Lessons of A Modern Moot Court

For the non-lawyers, moot court is where law students argue appeals as if they were real lawyers. All law students are required to do a moot court argument,* and thereafter they can be invited to join teams which compete against other schools.

For years, I judged moot court competitions, and loved it. Law schools invite real judges and lawyers to be the moot court judges, and the job is to question counsel during argument, score them and, after, critique their effort. For years, it was not only fun, but an excellent opportunity to watch some great, and occasionally some awful, law students at work. Most were quite good, and it gave us faith that the profession would survive.

But times changed, and with them, the nature of argumentation by students. I still get invited to judge a few times a year, but I politely decline. The last time I judged, we were prepped by the lawprof running the competition about what we were allowed to ask during argument and say during critique so as not to hurt the little darlings’ feelings.

After all, ask a hard question and it could destroy their unwarranted self-esteem, recognizing that although they may be participating in a national moot court competition, it would be too much to expect them to be knowledgeable and prepared. And I didn’t want to make any law student cry, even if that might help them to realize what it takes to be a lawyer.

Yesterday, the Texas Tornado caught hold of a twit by a lawprof that caught my eye.

The judge who uttered the words “resting bitch face” was female. Whether that means she felt that it would be acceptable because of her gender is unknown, but the words are, apparently, “a thing.” Nonetheless, they were horrifying enough to get the judge reported and banned.

Was it the sort of thing a judge should say? Perhaps. Moot court judges have always given feedback on a wide variety of issues that affect the students’ performance, including appearance. While I wouldn’t have used those words, I don’t consider myself the arbiter of everyone else’s speech.

Of course, she could have said it differently, but then, she apparently wasn’t aware of the new rules of words you’re allowed to use. One might suspect that a concerned academic would merely tell her that “resting bitch face” isn’t a great way to express the issue, but banning is apparently the preferred method among academics these days.

This raises an issue, as the lawyers and judges who serve as moot court judges do so as a favor. They usually get one CLE credit, but that’s hardly much of a motivator. They spend a couple hours of their time, reading the fact pattern and bench brief, coming and going, sitting there listening to students argue. This costs them money, but they give of their time for the sake of the students. And then a women lawyer gets banned for using a phrase that annoys a lawprof, as if the lawprof is doing the lawyer a favor by allowing her to donate her time for the benefit of students. Interesting how academics assume they’re the ones doing lawyers a favor.

As a by-product of this discussion, senior legal writing lecturer at University of Washington law school, David Ziff, did a twitstorm ‘splainer about moot court judging.

It’s worth reading David’s thread, but a few things are worth noting.

They’re not “random lawyers,” but lawyers invited to judge. They’re not judging for CLE credit, but to help law students. Part of the critique forever has been style and appearance, as real lawyers need to understand that everything they do, from what they wear to how their face appears while sitting at counsel table, matters.

Academics don’t want lawyers helping anymore for fear they’ll not use adequately woke language? Whatevs. Tell the lawyers that your students are too fragile to hear critique from real lawyers and you would rather do it yourselves. But don’t assume that real lawyers live in the academic fantasy world of political correctness. Fair enough? Not for Ziff.

Experts? Perhaps not, mostly because lawyers don’t use such words. If they suck, why are you inviting them to judge? But what these judges do is what academics don’t: practice law. Sure, some won’t be great, and some will even be poor, but if the choice is between practicing lawyers and academics teaching students about the real-life practice of law, academics aren’t in the ballgame. I know, you guys think you’re special. Unfortunately, lawyers tend to disagree and don’t share your 97% opinion of your mad lawyer skillz.

Of course those are the stories you hear. You live in an echo chamber, and your echo chamber loves nothing more than to complain about “gendered comments.” I’ve never sat through a critique that didn’t cover both form and substance for everyone. You need to hear better people, David, as the ones you’re listening to are rotting your brain.

More to the point, lawyers are going to hear comments they deem gendered, or racist, or whatever -ist makes you cry today, in big boy (oops! Sorry) court. From judges, other lawyers, litigants, jurors. The reason is that the entire world has yet to adopt the lexicon consisting of only words that meet your approval plus Xir. Law students need to learn how to handle it. Feinting in court rarely serves your client’s interest, any more than chastising the judge for not being sufficiently woke.

This may well be true,** that the students don’t need to hear real judges and real lawyers tell them about real life as a lawyer when they can learn from academics about their fantasy world of law. While we may have an interest in how law students perform after they’ve graduated, we have always compensated for the failure of law schools to produce new lawyers capable of practicing.

