Moot Court and Mute Judges

One of the rituals of the first year of law school is Moot Court.  For you non-lawyers, it’s a name given to the exercise of briefing and arguing a pretend appeal based upon a contrived fact pattern.  Law students are given the exercise to learn what it’s like to perform the work that they’ve been spending so much time reading about.  More importantly, they do it to prove their mettle so they can be invited to be on the Moot Court Board, which looks really good on their Biglaw resume and will provide financial security for the rest of their lives.

Modesty aside, I am the best moot court judge ever.  You see, non-lawyers, law schools engage in Moot Court competitions in various areas of law to show that Fordham can kick Harvard’s butt in the real world.  This part doesn’t actually change a student’s chances for a Biglaw paycheck, since the kid from Fordham still didn’t go to Harvard and is therefore deemed intellectually defective by the elites, but it does give him a leg up over his fellow Fordhamites.

The fact patterns used, when well crafted, provide both sides with substantial arguments to offer without either having a winner.   The teams switch back and forth between sides, teaching students to be able to argue out of both sides of their mouth at any given moment.  It’s a skill only a lawyer could appreciate, but a necessary one for an advocate.  Bear in mind, we argue on behalf of our clients, not ourselves.

To run these competitions, law schools reach out to real lawyers to man the benches for the many rounds of argument.  There are usually a lot of arguments, so they require a lot of lawyers.  The benches run from three to five “judges,” and one of the judges gets to “preside.”  This is often a hoot, since the presiding judge sometimes takes the job very seriously.

When they can’t find enough lawyers to fill the benches, they often fill in with law students what are Moot Court members.  This, too, is a hoot, because you have students who regurgitate what they’ve been taught about “the rules” of oral argument by professors who have never actually argued a case.  It’s like performing open heart surgery after being taught by a professor who’s never seen the inside of a chest.  Very funny stuff, unless you’re the patient.  But then, that’s why they invented anesthesia.

But I digress.  So they get a bunch of lawyers in a room to be judges, and we talk amongst ourselves.  It turns out that about 80% of them haven’t seen the inside of a courtroom in the last 20 years.  Some are very distinguished in what they do, but they don’t litigate and have never argued a real appeal.  The totality of their litigation experience is, ta da, doing moot courts.  Ironic, eh?  But they believe with absolute sincerity (like the moot court students) that they are perfectly positioned to judge for just this reason.  A ton of experience judging moot court competitions qualifies them to judge moot court competitions.

Now, law students are taught that there are rules to arguing an appeal.  And these rules are handed down from moot court member to students year after year.  The judges who have never actually experienced arguing an appeal love these rules, and love to pontificate about how the competitors violated a rule in their argument.  They mark them down for these violations.  Rules are rules, you know.

But the primary function of the judges is to ask questions during the argument and comment afterward about the performance.  There tends to be two types of judges: The one who says nothing and the one who can’t shut up.  I’ve seen judges talk so much that the competitors (who are generally given 15 minutes per argument) never get a chance to say anything more than, “May it please the Court . . .”  The judges who say nothing leave the competitors dangling, since asking questions is critical to the competition and, more importantly, uses up a certain portion of the time.  The competitors may have about 5 minutes of schtick, but expect questions and will die at the podium if the bench sits there silently.

So, in anticipation of moot court season starting, I offer Greenfield’s rules on how to be a good moot court judge:

1.  Read the fact pattern before you show up for the free lunch.  The kids have spent a lot of time working on their argument.  Show them the courtesy of spending a few minutes learning your part.

2.  Give the students a chance to shine.  Ask challenging questions, not the “suggested” questions in the bench brief (which are prepared for the benefit of judges who are either too lazy or too challenged to put in two seconds of thought).  If you can’t think of a challenging question, smile benignly and let someone else ask questions.

3.  Give the students a chance to answer.  While non-litigation lawyers may believe that the sound of their voice is endlessly fascinating, the competition isn’t about you.  Let the student answer your insightful question.  And if they don’t respond as brilliantly as you would, suck it up.  That isn’t your cue to launch into a demonstration of your genius.

4.  If the student’s response to your question failed to address your point, maybe your question stunk.  Don’t blame the student because you don’t know how to ask a question.  Keep them short and to the point.  If your fellow judges’ faces are all twisted and contorted, chances are you didn’t do a very good job of it.  Back off.

5.  Stay with the program.  You may know a lot about the substantive law involved in the fact pattern, and want to show the room how much more you know than anyone else.  Guess what?  The students are not experts, and going beyond the scope only proves that you are a pompous jerk.

6.  There are no rules.  Here’s an inside secret, no one wins an appeal because they have ably kept their hands to the sides of the podium.  The point is to be an effective advocate, and that’s the only point.  The rules you were taught in law school are there for baseline context; they really don’t count.  If a student was effective in his argument, the fact that she waved an arm at one point does not mean that she gets marked down.

7.  Remember that they are students.  You are not in the competition, so you don’t need to prove your brilliance by beating them to death.  If you see them struggling or dying, help them out a little.  They are often scared to death, and a little bit of calming would do wonders.  If they stumble, pick them up.  Imagine your kid up there arguing.  Be kind.

8.  Accept defeat gracefully.  Every once in a while, a student will argue brilliantly.  You ask your toughest question, and she swats it aside like gnat.  She can’t be shaken or pushed, and shows a maturity in her demeanor that makes you shrivel up.  Do you continue to fight, beat her to death, prove that you are the lawyer and she is the mere student?  Ladies and gentlemen, this is what it’s all about.  You’ve got yourself a winner.  When a winner argues in front of you, accept it and bow your head in defeat.  This is what moot court is all about.  It’s not just a good thing, it’s a great thing to see someone excel.

9.  Be constructive in your critique.  The tendency to either say “everyone was great” or “everyone stunk” is unhelpful.  They will be arguing again, and want to know what worked and what didn’t.  The gaps in their argument only matter if it is a product of flawed preparation, not because there were holes in the fact pattern.

10.  If you have no idea what you’re talking about, say nothing.  They put you on the bench because they needed warm bodies.  That’s okay.  But lawyers aren’t fungible.  Many lawytheers don’t know anything about litigation.  That’s okay too.  If you say something, they will listen.  If you say something stupid, they will still listen.  Don’t do it to them.  They are trying very hard to do a good job.  There’s no need to make noise that contributes nothing to their effort.  If you have nothing to say, say nothing.  It’s okay.

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