The following should provide some guidance to Moot Court members as they prepare for competitions. Further insight into becoming a successful advocate will be provided throughout the year during the seminars and workshops hosted by the Moot Court Executive Board. Students should feel free to reach out to the Executive Board with any questions or if they have any tips or resources to add to this page.
- Opening Statement versus Closing Argument
An opening statement is your first opportunity to present yourself, your team, and your client. An opening should be short and should not discuss the law or elements of a charge. Instead, you should spend this time providing the court with a clear roadmap explaining the core dispute in the case, and noting what you will argue and what you anticipate certain witnesses will discuss. Limit your roadmap to two or three points and clearly identify them. (“The plaintiff is not liable for three reasons. First,…Second,... And third,....”) An opening should also name key parties and locations and explain their relationship to each other and the case. Be careful not to overwhelm the court with too many facts, theories, or names; they will not remember everything. Remember the K.I.S.S. rule!
A closing argument is your opportunity to explain the significance of the evidence presented earlier and to persuade the court to interpret it in a light favorable to your side. At this point, you can comment on witness credibility, note the burden of proof that must be met, identify the elements of the charge and explain how those elements were or were not met. (“As you recall from X’s testimony, Event Y occurred which clearly established Element Z and proves the defendant’s guilt.”)
Always start and end your presentation with your request for the court (“We ask that you find the defendant, X, guilty of all charges”) and relate everything back to your roadmap and your theme.
Check out these movie clips for examples:
- Theme
Competitors should have a clear and persuasive theme that appears in every aspect of their case. A theme is a recurring idea that helps the listener understand and appreciate the importance of the facts being presented and the speaker's point of view and conclusion. Effective themes may pull at a court’s heart, use alliteration or rhyming, or even repeat a crucial quote from a witness. If you are working with a partner, make sure that that theme is clear in both of your parts.
Check out these movie clips for examples:
- Using PowerPoint
Powerpoint can be an effective tool to highlight party names and relationships, elements of a crime, the charges, a timeline of events, why the court should side with your argument, and more. However, remember that less is more; you don’t want the court to focus on reading your slides rather than listening to you. Additionally, if you are going to include images or diagrams, be discriminating in your selection; one strong image is much more powerful than boring the court with multiple shots of the same event.
Don’t forget to always ask for the court’s permission to use and publish your slides.
- Direct Examination versus Cross Examination
A direct examination consists of a series of open-ended questions posed by the attorney who called the witness to the stand. Generally, questions should not suggest an answer (leading) but instead should allow the witness to tell their story as they remember it. The purpose of a direct examination is to establish a witness’s credibility, to elicit evidence that supports your side’s position, and to reveal testimony that undermines your opponent’s position. Finally, direct questions must be posed in a logical order so as to lay a foundation for later discussion points.
Sample direct questions may include:
- Can you tell us what happened on the morning of the accident?
- Please describe your professional history for the court.
- How did you come to know the plaintiff?
By contrast, during cross-examination, the attorney questions an adverse witness. Questions should be phrased in a leading manner and the attorney should maintain control over their witness to prevent potentially harmful, narrative answers. The purpose of a cross-examination is to challenge a witness’s credibility and, just like indirect, to elicit evidence that supports your side’s position, and to reveal testimony that undermines your opponent’s position. Cross questions do not need to follow any particular order but the topics of the questions are limited to those topics which opposing counsel brought up during direct examination.
Sample cross-questions may include:
- You were texting while driving when the collision occurred, weren’t you?
- Isn’t it true that you made $1 million dollars last year?
- You didn’t actually see the fight, did you?
Check out these movie clips for examples:
- Key Objections
There are two broad categories of objections: first, objections to the form of an attorney’s question, and second, objections to the content of the witness’s testimony. You can download and print a list of some of the most commonly used objections.
Willamette-sponsored competitions typically occur in a fictional state and therefore rely on the federal rules of evidence (FRE), as opposed to Oregon-specific rules. You should review the FRE in full during your preparation as there may be other rule violations that are applicable to your particular case.
- How to Enter & Publish Evidence
It can be extremely helpful to show a witness and the jury documents, charts, and photos during trial. However, there is a series of procedural steps that must be followed before anyone can view your demonstratives.
- Pre-mark the exhibit
- Show the exhibit to opposing counsel
- Ask the court to approach the witness and then show the witness the exhibit
- Ask your witness questions to establish foundation for admitting the exhibit into evidence and to demonstrate the credibility of the demonstrative
- Witness, I am showing you what has been pre-marked as Plaintiff’s Exhibit “A” for identification. Do you recognize Plaintiff’s Exhibit “A”?
- Are you familiar with it?
- How are you familiar with it?
- Based on your familiarity with the object / person / location, can you tell us whether Plaintiff’s Exhibit “A” fairly and accurately depicts the object / person / location as you recall it on date X?
- Ask the court to admit the exhibit
- Your Honor, at this time we would admit Plaintiff's Exhibit “A” for identification into evidence as Plaintiff's Exhibit 1; or
- “Your honor, I would like to submit Plaintiff's Exhibit “A” into evidence.
