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Hardt Cup 2013
March 18 – April 8
What is the Moot Court Board?
Appellate Advocacy at Duke Law
Intramural Competitions Jessup Cup Hardt Cup Dean’s Cup
Interscholastic Competitions
http://law.duke.edu/students/orgs/mootcourt/
Hardt Cup Overview
Oral Argument: the Basics What Is It? Why Do It?
Hardt Cup Format Structure Schedule
How It Works
Structure of an Argument
Questions
The Basics: What Is It?
Oral advocacy is the chance for you to win over the Court Motivate the Court to decide in your favor Demonstrate the strength of your position Resolve questions and concerns
The Basics: Why Do It?
Build confidence
Learn how to simplify complex legal arguments effectively
Set yourself apart “Moot court or journal preferred”
Improve writing and public speaking skills
Build relationships with fellow students and with faculty
Participate in interscholastic competitions
It’s fun!
Hardt Cup Format: Round 1
Round 1: March 18 – March 19, March 21 – 22 Everyone competes (that means you!) 2 arguments, 1 night: one as appellant, one as
appellee Compete against people in your LARW section 2-judge panels Judges are 2L and 3L students on the Moot Court
Board 10 minute argument for each side (including 1-2
minute rebuttal)
Hardt Cup Format: Round 2
Round 2: March 25 – March 28 Voluntary (deadline to register is 11:59 p.m. on March 22)
Email [email protected] with name and preferred email address Sign-up in person at Hardt Cup Table during Round 1
Same parameters Student judges 1 argument on each side
New case Materials provided via email 48 hours in advance (Case + 4-5 other cases
to use in building your argument) Limited Universe: you can only use the material provided and cannot
consult anyone else 4-6 hours to prepare (don’t skip class!)
Following Round 2, the top 40% of the 1L class will be invited to move on to Round 3
Hardt Cup Format: Round 3
Round 3: April 1 – April 3 If you move on to Round 3, you must compete New case (but same parameters as in Round 2)
Board Invitations & Quarterfinals 10% of 1L class will be invited to join the Moot
Court Board Top 8 competitors will move on to Quarterfinals
Hardt Cup Format: Final Rounds
Quarterfinals: April 4
Semifinals: April 5
Finals: April 8
Same problem as Round 3 for all subsequent rounds Panel of 3 faculty judges for quarterfinal/semifinal rounds Panel of 3 federal appellate judges for final round 15 minute arguments (1-2 minute rebuttal) Same rules apply – limited universe, no outside help, no
skipping class
How It Works: Scoring
Remember: Moot Court is a competition, a game.
Score Sheet available on Hardt Cup website
20 points possible for each argument 10 for style
Clarity of presentation Responsiveness to questions Use of appropriate formalities Presence of verbal tics
10 for substance Command of fact pattern Well-supported, reasoned claims Knowledge and understanding of relevant law Substantively correct answers to questions
How It Works: Structure
Each side gets 10 minutes Appellant/Petitioner begins
May reserve 1-2 minutes for rebuttal (1 is recommended) If you end early, you may reserve the remaining time for your
rebuttal Appellee/Respondent
No surrebuttal If you end early, you may yield remaining time back to the
court Appellant/Petitioner Rebuts
Focus on 1 (maybe 2) issues for your rebuttal 1 minute goes fast – keep it simple
How It Works: Before Your Round
If the room is occupied, knock once and wait for the room to clear
If the judges have left when competitors enter the room, competitors should wait for the judges to knock on the door and re-enter
When judges enter the room, both competitors must stand
Judges will often handle paperwork beforehand Score sheet information Rebuttal time
After formalities have concluded, the judges will signal the appellant/petitioner to approach the lectern and begin
How It Works: Your Argument
Introduction
Roadmap
(Facts)
Issue One
Issue Two
Conclusion
Rebuttal (Appellant/Petitioner only)
Introduction: “May it please the court…”
Federal Circuit Court (Rounds 1 & 2) Appellant/Appellee “May it please the court, my name is Thurgood Marshall, counsel
for the Appellant, Oliver L. Brown.” Address judges as “Judge Posner” or “Your Honor”
United States Supreme Court (Round 3) Petitioner/Respondent “Mister/Madam Chief Justice, and may it please the court, my
name is Thurgood Marshall, counsel for the Petitioner, Oliver L. Brown.”
