Like any event in speech and debate, becoming proficient at moot court requires practice. This is the second part of a series about moot court, in the last article we discussed four steps to prepare for your first moot tournament. This post will outline three ways I’ve found to be helpful methods of practicing for moot court.
1. The Question Brainstorm
One of the key defining factors of moot court is that, unlike LD & TP, the judge can interact with you by asking questions during your speeches. As you compete at more tournaments, you’ll come across similar questions across multiple rounds. For instance, when I competed during the 2020 season, one of the most common questions the Petitioner on the 4th amendment issue was asked was: “Didn’t Cash voluntarily agree to Chatterbox’s terms of service?”. The defendant, in that case, alleged a 4th amendment violation based on no warrant being used to search his messages from the online platform “Chatterbox”. In more than half the rounds I competed in, Justices asked about the agreement to Chatterbox’s terms of service in some way, shape, or form.
I realized from that question appearing so frequently that you can predict and prepare answers to questions in advance. “The Question Brainstorm” will help prepare your answers to commonly occurring questions. Here’s how it works:
Step 1. Choose which side you’ll be practicing. I’d recommend doing this drill once per side before the first tournament.
Step 2. Create a list of questions that you predict being asked. In order to create this list, I’d recommend the following process:
First, take your argumentation on the opposing side and frame the key points into questions. For instance, in 2020 I argued on the petitioner side that communication is protected under the 4th amendment, and communication was seized. If I was practicing this drill on the respondent side, I’d frame that argument into a question, such as: “Isn’t communication protected by the 4th amendment, as cited by U.S. v. New York Telephone company?”
Second, find any potential flaws in your own argumentation and list out different ways Justices could ask about those flaws. Think about how you’d respond to your own oral argumentation.
Third, make a list of cases that could be cited against you and formulate them into questions. For example: “U.S. v. Forrester held that judge may authorize a wiretap if the application demonstrates that “normal investigative procedures have been tried and have failed”. How does this ruling impact the case at bar?”
Fourth, think of any additional questions that you might run into such as questions clarifying what the standard of review is in the case at bar.
Step 3. Once you think of every possible question you can, rank them based on how frequently you expect them to be asked. Then, practice answering each question as if a Justice asked it. Practice the questions on the top of the list that you expect to be asked most often multiple times until you have a solid grasp of the outline of what your answer will be. Go through the list multiple times until you’re comfortable answering each question.
This drill isn’t mean to prescript your answers. Becoming reliant on a script in moot court can be fatal. Rather, the drill is meant to familiarize you with generating answers to questions spontaneously, and as an added benefit, will give you more experience answering common questions. I’d recommend requiring yourself to begin answering the question immediately as you finish reading it so that you can practice answering questions without having to pause.
Before John Roberts became Chief Justice of the U.S. Supreme Court, he was widely viewed as one of the world’s best oral advocates. In an interview, he explained the following method:
“You have four or five points. It’s called A, B, C, D, and E. And when I’m practicing giving the argument, I’ll go through it, and then I’ll just shuffe those cards–A, B, C, D, and E–without knowing what they are. Then I’ll start again and I’ll look down. Okay, my first point is going to be C; and then from point C, I’m going to move to point E. and then from point E to point A. You develop practice on those transitions . . . because that’s how it always works, at any appellate court.”
(https://www.virginiaappellatelaw.com/2011/05/articles/oral-argument/i-am-john-roberts-and-so-can-you-part-ii-oral-argument/, “I Am John Roberts and So Can You, Part II: Oral Argument”. Virginia Appellate Law. By Jay O’Keeffe on May 24, 2011, POSTED IN ORAL ARGUMENT. Accessed 2/2/2021.)
When Justices ask questions in moot court, you should never say you’ll address that concern later in the speech, even if it’s outlined as a later point. You have to be flexible and move to that point as soon as the Justice asks about it, even if it means going out of the order you were planning. For instance, if you have three points and you’re halfway through point number one, and you’re asked a question that is answered in point number three, you have to learn how to effectively transition to point number three, and then weave back in the rest of the analysis from points one and two. The key is to make the transition seem natural as if you were intending that to be the order from the start.
Chief Justice John Roberts’s method can be broken down into the following steps:
Step 1. Choose which side you’ll be practicing and break down the different points and subpoints in your outline. Write the tag/prompt for each point on a separate notecard. The key to this drill is to include the different “subpoints” or warrants on separate notecards rather than just the overarching point. When I used this drill on the Petitioner side in 2020 I had a point that if data is sensitive enough, the third party doctrine (a legal principle allowing data to be seized from third party companies without a warrant in certain cases) cannot apply. Under that point I had several warrants: First, in U.S. v. Carpenter, the court found the third-party doctrine to be a balancing test. Second, Carpenter held that phone location data revealing “privacies of life” stopped the third party doctrine from applying. Third, the data seized from Chatterbox revealed “privacies of life”. When practicing this drill, I’d write each warrant on a separate notecard such as: “Balancing test”, “privacies of life = standard”, and “privacies of life revealed”.
Step 2. Shuffle the notecards and start from the notecard on the top. Once you finish the point that notecard gives, flip to the next notecard and practice transitioning to that point and delivering it. Continue the process until you’ve gone through each notecard. By the end, you’ll have gone through your entire outline with a scrambled order of points.
3. Rebuttal Practice
On the Petitioner side, one competitor has the option to give a rebuttal at the end of the round. The rebuttal will cover only the main points since it’s unrealistic and unpersuasive to respond line-by-line to twenty minutes of respondent argumentation in four minutes or less.
To practice the rebuttal, I’d recommend making a list of the point and warrants you expect the respondent to argue. Then, randomly pick two to five arguments to respond to and practice giving a rebuttal, responding to those arguments. Repeat the process, changing each combination of arguments you’re refuting. It’s also a viable strategy to practice responding to each argument individually before you put it together in a rebuttal.
About the Author
Kyle Lee has competed in both Stoa and NCFCA. His accomplishments include over one hundred top-three finishes, first place on Stoa speech ranks for the 2020-2021 season, and the record for the most first places won at a single NCFCA tournament (seven firsts in one go at the 2020 Bothell WA, NCFCA Qualifier). He coaches actively through his organization Conclusive Edge. Outside of speech and debate, Kyle is an avid rock climber, holds a second-degree black belt in Karate, and enjoys writing music in his free time.