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It’s Not <i>Mute</i> Court...

By Kari Santos | Aug. 2, 2011

Expert Advice

Aug. 2, 2011

It’s Not Mute Court...

Moot court programs around the state need volunteer judges, especially ones who aren't afraid to ask questions.

Justice Clarence Thomas isn't the only one who's quiet during oral arguments--there is a deafening silence coming from the bench of many moot court proceedings as well. But it doesn't have to be that way.

Volunteering as a moot court judge is an incredibly important service. Moot court helps law students develop valuable public speaking skills and gives them exposure to specialized areas of law. These competitions depend on the generosity of attorneys who donate their time to judge, but all too often well-meaning volunteers offer up an ice-cold bench.

Law students take moot court seriously. Often they spend months preparing to respond to every conceivable question, only to end up before a panel of stone-faced judges. Students want--and need--just the opposite: a hot bench with a barrage of questions. Here's how you can provide that.

Proper Focus
First, you don't have to memorize the bench memo. The more law and facts you know, the better, but you can still provide what students need without studying for days or weeks.

The key is fixing your attention on the student for the entire argument; don't let the bench memo and score sheet steal your focus. When you listen carefully to the argument, questions invariably come to mind. Ask them as soon as they arise.

Don't worry about interrupting students midsentence. If you wait for a pause, you often lose the opportunity to ask a question when it's most relevant. Moreover, interrupting students encourages them to devise more concise and economical arguments--a useful skill. If you do miss the best chance to ask a question, ask it anyway with this preface: "Counsel, I want to go back to an earlier point ..."

If you're listening carefully but no questions come to mind, perhaps you don't understand the student's argument--or, the advocate may have avoided negative facts or authority.

Key Questions
If you don't understand the argument, you can simply say, "Counsel, I'm not following your argument." You could also drill down: "What's the primary authority you're relying on?" "Has any case interpreted that language?" or "What was the court's rationale?" Such questions challenge students to engage in a useful skill-building exercise--to clearly and concisely walk you through their case. And once the student has brought you up to speed, you can ask questions that attack the argument.

If the student avoids all negative facts, you might inquire: "What arguments cut against yours, and why are they wrong?" A probe along that line should elucidate weaknesses in the argument and thereby help the student to address the opposing position--yet another crucial skill to hone.

Do not rely on prepared questions. You'll likely spend the argument waiting for the opportunity to raise them, meanwhile contributing nothing. Moreover, if you're thinking about your prepared inquiry, you may lose focus on the student's argument.

It's better to ask many "bad" questions than only a few "good" ones. Students prepare for all species of inquiry: good, bad, and ugly. And the ability to handle bad questions is as important as the ability to answer good ones. Moreover, bad questions often invite "home run" answers--the ultimate thrill for a moot court advocate.

While feedback can be helpful, it's not that helpful. After an argument, students are usually too high (or low) to retain your comments. So don't bother taking notes. Students derive the most useful feedback from the argument itself. They can sense whether their answers persuade the court. By staying engaged, you provide more valuable feedback. Therefore, nod if you find a response compelling or show skepticism if you don't; this gives the student a chance to shift tactics.

Relax and Enjoy
Finally, don't be self-conscious. Too often, moot court judges sit silently, fearing they might ask a question that betrays ignorance of the law and facts. Recognize that almost invariably the students will know the law better than you--your bench memo is a poor substitute for their months of research. Ideally, you should let the students educate you and correct your understanding of the case.

Any student can deliver a speech into a mirror, but a moot court competition provides a unique opportunity to debate law with an intelligent panel of attorneys. By asking many questions, you will give the students a better learning experience--and enjoy your own participation immensely more.

J. Angelo DeSantis is a professor of legal research and writing at UC Davis School of Law.


Kari Santos

Daily Journal Staff Writer

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