Duke University School of Law Moot Court Board

A PRIMER TO ORAL ARGUMENT

Structure & Sequence
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1. Opening
   Competitors should wait quietly in the hallway outside of the room in which they are assigned to argue until the judges or justices (as the case may be) ask them to enter.  The first three rounds are judged by 2L and 3L members of the Moot Court Board.  There will be two judges present:  the Chief Justice and an Associate Justice who will keep time (both judges can, and usually will, ask questions).  Judges will likely exit and then re-enter the room and announce the case.  When judges enter the room, the advocates should rise and may be seated only after the judges sit down.  When the judges indicate that they are ready, the student should rise and approach the podium or lectern.
   
   
2. Introduction
   The very first statement out of moot court competitors' mouths should always be, "May it please the Court, my name is _____, counsel for the appellant [ or respondent], _____."  It is very important to remember to say, "May it please the Court."  It is simply a well-established formality of moot court competition (as well as many real courts), to which you should adhere, and you will lose points if you fail to open your argument or rebuttal in this fashion (see the scoring criteria).
   
   
3. Statement of the Case
   You should always begin your argument with a clear and persuasive statement explaining the essence of your case.  This statement should be confident, succinct, and, to the extent possible, slanted in favor of your version of the case.  For example, in a case where police allegedly used excessive force in apprehending a suspected drug dealer, counsel for the government might state the case in the following way:  "This is a case about the proper and lawful use of police power to address the significant threats posed by drug trafficking in our city."
   
   
4. "Roadmap"
   After introducing yourself and your case, but before making any further argument, identify the TWO or THREE (but no more than three) issues you will discuss.  Make these issues clear and straightforward.  For example, "This Court should find in favor of the appellant [or respondent] for two reasons...."  You should then list your main arguments.  For example, "...First, because this Court does not have jurisdiction; and Second, because customary international law is applicable in this case and is on the side of the appellant [or respondent]."
   
   Your argument must include a roadmap.  If judges cannot readily identify the inclusion of a roadmap in your oral argument, you will lose points (see the scoring criteria).
   
   If you think of (and/or organize) your oral argument in outline form, the two or three reasons contained within your roadmap should be the highest levels of your outline (below perhaps only the ultimate conclusion you want the Court to reach).  The body of your argument should expand below the reasons you list in your roadmap.  The roadmap gives judges an overarching picture of the more nuanced argument that will follow.
   
   Memorize your opening and your roadmap. The most successful oral advocates memorize their opening roadmap and maintain eye contact with the judges throughout.  This is the best way to make a good first impression of confidence and preparedness.
   
   
5. Facts
   Briefly outline the relevant facts of your case, taking care to highlight those that support your position, but without arguing your position.  Keep your facts short (no more than two minutes) and focus on the critical elements of your case.  Be forewarned that the Court might interrupt and ask you to skip the facts.  If they do, proceed with your argument.  Don't assume that this will happen, though; it is the Court's decision.  Bottom line:  prepare the facts.
   
   
6. Order of Argument
   Begin the body of your argument by discussing the first issue in your roadmap.  Make your argument, and then proceed directly to your second issue.  There is no need to pause or to solicit questions.  The judges will interrupt you with questions as they wish.  Answer their questions directly and use your roadmap and outline to find an appropriate place at which to continue arguing.
     
   
7. Conclusion
   When you have finished your argument, end with a clear statement of what you are asking the Court to do (a "prayer for relief").  For example, "...For the foregoing reasons, I respectfully request that the Court find in favor of the petitioner / respondent (or appellant / appellee, as the case may be) and [take whatever specific action is specified in the problem materials]."  Do not forget to ask, or "pray," for relief at least once.  You will lose points if you do (see the scoring criteria).  If petitioner prays for relief in the main argument, he or she need not repeat his or her prayer in the rebuttal (although it will not count against you if you do).

Etiquette & Style
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• At all times, judges are to be referred to as "Your Honor," with respect and deference.
  
  
• As a matter of convenience, competitors are advised bring some type of folder or portfolio in which to contain their notes.  It need not be fancy; in fact, a plan file folder is sufficient.  Some competitors opt to staple or tape down their pages to the folder so they don’t have to worry about dropping sheets on their way up to, or while they are at the podium.
  
  
• Do not bring pens, pencils, or loose watches with you to the podium.
  
