Upperclass Moot Court Manual Part 1

Moot Court Manual Introduction An appellate advocate prepares and delivers written and oral arguments to persuade a court to interpret and apply the law in a particular way in a specific case. The upper-class Moot Court competitions at Boston University School of Law provide practical experience in appellate oral advocacy to complement your classroom instruction. As a first-year student, the Esdaile Program introduces you to the role of an appellate advocate in a non-competitive, supportive atmosphere. In fact, many students find that Moot Court is the highlight of the first year. Second-year students can compete in our Edward C. Stone Moot Court Competition each fall. The top-scoring students from Stone are invited to compete in the Homer Albers Prize Competition each spring. The primary purpose of this Manual is to help you to prepare for BU Law’s internal upperclass moot court competitions. This Manual also serves as a reference for best practices for external upper-class moot court competitions. Therefore, we suggest that you keep your Manual on hand so that you may refer to it later. Please note the following rules which apply to all moot court programs at Boston University School of Law: 1. You may not attend an oral argument of your case before you argue. 2. Plagiarism violates the rules and regulations of the Law School and is unprofessional and unethical. All suspected instances of plagiarism, as defined in Article II(2)(e) of the law school’s Disciplinary Regulations, will be referred to the proper authorities. Plagiarism includes copying the text from distributed materials without proper attribution. 3. The brief your team submits is a joint effort. Team members must cooperate. 4. Deadlines are firm. No exceptions! Do not wait until the last minute to merge your briefs, create your Table of Contents, or email your briefs. Computer or Internet connection problems will not excuse lateness. Upper-Class Moot Court Competitions Descriptions of the Competitions The Edward C. Stone Moot Court Competition is open to all second-year students. Held during the fall semester, the Stone Competition is a prerequisite for participation in the Homer Albers Prize Moot Court Competition, as well as all intermural moot court competitions. Participants in the Stone Competition work in teams of two on a two-issue brief, but are scored separately. Attorneys and faculty preside over Stone oral arguments, along with third year student directors and members of the Law School's moot court teams. Interested second year students should watch for announcements about the Stone Competition in early September. The Homer Albers Prize Moot Court Competition crowns Boston University’s intramural moot court program. In the spring of their second year, the top advocates from the Stone Competition vie for the Albers Prize. Participants argue both sides of case during two preliminary rounds. Following those preliminary rounds, the eight teams with the highest scores are seeded for a third elimination round that is judged by law school faculty. After that, participants advance through additional elimination rounds. The Albers Competition culminates in a final argument, presided over by a distinguished panel of judges. The Competition awards prizes for Best Oralist, Best Team, Second Team, and Best Brief. External Intermural Competitions: The Law School enters teams in numerous national moot court competitions each year. Any student who participated in the Stone Competition may apply for membership on the Law School’s intermural teams, but Albers participants have priority for available slots. The Law School also has participated in the Jessup International Law Moot Court Competition and various other specialized competitions, typically organized through particular classes or particular student organizations. Participation in the Stone Competition is a pre-requisite for participation on any Law School-sponsored moot court team, with the exception of Jessup and the Vis. To participate in Jessup, students must enroll in the Problem Solving in International Law seminar. To participate in the Vis, students will fill out a separate application. NOTE: Writing a brief for an intermural competition does NOT satisfy the school’s upper class writing requirement. Administration of Intramural Competitions Moot Court Directors: Student Directors administer the Stone and Albers Moot Court Competitions. Each program has separate Directors who write the moot court cases and administer the program. All participants in the Stone Competition are eligible to become Moot Court Directors for the Stone Moot Court Competition; only Albers participants may serve as Albers Directors. Directorships provide valuable experience in legal research and writing, as well as administrative training. All Directors receive three academic credits for the fall and, upon successful completion of a moot court problem, may satisfy the school’s upper class writing requirement. Brief Writing: Getting Started The Record Each team receives a record in a hypothetical case that has already progressed through a lower court proceeding, such as a trial or a summary judgment motion, and is now on appeal. The record consists of a lower court opinion containing the facts and procedural history of the case, as well as a discussion of the legal issues involved in the appeal. The record may also contain other documents such as deposition transcripts, affidavits, interrogatories, diagrams, or other relevant documents and evidence. Appellate courts do not retry the facts of the case. Instead, appellate courts decide issues of law and are limited to reviewing matters contained in the record. Read your record carefully and thoroughly before you begin research. First, closely analyze the facts of your case. Cull from the record the key facts giving rise to the controversy. Your understanding of the law will ultimately depend on your familiarity with the facts. Once you have identified the essential facts, consider them in light of the legal issues in your case. Do not begin your research until you have determined the relationship between your facts and your issues. The Research Once you have extracted the key facts and law on your issue, begin your legal research. You should be familiar with the research tools available; the Law Library is available to help you if you need a refresher. In researching, remember that you must prepare both offensive and defensive arguments for your client. Offensively, you present arguments that favor your position. Defensively, you anticipate and rebut arguments your opponent will make for the other side. Although both your written and oral presentations should be primarily offensive, your efficacy as an advocate depends on your ability to anticipate opposing arguments. When conducting research, remember the following basic principles: 1. Read the cases to which courts, treatise writers, and law review articles refer. Often the significance of a case varies in different contexts. Never accept someone else’s reading of a case without analyzing it yourself. 