May It Please the Court

By Brett Twitty

Today marks the first day of oral argument in our annual John W. Davis Appellate Advocacy competition. Argument began at 3:45 p.m., and over the course of the next few weeks, the competition’s administrators will hear oral argument from 88 competitors. This group will eventually be narrowed to four finalists who will have the opportunity to argue in front of real judges, including W&L alumnus, former 4th Circuit Court of Appeal Judge and current Boeing General Counsel, Michael Luttig.

This competition is unlike any other Moot Court event. In short, from a participant’s standpoint, it requires so much more work and so much more time. However, if you talk to the competitors, you will invariably find it is also one of the most rewarding. Perhaps it’s the sheer challenge of the thing. Participating students have to write and file a fifteen page brief on a problem of constitutional law that is often unsettled and is scheduled to be heard by the Supreme Court of the United States in the upcoming term. While they can do this in pairs, they still have to formulate their argument, commit it to paper, meet the myriad technical requirements associated with a brief of this type, appropriately cite all legal precedent and set forth a description of the facts, amongst many other things.

After they’ve submitted their brief, the competition really begins. It is Appellate Advocacy after all. In the first two rounds, all competitors have the unique intellectual challenge of arguing on-brief (the case they argued in their brief) as well as off-brief (the opposing side of the argument, i.e. the case they did not argue in their brief). However, appellate advocacy is completely different than Mock Trial or the type of courtroom drama you see every night on “Law & Order.” Students argue in front of not one judge but rather a three judge panel for a period of fifteen minutes. Instead of being able to simply stand at the podium and make their arguments, the students are continually interrupted and questioned by the judges. The questions can be about anything about which the judges would like to talk, but often relate to various opinions, precedent and matters of public policy that bear upon the ultimate outcome of the case. Consequently, the competitors have to have an intimate knowledge of the many opinions in the particular area of constitutional law upon which the problem touches. Furthermore, they typically have to summon this information from memory. All the while trying to advocate for their particular position.

However, as daunting as this competition may be, the participants are not embarking upon this challenge blindly. A couple weeks ago, they had the opportunity to listen to an hour long presentation on both appropriate briefing strategy as well as effective approaches to oral argument by our Dean and noted appellate advocate, Rod Smolla. Dean Smolla has argued many appellate cases, particularly in the area of first amendment and free speech law, including one case before the Supreme Court of the United States. Below is an excerpted video of his presentation.

We wish all the competitors good luck, and we encourage you to stay tuned for future Moot Court videos, including the Negotiations Competition final as well as the Appellate Advocacy final. For more about our Moot Court program, as well as more specific information about the appellate advocacy problem, click here.

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