Over the past year and a half, I have participated in many moot appellate arguments for federal and state appeals, including most of the federal circuits, the Supreme Court and state supreme courts. I wanted to pass along some tips that I have learned along the way.
The first is that a good moot session is an essential part of your preparation for an appellate argument. The lawyers who subsequently argued the appeal at the court have told me their job was made much easier because of the moot. Most have said the moot was more difficult than the actual argument. But the moot must be effective to be so valuable.
The composition of the moot panel is critical. Do not make the mistake of having all the judges be lawyers from your firm. If they are, they tend not to be as difficult on the lawyer arguing the case as they should be, especially if they are junior lawyers. It is also important that at least one of the moot judges is new to the case when asked to serve on the panel. Most of the actual judges for the argument will have known nothing about the case until a few weeks before argument, and you need to prepare to educate them about the case at the argument.
Also, most appellate judges are generalists and will not know much about the subject area of the appeal before the case reaches them. If you have lawyers who worked on the case on the moot panel, you lose the benefit of convincing the judges who have less background with the case. It is also a very good idea to have at least one former appellate judge on the panel; they acquired the skill of figuring out the important issues and developing good questions through years of doing just that—it shows, and it helps. If you have a patent appeal before the federal circuit, you will need at least some of the moot judges with patent law backgrounds.
The moot judges should do intense preparation for the moot. The actual judges will do so. I have seen too many times that the other moot judges did not spend much time preparing. That is even more common with moot judges who worked on the matter at the same firm, or the in-house lawyer who worked with the law firm on the case. Those lawyers may take for granted that they can handle the moot without much preparation. It takes a good deal of work to prepare adequately for an argument by the judge, and it should be the same for the moot, even if you have some prior knowledge of the case.
The moot should be conducted in conditions as close to the actual argument ones. If there will be three judges, have three in the moot. If the argument will be in person, do it that way. If the lawyers will have to wear masks, do it for the moot. If it will be on Zoom or audio-only, do it that way. Follow the time allotment for the argument (at least initially), and if you are doing the moot for the appellee, remind lawyers of the likely argument of the appellant before they start.
If there is a rebuttal, do one in the moot. (The lawyer should be able to anticipate the opposing argument and prepare the rebuttal ahead of time.) Even if you don’t have lights to show how much time is left for argument, have a notification system with someone responsible for advising the lawyer of the time limits. Almost all the appellate courts have returned to in-person arguments, so even though it may be more convenient to conduct the moot session on Zoom or some other remote technology, do it in person.
As to the tone of the questioning, be formal like the court will be. There will be time after that part of the moot to give feedback and advice, but do not do it in the formal moot session.
Be honest after the argument concludes. Give the criticism to the lawyer, even though that may be difficult. It is much better to hear that after the moot and adjust the argument than to hear it at the actual argument.
Usually, the moot will be conducted before you know the identities of the judges for your panel. Make sure you reconvene or at least discuss those judges once you learn that information. The judges may have written in the area of the appeal or have particular styles of questioning, and the lawyer arguing the case needs to know that before the argument. It is also important to know who will be the presiding judge guiding the argument. You can find in the court’s online archive’s oral recordings of prior appeals, and it is very helpful to listen to how your judges have questioned lawyers in the past.
Finally, if you participate in the moot, listen to the actual argument. You will be pleased when members of the court ask questions similar to those you posed at the moot session, and the lawyer arguing the case will appreciate your help.
Christopher F. Droney, partner at Day Pitney, is a former judge for the United States Court of Appeals for the Second Circuit and served as a United States district judge for the District of Connecticut