Upperclass Moot Court Manual Part 2

Sample Proceedings Below PROCEEDINGS BELOW On March 14, 2004, Albers State Police Officer Hugo Hurley (“Hurley”) arrested Jack Sheppard (“Defendant”) for knowingly possessing with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C § 841(a)(1) (2000). [R. 1]. At a pre-trial motions hearing in the United States District Court for the Eastern District of Albers, Defendant moved to suppress the evidence obtained from the seizure, arguing that the deceptive drug interdiction checkpoint and subsequent search of his vehicle violated his Fourth Amendment rights. [R. 4]. Defendant also claimed that the police officers at the checkpoint violated his Fifth Amendment privilege against self-incrimination by eliciting statements from him without first issuing Miranda warnings. [R. 4]. The trial court denied Defendant’s motion to suppress the evidence obtained while he was seized at the checkpoint, finding that the State had not violated Defendant’s Fourth or Fifth Amendment rights. [R. 4]. At the conclusion of Defendant’s trial, the jury found him guilty and sentenced him to eight years imprisonment. [R. 2]; see 21 U.S.C. 841(b)(1)(B)(vii) (2000). The United States Court of Appeals for the Fourteenth Circuit upheld the trial court’s decision. [R. 14]. The appeals court held that the seizure did not violate Defendant’s Fourth Amendment rights because deceptive drug interdiction checkpoints are suspicion-based. [R. 14]. The appeals court also affirmed the trial court’s ruling that Defendant was not in custody; thus, both the marijuana and Defendant’s statements were properly admitted into evidence. [R. 13]. 15 Constitutional Provisions Include this section in your brief if your case involves a constitutional question. If the relevant portion of the constitutional provision is short, include the entire text in this section. If the constitutional provision is lengthy, provide the text in an Appendix at the end of your brief; in the Constitutional Provisions section. Mention the provision and refer the reader to the Appendix. Statutory Provisions If your case involves a statute, regulation, or order, include this section in your brief. Reproduce short statutes within the body of the brief. As with Constitutional Provisions, provide the text of longer statutes in an Appendix. Statement of the Case Unless your case turns on a purely legal issue, the Statement of the Case is a critical section of your brief. The judges will react intellectually and emotionally to your case upon reading the Statement of the Case. A judge who is favorably disposed to your position after reading the facts may accept your legal arguments more readily. Keep in mind a few rules when preparing your Statement of the Case: 1. Be accurate and complete. You have a duty to your client to present the facts in a favorable light, but you have an ethical duty to state the facts accurately and truthfully. If there is conflicting evidence, give both sides’ versions, while trying to minimize the adverse testimony. Both parties will submit Statements of the Facts, so the judges will notice discrepancies. A judge who notices that you omitted facts -- especially damaging facts -- will not trust your argument. When stating facts, always cite to the record (e.g., [R. 5]). 2. Be organized. Start with any necessary background information and then present your facts chronologically unless you have a specific reason for not doing so. 3. Be persuasive. Emphasize those facts that help your case. Use clear, active, forceful language, but not argumentative or judgmental language; remember that you are not arguing before a jury. Let your facts speak for themselves. Do not add artificial emphasis or value-laden words, such as a “tragic” situation or a “horrible” accident. 4. Be brief. Although there is no strict page limit for the Statement of the Case, you should be able to present all essential facts on both issues in 500-700 words, although if your case is very fact-intensive, your Statement of the Case may be longer. If your case has particularly complex facts and your Statement of the Case is lengthy, you may use headings to separate the facts into their respective issues. Summary of Argument The Summary of Argument sets out your major legal points. The summary also provides the court with a handy synopsis of your arguments. Many judges rely on the Summary of Argument to refresh their memories right before oral argument. Your Summary of Argument should not exceed approximately 200-300 words for each issue in the two-issue brief. As with other sections, shorter is usually better! State your major points succinctly and do not cite authority unless your argument turns on a key case, statute, or constitutional provision. Keep your paragraphs short, your sentences flowing, and your language punchy. Use your headings as a guide. Above all, be persuasive and positive. Conclusion and Signature In a one paragraph conclusion, tell the court the disposition you are seeking: affirmance, reversal, or remand. You may ask for relief simply “on the basis of the argument presented above” or “for all the foregoing reasons.” Many counsel request “all other relief that is just