Lesson Two: Converse

Moot court is officially over. Yesterday the most eloquent – or at least the finalists – of the class delivered their appellate arguments in front of a rather judicious panel (pun, of course included).

To backtrack slightly, my second argument went decently. Again not at smooth as I would have preferred – and not enough to bring me to the semi-finals – but still, as in most activities, there is always room for improvement. Such is the nature of education, and moot court falls squarely within its scope. I did take home some great lessons, and have learned to apply them both practically (in appellate arguments), and theoretically (in persuasiveness to advance certain issues).

Remember, the point of moot court oral arguments is not necessarily to shovel incessant recitations of law down the judges’ throats, rather it is an opportunity for conversation. Certainly, there is an aspect of knowing the law (and an important one at that) but more than that, it’s a chance that another individual can probe the strengths and weaknesses of one’s case.

Here are two morsels I learned during round two of my moot court experience.

1) Engage the audience.
Engage, don’t script. Alan Sears, the president and CEO of Alliance Defense Fund, considered the sweeping losses on the religious and traditional background in the 1990s; it was not a failure on the merits, but a fundamental failure to engage the adversary. I felt talk radio was especially prone to his during the last presidential election. Many of the popular pundits had their talking points, but the result seemed to be a monotonous, preconceived list – reading rather than understanding the public interest. Who can forget the numerous nostalgic references to Reagan? I probably learned more about him last year than in any civics course. But summoning Reagan does not equate to engaging the liberal opposition. Likewise, in moot court, it is important to be flexible – talking points are good, but if it consists of merely reading a script, then there is failure to engage. And ultimately, in moot court, and certainly in the court of public opinion, this constitutes a loss.

2) Answer the questions
Questions show where the judges place emphasis on a particular issues. Now, there are two general guidelines to answering questions: 1) answer the question 2) redirect the question when appropriate. A speaker following these two guidelines is able to control the situation. I won’t touch on the first one. The second – redirecting questions – allows a speaker, after answering the question, to funnel it into part of the larger argument without falling prey to the slippery line of questioning. If there were ever a rabbit hole for conservatives it certainly would have been the environment issue. I’ve touched on this before, but focusing on a tangential issue to the neglect of a primary one constitutes a loss. Addressing issues of global warming is great, but the redirect should point in a more important direction, e.g. personal responsibility. Answering a judge’s question is a must, but a skillful advocate will channel the response into a stronger part of the argument.

The finalists yesterday encapsulated those two points quite well. Granted, they weren’t perfect, but they were at least model arguments. That being said, all this requires practice. Finesse does not appear overnight; hopefully, it at takes less than four years to achieve.

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2 thoughts on “Lesson Two: Converse

  1. (Did not mean to delete!) Enjoyed the post! I really liked the part about the necessity of practice.

    Can you explain more about moot court (I am unfamiliar)? If someone is a good orator and can answer the question, is it assumed that person has good content too? Will a person who is poised, flexible, and well-spoken (but yet has only mediocre content) automatically judged higher over someone who has a good, well-researched brief (but yet may not be as smooth and logical)? Or does it work out that the best arguments have similarly astute briefs? Thanks.

  2. Great question. First, moot court is graded equally on the strength of the brief and on the quality of the oral presentation. Most appellate writing classes have a nominal emphasis on presentation. Moot court, on the other hand, concentrates heavily on presentation. For us, the breakdown was 50/50 (writing/arguing).

    Usually, those that write strong briefs have a stronger understanding of the issues and thus are able to convey a more coherent argument.

    Of course, there will be strong briefs and weak presentations as well as weak briefs and strong presentations.

    Both types can advance in competition, but ultimately, those that have well-argued briefs and persuasive a persuasive demeanor wins. This, however, is probably due to the former affecting the latter.

    (Ultimately, one cannot argue what what one does not know)

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