MOOT COURT TIPS & ETIQUETTE

INTRODUCTION

This guide is meant to serve as a brief primer on how to be a successful oral advocate. What
follows is a series of general tips; some are specific to moot court or oral advocacy, while others
are simply tips for good public speaking. Many of these tips are among the most common
suggestions offered to competitors. Hopefully this will help you prepare for this year’s
competition.

This primer is by no means meant to serve as a complete guide. Great advocates develop their
own style, realizing which techniques and style of argument work for them (and which do not).
However, mastery of the suggestions below is more likely than not to leave you better than you
began.

† This guide was originally compiled by Cleve Doty (JD ’09) in Fall 2008. It appears here as
amended by Prerak Shah (JD ’10) in Fall 2009 and Nick Tarasen (JD ’12) in Fall 2011.
 Tips for Successful Oral Advocacy

G ENERAL TIPS

· Always address the judges as “your Honor” or “your Excellency”

· Speak slowly. Take your time. There is no prize for saying the most during an oral
argument. Almost all competitors speak more quickly than they think they are, and it is
better to be slow and clear. And if you speak quickly, it will be obvious to the judges when
you are caught off guard.

· Do not come to a round with a fully prepared speech to read. Yes, you should be able to
speak for minutes on end if necessary—and sometimes a judge will let you go on that long
without any questions—but, more importantly, come with an outline. Be prepared to mix,
match, or reorder your arguments in order to get your points across.

· Brainstorm a list of potential questions. Where are the hard issues? What hard
hypotheticals are there? Where are the key disagreements? What practicalities could
impact the weight of the arguments (that is, what real or hypothetical facts, if slightly
altered, could influence the outcome)? What are the most likely counterarguments to your
points? Then consider answers to all of those questions. All well-prepared advocates will
have considered the key questions in advance. Most will outline answers to these questions
or rehearse their answers.

· One technique that some have found helpful is to create several brief sheets to prepare.
Make one with key statutory/case references. Make another with the outline of your
argument. Make a third with counterarguments or an outline of responses to points that
might come up. (Petitioners might also create a list of points for rebuttal.) Be prepared to
speak extemporaneously from your outline. Do not read from the page and do not take
more paper in than you can see while standing at the podium without shuffling through
them. A practice or two will help you memorize key points; if you do not have them
memorized then at least know where to find things immediately.

· Try to relax and to engage the judges—if you can, treat argument as a conversation, not a
debate. Justice Scalia’s book recommends treating oral argument as a discussion between a
young associate and a senior partner.

· Make sure you know and understand the case, the facts, and the law. You want the judges to
trust you and your judgment about the case.

· Practicing in front of your friends may help you work on smooth transitions and become
more comfortable with the subjects (thus avoiding the admonition against pronouns,
discussed below).

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 Mooting on Mondays 2003
A Rough Guide to Procedure and Etiquette

· The standard Supreme Court oral argument opens with “Mr. Chief Justice, and may it please
the court…” For purposes of moot court (and to avoid gender issues and ambiguity
regarding who is chief), this may be reduced to “May it please the court…”

· Memorize a short intro that includes a one-sentence synopsis of each of your arguments.
You can proceed from there to a longer explanation if the judges allow it.

· Begin with your arguments. Do not waste your already-short time by summarizing the issues,
the law, the standards, or anything else that was in the briefs. Give detail if the judges seem
unfamiliar with a point or want more detail, but in general you should assume that the judges
are familiar with the underlying issues. They do their jobs and are usually
well-prepared for argument, so they will quickly tire of overviews and summaries of the case.

Before it all begins

- Be early for your moot. There is nothing that will get a judge offside more quickly
than forcing her to wait for a student.

- Instead, sway on the safe side and aim to be 5-10 minutes early. This has two distinct
advantages. First, if you are late you’ll be flustered and it will be difficult to calm down
and focus. Second, if you are early it gives you a chance to check out the room, scope out
the opposition, get all of your papers in order and generally relax.