Address justices as “Justice Kagan” or “Your Honor”
Introduction: Rebuttal
After addressing the court and introducing yourself, it’s time to ask for rebuttal “With the court’s permission, I would like to
reserve 1 minute for rebuttal.”
Framing Your Argument
This is your chance to shape the issues in your favor and is one of the most important elements of your presentation “This case is about the inherent inequality of segregated school
systems, which stamp a badge of inferiority upon minority children.” “This case is about the principles of federalism and stare decisis,
which counsel this court to affirm its precedent in Plessy v. Ferguson, allowing states to operate separate facilities of equal condition.”
Remember: the judge is less familiar with the case than you are. The framework orients him or her in the area of law at issue.
Be specific, be persuasive Don’t say this case is about “justice, fairness, and equality under the
law.”
Prayer for Relief & Roadmap
After framing the issues, it’s time to tell the court what you want and why “This court should REVERSE/AFFIRM the
lower court and hold that the Kansas statute is unconstitutional for two main reasons: “First, because segregated schools can never be
equal; AND” “Second, because segregated schools violate
the equal protection clause of the 14th Amendment.”
(FACTS)
If you are Appellant/Petitioner, be prepared to recite the facts to the judges “Would the court care for a brief recitation of the facts?”
Most judges will say “no” Keep it short & simple
No more than 30 seconds Don’t tell the judges everything that happened – they’ve
read the record; just tell them about the 2-3 most important facts (this should help frame your side)
Appellee/Respondent Only offer facts if Appellant/Petitioner made serious errors
with LEGAL significance
Argument
Start with a thesis (like your opening, but with more detail) “First, schools separated on the basis of race can never be equal
because segregation ingrains in minority children a deeply harmful sense of inferiority.”
Substance of your argument Detail for 3-4 minutes Apply facts Utilize the case law
Transition to the second point “Second, segregated school systems violate the Equal Protection Clause
of the 14th Amendment as articulated by this court in Bolling v. Sharpe.”
This mirrors the structure of your appellate brief!
Timekeeping
During Rounds 1, 2, & 3 One of the judges will keep time He or she will hold up a card at 5 minutes (“5”), 1 minute (“1”), and at
the conclusion of your time (“Stop”) If the “Stop” sign is raised while you are still speaking, stop speaking
and ask for permission to conclude If you are in the middle of a statement, ask, “Your honor, I see that my
time has expired. May I briefly conclude?” If a judge has asked you a question, ask, “Your honor, I see that my time
has expired. May I answer your question and briefly conclude?” Answer as quickly as possible and wrap up
You will be docked points for dragging this out
During the final rounds a bailiff will keep time Look at the bailiff to acknowledge the timecard but do not nod or thank
him (this is distracting to the panel)
Conclusion
If you see 1 minute remaining, try to move to your concise conclusion There is no need to ask permission to do this Incorporate your legal conclusions into the result you seek:
“Thus, segregated school systems are unconstitutional regardless of the quality of the buildings and comparability of the teachers’ salaries. It is the inherent inequality of the separation itself which violates the mandate of the 14th Amendment. For these reasons, this court should reverse the court below and hold that the Kansas statute is unconstitutional. Thank you.”
If your time elapses, ask to briefly conclude with a short statement: ONE SENTENCE – “For the foregoing reasons, this court should
REVERSE/AFFIRM the holding of the court below. Thank you.”
Your conclusion = your prayer for relief!