While they’re in school, they’re yours. When they get out, we’ll deal with them, one way or another. It’s unfortunate to squander their learning years on fantasy lessons by the person least capable of teaching, but most capable of soothing their fevered brow, but this is why I don’t bother judging moot court anymore. When they graduate, however, they will be judged. Often harshly. They should be strong enough to take it.

*At least they used to. Since they’re no longer required to study evidence in some schools, this may no longer be the case.

**The retort that not all lawyers litigate is an obvious red herring. First, this is moot court, not a mergers and acquisitions contest. Second, lawyers are generalists. They may go to law school with the expectation of never seeing a courtroom, but they have no idea what their subsequent position requires of them. Moreover, if they do litigate, what excuse is there for the glaring hole where you shielded them from learning so they wouldn’t be sad?

58 comments on “Lessons of A Modern Moot Court

  1. DaveL

    They may *think* they are. But this is one of those “97% of drivers think they are above average” situations. Most people are not that good.

    Somebody really should have sorted them out on that score back when they were in law school.

  2. Terence Roberts

    I retired in 2011 after thirty-five years teaching in law schools, mostly clinic.
    I am so glad that I missed feelz, because if I were there now, I’m sure I’d be banned. As for that “bitch face”, more than once I had to caution my students – male and female-to use it only when there was a reason to do so.

      1. B. McLeod

        Banned is like a badge of honor. Burned at the stake is what they would prefer to do, but that might involve a risk of not prevailing in their grand undertaking.

  3. Erika Cunliffe

    I have been judging local/regional moot court competitions for years. It has been and continues to be fun. The kids I see seem to want (if not thrive on)
    the criticism. I still have hope for the future.

      1. Erika Cunliffe

        “That’s nice”? Maybe it might be that there is information out there that goes against your narrative (and I get that I did not support my anecdotal comment with actual date). I get what you’re saying. But perhaps the world is not “going to hell in a hand basket” as you appear to profess.

        1. SHG Post author

          I didn’t say you were wrong, but is there a reason why you saying so changes things? One person has a different experience? Woo hoo, that changes everything!!!

          I’m glad you had a good experience. That’s wonderful (which is even better than nice). But that’s you. It doesn’t negate anyone else’s experience.

  4. Jake

    This is why growing up with alcoholic parents is so beneficial: No feels left to hurt and a situation-appropriate face for influencing every eventuality.

  5. Skink

    Two things. First, this is obvious bait for a specific contributor who knows about appearance in court.

    Second, the last time I did this, my panel included a long-sitting intermediate appellate judge, an appellate practitioner with 2000 appeals, and little me.* I’ve had appeals in every appellate court in my state, a bunch in the federal circuit and a few with the old folks in DC. We all knew each other well, and at one time or another practiced in the same firm. The issue involved law I practice every day; the appellate lawyer handled a bunch of those for me; and the judge has several times a year.

    So it came as a shock that no one bothered to tell us the students didn’t write their own briefs. They did none of the research. They knew none of the law, except what was written in rather poor briefs. Not knowing that, but knowing what was missing, the “but if” questions were probably pretty harsh. Naturally, there were no answers to those questions.

    This was at least five years ago–long before feelings degenerated the usefulness of everything. Part of moot court is evaluating a fact pattern, recognizing the issues and writing a coherent brief. Actually, that’s at least as important as the three minutes of OA. When we were finally told the students did none of this, we were also told that part was eliminated because the students found it too time-consuming and difficult.

    If the academics find research and writing–kinda the basics of law school– too tough for the students, then how are they ever going to teach them not to make asshole faces? For most of the students, this is the only time they encounter practicing lawyers, in my case, a very accomplished appellate lawyer and judge. It should have been a treasure-find for the students, but the academics thought shielding them was more important. That’s just stupid.

    *SHG: sorry for the story.

    1. SHG Post author

      As I’ve been informed more than a few times by brilliant young lawyers, “that’s just, like, your opinion, man,” whereupon the inform me how the practice of law should work and will work when they take over the world.

      1. JRP

        Much as it scares me, are they right?

        They will eventually take over the profession (death gets us all).
        If all lawyers are trained in this new way what does that say for the future of the profession (and the nation)?

        What can the profession do to fight back if law schools have given in?

        1. SHG Post author

          I’ve asked this question numerous times over the years, the last time in January. Law schools are doing everything possible to assure that we will always be able to tell the lawyer by who’s balled up the corner crying because a judge said “denied.” So are we dead?