and equitable,” because hidden issues could influence the result. You may include such a request. Finally, submit your brief respectfully to the court on behalf of your client. Our programs require anonymity. As such, you may simply write “Attorney 1” and “Attorney 2,” or “Attorney for Issue 1” and “Attorney for Issue 2.” The Argument The Argument section is the heart of your brief. To structure your argument, begin with a contention, support your contention with the applicable rule, explain the law (case law, statutes, and other legal authority), apply the law to your facts, and draw a conclusion. Each issue and subissue should start with a contention about your case, stated in terms of the facts of your case. For example, if your client seeks to exclude evidence because of a Fourth Amendment violation, your contention might read: “This Court should exclude the evidence seized because the police failed to obtain consent for the search from the residence’s occupant.” A sub-issue contention in that brief might read: “Petitioner’s roommate did not have authority to consent to the search of Petitioner’s bedroom.” After stating a contention, provide the court with a discussion of supporting cases and other authority. Do not present the court with a list of cases or an objective discussion of applicable case law. Instead, synthesize the cases and explain to the court why these cases support your contention. After discussing the rule and explaining the law, apply the law to your case. For example, you might write: “As in State v. Johnson, Petitioner kept his bedroom locked and did not allow his roommate to enter his bedroom.” Finally, conclude with a restatement of your beginning contention. Always remember, your goal is to persuade, not to explain. Every sentence of your argument should advance your case. General Principles 1. Be organized. After you finish researching and before you begin writing, prepare a thorough outline. Use your argument headings and sub-headings as the framework of your outline. Organizing will help you to identify your strongest arguments and place them prominently. 2. Be logical. Your arguments must proceed logically, with each point building on the foundation established by the previous points. Good reasoning makes your case. 3. Be specific. You are not writing a law review article; you are writing an appellate brief. Do not provide the court with a general discussion of “the law.” When you cite propositions from other cases, be sure to relate them to the facts of your case. Point to specific facts in the record that support your contentions. Show the court that based on the facts of your case, the court should rule in your favor. 4. Be clear. Keep it simple. In general, avoid long string cites, block quotes, and complex sentences. Clearly state the appropriate standard of review at the beginning of each issue and discuss the issue in terms of that standard. The standard of review is the standard that an appellate court uses to review the decision of the court below. For example, the court may review the lower court de novo, or reverse only if the lower court clearly erred or abused its discretion. 5. Be assertive. Your job is to advocate zealously on behalf of your client. Your brief should reflect your zeal. Write forcefully, use crisp sentences, avoid the passive voice, and emphasize the result you want the court to reach. 6. Be prospective. The court’s decision will affect more than just your client’s interests. Show the court why a ruling in your favor makes sense not only for your client, but also for future litigants and society in general. 7. Be critical and edit. No brief is ever perfect. There is always an argument you could have made, a case you could have cited, or a counter-argument you could have addressed. If you write and rewrite your brief, however, you will construct a better product than if you slap your brief together at the last moment. Have your partner read the brief with a critical eye. Watch out for writing flaws such as passive voice, overuse of pronouns, and overly complex sentences. 8. Be persuasive. Your goal is to persuade the court to rule in your client’s favor. Every section and every sentence of your brief must advance your case. Look at each sentence critically to determine whether the sentence is helpful, hurtful, or neutral. Only keep those sentences that help your case. The court should know immediately from reading any paragraph in your brief which side you represent. Do not make your opponent’s arguments. Headings Use headings to divide the points in your argument. Headings contain both facts and conclusions. The samples provided here are in Courier New to make them visually obvious. 1. Major Headings: Major headings state conclusions that you want the court to reach. Generally, major headings represent short answers to the Questions Presented. Thus, most competition briefs should contain two major headings, one for each issue. If your issue logically divides into two or three major headings, however, you may include more than two major headings in your brief. Label your major headings with Roman numerals. Write the headings as complete sentences, using capital letters throughout. Do not indent major headings. I. THE COURT OF APPEALS CORRECTLY HELD THAT PETITIONER SUFFERED NO PREJUDICE BECAUSE THE PRESENCE OF COUNSEL WOULD NOT HAVE AFFECTED THE OUTCOME OF THE PROCEEDINGS AND THE INS PROVIDED A FULL AND FAIR HEARING. 