14.5.2 PLANNING FOR AWKWARD MOMENTS

Most practice arguments are before “hot” courts that are well prepared and pepper the team with questions. You should also practice, however, for a “cold” court.

Essentially, you must impress every panel with your skill as an orator and your knowledge of the law. If you have a quiet panel, the first thing to do is to slow the pace of your speech. Although many advocates could benefit by speaking more slowly, talking too fast is even more of a problem with a quiet court. If you are talking quickly, you are going through your material quickly, and you may not have enough to say to use up the minimum time required. If you talk more slowly, you take up more time; furthermore, you provide more opportunities for the judges to interrupt you. On a silent panel, the judges may be too intimidated by their own silence to break into your rat-a-tat delivery. If you pause fairly often — but not so often as to be noticeable — a judge may venture into the breach with a question.

Second, you must develop a strategy for impressing the quiet court. You impress a hot court when the judges ask you tough questions and you answer them. But how do you impress a court that won’t ask you any tough questions? One method is to go out of your way to refer to authority for the legal propositions you state.

Another way to impress a quiet court is to “ask yourself” the tough questions. In your practice rounds, identify any apparently tough questions for which you have a strong answer. Keep those questions in mind for when you have a quiet court. For example, let’s say that one of your practice judges asked, “Won’t allowing foreign-born children to establish parentage at any time discourage early bonds between fathers and children?” You could “ask yourself” that question by stating, “Allowing foreign-born children to establish parentage at any time will not discourage early bonds between fathers and children. First, as this Court noted in McGuffin....”

Some advocates try to wake up a quiet court by making bombastic statements in the hope that someone on the court will rise to the bait and challenge the assertion. While this technique may loosen the logjam if it succeeds, it is a risky proposition. If no one challenges your assertion, you may end up sounding foolish or ignorant.

b. Dealing with Opponents’ Misstatements of Law or Facts

Oral arguments serve a different purpose in moot courts than in real life. In real life, as noted above, judges often read the briefs before the argument and form a rebuttable presumption as to how the case will turn out. They will often question the attorneys about specific points made in the briefs, and attorneys may challenge specific points that the other party has made in a brief.

Furthermore, in real life the oral argument is only a small part of the decision-making process. After the oral argument, the judges may cast an initial vote on the outcome of the case and justify that decision with a written opinion. Claims made in the oral argument or the brief will be tested by the research and analysis of the judges and their clerks. Finally, a majority opinion and, perhaps, concurring or dissenting opinions, will convey the court’s decision on the issue.

In a moot court argument, on the other hand, the judges have often not seen any briefs in the case; they are relying only on the record and on bench materials. They may question counsel on very narrow points of law, but they cannot challenge specific statements that appeared in the briefs. Furthermore, the oral argument ends the decision-making process. The brief will have received a score earlier, and that score will be combined with a score that the judges give on the spot, right after the argument. If either side makes claims about the law or the facts, those claims will be evaluated immediately, without reference to cases cited, or, most likely, the record (even though judges will usually have the record with them).

This difference between moot courts and real arguments makes detailed mastery of the law and the facts even more important for moot courts than for real-life arguments. In real life, if your opponent innocently misstates a fact or misinterprets the meaning of a case, there is a good chance that the error will be discovered during the decision-making process, and that your opponent’s misstatement will have no impact on the decision. In a moot court, however, if the two sides contradict each other as to the facts or the law, the judges must decide immediately which advocate to believe. Some students try to prevail in this battle merely by contradicting their opponents, sometimes forcefully. This method is usually not very effective. The best signals of credibility are citations to the record or to the opinions at issue.

Thus, if your opponent mistakenly mischaracterizes a fact that is crucial to the argument, you can best correct it — professionally and politely — with a citation to the record:

Counsel for Respondent stated that the arrest occurred at 6:45 p.m. While that is true, that is not the crux of Petitioner’s argument. If I may direct the Court’s attention to page 3 of the record; on that page, in the second paragraph, Officer Perek explicitly stated that Defendant was “taken into custody” after church “that morning.” This is the time when Miranda warnings should have been given.

If your opponent mischaracterizes an authority case, your best bet is to counter that characterization with language from the opinion that shows that your interpretation is the correct one:

Counsel for Petitioner has said that the McGuffin Court limited the impact of Miranda to the time after “arrest.” This is inaccurate. On page 372 of the decision, the McGuffin Court specifically noted that Miranda warnings must be given not only upon arrest, but before any custodial interrogation.

At first glance, memorizing specific page numbers may seem to be a daunting task. However, you will discover that throughout your practices, you are memorizing many “sound bites” about the facts and authorities relevant to your case. Get in the habit of including the page number when you talk about these elements. After all, the page number is just one more word to remember, and the benefits in credibility are worth the slight cost of brainpower. Of course, you must decide whether your performance arguments should include page numbers every time you mention a crucial fact, or a crucial point from an authority case. While the specific page numbers can be effectively used to contradict an opponent’s misstatement of the law or the facts, using them throughout the argument can look like showboating. Some, but not all, judges are duly impressed by counsel’s ability to provide such specific support for statements about the law and the facts.

Keep in mind that although citations to cases are unusual in real life, citations to the record are not. If you have had the opportunity to observe more than a couple of oral arguments, you have probably seen a judge ask counsel where a particular fact can be found in the record. Upon receiving the answer, most judges turn to the page to start reviewing the facts immediately. Thus, memorizing certain page numbers can be a skill worth developing.

Perhaps the best way to prepare for this situation is to make a “cheat sheet” for both the law and the facts. Make a chart of the most significant facts, and note their location in the record. Similarly, identify the two or three cases that are most significant to each argument, and identify a statement from the case that crystallizes the point that each side might use the case to make. Not every case will yield effective arguments for each side; when they don’t, search for something you can use to argue the case on one side and to distinguish it on the other. Preparing a cheat sheet will help you to learn the law and the facts, provide you with a study guide, and give you a ready reference to take to the podium if needed.