The Key Elements of a Moot Court Brief
A moot court brief is a legal document that is submitted as part of a moot court competition. A moot court brief serves as a written round in an oral argument. In a moot court simulation, the brief gives each team a chance to argue their case before a panel of judges. As such, the brief is an important legal writing exercise for law students, because it forces them to think critically about their arguments and persuade the judges of their position . Law students develop their legal research, organization, and advocacy skills while drafting these documents. For these reasons, mastering the art of brief writing is essential for participants in any moot court competition.
Moot courts are not usually open to the public, but they resemble real-world appellate-level litigation. Like in an appellate court, judges may interrupt briefs to ask pointed questions. For this reason, outstanding brief writing and oral argument skills are vital to success in moot court competitions.
The Basic Building Blocks of a Moot Court Brief
The structure of your moot court brief is extremely important to your success in the competition. But what structure should you follow?
Your effective moot court brief should contain the following components:
Statement of Facts – Your judges will get their first impression of your argument from your statement of facts. This section needs to be clear, concise, and accurate. If you misdescribe key facts, your credibility is shot. Worse, you could give the other side immunity from responsibility for those facts. Be sure to get the facts straight, and create them in a way that is most favorable to your position. However, give yourself the ability to explain the facts in a more favorable light if the other side is trying to characterize them differently.
Issues Presented – Your issue statement is the first hint the court will have of your position, so make it as clear and persuasive as you can. However, you may wish to avoid arguing about semantics and use the most relevant language instead.
The Arguments – Your argument section is the meat of your argument. Use this space to convince the court of your position, and to show its flaws in the opposing party’s logic. Your brief should follow the same structure as an oral argument, with issues presented half in practice, half in theory. Devote equal time to the law and policy arguments, and provide citation to relevant sources wherever possible. Consider using footnotes to address counterarguments, as well as issues that are not directly related to the concerns in the moot court problem.
Conclusion – Your conclusion is your last chance to persuade the court to find in your favor, so make it memorable. In addition, a word-for-word transcription may be required for the oral argument portion of the moot court competition.
Constructing a Convincing Argument
Having developed the facts and the theory of your moot court problem that will not change in your favor or be rebutted by the opposing party, you are ready to use those facts, plus any and all extra facts that you can develop for your brief, as well as any possible facts that the opposing team might raise, to persuade your judges that your theory is right – or that you should win.
You again use your research skills and all of your legal knowledge to do this. First – if you have not already done so – you have to collect all the statutes and case law (including your opponent’s) on the moot court problem and then analyze them. At the same time, you have to be integrating this information into your previously discussed theory, assuming it has not changed. Note that good analysts do not just blindly accept the language of cases. They must understand the purpose of the language and why it was written that way.
Second – if you did not do it before – you must also integrate into your theory any language in the moot court problem that might assist you in rebutting the other side’s arguments.
Third – remember that in almost all moot court problems meeting the burden of proof, albeit it is likely a burden that is lower than that in a real case (probably in the civil "preponderance" range), is a big part of a winning argument. While you should both argue the law and give specific facts supporting an argument in favor of your theory, you may find it is best to also explicitly show how those facts meet the burden of proof, and are more convincing than the facts that support the opposing counsel’s theory.
Fourth – you should pay particular attention to contrasting your theory or theories with the other side’s theory or theories and rebutting the other side’s theories in each argument that you make. Doing this provides you a comprehensive framework within which to make your arguments and provides you the opportunity to pro-actively dismiss opposing arguments that could be made against your theory. (This will also help the judges realize that you are not just regurgitating opposing party’s arguments without challenging them.) There is nothing worse than waiting until rebuttal – when the judges are tired and pressed for time – to find a huge hole in the other side’s theory that an obvious counter-argument could win the moot court problem for you. However, this does not mean that you can’t reiterate those arguments again in your rebuttal – and get some extra points that way.
Moot Court Brief Format and Style
When it comes to style, there are some general rules that apply to all legal writing, and then there are rules specific to moot court briefs. Pay careful attention to the requirements of your competition, as the specific court or tribunal may have its own style requirements that must be adhered to.
Formatting is often one of the weakest points for students in the legal writing area, so it is valuable to review it here. Typically, moot court briefs and law review journals both follow the Bluebook rules, but in addition to those rules, law review journals have their own style guide that must be followed.
Font: Most law reviews recommend 12-point size for the font of the entire text, except in footnotes. Although some justices on the United States Supreme Court wear reading glasses, they are not permitted to use 14-point type for their opinions. The bluebook recommends footnotes in 10-point type. Although it is more aesthetically pleasing, avoid the temptation to use a smaller font if permitted to do so by your competition.