- Dress? A dark suit (jacket and tie for boys, jacket and skirt for girls) is the optimal
mooting uniform. However, if you are a starving student whose Mum and Dad won’t chip
in for a nice suit, then don’t stress out. Of course it is important to look neat and
professional but you can achieve that without breaking the bank.

Here we go…

- You should be seated at your place when the judge enters. Always stand up when judge
enters the room – they will generally give you a nod or an indication to sit.
- Sit quietly until the judge asks, “Can I have your appearances please?”

- Appearances? The first speaker for the appellant or claimant will stand up, walk to
the lectern and say,

“May, it please the court. My name is Marion Isobel and I appear with
my learned junior Alex Feros for the appellant”.

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 Mooting on Mondays 2003
A Rough Guide to Procedure and Etiquette

They then walk back to their chair and sit down.

The first speaker for the respondent will then repeat that, substituting their own info.
There are other ways of giving appearances but the example provided is simple and
isn’t going to offend anyone.

- Both teams should now be seated back in their places, and quietly waiting for the judge to
speak. The judge will then look to the appellant and say something along the lines of “I
will hear from you now”.

- The order of speaking is usually: Senior counsel Appellant, Junior Counsel Appellant,
Senior Counsel Respondent, Junior Counsel Respondent. Then, if the rules allow,
there may be a right to rebuttal and sur-rebuttal. Please keep in mind that the judge
has the right to change any procedure she wishes, so it is their prerogative to vary the
order of speaking and ask to hear the Respondents first. So be calm and be flexible.

The Introduction to your submissions. First speaker for

either side.

- Introductions are the most important minute of your speech. They are also
surprisingly easy. They follow a simple format every single time:

1. Opening sentence – something catchy that goes to the heart of the matter.

Eg. First Speaker Appellant

“Your Honour, this case involves the protection of vulnerable people from
harsh contractual terms. The law should afford protection to those who
may be taken advantage of.”

Eg. First Speaker Respondent

“Your Honour, it is a fundamental rule of contract law that people
should be held to their contractual obligations. A person cannot enjoy
the benefits of a contract and then attempt to avoid the responsibilities.”

2. Then move on to a road map

Eg.
“The Applicant presents four main submissions. These are A, B, C and D.
I will be dealing with the first two of these submissions, A and B, and my
learned junior will present C and D. I will now move to my first
submission A.”

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THE INTRODUCTION

- If you are the second speaker for either side, your introductions are less
important. You should smoothly continue from where the first speaker left off.

DURING THE ARGUMENT

· Stop speaking immediately when a judge asks a question. Never speak over a judge. If
you were making a critical point, find a way to get back to it. (But ask yourself: was it really
that important?)

· Never interrupt a judge as he or she is asking a question. Wait for the entire question.

· Show respect for the judges at all times. Never attack the judges, even if you disagree with
their arguments. Do not display frustration with a judge by sighing, rolling your
eyes, or shaking your head. Attempt to persuade, and if the judge is lost as far as your
essential argument is concerned, you can respectfully acknowledge a disagreement or
tactfully change the subject and try to persuade the remaining judges.

· Before the round, establish what you do and do not need to defend. 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). Make a decision
tree if necessary. Consider what impact losing one of your points would have for the rest of
your argument: Do you have alternative or back up arguments? Or, is a seemingly
minor/innocuous point actually quite crucial?

· A corollary to the above is that it may be well worth conceding a minor point (or simply
moving on) for the sake of time. You only have so much time, and if you need to drop a
minor point in order to get to your major issues, do so. Planning ahead will allow you to
know which points you can drop (if only for the sake of argument) without conceding your
entire case.

· Create a short list of the few points you absolutely must get out, and refer to it as your
argument nears its end. This list should be shorter than you think; getting to all of them
may be substantially more difficult than you anticipate.

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DURING THE ARGUMENT (CONT.)