- Let the clerk mark the exhibit into evidence
- From this point forward, remember to refer to the exhibit by its new name
- Ask the court for permission to publish the exhibit to the jury
- Only after the court grants its permission can you show the jury the demonstrative
- Appellate-Specific Tips
Please see the Moot Court Board Room to check out a copy of “Making Your Case: The Art of Persuading Judges,” written by Justice Antonin Scalia and Bryan Garner (West 2008). This is the premier guide to appellate advocacy and brief writing.
Additional Tips:
- Speak slowly, and take your time. Start with a theme and then make a clear road map. Address no more than three points, and outline in order. Always begin with: “May it please the court, my name is X, and I represent X.”
- Do not write a speech. A good appellate argument is a conversation between the advocate and the judges. Answer their questions as best as you can. Bring an outline and list of case citations. Refer to those when not directly answering the judges questions.
- Brainstorm the possible questions that the judges will want to ask. Prepare to deal with those questions. Concede if you need to, but remain firm when the law is in your favor. Weight the public policy of the outcome if the judges side with your client.
- Think about: (a) what you absolutely must defend (your bottom line), (b) what you want to persuade the court of in order to have a good chance of winning (your likely outcome), (c) and what is the most you could possibly hope to convince the court of (your best case scenario).
- Practice with friends and colleagues to polish and become comfortable with the material.
- Stop speaking immediately when the judge interrupts your presentation.
- Cite directly to the cases and statutes that support your position.
- Transition from the questions into more arguments. The more seamless this transition the better.
- Speak as if everything you say is a fact, and avoid “I think,” “I believe,” “we believe,” “we argue.” Be direct and confident.
- Answer questions with “yes” or “no” and then explain your reasoning. Do not say “maybe” or “it depends.”
- Just like a cold call, the judges will press you in order to diminish confidence or make you skeptical. Remain confident because you are the expert and have done the most research.
- Courtroom Presentation and Etiquette
- Always refer to judges as “Your Honor.”
- Always be respectful when disagreeing with a judge and back up your positions with reasoned arguments and case law. If you are convinced the judge is wrong after they make a ruling, ask to reserve your objection for the record - it could be brought up on appeal. Additionally, never speak over a judge. If they start talking, you should immediately stop, even if they interrupted you.
- Limit the materials you bring up with you and don’t fiddle with them or make excessive hand gestures which may distract the court from what you are saying.
- Know when to make concessions. Rather than ignoring a bad fact or witness, address it head on and explain why it doesn’t undermine your overall argument.
- Try to approach your presentations in a conversational manner rather than a lecture or recitation of a speech.
- Listen to the responses you get from witnesses and respond to their comments rather than simply reading what’s next on your paper. Otherwise, you may end up asking them questions which they just answered, or you may miss the opportunity to inquire about a comment that could be critical to your case.
- Similarly, if a judge asks you a question or to clarify a point, respond to that comment, not what you wish they had asked you. If they ask a yes or no question, always start with the one-word answer before elaborating.
- If a judge asks you a question that you don’t understand or couldn’t hear, ask for it to be clarified or repeated, don’t assume and waste the court’s time.
- It is perfectly fine to ask the court for a moment while you find your spot in your questions or take a breather to calm your nerves.
- Stop and think before responding to questions. You don’t have to answer the judge immediately and often, you will form a more comprehensive and logical answer if you don’t. Additionally, if you have completed your answer, don’t feel the need to keep talking simply to fill the silence.
- Make eye contact with the court. Not only does this leave a good impression and demonstrate your preparedness, it allows you to see how the court is responding to your arguments.
- Memorization
Just as in real life, competitors can bring notes with them when presenting arguments. Although you don’t have to memorize everything, you should memorize your opening and closing comments so that you don’t stumble and so that you can make eye contact with the court during these most important points.
If you are speaking from a lectern, bring up only what you need for that presentation. Don’t bring a bunch of loose papers, an overstuffed binder, and multiple pens and highlighters with you. Doing so may encourage you to fiddle with your materials or otherwise ignore the court. You should have the crux of your argument internalized and not feel the need to rely on your prep materials.
Additionally, think through your weakest arguments ahead of time and determine how you will respond to questions and objections if they arise during competition. The more you have prepared ahead of time, the less nervous you will be!
- Making Mistakes & Correcting Them
If your opponent misstates a fact or party name, be respectful and try to correct them in a way that helps your argument. For example, “I believe my opponent misspoke when he discussed X. I would like to clarify this point for the record.”
If you make an error, remain calm and try not to show the court if you are flustered. Don’t try to cover your mistake by explaining it away, judges and jurors see through this tactic. Instead, claim your mistake, correct it, and move on.
- Rebuttal
A rebuttal (or re-direct or re-cross) should not go through your or your opponent’s entire argument. Instead, narrow your argument down to two or three critical ideas and rehash those points. Additionally, identify your opponent’s key arguments and clearly dispute or distinguish them. An effective rebuttal will only briefly explain why your opponent is wrong, and will instead highlight the positives of why the court should side with you.
- Asking for Feedback
This is one of your best opportunities to learn from practicing attorneys and judges about what you did well and how you can improve. Don’t be shy to ask them for advice! Sample questions include:
- Was there an effective argument/ objection/ response to an objection that I neglected to make?
- Can you elaborate on your reasoning for sustaining/ overruling X objection?
- What did you find most effective/ unconvincing about my argument?
- What are the top things you would recommend I work to improve?