Nurture the Future of Appellate Advocacy: Be a (Good!) Moot Court Judge

This is a guest post from my colleague Prof. Susie Salmon at the University of Arizona James E. Rogers College of Law

Moot court season is in full swing, and countless law students across the country are suiting up, positioning themselves in front of their carefully placed webcams, and taking a few final deep breaths to settle those jittery stomachs before launching into oral arguments that they have spent weeks and often months crafting, testing, and rehearsing. A fortunate few are even striding into real courtrooms and facing judges in person (like most, I cannot wait until that is the norm again!).

Sadly, some of those students will walk away from the moot-court experience with lessons we did not intend to teach. Judges get to be uncivil and unkind to advocates because they are judges. A sharp appearance, resonant voice, and slick delivery matter more than does a deep and nuanced understanding of the law, facts, and policy. Lawyers stink at giving constructive feedback.

Look: some of these lessons may contain a kernel of truth. But they do not represent the profession into which we want to welcome these budding attorneys, and they certainly do not represent the way we want new lawyers to approach the practice of law.

Let me preface all of this by saying that I am no moot-court naysayer. I love moot court. For almost a decade, I ran an internal moot-court competition at University of Arizona Law, I’ve coached teams for over a dozen years, and I routinely serve as a practice judge. I even co-authored a book for moot-court advisors. Is moot court precisely like “real” appellate argument? Of course not. But the moot-court experience helps students develop and polish skills and habits that will benefit them in any type of law practice—things like thorough preparation, nimble thinking, judgment, resilience, and professionalism, not to mention legal-writing and oral advocacy skills.

But to create that effective educational experience, we need help from appellate lawyers and judges.

Volunteer

Moot court programs and competitions rely on volunteer judges and attorneys. They perennially struggle to fill their benches, and the need has become particularly acute of late, with Zoom fatigue and general burnout taking a toll. Consider dedicating a few volunteer hours to serving as a judge for your local law school’s moot-court program. If the school does not reach out to you, feel free to contact them: usually the Director of Advocacy or Director of Legal Writing can put you in touch with the right person. Any coach or administrator would be thrilled to have an appellate judge or attorney on their practice or competition roster! Whether you judge a competition round or two or help moot a team at a practice, a relatively modest investment of time represents a significant investment in the education of a group of law students. And most judges and attorneys who volunteer find it fun and rewarding.

Prepare

If you do volunteer to moot a team—and most especially if you volunteer to serve as a competition judge—please read the bench brief, case summaries, and other materials provided thoroughly, and come prepared with questions. If you have time, read some of the key cases. If the problem presents an area of law with which you are completely unfamiliar, consider browsing a treatise. Many competitions provide robust training sessions in person or online. And some states even permit CLE credit for a moot-court judge’s preparation and participation, so you can be rewarded twice for your efforts.

Yes, your presence alone has value, but you do not want to be That Judge who inadvertently rewards a student for blatantly misstating the law or facts or making slick but superficial arguments. The best moot-court judges prepare almost as if they’ve been called upon at the last minute to step in for one of the competitors.

Model Civility

In over a dozen years of watching moot court competitions, well…let’s just say I have some stories. Judges berating advocates. Judges continually talking over an advocate to the extent that the advocate barely completes a single sentence in a fifteen-minute argument. Judges making insensitive or inappropriate comments.

Some attorneys may think that a brusque demeanor and harsh words prepare students for the “real world” of law practice. I disagree. First, in my experience, most lawyers and judges behave in a civil, professional—even friendly and collegial—manner most of the time. Second, how do we create a culture of civility and respect in our profession if members of the profession model incivility and disrespect (and often seem to be having so much fun doing it) while serving as judges at moot-court competitions? Moot court judges should hold advocates to account, force them to support their arguments with concrete statements of law and fact, take them to task for misrepresentations or false statements, and prevent them from evading difficult questions. But using the poor behavior of some real-world judges and lawyers to justify modeling that type of behavior for law students is misguided at best.

Provide Constructive Feedback

Winning is great, but even at competition each moot court argument is new learning opportunity. Of course, time constraints require judges to keep their feedback concise, but try to provide at least a couple of specific pieces of constructive feedback to each advocate. Ideally, focus that feedback on the substance of the advocate’s argument. Avoid comments—even positive ones—about an advocate’s voice, accent, attire, or appearance.

Generic positive feedback does not encourage the advocates; quite the contrary, it makes them feel as if the judges did not truly hear their arguments. Come prepared to make notes so that you can call out specific strengths and opportunities to improve, whether those relate to knowledge of the law, knowledge of the record, responses to questions from the bench, framing the issues, or word choice. If you can point to just two or three specific things from a student’s argument, your feedback will have more impact.

All of this said, the most effective moot court judges know one thing: it’s about the students. Especially if you are an appellate attorney or judge, when you sit on that moot-court bench, you are heroes. You are what these students aspire to be. The best gift you can give our profession in that moment is to model the values we want the next generation of appellate lawyers to share.

And have fun!