          Despite the Academy’s best efforts, and the views of the deeply entitled, there remains a good number of serious young people in the law who care, understand that their job is to represent clients and are tough enough to do so. There will be a lot of shit lawyers out there, but there will be some good ones too. Will this be enough to save the profession? Beats me.

    2. wilbur

      That’s unbelievable. But I do believe you.

      Maybe they wanted to find out which Moot Court students would insist on writing their own brief. I can’t imagine not doing so myself.

      1. SHG Post author

        I can’t either. I’ve never experienced a moot court arg where the team didn’t do its own briefs. How the hell can you argue if you don’t know your case?

        1. Skink

          They were only expected to know and argue the briefs, which were written by someone that wasn’t very good on the subject. There were Ant, EE and bench briefs. When we asked whether a rather significant S.Ct. case was considered, silence. I’ll never do it again.

          1. SHG Post author

            I sincerely don’t grasp how they can argue if they don’t know the law, and I don’t know how they can know the law if they don’t write the brief. This was a completely new one for me. I am astounded.

            1. Skink

              Being able to answer obvious questions is all that mattered, which was more like stating the position. It obviously did the students no good. Imagine being the other two on my panel. When we were done, we drank to the functional end of the practice of law.

    3. MonitorsMost

      I believe you. We had this. It wasn’t moot court, it was called an oral advocacy competition or something. Crappy brief plus 8-10 Supreme Court opinions which were the only legal authority we could use (we could at least read and use the opinions, though). We presented the argument and then 15 minutes later had to argue the other side to a different panel. No teams. It’s almost like speed-Moot Court dating or something.

  6. Fubar

    More to the point, lawyers are going to hear comments they deem gendered, or racist, or whatever -ist makes you cry today, in big boy (oops! Sorry) court. From judges, other lawyers, litigants, jurors.

    Med students, in order to train,
    Dissect corpses. Law students explain
    Their case to law’s Brahmin.
    They have this in common:
    Their moot clients never complain!

  7. Richard Kopf

    SHG,

    I am pleased to tell you that, in the hinterlands, assholerly remains an accepted method of moot court judging.

    For a long time, at the UNL College of Law, I have been asked each year to judge a practice round for the National Moot Court Competition put on by the Bar Association of the City of New York. Since, as a law student, my partner and I made it to New York, the kids’ supervisors assume I know something about the competition and perhaps real-life lawyering and judging.

    Each year, I intentionally act like an asshole, throwing out hypos these young people are not prepared to deal with and probably should not be prepared to deal with. After all, they are students. Yet I sneer when they fail. Frequently, I force concessions that give up their case. Then I openly gloat.

    After the arguments are over, I break from my ass hat behavior and explain in detail the reasons for my approach and how they might improve their performance. I assure them that they will never face a bigger asshole. That gets the kids to laugh and, hopefully, provides a greater sense of confidence.

    I would not have it any other way. Far more importantly, the moot court students shouldn’t have it any other way either

    All the best.

    RGK

    1. SHG Post author

      The last time I judged a national moot court competition, I made an advocate cry. Not full cry, but a tear, but pointing out a contradiction in her (yes, it was a her) argument. My purpose was to give her the opportunity to recognize and deal with the contradiction, a chance to salvage her argument. There was a way for her to do so, which I was aware of as I was very familiar with the issue.

      She didn’t. Her coach told me I was offensive and rude. I realized my time as a moot court judge was over. I didn’t want to make any student cry, yet I did.

    2. David Ziff

      Thank you, Judge. As the author of the twit-thread Scott discussed, I actually don’t think the actions you describe fall into the category of feedback I’m advising against. In a later twit (that Scott didn’t quote) I make clear that students *do* need to get this sort of advice, but probably not from a random judge during a one-off meeting after a short competition. The experience you describe—a team of select students training for a national competition with a faculty adviser/coach who has invited you, a sitting judge(!), year after year so the students can get just this sort of experience/practice—that’s the sort of place where I think students can better learn how to deal with the more difficult and sometimes unpleasant parts of being a lawyer. I know that our students have those sorts of lessons and discussions and experiences in our trial advocacy classes and our more advanced programs. Those settings, and practice rounds like you’re describing, seem like a better way to practice and learn those lessons.

