Perspectives on Mooting - appellateacademy.org 1 Perspectives on Mooting David Rothstein, Moderator DoriBernstein Mark Fleming Chris Johnson Claire Laporte • If you do not moot,

3/10/17

1

Perspectives on Mooting

David Rothstein, ModeratorDori BernsteinMark FlemingChris JohnsonClaire Laporte

• If you do not moot, are you committing appellate malpractice?

§ Call the carrier: Dori Bernstein§ Mooting is unnecessary: Mark

Fleming

3/10/17

2

• Does it matter who is on the moot panel, or how many panelists you have?

§ The more the merrier: Chris Johnson

§ Need TSA-level screening: Claire Laporte

• You have one chance to moot. You can have a panel of practitioners, or you can have a panel of law professors, but not both. The practitioners have no time to read the briefs, but the professors will read everything, including string-cited cases and footnotes. Which panel will you choose?

§ Take the practitioners: Mark Fleming§ Take the professors: Chris Johnson

• Should the moot panel interrupt the oralist with questions?

§ As much as possible: Dori Bernstein§ Bite your tongue: Mark Fleming

3/10/17

3

• A junior lawyer is arguing his first case, but it is before a hostile panel and against an aggressive opponent. Should the moot reflect the tone and atmosphere?

§ Call in the wolves: Claire Laporte§ Be nice: Dori Bernstein

• Should your moot be timed so that it lasts no longer than the argument will last?

§ Not a minute longer: Chris Johnson§ Go as long as you want: Claire

Laporte

• You usually argue in your state supreme court. You are arguing in the federal circuit court. The case is no more complicated than the cases you usually argue. Should you moot differently?

§ Give them what they expect: Mark Fleming

§ Be yourself: Dori Bernstein

3/10/17

4

• You are the appellee. Can you effectively moot without having someone argue the appellant’s side?

§ Does not matter: Dori Bernstein§ Need to hear the other side: Claire

Laporte

• You have mooted. It went well. But you have a couple of days before the argument, and you are starting to second-guess yourself. You have a chance to moot again. Should you?

§ Why not?: Chris Johnson§ Don’t waste your time: Mark

Fleming