2. Sub-headings: Sub-headings provide the court with the reasoning underlying the conclusions stated in your major headings. Sub-headings should progress logically. Indent your sub- headings and label them with capital letters. Underline the text of sub-headings and use upper and lower case letters as usual. A. Petitioner’s Fifth Amendment due process rights were not violated because the INS held a fair and unprejudiced hearing. 3. Sub-sub-headings: Sub-sub-headings provide even finer discussion of the points made in the sub-headings. Indent sub-sub-headings and label them with Arabic numerals (1, 2, 3 etc.). Do not underline the text of sub-sub-headings, and use upper and lower case letters as usual. 1. Petitioner had an adequate opportunity to be heard at the INS hearing. Use of Authority Provide authority to support all of the points in your arguments. Be aware of the nature of the type of authority you cite. 1. Stare decisis: Stare decisis, or precedent, guides every court. Nevertheless, courts do reconsider their precedents, especially when society’s needs demand that the court re-evaluate the propriety of an established doctrine. If the precedent in your jurisdiction hurts you, show the court how a change will benefit not only your client, but society at large. Conversely, many precedents remain intact because they make good sense. If the law supports your position, argue that the law should remain unchanged and show why. Pay close attention to the identity of your court. Courts cannot overturn decisions of higher courts within their jurisdictions. 2. Binding and Persuasive Authority: Not all authority is equally persuasive. Be sure you understand the difference between binding and persuasive authority. a. Federal Law in Federal Courts United States Supreme Court decisions bind all United States Courts of Appeals and federal district courts. The Supreme Court is not bound by its own decisions, but the Court gives considerable weight to its previous decisions under the doctrine of stare decisis; the Court is reluctant to overturn its own precedent. The decision of a United States Court of Appeals binds all federal district courts within that circuit. A federal Court of Appeals decision does not bind other federal Courts of Appeals and their respective district courts, but is persuasive authority. Federal district courts decisions have some persuasive value in other federal district courts, particularly if the court or judge rendering the decision is highly regarded. b. Federal Law in State Courts United States Supreme Court decisions bind all state courts on questions of federal law. Federal appeals court and district court decisions on federal law are persuasive in state courts. Except for habeas corpus proceedings, the only federal court that can review state court decisions is the United States Supreme Court. c. State Law A state’s highest court binds both state and federal courts on state law issues. When federal courts rule on matters of state law, they look to the decisions of the state’s appellate courts for guidance. Federal court decisions on matters of state law are persuasive to state courts, but not binding. 3. Dicta: Dicta are statements a court makes in rendering a decision which are not essential to the resolution of the case. Dictum is not binding, but it often shows the direction the court is likely to take. Be selective in using dicta. Do not misrepresent dictum as a holding. 4. Quality of Authority: Always consider the quality of the authority you cite. Some courts have reputations as specialists in certain fields. For example, the Second Circuit is highly respected in securities matters, while New Jersey courts are leaders in products liability cases. Likewise, some treatises and articles are written by more prominent scholars. Some states resent citations to outside authority. You will learn in your practice what your local courts prefer. In general, refer to outside sources sparingly in cases involving state statutes, except when the statutes are based on uniform acts such as the Uniform Commercial Code. If there is no relevant law in your jurisdiction or if cases go both ways, cases from other jurisdictions may be useful. For your moot court briefs, you may cite all authorities available in any Boston University library, as well as authorities available on the Internet and on services like Lexis and Westlaw. Brief-Writing Tips 1. Allocate your time. Do not sacrifice writing for research. Complete all your research within a few days. Spend the bulk of your time writing and rewriting. 2. Coordinate with your partner. Do not advance arguments that undermine or conflict with your partner’s position, unless you make clear that your argument is an alternative approach. 