        1. N. Freed

          Funny, when I read about how the snowflakes can’t handle criticism, I had a different Grandmother’s Son in mind:

      1. Skink

        “Those settings, and practice rounds like you’re describing, seem like a better way to practice and learn those lessons.”

        Why?

  8. wilbur

    Thanks for the WAPO link explaining what Resting Bitch Face is. I’d never heard the term. Then, when I read it I thought “Oh, you mean like Jay Cutler”, who must be the reigning king of RBF.

    I agree that was not the best choice of words to use in that context, but the sooner they learn the world has a RBF of its own, the better.

    1. SHG Post author

      It was a very big issue among feminists for a spell, which may explain why the female judge said it to the female student. Was the judge wrong? It doesn’t matter, as she’s now banned.

    2. Jay

      For the unwoke:

      *Shit. I’m glad this is moderated, sorry for the link, but you should watch if you haven’t seen this, it’s great. This comment can go into the delete file.

  9. B. McLeod

    I had not previously heard of RBF, and I think a panelist would be remiss in not mentioning to a student that his or her (or all the other pronouns) expression is unintentionally (or maybe unintentionally) conveying hostility to the judges.

    That said, we’re talking an ABA event here, so completely unsurprising they would bounce someone for the B word. I think they may actually hate all things (and people) B, with an exception solely for their own inherent B-ness, to which they are oblivious, but which they practice constantly.

    1. SHG Post author

      It taught me something that I was unclear about with the new ABA rules: some marginalized, subjugated and oppressed identity groups get to use words that others cannot, but no one can say mean words to children.

  10. F. Lee Billy

    Oh, you mean m00t c0urt? In my forty years of practice, I can tell you once and for all, each and every courtroom I entered was m00t. Without exception. Most notably, the one presided over by Judge Ito out there in the City of Angels, Caulifornia. You what I’m talkin’ ’bout!
    P.S., some may have been *rigged*. Others, “Kangar00.”

    1. SHG Post author

      So not funny. Not informative. Just a waste of my bandwidth of no interest to anyone. You don’t have to, Bill.

  11. Matthew S Wideman

    I like how we have to pretend law does not have a component of superficiality and body language. Not telling these kids that is doing them a dis-service. When I judged moot Court, I often score the more polished team higher. I have docked points from a team because the attorneys attitudes, body languange, and auditory responses to judges unfavorable rulings. The world is rough and the practice of law can be cut throat. I wish I had listened to more old fuddy duddies when I was in moot Court.

    1. SHG Post author

      Of course. Everything matters. If it can be made better, more persuasive, less distracting, it should, as it all has the potential to help or hurt. And it’s our duty to help our clients.

      1. Charles

        They believe they are doing you a favor by inviting you to judge. That makes you the client, not the other way around.

  12. Lex

    “[T]he lawyers and judges who serve as moot court judges do so as a favor….Interesting how academics assume they’re the ones doing lawyers a favor.”

    Eh. There is a sizable contingent who do it, upon advice of those like Ziff, looking to land gigs as adjuncts, LWR instructors, etc. Perhaps that’s where he’s coming from.

    The twitters seem to believe commenting on length of a woman’s skirt is unhelpful, Jane-You-Ignorant-Slut stuff. Maybe. But I’ve seen 10-15 oral arguments where the lawyer —always the appellee, representing some tiny agency erroneously believing the case, or her part of it, was a gimme—showed up in a pretty cheeky skirt (viz. the kind you’re glad the paralegals wear). Each and every time, someone like Luttig, Posner, Wood, Williams, etc. would start picking apart her argument, and the lawyer self-consciously and noticeably started tugging it down mid-argument. (The same is true of moot arguments.) Skirt-length may not affect the strength of one’s argument or how it is received, but it may very well affects her confidence in delivering it.

    The simple fact is that women probably get more sartorial critique because guys have basically two or three versions of the same outfit (blue, gray, pinstripes); though “if you can’t afford a bespoke suit, could you at least find one that fits” is pretty common “gendered” advice. Women, however, definitely take cosmetic critique more personally.

    More importantly, moot court is a pretty good proxy for how one is likely to present one’s self during an interview. Yes, the feedback is often dumb. But, it’s also probably helpful if the same (type of) person who will be interviewing you one day tells you what they find off-putting about you well before that happens.

    Also, Bitchy Resting Face clearly deserves more awareness, perhaps a public campaign:

    1. SHG Post author

      In my 30+ years of doing moot court, I don’t think I’ve ever had a co-judge who was there to get a gig. Most were real judges or admin judges, but that could just be me.