2. Organize your research. Research each aspect of your issue fully before researching another area. Keep a record of your research so that you do not waste time rereading materials. 3. Shepardize or Keycite every case up to the day of your oral argument. You do not want to rely on a case that has been reversed, overruled, vacated, or weakened by more recent decisions. Writing the Appellate Brief In an appellate brief, your job is to persuade the court to rule in your client’s favor. Your brief should be forceful and positive, but not argumentative. Although you must anticipate and address your opponent’s arguments, do not make your opponent’s case. In writing your brief, remember that every sentence in your brief should advance your case. Moot court cases present arguments in a variety of postures. The facts of your case may raise an issue that has not been previously litigated in your (fictional!) jurisdiction. If so, your task is to convince the court that the reasoning of analogous cases in your jurisdiction support your position on the issue. In other cases, you may face a series of adverse precedents. Even if cases appear to hold directly against your position, you can often distinguish adverse precedent on the law and the facts. In the alternative, you may find cases both supporting and opposing your position. In that case, your task is to convince the court to follow the favorable line of cases. Finally, you may have to persuade the court to change the law, particularly where precedent is old and does not reflect current jurisprudence. You can argue that the law is no longer appropriate or desirable. In addition, your brief introduces your case to the court. Give the judges a favorable first impression. Misspelled case names, typographical errors, incorrect citations, and misleading summaries of fact or case analyses detract from the strength of your argument. Prepare your brief with great care. You want the judges to read your brief, not proofread your brief. Format Brief formats vary from jurisdiction to jurisdiction. Check the Stone, Albers, or external competition rules for modifications to the formatting instructions below. Page Set-Up and Limits 1. Each page of the brief must have a one-inch margin on both sides, the top and bottom. 2. Moot Court briefs have a word limit for the argument for each student. The word limit for your brief is identified in your competition’s rules. This word count includes all headings. Courts limit the length of briefs and impose sanctions for exceeding the limit. Remember, the word count is the maximum length, not the minimum. If you can make your argument in fewer words, do so. The other sections of the brief have no word count or page limits, although you should always try to be as concise as possible and to adhere to the suggestions laid out in this Manual. 3. The body of the Jurisdictional Statement (if required), Proceedings Below, Statement of the Case, Summary of Argument, Argument, and Conclusion should all be double-spaced. The Questions Presented, Table of Contents, and Table of Authorities (and the Constitutional and Statutory Provisions, if applicable) should be single-spaced, with a space between each heading or item (see samples). 4. Your brief should be written in a court-appropriate typeface,* in 12- or 14-point font.† * Specific competitions may designate a particular typeface; check the rules carefully! Note that the Federal Rules of Appellate Procedure, along with each Circuit Court of Appeals’ local rules, govern the format and content of briefs filed in federal courts. The Moot Court Manual does not necessarily conform to those rules. For example, Federal Rule of Appellate Procedure 32 instructs that briefs written in a proportional typeface should be in a 14-point font. † Pagination Number the pages on which the Questions Presented, Table of Contents, and Table of Authorities appear with consecutive, small Roman numerals (i, ii, iii, etc.). Number the remaining pages with consecutive, Arabic numerals (1, 2, 3, etc.). Number appendices with both letters and numerals (B-1, B-2, etc.). Do not wait until the last minute to figure out how to change the pagination style from page to page. Cover and Title Page (see example below) 1. Caption your cover page at the top with the name of the court to which the appeal is taken, such as “Stone Supreme Judicial Court” or “United States Court of Appeals for the Fourteenth Circuit.” Place the docket number (i.e., ST-19-01; do NOT use your team number in the caption) directly below the court name. You will receive the docket number when you receive your moot court Problem (it will be in the caption of the lower court opinion). 2. In the center of the page, place the parties’ names and designations. Name the party who is appealing first. Designations depend upon the procedural posture of the case. Parties to an appeal are “Appellant” and “Appellee.” Parties to a writ are “Petitioner” and “Respondent.” Be sure to use the correct designations. You should copy the caption from the order granting appeal or writ of cert. at the end of the lower court opinion in your moot court Problem. Use of the full designation (e.g., “Plaintiff/Appellee”) is optional. The full designation tells the reader the procedural history of the case at a glance. If you use the full designation, do so only on the cover and title page. 3. Beneath the names of the parties, note the procedural status of the case, such as “On Appeal from the Stone Appeals Court.” Note that cases to the Supreme Court are identified as on writ to the court the case came from, e.g., “On Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit.” Beneath the procedural statement, indicate on whose behalf you are submitting the brief. Use your client’s designation, not name. For example, write “Brief of Petitioner,” not “Brief of Michelle Wong.” 4. Place your team number in the lower right-hand corner of the cover and title page. DO not include your names. 