3. Create a neat, consistent brief. Briefs that look good impress judges. Make sure your brief looks like one continuous document, not two separate halves thrown together right before the deadline. Your Questions Presented, argument headings, etc., should be in the same format for both issues. For example, if one Question Presented begins with the word “Whether,” the other question should begin with “Whether,” not “Did.” Also, proofread carefully; a computer spell-check program will not catch all errors. Do not hand in a brief with typographical, grammatical, or spelling errors. A sloppy brief predisposes judges against you even before they get to the substance of your arguments. 4. Plan in advance. Avoid a last-minute scramble to submit your brief. Do not expect to zip into the law school, combine your argument with your partner’s argument, and whip up a Table of Contents and Table of Authorities. Combining the briefs takes time, and should not be done at the last minute. Courts do not accept late briefs and neither does the Law School. Special Note on Computers Computer malfunction is not an excuse for lateness! Early in the process, find out what word processing system your partner uses. If your partner’s system differs from yours, arrange even further in advance to convert one part of the brief into the other format with adequate time to correct any resulting formatting problems. Do not wait until the night before your brief is due to combine your portion of the brief with your partner’s portion. Back-up your document frequently to avoid losing your brief in the event of a computer problem. Internet connection and email problems may also arise. Therefore, do not wait until the deadline to email your brief. We understand that computers may malfunction through no fault of yours, but we will not accept computer problems as an excuse for a late brief. Allow time to remedy computer errors. Oral Argument General Principles 1. Be familiar with your case. While appellate judges often know the legal principles involved, they may not have had time to familiarize themselves with the facts of your case. Judges, therefore, may ask you to point to specific facts that support the result you advocate. Your knowledge of the facts and the reasonable inferences they support is essential. Although your case is built on the facts, you must also cite authority for your position. In oral argument, judges may ask you to explain why a particular case supports your position or why seemingly opposing authority does not undermine your position. Read and re-read every major case cited in your brief and your opponents’ brief so that you are prepared for questions about specific cases. If you mention a case in your oral argument, you should be familiar with its facts. Generally, in oral argument, you may cite only authorities cited in your brief or your opponents’ brief. If you discover a case that was decided after you submitted your brief, however, you may use the case. You must inform both opposing counsel and the court before using such authority. Be sure to bring copies of the new case for opposing counsel and the judges. 2. Be selective. You have only ten minutes to present your case (fifteen minutes in Stone and Albers). Address only the major points in your brief. Confine your prepared argument to a few key issues, but be prepared to discuss all of your arguments. You cannot anticipate all of the judges’ questions. 3. Be organized. Prepare an outline for your argument and notes to supplement the outline. Once the questioning begins, you may lose track of the focus of your argument. An outline will bring you back on track. If you feel the need, you may bring an outline of your arguments to the podium. If you bring more than one sheet of paper to the podium, however, the papers may distract you or the court. A good method is to staple your outline on the inside of a manila folder. You may also want to write out your opening and closing sentences. Do not, however, write out your entire argument and do not read your argument to the bench. Reading will bore and distract the judges, rendering your argument ineffective. Oral argument is a dialogue with the court. Your outline should allow you to start your argument, to get back on track if the judges detour you, and to close with a flourish. 4. Be Respectful. Allow the judges to interrupt you, but do not interrupt the judges. Answer all questions respectfully. Do not get defensive or argue with the bench. Remember, the judges who hear your argument are the judges who will rule on your case. You want them to rule in your favor. The Argument Your moot court argument will take place in one of the courtrooms on the fifth or sixth floor, or in a law school classroom. Visit your assigned room before your argument so you feel comfortable in it. Remember, however, that you may not attend earlier arguments of your case. Courtroom Etiquette Judges expect attorneys appearing in court to dress in professional attire. All students should wear suits to the oral argument. Arrive at the courtroom in time to get organized. When you enter the courtroom, sit at the proper table. As counsel face the bench, Appellants or Petitioners sit on the left, Appellees or Respondents on the right. The clerk will convene the court and announce that the judges will enter. Rise when the judges appear and remain standing