Prof. Mark Tunick tunick@fau.edu

Oral Arguments (First Session)

1. Procedural guidelines (adapted from American Collegiate Moot Court Rules)

Each side shall have 30 minutes. The Chief Justice keeps time and signals counsel when time has expired. Arguments begin with appellant (City of Berkeley), then respondent (Moneybags). Appellant may reserve up to 5 minutes for rebuttal. Counsel should remain attentive and make notes during oppositions' arguments.  

1.1 General procedures. As much as possible, moot court should resemble the form and procedures of an appellate court. Attorneys should wear business apparel and always treat the court with respect. Attorneys should avoid being overly aggressive in presenting their arguments and should never exhibit hostile behavior toward the court or to opposing counsel.

1.2 Use of gestures. Attorneys should present their argument from behind the podium or lectern, and should avoid distracting gestures such as waving their arms or pounding the podium.

1.3 Use of notes. Attorneys may use notes at any time during the hearing. However, they are encouraged to give their opening statements without notes and to minimize the use of notes at other times. Attorneys should maintain eye contact with the Judges throughout their oral argument.

2 Opening statement. In their opening statement, attorneys should state “May It Please the Court” and wait for an affirmation from the Court. The first speaker should introduce both him or herself and his or her teammate and should inform the court which question or issue each team member will address. The second speaker should also introduce him or herself to the court. The opening statement of each attorney typically provides a brief summary of the key points of argument to be presented or provides the court with a clear picture of the case.

3 Statement of the facts of the case. The first speaker for Petitioner should be prepared to provide a clear, concise statement of the facts. However, the statement of facts should be as short as possible to provide the factual context for discussing the legal and constitutional issues of the case. Sometimes the first speaker for Petitioner will simply ask the court if it wants a summary of the facts before moving to her main arguments. In general, Respondents should not provide a second statement of the facts, but Respondents may want to draw attention to some facts that they believe have been omitted or misrepresented by Petitioner.

4 Presenting arguments. Attorneys should provide a “road map” of their overall argument, and they should start with their strongest points to ensure that they do not run out of time without presenting their strongest points. In general, attorneys should state their conclusions first and then provide the facts and law to support their conclusions. Attorneys should provide case citations to support their arguments, but should avoid lengthy quotations from cases. Time permitting, each speaker should provide a summary of the arguments that integrates their main points into a coherent whole.

5 Conclusion. Attorneys should conclude with a one-sentence request for relief and an "unamplified identification of the ground on which the relief would be based."

6 Petitioner’s rebuttal. Petitioners may reserve a maximum of five minutes of “rebuttal." Petitioners must make their request to reserve time for a rebuttal prior to the beginning of the round. The purpose of a rebuttal is to respond to the Respondent’s arguments, and it is inappropriate to attempt to introduce new arguments during the rebuttal.

7 Questioning by Judges. In a typical hearing, attorneys will not be able to present their arguments without frequent interruption by Judges’ questions. When interrupted by a Judge’s question, an attorney should stop speaking immediately and focus on understanding and replying to the Judge’s question. When answering a Judge’s question, the attorney should address the Judge as “Your Honor.” Attorneys should always attempt to provide clear and definite answers that address the Judge’s concerns. Evasive answers tend to engender more pointed questions. Unwillingness to answer a question will be interpreted as disrespect for the court. Once an attorney has answered a Judge’s question, he or she should return to the presentation of the argument.

Note on questioning during oral arguments:

Justices must be prepared with questions, but also take notes on counsel's arguments and think up appropriate questions as the oral arguments proceed. Justices must listen and not simply think about their own questions: it may be that one of your stock questions was already addressed-- you'll only know this by listening. Questions should be answered unequivocally whenever possible with a yes or no, and explanation. Once the question is answered, counsel should continue with the argument without waiting for an invitation from the court to do so. The court will ask further questions if it wants. 

Deliberation of Justices (Second Session)

Each Justice shall state their initial position and the reasons (taking no more than 2 minutes), starting with the Chief Justice. No one may speak a 2nd time until every Justice has explained their initial position and reasons. Then the Chief Justice invites discussion. The point of discussion is to try to persuade others to join you in your decision or reasoning. At the end of the session, the Chief Justice will end discussion, and the final vote will be taken. Attorneys will silently observe in the back of the room, making no gestures.

Written Assignment: papers must be typed, double-spaced, with font/margins yielding 250-300 words/page. No papers longer than 10 pages. Papers are due in class on November 30th. No late papers.
Attorney's paper: Attorneys will turn in a copy of their brief. 'Brief', here, does not refer to an outline of a case. A lawyer's brief is a presentation of the argument, in essay form. (I do not want you to follow the formal structure of briefs actually submitted to the Supreme Court as you do not have the space, in 10 pages, to do so; but if you are curious, here is an example: http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-1224_Petitioner.pdf ). To save space, you can assume that the facts of the case are known, though if you feel it absolutely necessary to lay out your version of the facts, you may, concisely. Explain the constitutional issues you address and your position on these issues, being sure to respond to the arguments you anticipate from your opponents. While attorneys will work together in preparing their case and presentations, each attorney must write the brief alone. The brief is meant to persuade the Justices, which you can only do by acknowledging the other side's position and why your position is better.
Justice's paper: Each Justice will turn in an opinion which they write on their own. At the end of the Justices' conference, a vote will be taken on the outcome as well as reasoning. It is important that you take notes and clearly understand what the different positions are among the Justices. If you agree with the majority outcome and reasoning, you write a majority opinion. If you agree with the outcome but not with the majority's reasoning, you write a concurring opinion (perhaps you concur in part and dissent in part, or perhaps you concur in full but have different reasons for reaching the same outcome that the majority reaches). If you disagree with the outcome, you dissent. If you are in the majority, you can assume that you were assigned to write the opinion for the majority. A good majority opinion will recognize the different positions of Justices who either concur or dissent, and try to address them. Follow the format of the opinions we have been reading in class; for example, you should break the opinion into sections that each deal with distinct issues. Rather than reciting the facts of the case, you can open by stating that the facts of the case were presented by the lower court and will not be repeated here, unless you feel it absolutely necessary to lay out your version of the facts--if you do, be very concise. (Of course you are bound by the account of the facts in the record). You should explain the constitutional issues and your position on them, being sure to respond to opposing arguments. Your job as a U.S. Supreme Court Justice is to decide whether their opinion should be affirmed or reversed, based on the oral arguments and deliberations of your Court, and on your own reading of the cases and your own theory of constitutional interpretation. You  must properly cite precedents, including page numbers, either with footnotes or in parentheses. The first time you cite a case, include the full cite, e.g. (Bowers v. Hardwick, 478 U.S. 186 at 193); after that, use an abbreviated citation, e.g. ( 478 U.S. at 193).
For both attorneys and Justices: at the end of your brief or opinion, sign the following statement: "I have adhered to the honor code."