I judged one of the early final rounds of the American Bar Association Law Student Division National Appellate Advocacy Competition a couple of weeks ago. I was told that this is the most prominent moot court competition in the country.
I judged two arguments. Each team split the argument between two teammates. All eight of the contestants I judged did a fine job. Insofar as performance was concerned, the difference among these teams was on the margin. All of the presentations were polished, and one of the defense teams offered an especially good and professionally structured argument.
The teams’ briefs were independently assessed and scored for the competition. The scoring system places heavier emphasis on the oral presentation than the written product. I guess that’s the way all moot court competitions are. That’s a problem that needs to be fixed.
In the real world of appellate practice, the written brief usually is far more important than oral argument. An overwhelming number of cases are decided on the briefs. And most judges I’ve heard on the subject say that oral argument rarely persuades them one way or another. The anecdotal evidence I get from colleagues around the country supports the notion that appellate courts are allowing oral argument in fewer cases than ever. I wrote about this in a recent article, “How To Write An Appellate Brief That Judges Want To Read And Answers Their Questions.”
So to the extent moot court is an educational experience meant to prepare students for real appellate practice, greater emphasis should be placed on the teams’ written product. Oral argument can be important in some cases, but its decreasing influence should be acknowledged in moot court competition.