until given permission to sit. Always stand to address the court, even to give your name. At the beginning of the argument when the clerk asks if you are ready, you must stand to give your response. In the courtroom, if your mouth is open, you should be standing. Stand at the podium to deliver your argument. Maintain eye contact with the judges throughout your argument. In addition, maintain the formality and decorum appropriate in a courtroom. Do not use slang and avoid excessive hand gestures. Never use the first person, even in your response to questions. Do not say “I believe” or “we contend”; just state your position. Do not interrupt the bench. You must be extremely deferential to the judges. Always address the judge to whom you are speaking as “Your Honor.” The judge’s associates may be referred to by name -- “Judge Lopes” or “Justice Goldberg” -- or by designation, such as “The Chief Judge.” Refer to your partner by name, or as “my colleague” or “my co-counsel.” When mentioning your adversaries, use their names or their designation, such as “Counsel for the Appellee.” Sit quietly and attentively while the other participants present their arguments. If you must communicate with your partner, write notes (and pass them quietly) rather than whispering. Mechanics of the Argument Each advocate will receive fifteen minutes to argue (in Albers and most external competitions, advocates can divide their team’s total 30 minutes unevenly if they wish). Appellants (or Petitioners) argue first. One counsel for the Appellant remains seated while the other stands at the podium to argue. When the first counsel for Appellant finishes, he or she sits down and the second counsel for Appellant approaches the podium to argue. After both counsel for Appellant have argued, counsel for the Appellee (or Respondent) present their arguments in succession. Advocates should proceed as follows: 1. Approach the lectern and await a sign from the Chief Judge that the bench is ready to proceed. Each advocate must await a sign from the bench to begin. 2. If you are the first counsel on your side, introduce yourself and your partner. (“Good afternoon (or evening). May it please the court, my name is Tiffany Washington, Counsel for Leatrice Joyce, the Appellant (or Appellee). My co-counsel is Seth Gordon.”) Tell the court briefly what you will argue (“I will show this court why this case is barred by the statute of limitations.”) and what your partner will argue (“My co-counsel will demonstrate that the lower court erred in awarding damages to the appellant.”). If you are the second counsel on your side to argue, start with the formal greeting, introduce yourself, but not your partner, and tell the court briefly what you, but not your partner, will demonstrate. 3. Assume that the judges are familiar with the facts of your case. Therefore, you need not give a statement of the facts. The first advocate on each side may strategically wish to state certain facts, however, where the facts help their case. If Appellant states the facts and omits crucial facts, the lead Appellee should set the record straight at the beginning of Appellee’s argument. 4. Begin arguing. At the outset of your argument, give the judges a roadmap of the major points you will address. For example, you might state “There are three reasons why the court should suppress the evidence seized by the police.” After your overview, delve into the particulars of each argument. 5. The clerk holds up time cards during each argument, showing how much of the allotted time remains (in Albers, competitors will have a countdown timer). If you finish early, ask the judges if they have further questions. If they do not, conclude and sit down. If your time runs out before you finish your argument, complete your sentence, acknowledge that your time has expired, thank the court, and sit down. If you are the second advocate on your side, urge the court to take a particular action (affirm, reverse, remand) “for all of the reasons advanced here, and those mentioned in our brief.” That way, the court will not disregard major points made in your brief which you did not reach in oral argument. 6. Appellants (or Petitioners) may rebut after the second Appellee speaker concludes. Counsel for the Appellant should reserve with the clerk, prior to the start of arguments, up to two minutes for rebuttal. After Appellees complete their argument, Appellants may use their reserved time to respond to specific points raised by Appellees, i.e., “Contrary to Appellees’ contention, Appellant did not explicitly consent to the search.” Appellants may not use rebuttal to make arguments they forgot or did not have time to make in their main presentation. Following Appellees’ argument, if Appellants do not have specific points to rebut, Appellants should waive rebuttal. 