· Be direct in your answers, but take time and get the answers correct. Pause to consider a
question before answering, if necessary.

· Do not make your claims too broad. Know exactly how far you can push your assertions. If
you claim too much, judges will demand that you support your claims—and if you can’t
support them, then you will lose credibility. Establishing what you need to defend before the
round will help you avoid this mistake. (Conversely, if you claim too little, you may not
establish your case or may concede a key point—and the judges may think you too timid.)

· If possible, pause and break your answers down. Many skilled advocates will often do
something like the following: “No, your Honor. That case does not control here, for three
reasons. First…” But only do this when you have three actual responses to a point, because
you may be asked for all three.

· Use concrete examples or analogies when possible. Think of some ahead of time.

· If there are important statutory provisions, cite to them: “Section 401 says X.” Similarly, if
there are talismanic phrases from a case (e.g., “fair play and substantial justice”), be able to
quote them. If you don’t want to memorize them, have a handy sheet ready with the key
language and references. Memorize what you can but have the sheet ready for things that
come up. Refer to page numbers of your brief (or appendix) if it will help.

· Make use of nonverbal communication skills. For example, rather than asking for a
clarification afterwards, it is possible to signal confusion over a portion of a question. But be
careful about doing this, and only do so sparingly.

· Do not ask questions of the judges (and certainly do not expect a response). If you need
clarification of a question, it is possible to signal confusion over a portion of a question
nonverbally. Or, you may begin your answer with “If I understand your Honor correctly that
X means Y…” or “Perhaps I do not understand what your Honor meant by X, but…” If your
understanding is not correct—or if there are several possible understandings—the judge will
often jump in to clarify.

· Look at a judge’s questions as communicating to you what he or she is thinking. Try to

understand each question as a concern: what bothering the judge and causing him or her to
ask this question? The judge’s actual concern may lie much deeper than the particular
question being asked. So address the question, but try not to do so superficially; try to speak
to the underlying concern. Look for patterns in questions: is a judge asking several
questions along a similar approach, or using similar arguments? If so, speak to that
argument as well as answering the question.

· Try to transition from answering one question to discussing a different point you want to
address. Use tie-ins to get back to points you want to make. Similarly, if there is a lull in the
questions, take the initiative to lead the argument in a direction you want it to go.

- This will be the main bulk of your arguments. Know exactly what you need to say
and how long it should take to say it. Keep an eye on the time and structure your
submissions accordingly.

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DURING THE ARGUMENT (CONT.)

- Prioritise you arguments. Distil the essential arguments and make sure you cover
all of them. Don’t be afraid to let a point go. If you are really being hammered on a
particular point of law and you don’t know how to answer it, then it’s okay to say
“I’m sorry Your Honour but I don’t think I can help you further on that point” and
then move on to a different submission. Knowing when you are beaten is an
impressive skill and it means you do not waste further time on an unwinnable
issue.

- NEVER have your speech written out longhand word for word in front of you. You
will be dependant on it, you won’t make eye contact with the bench and you will get
messed up the moment the judge asks a question. Instead, just have a brief outline
in front of you that you can glance down at for structure.
- Try having a sheet of paper in front of you that has a few words of summary about
each case you mention. That way if a judge asks what the facts of the case are, you
can just glance down and your memory will be refreshed. You MUST know the
facts of every case you bring up.

- SPEAK SLOWLY - Speak clearly and slowly. Usually we all speed up when we
are nervous, so make a conscious effort to speak slower than usual.

- Always flag where you are going. When moving from one submission to
another, actually say “And now I will move on to my second submission
which is that B.”
- Be flexible – the judge might not want to hear you on one or two points and may
move you around to areas of law they think are important. Keep an open mind and
be prepared to be shuffled around.

- Be ready for questions from the bench – that’s what they’re there for.