5. Students will be instructed to exchange the final draft of their brief with the team they are scheduled to argue against. Sample Cover Page UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT This is where the name of the court you are before and your Docket Number go. _____________________________________________________________________________ __ _____________________________________________________________________________ __ TED MOSBY, APPELLANT v. UNITED STATES OF AMERICA, This is where you write the parties names and CURRENT designations (Petitioner/Respondent or Appellant/Appellee). Look at the caption at the end of your Problem if you aren’t sure which to use. APPELLEE _______________________________________________________________________________ _______________________________________________________________________________ On Appeal From The United States District Court For The District of Stone This is where you tell us how the case got here if on appeal (on writ of cert, you tell us it is on a writ “to the [court that heard the appeal]”). _______________________________________________________________________________ BRIEF FOR APPELLEE _______________________________________________________________________________ This is your team number – NOT your docket number. This must appear on all copies of your brief. Questions Presented The Questions Presented follow the title page and set forth the question of law and material facts presented by your case. The Questions Presented should present your case in a favorable light. Do not simply copy the questions from the order granting the appeal. Instead, use your Questions Presented to set the tone of your brief. By carefully drafting your questions to emphasize certain facts, you can control the logical development of your argument. Phrase all Questions Presented so that they may be answered with a simple “yes” or “no” (preferably “yes”), and so that they are all answered the same way. Above all, keep the questions brief and simple. No one should have to read the questions twice to understand them. For example, if your client seeks to exclude evidence because of a Fourth Amendment violation, the question presented might read: “Did the lower court err in failing to exclude evidence seized by the police because the police failed to obtain consent for the search from the residence’s occupant?” Conversely, if you represent the prosecution, your question presented might read: “Did the lower court properly admit the evidence seized by police pursuant to the plain view exception to the Fourth Amendment’s warrant requirements?” Table of Contents (see example on next page for format)‡ Prepare your Table of Contents last, because it lists the various parts of your brief and corresponding page numbers. The Table of Contents includes the argument headings and subheadings that appear throughout the argument section of your brief. Single space within the headings; double space between the headings. ‡ This example is a partial one just to give you a sense of format; it does not include the Issue 2 subargument headings or Conclusion. Your Table of Contents provides more than the location of the sections of your brief, however; it also maps the structure of your argument. The argument headings in your Table of Contents are the reader’s first introduction to your substantive points. Many judges carefully examine the Table of Contents to understand the focus of your argument. Through the headings, the reader should be able to absorb quickly your argument. Keep your headings short, to the point, and connected in logical progression. Table of Authorities (see example on next page)§ The Table of Authorities lists the authorities you cite in the brief and the pages on which you cite them. Do not include pincites as part of the citation. All citations in your brief and in your Table of Authorities must conform to the latest edition of the Bluebook. Subdivide the Table of Authorities as follows, in this order: 1. Cases: List cases alphabetically by first party in the case name. You may combine federal and state cases or list them separately. You may also list United States Supreme Court cases separately if your brief is to that court. 2. Constitutional Provisions: List federal constitutional provisions first, in numerical order, then state constitutional provisions in numerical order. 3. Statutes: List federal statutes first, in numerical order, then state statutes alphabetically by state and in numerical order within each state. 4. Legislative Materials: Includes legislative history such as committee reports. 5. Books and Periodicals: Include all secondary sources cited, such as restatements, law review articles, treatises, and other books, in alphabetical order by author. § Note that your Table of Authorities may contain more individual cases, and may not contain every section listed below or shown in the example. Jurisdictional Statement You need not include a Jurisdictional Statement in your Stone or Albers competition briefs, but you must include a Jurisdictional Statement in external upper class competition briefs when applicable. All federal courts and some state courts require that the party invoking jurisdiction cite the statute or constitutional provision allowing the appeal. In federal courts, the Jurisdictional Statement also informs the court whether the appeal is timely. Proceedings Below (see example on next page) The Proceedings Below section explains in clear, short sentences the nature, history, and procession of the case up to this point. You can adequately describe the Proceedings Below in 250 – 350 words, unless the proceedings were exceedingly complicated. If there are published lower court opinions in your case, which may be the case in an external competition, cite them. If the lower court opinions are unpublished, as is the case in Stone and Albers, include the following information about the case: 1. Type of action, such as tort 2. Original party designations (e.g., David Garcia, the Plaintiff below) 3. Name(s) of the court(s) below in which the case was heard 4. Trier of fact in the trial court (judge or jury) 5. Name(s) of the presiding judge(s) in the court(s) below 6. Relevant dates 7. Disposition in the court(s) below 8. Jurisdiction of the court(s) below, if not in your jurisdictional statement. In addition, if the court to which you are appealing has procedural rules for perfecting appeals, comply with those rules. Finally, you should cite to the record below, but may use the shorthand format [R. #] to do so (see example).