7. After all advocates have argued, the clerk adjourns court and the judges leave the room. When the judges return, they may announce a best oralist, and they will provide general feedback. They will not decide the merits of the case. Summation You may finish your argument before time expires. If you do so, do not fill the silent void with needless or repetitive arguments. Simply sum up your major points, respectfully ask the court for relief, thank the court, and sit down. If time allows, you may wish to add a one sentence policy argument to make a forceful conclusion. If time runs out before you finish your argument, finish your sentence, acknowledge that time has expired, thank the court, and sit down. If you are answering a judge’s question when time expires, acknowledge that time has expired and request the court’s permission to finish answering the question. If the court grants permission, quickly finish your answer, thank the court and sit down. If your time has expired, you should not make a conclusion. Oral Argument Tips 1. Be flexible. Every appellate bench differs. You may have a “hot bench” with judges who begin asking questions as soon as you have introduced yourself and continue to do so throughout the argument, even after time has expired. Active benches are an advocate’s dream. Your time will seem to fly by. Do not, however, let an active bench argue your case for you. You should control the presentation. Conversely, you may have a “cold bench” that sits silently while you present your arguments. In that case, try to involve the court with your persuasive style. Few judges sit completely mute through an entire argument. Some benches, however, may be “dead benches.” Prepare for that possibility by practicing a full presentation that you can present to a dead bench. 2. Be specific. Your case involves people’s lives and fortunes, and your presentation should reflect that. Cite specific facts that compel the court to rule in your favor. Thoroughly familiarize yourself with the record and the facts of key cases. 3. Be direct. If the court asks a question, answer it directly. Do not tell the court that you will reach that point later in your argument, or that you treated the issue in your brief. If the court asks a question which you can answer with a “yes” or “no,” you must do so. Say “Yes, Your Honor” or “No, Your Honor,” even if the response seems to hurt your case, then explain your reply. If the question takes you off your argument outline, answer it and try to resume your argument. If the question concerns an issue that you plan to address later, change your order of presentation and address the issue now. Never say “I will get to that point later.” If the court asks you a complicated question about your partner’s argument, simply tell the court that your partner will address that issue. Know enough about your partner’s argument, however, to answer rudimentary questions. On basic questions, give a brief, general answer and tell the court that co-counsel will address the matter more thoroughly. 4. Be prepared. How do you get to be a successful appellate advocate? The same way you get to Carnegie Hall: practice, practice, practice. Specifically, practice out loud. Practice your argument in front of a mirror. Practice into a tape recorder. Practice with your partner. Practice with someone unfamiliar with the case to ensure that you explain your points effectively. Prepare a full presentation, because knowing that you have enough to say will alleviate nervousness. You will have an opportunity to practice your argument before a bench composed of your Lawyering Skills Professor and your Lawyering Fellows. Be prepared for your practice argument so that you can get the most out of it. To prepare for your oral argument, re-read your brief and outline your three or four strongest points. Prepare an oral presentation of these points, including cases to support them. Read your opponent’s brief carefully, as well as any that cases your opponent cites with which you are not familiar. The bench will challenge you with your opponents’ strongest arguments. Prepare answers in advance to explain why your arguments prevail over your opponent’s best points. Write out and memorize your introductory sentence, so that when you first approach the podium, you will have something to say regardless of how nervous and tongue-tied you feel. 5. Be careful. Listen to the questions posed by the bench. Do not concede your entire case when answering hypothetical questions. You must, however, know when to concede. Decide in advance how far you are willing to go if pressed by the bench. If you have stated your entire argument on a point and the bench still expresses disagreement, concede and move on to your alternative arguments. Also, listen to your partner’s and opponents’ arguments. Structure your argument to dovetail with your partner’s arguments and to rebut your opponents’ arguments. 6. Be respectful. Do not argue with or interrupt the judges. The judges ultimately decide your case. You do not want to alienate them. Always be respectful. Listen attentively and respectfully to the judges’ comments and questions. Do not evaluate the quality of the questions; simply answer them. If a judge makes a statement with which you disagree, do not be afraid to say politely, “No, Your Honor,” and then explain. When a judge interrupts you, stop speaking immediately and listen to the question. If the court asks the same question over and over, try to clarify your position. Do not tell the judges, “As I already said . . . .”