      While you’re definitely right that women have it far harder with the clothing issues, as men get the option of gray or blue, a man in an ill-fitting suit, too “stylish,” a tie improperly knotted, wrinkled collar, will also annoy some judges. It may not be clothing choice as much as the knowledge of how to wear clothing properly.

      The simple point is that we can control all these things very easily, and so we eliminate all potential silly problems and let our freak flag fly (I stole that from Mark Bennett) on our own time.

      1. F. Lee Billy

        The next time I go into court [as a defendant], I’m wearing my Banana Republic pretty pink pocketbook which I’ve been holding back for the right moment. Trust it. I really feel sorry for yous guys and gals who are forced to be so self-conscious about your dress, or lack thereof.
        P.S. Am the proud owner of three Brooks Brothers suits which I never wear any more, but won’t give them away either. Ha.

      2. F. Lee Billy

        So you don’t think? Gee, I’m really sorry to hear that. I would have thought otherwise, after all we’ve been thru.

  13. Jeff Gamso

    The one comment on my law-school moot court performance: “You were too relaxed and comfortable, like you were used to speaking in public.”
    So I learned to stammer and stutter and hem and haw and look down. Oh, wait, I learned none of that.

    Maybe that’s why I’ve never gotten even that hour of CLE for the judging I’ve done.

    1. SHG Post author

      So one person gave you a stupid comment (although, he could have meant that you come off a bit arrogant for a law student/new lawyer because of you comfort level)? Well, that’s fascinating.

  14. Lex

    [The reply button was non-functional. Perhaps that should be a sign?]

    “In my 30+ years of doing moot court….”

    That makes sense in New York. D.C.’s schools likewise get truly awesome, sometimes terrifying, panels. But, e.g., Nova Southeastern, Washburn, Northern Kentucky, etc., might be scrambling to get full panels, especially for purely intramural events. Putting one’s name on a list to judge moot court (or client counseling, patent advocacy, etc.) is one way to get a foot in the door for a staff/adjunct position at those schools.

    Moot court is fairly overrated. It’s a 15 minute win/lose event, when the reality is that seeds planted during OA often don’t take root until the opinion is being drafted. More importantly, it’s all about the (student-) lawyer, as there’s no client, which is why students take criticisms so personally. I’m guessing you stopped moot judging before our modern piercing and tattoo age:
    “You shouldn’t stereotype.”
    “Since I’m pretty sure you really want to be stereotyped , I’m just suggesting that you try to be stereotyped in favor of your client.”

  15. Edward Brumby

    I can’t believe a Judge in a Moot Court competition would say “resting bitch face” to a law student. Totally inappropriate behavior and she should never be asked back to any competition anywhere. I understand that Moot Court is about lawyers getting to bully law students with stupid comments, but this is beyond the pale.

    1. SHG Post author

      I understand that Moot Court is about lawyers getting to bully law students with stupid comments, but this is beyond the pale.

      Bully? You gave it away. Narcissists believe their fragile sensibilities should govern other people’s behavior and reality, and are outraged to learn no one else gives a shit about their delicate sensibilities. But when that involves a lawyer, who could destroy another person’s life because of their ignorance of the myriad things they can control that could win or lose a case, their self-absorbed fragility that comes at their client’s expense, they have no business being allowed anywhere near a position of responsibility toward others.

      So it’s bullying to teach law students with “stupid comments” to be lawyers who are tough and smart enough that they won’t destroy people’s lives? If they can’t handle the “stupid comments,” they shouldn’t be lawyers.

    2. Kathleen Casey

      Spare me. The student should have thanked her judge. It was excellent advice and it was intended to stick.

      One of my judges told me that “it’s all kiss kiss kiss with judges” while answering their questions. His exact words escape me but I had to moderate my expression. I never forgot it and I hope I followed it consistently over the years. Poker Face.

      This was before Wokeness and RBF. Was it insensitive? Sexist? Unfeeeeling? I didn’t take it that way. I thought Holy —— he’s right.

  16. delurking

    This is quite the thread. Sorry, but this isn’t the way to do anything about the problem. The way to do something about the problem is to have the judge who got banned reply to David Ziff:

    “Stop mansplaining to me and listen…”

    1. SHG Post author

      I suspect the banned lawyer could fight for herself, although I can’t imagine why she would bother. This is for all the sniffling school marms and the lawyers who fear their wrath.

      And what makes you think Ziff mansplains when he’s obviously white knighting? So sexist.

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