Margins & Indentions: The right-hand margin is always to be left unjustified. Otherwise, margins of at least one inch must be kept at each edge of the text. Approximately 2 inches should be left at the top of the first page of text. Each paragraph should be indented from the left hand margin. The first line is indented 2 inches from the left hand margin on all pages except the first page of text. For the first page, indentation allows 1 inch for footnotes and 1 inch allowance for the end of the text where the judges’ names will be placed.
Referencing Cases: Accurate references to the cases and arguments analyzed in your brief are crucial. When referring to other sources of law, the following table provides the format to follow to cite particular sources (abbreviations for the different sources and some examples of its use):
Case law: Case name, volume number reporter page number (year of publication). Statutes: Title number Code section number (or section number if no code is published), volume number, library abbreviation (such as U.S.), page number (or section number if no volume is published) (year of publication). Administrative Codes: Title number (if any), name of code, section number, library abbreviation (such as U.S.), page number (or section number if no volume is published) (year of publication).
Even though you may be tempted to write differently for various classes, try to have a uniform way to cite your cases and statutes so that in your mind they become second nature.
Language: The language of legal writing should always be formal. You should think that each piece of writing can be scrutinised by a Harvard professor. Avoid using overly complex sentences for practice. Keep your writing clear and concise. As much as possible, participate in a round of editing with a colleague to ensure that the writing is coherent as well as grammatically accurate. A moot court room is a place where you have to convince experts of the law without any deviation from order. Hence, the writing above all should be clinical and highly formal.
After preparing your moot court brief, check for the following:
Avoiding Common Errors in Your Moot Court Briefing
Despite putting hours of work into your brief, you may still end up with an inferior product if you don’t watch out for common mistakes. One of the most likely to go unnoticed is poor research. Briefs should be based on accurate, well-analyzed authority. In doing your research, consider whether the authority you have found goes against your argument. If so, you need to do more research to either find a countervailing authority to support your position or rethink your position. Remember, negative authority is just as helpful and important as positive authority.
Another common mistake is failing to connect the rule of your argument and apply the rule to the facts. Be explicit about how you think the rule applies to your case. Many contestants rely on supposition from the judges, assuming that they will "get" the connection without much explanation. This is not a good strategy. My general rule of thumb is to treat the law firm reviewing your brief as hostile to your argument. Assume the judges know nothing, and just look at what you have provided them. Don’t make the mistake of expecting them to fill in the details of your argument or review your argument favorably for things they’ve done you haven’t told them about.
Another area where many teams fall short is in analyzing objections to an argument. When your opponent states an objection , you should address it. This means you need to include in your brief counterarguments to the anticipated objections that likely will be raised. In general, you should not waste valuable page space rebutting weak points, or even arguments presented by opposing counsel (unless there is really no stronger point available.) Go after the strongest likely arguments against your position with great detail and the weakest with little or even no detail. For the arguments that are of intermediate strength, respond as needed, but not to excess. Look carefully at what opposing counsel has said and respond to it; don’t just revisit your own argument as if addressing at an event — actually address what your opponent has said.
Another mistake is that some teams overestimate the importance of their research. While research is a key component of a good brief, sometimes your argument works with lousy case law. That’s okay – you’ll get extra points for finding good law, but if it doesn’t exist, it doesn’t exist. Be real and straightforward. Provide what you’ve found, and then provide a strategy for applying it to your case. If you believe your case fails under the rule promulgated in your main authority, but successfully advances your argument under another rule, say so. That’s where confidence and self-awareness in your own argument come into play.
Breaking Down a Sample Moot Court Brief
Before we discuss your feedback on the performance of all our participants, let’s take a moment to analyse a sample moot court brief. In the following evaluation, the commentary is aimed at a sample law school moot court brief, so you can see how important each section is and what to look for and listen to when you receive comments on your own submission.
The first example below is for a prosecution. Have a read through each section and decide what you think will have worked well in this brief and where it may have fallen short.
Their argument of "mere opinions from mere witnesses" are clearly flimsy. If you think about it in the context of court, if the witness stands in court and provides an opinion, it is no longer a mere opinion. It has become evidence of what they say.
It is a matter of personal judgment and individual evidence, and thus holds value in court.
For example, if someone were to witness a car accident, then immediately afterwards and in court they were to say that the driver was driving too fast, this is evidence of what actually happened and not merely the opinion.
Instead of addressing this reliance on opinions, the appellant has claimed that the mere presence of witness opinions warrants that the case has been proven by mere opinions and nothing more.
There is some merit to their argument in the example of "the opinion of Paul Younger" – although their attempt to use this to cast doubt on the evidence is flawed.
