot_court/video.html