- When you come to your first case, give the full citation and then ask “Would you
mind if I dispense with full citations?” Usually the judge will tell you that’s fine and
then you can just refer to cases as “Brown and Smith, a 1979 case from the District
Court of Queensland”. You should also give an indication of the way the judges fell
on the issue – (majority judgement etc). But never just recite the case name as it
appears eg. “Brown vee Smith 1979 112 CLR 334”

- Most important – if questions can be answered with a simple YES or NO, then do so.
The ideal answer says yes or no first and then clarifies in a succinct, easy to
understand way.

Eg. Judge: “But that case X is from the 1950’s – haven’t there been
some more recent cases that have decided on point?”

You: “Yes there has. There have been three cases since then – A, B and
C – all of which have approved the original. Indeed in B, the court
held that “X was a watershed case of it’s time.” Then transition back
into your speech … “So given its importance in this case, we submit
that Mrs Penelope should not be forced to …”

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CLOSING

· Have a short closing statement memorized. It should be about two sentences; you will likely
not have time for more. Draft it in advance. If possible, emphasize a strong point from your
round. You can be creative, but be brief.

· Your last statement, if you can, should be a simple request that the court affirm (or reverse)
the court below.

· Do not ignore time limits, even if the judges move beyond them. If you are over time or are
constantly peppered with questions even after time, you may mention that you are over time
(“I see that my time has expired…”) and, in extreme cases, ask for permission to finish up. It
is acceptable to give a short closing after time, but it should be the formulaic closing ( “X, Y,
…please reverse the court below.”) and only last a few seconds.

STYLE AND DEMEANOR

· Avoid overusing hand gestures. Be aware of the gestures you are using. In general, it is best
to avoid them if you are not sure you have control over what you are doing. If you are
confident with your hand gestures, then it is possible to use them effectively for emphasis.

· Be aware of fidgeting with your hands, tie, pockets, skirt (or, conversely, having a death grip
on your tie, jacket, etc.), or any other nervous habits that may be distracting.

· It is not uncommon for advocates’ hands to shake, particularly at the beginning of an

argument. If they do, rest them gently on the podium or clasp them loosely in front of you.

· Do not point at the judges.

· Do not use a pen to point or hold it in your hand; it will only distract.

· Do not lean on the podium or brace yourself against it. Stand behind it (a minor step back or
very slightly to the side can display your confidence), but do not use it for support.

· Do not pace. Moving around can be used to emphasize a point, but only if done so sparingly.

· Do not lean or shift your weight back and forth; keep your weight centered. Shuffling or
swaying is distracting.

· Think about your volume. Be sure you can be heard by the judges. At the same time, be
aware that yelling at the judges is aggressive and unpersuasive. Use your tone and volume to
emphasize key points in your argument or key words in a phrase.

· Make eye contact with the judges. If there are multiple judges, share your eye contact with
them all (focus on the one looking at you at a given time). But don’t stare—it’s creepy.

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TIPS FOR ANSWERING QUESTIONS

· Speak directly. Do not use “I think,” “I believe,” “we believe,” “we argue,” or any variation of
these. Speak as though everything you say is a fact: “That is correct because…” or “Case X
does not apply here…” Phrases and terms that distance you from your own arguments
detract from their strength, leave room for disagreement, and suggest to the judge than even
you do not truly believe what you are saying.

· Speak clearly. Be familiar with the subjects—especially your client’s name and the names of
major figures—and avoid using pronouns (which is easier if you speak slowly and practice
ahead of time). Avoid “this thing,” “he,” “she,” “they” etc.

· Avoid verbal ticks and “fillers.” Do not say “oh,” “um,” “uh,” or similar words; likewise, do
not fill every pause with “your honor.” Avoid repeatedly beginning sentences with “well,”
“however,” or “and.” If you catch yourself doing this in a practice, concentrate on not doing
it. Practice and get someone to stop you (or point out the offending word/phrase) each time
you utter these words.

· Often, when you say “respectfully,” it’s when you’re not being respectful. Use sparingly, and
only when you’re directly disagreeing with the judge. (Consider whether it is wise to do so.)