Rebuttal
This is the Achilles’ Heel of many oralists
For the Hardt Cup, 1-2 minutes (1 recommended)
Keep it simple: focus on the main issue
Begin with: “May it please the court, [Appellee argues…]” Respond to major legal flaws or implications of the
Appellee’s position Prepare responses, but be responsive to the judges’
questions and the points Appellee makes in the argument
Answering Questions (I)
It is important to prepare your argument thoroughly but in most cases, you will spend the majority of your time engaging the judges by responding to their questions
At its heart, oral advocacy is a conversation with the court – be responsive to the judges’ questions and concerns Do not say, “I’ll answer that later in my argument” Part of the skill set is the ability to answer a question directly
and then circle back to the points you want to make
Begin your answer with “Yes” or “No” whenever possible Don’t be evasive: know what you can concede and do not be
afraid to do so (judges are testing the limits of your argument)
Answering Questions (II)
You only have 10 minutes, so be concise with every answer
Make fluid transitions from answering questions to your argument
Ask for clarification if you do not understand a question One trick is to say, “As I understand your question,
Justice Scalia . . .” and then restate the question This buys you time to think of an answer if needed
Speaking to the Court
Be deferential Judges will interrupt you whenever they want If a judge begins, STOP – don’t speak over a judge Judges can be belligerent; they are testing your
composure, so remain cool and confident Address the judges by name: “Yes, Judge
Easterbrook, the case can be distinguished” You can also address them as “Your honor”
Wait until the panel is ready to begin your argument
Speaking About Your Opponent
Be polite “Opposing Counsel…” “Appellee/Respondent characterizes this case
as…”
Do not accuse your opponent of lying
Do not attack your opponent personally
Standing at the Lectern
You want the court to focus on your argument, not you
Stand up straight
Be steady (do not shift your weight so often that it becomes distracting)
Keep your hands at the sides of the lectern and do not lean on the lectern
Hand gestures are acceptable for emphasis but should be used sparingly so as not to be distracting
Presentation Style
Be confident! Speak clearly and slowly Speak naturally Speak respectfully (this is a formal presentation)
Maintain eye contact when possible When responding to a judge’s question, make eye contact with the entire
panel Hold eye contact with a judge for a few sentences, then move to the next
judge
Don’t read your argument! You should have your opening and conclusion MEMORIZED Refer to notes only if needed Don’t script your argument – prepare an outline/bullet points with relevant
case law to cite
How to Prepare (I)
Practice explaining your case out loud in simple terms Practice saying your Introduction and Conclusion aloud.
Focus on making positive points for your side rather than ranting about why the other side is wrong
Outline your argument (1-2 pages) Keep it simple Keep this outline in your folder and refer to it as needed. Try
not to look down if you can avoid it.
This is a conversation, not a speech!
Anticipate questions and prepare responses
How to Prepare (II)
Use the cases! Cite cases to build your interpretation of the law Use the cases to make comparisons and analogies Refer to cases by name. “As the 4th Circuit held in Pittman
v. Hardt . . .” When referring to precedent in the sitting court, say, “As
THIS COURT held in Duke v. Vandenberg . . .” Say the full name of the case the first time, then the
shortened version throughout the remainder of your argument (“Pittman directly addressed this issue”)
Relax and have fun!
What to Bring Up With You
Folder with 1-2 page outline of your argument Big font! Bullet Points Avoid writing full sentences. You will end up reading from your
paper instead of engaging with the judges. Ideas:
Table of Authorities from Appellate Brief Short case summaries with key facts List of facts from your case Don’t worry too much about cites to the record. Just know your
facts Roman numerals/numbers to keep your bearings if you get lost!
Attire
Business formal attire Dark suit, dress shirt, dress shoes (tie for guys)
Keep your hair out of your face/eyes
Again, you want to be remembered for your argument, not your rad, hot-pink Converses and yellow Wayfarers
Questions?
Hardt Cup Website: http://law.duke.edu/students/orgs/mootcourt/hardt/
Talk to us (Doug Hollins, Jules Mugema, Zi-Xiang Shen)
Skills Session: Tuesday, March 5 at 12:15pm (Room 3041)