  
• Be aware that at any time during your argument, the judges can and will interrupt you with questions.  It is vital that you fully answer the question to the best of your ability when the judge asks it.  Do not tell a judge that you will answer that particular question later in your argument.  Go where the judge leads you, even if that means not following the argument that you planned.  Don't let this aspect of moot court competition frustrate or distract you.  Part of the challenge is adapting to and taking into consideration the judges' concerns, while finding the time and opportunity to still voice the important parts of your argument.
  
  
• If you do not understand the question a judge asks, you should ask him or her to explain or clarify their inquiry.  It is fully acceptable to ask for clarification and almost always preferable to answering a question the judge did not really ask.
  
  
• Approach your oral argument as a conversation with, not a lecture to, the judges.  Engage in an exchange of ideas with the judges and respond to their concerns.  Avoid reading a prepared speech to them.
  
  
• If a judge asks a "yes" or "no" question, answer first with "yes" or "no" -- then elaborate.  For example, reply with, "Yes, Your Honor, in fact ...," or "No, Your Excellency, rather ...."
  
  
• Avoid responding with “I believe....”  As an appellate advocate, you are making an argument for your client, not yourself.  It is more appropriate to say, “Petitioner argues that…” or “Respondent would contend….”
  
  
• Never speak over a judge.  When a judge starts talking, you should stop talking immediately, even if he or she has interrupted you mid-sentence (or even mid-word).
  
  
• It is okay to stand firm in respectful disagreement with a judge as long as you can back up your position with a well-reasoned argument.
  
  
• At the end of your alloted time, the judges will show you a "STOP" card.  Once you see the "STOP" card, immediately stop speaking.  If you are still speaking when the "STOP" card is presented, ask the Court if you may finish your thought or answer.  If the Court says, "Yes," then finish your thought or answer, but do not take advantage of the Court's generosity:  Finish only that thought or answer, and then retire.  Do not make new arguments.
  
  
• When you finish your argument (or run out of time), thank the Court and sit down.

Preparing Your Oral Argument
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• Know your arguments completely.  In planning your presentation, make sure to highlight and make a theme of your case's merits.  But also anticipate problems for your side and prepare responses to questions the judges are likely to ask or to issues that opposing counsel is likely to raise in his or her presentation.
  
  
• Pay attention to the major cases referenced in the materials.  You need not memorize all of the cases cited, but make sure you understand the connections between the cases cited and your argument.
  
  
• If the legal principles at issue are fairly well established, focus on the application of the law to the facts of your case.  State the legal principles succinctly and then demonstrate how the law applies to the facts and requires a certain result.  Use precedent to show how other courts ruled in similar situations and focus on the factual similarities and distinctions of other cases.
  
  
• If the legal principles are not well-established, prepare to focus, at least in part or in the alternative, on policy.  Help the judges to see the implications of interpreting the law in one way or another.  Discuss not only the implications of deciding the case before the court one way or another, but also the long-term implications a given precedent might have on other potential circumstances.  When discussing legal precedent, focus on the manner in which other courts analyzed the legal issues presented and the policy reasons that persuaded them to decide in a certain way.  Use examples and thoughtful hypotheticals to show the judges the potential impact of their ruling.
  
  
• Focus on the two most important arguments in the problem.  They should constitute your entire argument.  Oral arguments are brief, so you must delve into only the most important (and convincing) arguments available to your side.  Within your allotted time, do not attempt to argue all the potential issues you have anticipated having to discuss in response to the judges' questions.
  
  
• Always focus on why your side is right, rather than on why the other side is wrong.  When crafting your argument, put yourself in the judges' position.  Look for the weaknesses in your argument, anticipate the questions judges might ask, and plan responses that transition to the merits of your position.
  
  
• 'Know when to hold 'em, know when to fold 'em, know when to walk away, know when to run ....'  Knowing when to make concessions without weakening the core of your argument is an important skill of oral advocacy.  If both sides of the case did not both have real strengths and weaknesses, if the case should have clearly been decided one way or another, it simply wouldn't even be before the court.  It is okay to stand firm in respectful disagreement with a judge, and it is okay to admit a weakness in your case, as long as it doesn't undermine the basis of your argument.
  
  
• DO NOT WRITE OUT AN ENTIRE SPEECH to deliver to the judges.  Instead it is a good idea to make a brief outline to help you remember the key arguments and issues of your case, and to note key treatises and cases.  Try to limit your outline to one sheet of paper.  Use key words and phrases to jog your memory.  While you should certainly have some idea of what your argument sounds like -- what words you will use beyond your outline -- reading a speech is simply not persuasive.  Reading is one of the most common mistakes made by inexperienced oral advocates.  Approach your argument as a conversation with, not a lecture to, the judges.