· Try to directly answer the question the judge puts to you before you expand on your answer.
Almost all questions can be answered with a simple “yes” or “no,” followed by explanation.
Or a “yes, however…” followed by an explanation. If you can answer a question in this way,
do so.

· Never dodge or ignore questions. It is better to give an answer that may not persuade the
judge than give none at all. If the judge found your answer particularly unsatisfactory, you
can always go back later if you think of something to address the judge’s concern.

· Don’t fight hypotheticals or try to dodge them by saying “that’s not this case.” Of course it’s
not this case—that’s why it’s a hypothetical. But the judge still wants an answer, so give one
and then distinguish the hypothetical or explain to the court why it is flawed. Otherwise you
may sound petulant and unwilling to answer the questions, and your judges will be annoyed.

· Some judges (like some professors) may try to make you lose your confidence or throw you
off by questioning or conveying skepticism about something when you’re actually right. If
your point is accurate or worth making, stick to your guns even if the questions are derisive
or incredulous. (This rule may work less well in real life.)

· Don’t reflexively reject everything a judge says. Some judges will ask you questions that help
you—sometimes because they want to refocus the conversation or convey something to a
fellow judge. Help them help you by accepting that aid whenever it’s handed out.

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· IPS FOR ANSWERING QUESTIONS
T

Candor may be a virtue. If there’s a question you don’t know the answer to, it’s acceptable, very
occasionally, to admit you don’t know and either offer a reasoned guess (or a reason why the
answer is irrelevant) or move on. The judges do not expect you to have an
encyclopedic knowledge of the law, and (if they’re good) they’ll push you into territory you’re not
expecting. This, of course, is not an excuse for not knowing answers regarding the core legal and
factual issues of your case.

· Sarcasm or indignation should almost never be used. In a courtroom, they signal an

inability to be professional and engage arguments on their merits.

· In the vast majority of circumstances, humor in a courtroom falls embarrassingly flat (at least
the intentional kind). Only use humor if you know you have developed a rapport with your
judges and you are 110% certain you will not squander that rapport. In general, humor should be
avoided.

· Be professional and courteous to your opponent (who is “your colleague” or “opposing

counsel” or “counsel for Petitioner/Respondent”). Disagree with his argument; use his
words against him; but don’t be petty, belittling, or unfair; don’t mischaracterize or misquote
him; and, above all, do not make personal attacks.

A LIST OF WHAT ALWAYS TO DO AND WHAT NEVER TO DO

ALWAYS

☺ Practise your submissions out loud before presenting to the judge

☺ Shine your shoes and brush your hair. Neat and professional are the key words. Sway
on the side of boring – anything that distracts from your submissions is a bad idea.
☺ Be 5-10 minutes early. Go in and take your seat – get organised and relax.
☺ Speak clearly and slowly. Usually we all speed up when we are nervous, so make a
conscious effort to speak slower than usual.
☺ Write and memorise an excellent introduction and conclusion. They are the only two
sections of your submissions that you can learn word for word and recite.
☺ Give them a roadmap in your introduction and flag where you are going next.
☺ Answer questions with a YES or a NO if you can
☺ Make a conscious effort to sustain eye contact with the bench. Even if a judge isn’t
asking many questions, still include them in your eye contact.
☺ Prioritise between essential and non-essential points. Concede unwinnable arguments.
Don’t waste time when your argument is weak.

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 NEVER

/ Never write out your whole speech. Only ever have a structural outline on the lectern in
front of you
/ Never avoid a judge’s question. Never say “Well Your Honour I was going to deal with
that question later, so I’ll get to that soon.” If they have asked you, they want you to answer
NOW – do not fob them off.
/ Don’t ask if the judge has any questions. If they have questions, it is their prerogative to
interrupt you whenever they want.
/ When asked a question, never say “With respect your Honour … the answer is this”.
Just don’t do it – its rude. You would only ever say it when disagreeing with
something the judge said.