First, there is no opinion of Paul Younger in the original brief. There is evidence of what he heard, that he arrived at the scene and what his observations were. He was able to "see" what was happening (irrefutable evidence) from his vantage point and then provide an opinion on what he saw.
However, to the prosecutor’s credit, the appellant does seem to contradict and disprove their own evidence by saying, at one point, "Everyone took their eyes off the scene as they covered their heads from the poisonous gas."
So how could Paul Younger see any of this? What is not addressed by the appellant is the fact that the witness would have seen the explosion and then noticed what was happening once the gas had affected him and those around him.
And, in fact, the prosecutor is correct in arguing that the case is further proven by the fact that all four independently say Mr. Younger was driving fast. If they are all proven to be correct in their opinions in other respects, then they are very likely to be correct in this opinion as well.
A moot court example like the one above is plagued with holes which now need patching. The appellant has failed to address weaknesses in their own arguments and the reliance on witness opinion has almost proved the opposite of what they were hoping to prove.
When writing a law school moot court brief, you can use this same argumentative method to point out weaknesses in your opponent’s argument, or to create weaknesses in your opponent’s argument where none may exist.
Take a look at the prosecution’s arguments below and how easily they dismiss facts as mere opinions.
Does the prosecutor’s reliance on opinions prove to be the weak link in their own arguments? Is there a "mere opinion" in the prosecutor’s argument?
"A witness who merely remarks that they are in a position to "judge" is not entitled to be accepted as a witness."
If this statement regarding the likelihood of Paul Younger having been in the best position to judge is true, then this is quite a strong argument.
However, unfortunately for the prosecution, on page 2 they submit that Mr. Younger observed the crash from his car. If this is true then they can hardly argue to the contrary, can they?
And what is more – the topography of the driveway being sloping allows greater visibility of a much larger area than might otherwise be the case.
Findings made by one witness who is in a position to know and who has no motive to lie or fabricate should generally be accepted unless you have a compelling reason. Wouldn’t beach scenes count as a motive?
"A jury faced with the testimony of a witness who has no motive to lie or to fabricate evidence and who was in a position `e.g., at the scene of the crime,’ to testify to the knowledge that they acquired from their senses should ordinarily accept their testimony."
In a law school moot court brief, you can present the appellant’s arguments as similar to those made above – hinting at the fact that the witness was in a position to testify – and you can even put the statement in quotation marks as though you are quoting them completely.
The point is, the jury is intelligent enough to be able to imagine a situation of where and how the witness viewed the act and draw conclusions based on your arguments.
There you have it – a complete analysis of a sample moot court brief and how you can analyse those submitted by your own team.
When it comes to your own law school moot court, you will need to evaluate both yourselves as well as your opponents.
Keep these techniques in mind and give yourself the best chance of success by critiquing not only your work but your partner as well.
Advice from Veteran Competitors
Moot court is a unique experience unlike any other undertaken during law school, which is why students and law firms have made an art of preparing for the competition. "Most competitors have learned through the years that the best strategy is to tackle drafting and writing first," said Eric Lee, staff attorney for the Mississippi Court of Appeals. "It is essential to submit 100 percent of your brief on time to advance in the tournament."
Experienced competitors have learned that full completion of the written portion of the competition correlates directly with success in moot court. "I saw this pairing firsthand when I competed in the national ABA competition in D.C. last March," said Leigh Anna Straughter, senior staff attorney for the Mississippi Court of Appeals. "My partner and I had completely finished our brief two weeks before the competition. Those teams that were still working on their brief the night before the competition did not fare well."
The best advice from former competitors has been to begin early in the week in order to make revisions, and to actually set a deadline for yourself to finish ahead of the official deadline to allow yourself time to revise . "I say submit early because the one thing that you can’t do during the competition is call a time out to work on the brief. It’s done. It’s in."
The key is to stay organized. It is crucial to stay on track by mapping out exactly what portions of the brief need to be completed, and focus on those first. "If you find your mind wondering while writing the brief, find parts of the brief that you find monotonous, repeatable and easier to write, and work on those areas to get some momentum back," Straughter said. "A reader must remember that when you are writing for moot court, you want to show the judges you can think like a lawyer, not just write."
Lee said his biggest tip for success in moot court is to "talk to your coach and go over your timing." "You’ll need to add up the approximate time it will take to present your argument, both for the affirmative and negatory," Lee said. "Double check with your partner and your coach to confirm everyone’s timing before the judges call the names. Once you have confirmed each person’s individual timing, draft a final timing chart to use as you practice again with your partner or coaches."
